Jack and National Disability Insurance Agency

Jack and National Disability Insurance Agency [2022] AATA 1525 (8 June 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number 2019/8042
Re:Jimmy Jack
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:8 June 2022
Place:Melbourne

The Tribunal affirms the Decision Under Review.
........................................................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria met – whether disability requirements met – permanency of impairments – whether impairments resulted in substantially reduced functional capacity in one or more of the prescribed activities – whether early intervention requirements met – Decision Under Review affirmed – access not granted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
Secondary Materials
NDIS Operational Guidelines - Applying to the NDIS | NDIS
REASONS FOR DECISION
Senior Member K. Parker
8 June 2022
INTRODUCTION

The Applicant, Mr Jimmy Jack,[1] has disabilities arising from physical impairments and impairments attributable to psychiatric conditions. He seeks access to supports under the National Disability Insurance Scheme (NDIS).
[1] On 5 April 2018, the Applicant legally changed his name from “Adel Abdulwahhab Azeez Azmi” to “Jimmy Jack” – refer T-Documents T7. The T-Documents are a set of documents the NDIA lodged with the Tribunal in accordance with its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Mr Jack lives in Melbourne with his wife. Mr Jack has five adult children and five grandchildren from previous marriages. They who do not reside with him and his wife. Most of them live overseas. The clinical notes refer to Mr Jack having a son in living in Sydney. Mr Jack arrived in Australia in about 2015 as a refugee from Iraq. When he left Iraq in 2013, Mr Jack lived in Turkey for a couple of years before immigrating to Australia. Arabic is his first language. Mr Jack is capable of conversing in English at a basic level. At times during the hearing of this application, he required the assistance of an Arabic interpreter.
Mr Jack suffers from several physical and mental health medical conditions. He is also morbidly obese. Mr Jack underwent bariatric surgery in 2015 and lost approximately 40kg to 50kg in the three-year period leading up to July 2018.[2] Mr Jack was reported on 2 July 2018 to have a BMI (body mass index) of 37. His height was 172cm and weight was 110kg.[3]
[2] Refer T-Documents at T3. In a report dated 4 February 2013, Mr Jack’s weight was recorded as being 145kg by the Health Committee for the Disabled, Izzet Baysal State Hospital, Public Hospitals Institution of Turkey, Republic of Turkey.
[3] Refer NDIA’s Tender Bundle TB19/29, letter from Dr Rajiv Sharma, Respiratory & Sleep Medicine Services Specialist, dated 2 July 2018.
In March 2018, Mr Jack made a request under s 18 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) to be granted access to the NDIS (First Access Request). The First Access Request was not granted by the National Disability Insurance Agency (NDIA). Mr Jack did not seek a review of this decision by the Administrative Appeals Tribunal (Tribunal).
On or about 13 March 2019, Mr Jack made a second request for access to the NDIS (Second Access Request). By decision dated 31 July 2019, the NDIA did not grant access to Mr Jack. He sought an internal review of this decision under s 100(6) of the NDIS Act. On 4 November 2019, an NDIA “reviewer” affirmed the decision not to grant Mr Jack access to the NDIS (Decision Under Review). Mr Jack sought review of this decision by the Administrative Appeals Tribunal (Tribunal).
The Tribunal’s jurisdiction to review the Decision Under Review arises under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), read in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal concludes that Mr Jack does not meet the access criteria under s 21 of the NDIS Act and affirms the Decision Under Review.
ISSUES
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of the considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)either the “disability requirements” under s 24 or the “early intervention requirements” under s 25.

The Tribunal accepts, and it is not disputed by the parties, that at the time Mr Jack made his Second Access Request, he met both the “age requirements”[4] and “residence requirements” [5] under ss 22 and 23 of the NDIS Act.
[4] Mr Jack had not yet reached the age of 65 when he lodged his second access request.
[5] Refer NDIA’s Statement of Facts, Issues and Contentions dated 27 March 2020 (NDIA’s SFIC) at [7].
The issues in dispute in this application are confined to whether Mr Jack meets either:
(a)the “disability requirements” under s 24 of the NDIS Act; or
(b)the “early intervention requirements” under s 25 of the NDIS Act.
EVIDENCE
On 6 February 2020, the NDIA lodged a set of documents pursuant to its obligations under s 37 of the AAT Act (T-Documents). Mr Jack also lodged some further medical information on 1 July 2020 and 29 July 2021 which the Tribunal has considered.
Leading up to the hearing, the Tribunal identified during a directions hearing that the medical evidence before the Tribunal in relation to Mr Jack’s various medical conditions was sparse. Mr Jack was self-represented. Attempts were made to fill those evidentiary gaps. This proved to be challenging and those attempts were met with limited success.
Consequently, the NDIA requested that summonses be issued to obtain Mr Jack’s medical records. Those summonses were issued by the Tribunal, and medical and clinical records were produced from the following entities:
(a)The Victorian Foundation for Survivors of Torture Inc (The Foundation House);
(b)Chatfield Chiropractic;
(c)DPV Health;
(d)Northern Hospital; and
(e)Somerton Road Medical Centre (SRMC Medical Records).
The NDIA lodged a tender bundle of documents comprising documents extracted from the summonsed materials received from the above entities (NDIA’s Tender Bundle).
At the commencement of the substantive hearing, Mr Jack raised concerns about being unrepresented in this proceeding. At this point, the Tribunal asked Mr Jack if he sought an adjournment to give him further time to seek legal representation. Mr Jack answered “no”. The Tribunal checked again whether Mr Jack was happy to proceed, Mr Jack said he “trusted in the Member”, “that it had been going on for three years and he was tired of this” and “I cannot keep adjourning”. Based on Mr Jack’s preference to proceed, the Tribunal continued with the substantive hearing. The NDIA was represented by Ms Krystyna Ginsberg of counsel at the hearing.
At the substantive hearing, Mr Jack and his treating general practitioner, Dr Francis Basim, gave oral evidence and were cross-examined by Ms Ginsberg.
SUBMISSIONS
The following written submissions were lodged in this matter:
(a)NDIA’s Statement of Facts, Issues and Contentions dated 9 April 2021 (NDIA’s SFIC);
(b)NDIA’s Further Statement of Facts, Issues and Contentions dated 6 July 2021 (NDIA’s Further SFIC); and
(c)NDIA’s Further Submissions by email on 30 July 2021 (NDIA’s Further Submissions).
Both parties made oral submissions at the substantive hearing.
ACCESS RULES AND POLICY GUIDANCE
Section 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act or necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make National Disability Insurance Scheme rules prescribing circumstances in which, or criteria to be applied in assessing whether many of the disability or early intervention requirements are met under ss 24 or 25 of the NDIS Act.
Pursuant to s 209(1), in conjunction with s 27, the Minister has issued the following rules by legislative instrument - National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules).
The NDIA has also issued policy guidance on its website (Applying to the NDIS | NDIS) dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act.[6] The Tribunal will refer to this policy guidance as the Access Guidelines. As a general principle, the Tribunal will take this policy guidance into account and apply it when making its decisions, unless there are cogent reasons not to do so, for instance, the policy guidance is inconsistent with the provisions of the NDIS legislative regime.[7]
CONSIDERATION
[6] The policy guidance records that it was correct as of 2 May 2022 (see base of document).
[7] Refer Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Whether Mr Jack meets the “disability requirements” under s 24
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)       learning;
(iv)      mobility;
(v)       self-care;
(vi)       self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 24(1)(a) - Disability
The first criterion, under s 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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”.
In the Federal Court of Australia decision in Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (Mulligan), Mortimer J made some general observations about assessing whether this first criterion has been met, as follows (emphasis in bold added):
51.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…is generally understood as involving the loss of or damage to a physical, sensory or mental function.
While a decision-maker may take into consideration medical diagnoses that have been made in respect of the person as an indicator that they might have certain impairments, this does not complete the decision-maker’s task. A decision-maker must satisfy themselves on the evidence before them, whether the person has one or more impairments which involve the loss of or damage to their physical, sensory, or mental function.
The NDIA “reviewer”, who made the Decision Under Review, was satisfied that Mr Jack had a disability arising from impairments which arose from lumbar disc degeneration, disc bulge, tennis elbow, hearing loss, anxiety, depression, and post-traumatic stress disorder (PTSD).
In this proceeding, the NDIA did not contest the issue of whether Mr Jack had 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”, as required by subsection 24(1)(a) of the NDIS Act.
Taking into account the totality of the medical evidence, the Tribunal finds that Mr Jack has disabilities which are attributable to:
(a)physical impairments, arising from his spinal, hip, and knee conditions. Those impairments are exacerbated by his bodily state of morbid obesity and his obstructive sleep apnoea (OSA), due to the impact of those two conditions on his endurance and stamina;
(b)a sensory impairment, arising from his assessed hearing loss; and
(c)impairment to his mental function, attributable to the psychiatric conditions arising from his conditions of PTSD, depression, and anxiety.
Mr Jack was also reported to have hyperlipidaemia and hypertension by his former general practitioner, Dr Andrew Ramsay, in his letter dated 11 December 2015. Dr Ramsay states that these two conditions were “well-controlled with medication” and “do not represent an impairment”. Mr Jack has also been diagnosed with hypoglycaemia for which he takes medication. At the hearing, Dr Francis gave evidence that Mr Jack had seen a specialist for his hypoglycaemia and for which he was receiving medication (see paragraph [54] below). There was no evidence that he suffers an impairment as a result of his hypoglycaemia. The Tribunal finds that Mr Jack does not have a disability which is attributable to an impairment arising from hyperlipidaemia, hypertension, or hypoglycaemia.
Accordingly, on account of the finding set out in paragraph [28], the Tribunal is satisfied that Mr Jack meets the first criterion under subsection 24(1)(a) of the NDIS Act.
Section 24(1)(b) – Permanency
The second criterion under subsection 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”.
The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment”.
Rule 5.5 provides that:
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.
Rule 5.6 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).
Rule 5.7 provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
The NDIA “reviewer”, who made the Decision Under Review, acknowledged that Mr Jack had experienced long-standing symptoms and difficulties because of his impairments. However, the “reviewer” found that Mr Jack has, and still does, engage in treatment for those conditions. The “reviewer” took the view that Mr Jack’s impairments could not meet subsection 24(1)(b) of the NDIS Act, until all treatment options had been completed, including pending surgical intervention.
The NDIA, in this proceeding, contends that Mr Jack’s impairments are not permanent or likely to be permanent.[8]
[8] Refer NDIA’s Further SFIC at paragraph [5a].
In the NDIA’s Further Submissions, the NDIA contends as follows:
In response to the further material provided by Mr Jack, it is noted that the respondent accepts that Mr Jack has had a hip replacement and that he has a diagnosis of depression/anxiety and/or PTSD. However, it has not been established that there are no known and available clinical, medical or other treatments that would be likely to remedy Mr Jack’s impairments. Dr Francis gave evidence that Mr Jack’s symptoms in relation to his mental health are controlled by the medication that he is taking.
Mr Jack’s physical impairments
The Tribunal will start by considering whether Mr Jack’s physical impairments are, or are likely to be, permanent. It is clear to the Tribunal that Mr Jack has been physically impaired to varying degrees for an extended period, as supported the radiological findings and medical letters produced to the Tribunal from his treating doctors and allied health professionals.
Dr Ramsay, in his letter dated 11 December 2015,[9] stated that Mr Jack had been a patient of the Coolaroo Clinic since 27 September 2015 and that he had a number of physical medical problems. Dr Ramsay stated that Mr Jack’s “major physical problem” was his lumbar spine, with a three-year history of lower back pain radiating to his knee. Dr Ramsay stated that Mr Jack had been referred to a physiotherapist and social worker for special aids to be put in place, and his treatment had included the use of analgesics. Dr Ramsay opined in this letter that Mr Jack’s lumbar spine condition had been stable for the last three years and that he did not require any other treatment. He further stated in this letter that as of 2015, based on a physical examination, Mr Jack had “severe restriction of lumbar movements” and “straight leg raise” testing, was positive for left sciatica. He concluded that Mr Jack’s lumbar spinal condition was stable, and his physical impairment was severe, “in the order of 30 points in accordance with [the Impairment] Tables”.[10] However, Dr Ramsay opined that he did not consider that Mr Jack had “neurological signs” in his legs.
[9] Refer NDIA’s Tender Bundle at TB1/1.
[10] Ibid. Mr Ramsay’s letter dated 11 December 2015 was prepared for the purpose of the Applicant receiving the Disability Support Pension, eligibility for which involves an assessment of an applicant’s impairments in accordance with the Impairment Tables set out in Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
Dr Ramsay noted that a CT scan of Mr Jack’s lumbar spine on 10 December 2015, revealed evidence of “moderate multilevel degenerative changes with compromise of the thecal sac and lateral recesses at several levels”.[11] This was confirmed by Dr Francis, who stated in a letter dated 3 September 2019, that Mr Jack was suffering from multiple physical problems, including cervical and lumbar disc degeneration and bulge.[12]
[11] Ibid.
[12] Refer T-Documents at T20.
Dr Ramsay reported in this letter that Mr Jack’s left total hip replacement had a “fair” result, with an X-ray revealing that his hip replacement was in a satisfactory position. He noted however, that Mr Jack experienced “difficulty standing for prolonged periods” and “finds it hard to go upstairs without assistance” and to use public transport.[13]
[13] Ibid.

The Tribunal notes that, in this letter, Dr Ramsay stated that some of Mr Jack’s medical conditions did not represent impairments. Specifically, Dr Ramsay acknowledged that Mr Jack was still morbidly obese despite having had “a sleeve operation to the stomach” and he had some digestive problems, but that he did not think Mr Jack had an impairment in that regard.[14] Dr Ramsay summarised that Mr Jack has severe lumbosacral degenerative changes with chronic lower back pain and left sciatica. Finally, Dr Ramsay acknowledged that Mr Jack has psychiatric impairments of depression and anxiety and had been referred to see both a psychologist and a psychiatrist.[15]
[14] Refer NDIA’s Tender Bundle TB1/2.
[15] Ibid.
Mr Jack’s treating rheumatologist, Dr Talib Tahir, Coburg Rheumatology Service, issued a letter dated 26 May 2016, and he listed Mr Jack’s medical conditions as including:[16]
(a)chronic neck and lower back pain with advanced degenerative disc disease;
(b)he was overweight; and
(c)having joint pains/polyarthralgia and osteoporosis with facture.
[16] Refer NDIA’s Tender Bundle TB2/1.
In this letter, Dr Tahir stated that Mr Jack’s medication included a 5mg Norspan patch weekly (an opiate-based slow-release pain patch), and that he was trying other pain management with difficulty. Dr Tahir stated there was no associated features of connective tissue disease.[17]
[17] Ibid.
Mr Luke Dale-Kummer, physiotherapist, treated Mr Jack in 2016.[18] Like Dr Tahir,[19] Mr Dale Kummer noted, in a letter dated 8 September 2016, that Mr Jack’s “poor posture” was likely to be a “major contributing factor to his pain, particularly given his weight history” and opined that “with a propriate posture management strategies and general exercise management, his pain [would] ease”.[20] The Tribunal prefers Dr Tahir’s and Mr Dale-Kummer’s evidence in this regard, over the evidence of Dr Ramsay as set out in paragraph [45] above. Based on this evidence, the Tribunal is satisfied that Mr Jack’s bodily state of morbid obesity is a problem for Mr Jack and significantly exacerbates his physical impairments arising from his musculo-skeletal conditions affecting his spine, hips, and knees.
[18] Refer NDIA’s Tender Bundle TB5.
[19] Ibid.
[20] Ibid and paragraph [46] of these Reasons for Decision.
On 26 May 2016, Dr Tahir recommended that Mr Jack undertake certain treatment as follows (emphasis added):[21]
We had a long discussion about the pathology of osteoarthritis and recommend various treatment options, that included more optimal simple analgesic in the form of paracetamol, and perhaps the use of non-steroidal anti-inflammatory drugs and that should be used with caution, and the potential benefits of local Depo cortisone injection. Non weight bearing exercise is the cornerstone treatment of degenerative joint disease, water aerobics and exercise bike might be the best. We also discussed complementary medicine treatment, and the evidence for such is soft tissue rheumatism.
She(sic) was going to try water aerobics and was given a request to have a DXa scan. He will be reviewed in two months’ time to monitor his progress. I don’t think [Mr Jack] is ideal for any sort of work as this is a chronic condition and I don’t think surgery or any injection can help [Mr Jack].
[21] Refer NDIA’s Tender Bundle at TB2/1.
In Mr Dale-Kummer’s letter dated 8 September 2016, he recorded Mr Jack’s main concerns as being chronic back pain, bilateral foot pain and intermittent foot numbness. As referred to above at paragraph [47], Mr Dale-Kummer considered Mr Jack’s pain would ease if he continued to drop his weight to a healthier range, and with appropriate postural management and weight loss strategies.[22] Mr Dale-Kummer also suggested that Mr Jack should cease using his gait aids, as his gait quality was better unaided (but that he should hold off while he was experiencing numbness in the feet which had led to falls in the past).[23] Mr Dale-Kummer recommended “a graded home exercise program” as an intervention for Mr Jack, in relation to his back pain.[24]
[22] Refer NDIA’s Tender Bundle at T5/1.
[23] Ibid.
[24] Ibid.
On 17 October 2017 Mr Jack attended an appointment with Dr David Goh, Vascular Surgeon at the Northern Hospital.[25] In Dr Goh’s letter of the same date, he reported that Mr Jack smoked 5 to 10 cigarettes per day. Dr Goh reported that Mr Jack was experiencing a cold sensation in his feet, but no pain. Dr Goh recorded that Mr Jack’s walking was limited by his left hip pain. Dr Goh recorded that Mr Jack had some back pain. Dr Goh noted evidence of plague, but no significant stenosis in the ultrasound of Mr Jack’s spine. Dr Goh concluded that impingement, and not pulmonary circulation disorder, was causing Mr Jack’s pain. Dr Goh referred Mr Jack for neurological investigation.[26]
[25] Refer NDIA’s Tender Bundle at TB11/1.
[26] Refer NDIA’s Tender Bundle at TB11.
At the hearing, Mr Jack’s current treating general practitioner, Dr Francis, was asked whether he had referred Mr Jack to see a neurologist. Dr Francis said he did not consider this necessary because he considered that Mr Jack’s main problems were his light headedness, disc problems and his OSA.
On 12 February 2018, Ms Janet Georgis, Chiropractor, commenced treating Mr Jack and he had about five sessions with her between 2 February 2018 to 23 November 2018.[27] The clinical notes for these sessions record that most of the scheduled appointments over that period were cancelled by Mr Jack, for the stated reason that he was “too busy”.[28] One entry recorded that Mr Jack was “too busy due to work”.[29] At the substantive hearing, Mr Jack was asked about those entries. He denied working at this time. While the Tribunal is willing to accept that Mr Jack was not working at this time, the Tribunal considers that this entry in the clinical notes and the other entries about Mr Jack being “busy”, reveal that Mr Jack was quite active at this time and busy doing other things, even if they were not within the context of paid employment.[30] When Mr Georgis’s clinic produced documents under a summons issued by the Tribunal, Mr Dan Chatfield from the clinic, made the following statement in a covering letter to the Tribunal dated 4 May 2021, “He was very irregular with appointments attended & largely non-compliant with his chiropractic treatment provided under Medicare”. The Tribunal will return to these matters below when considering the criterion under s 24(1)(c) of the NDIS Act.
[27] Refer NDIA’s Tender Bundle at TB12.
[28] Refer Clinical Note of Chatfield Chiropractic dated 3 March 2018.
[29] Refer NDIA’s Tender Bundle at TB12.
[30] Refer Clinical Notes of Chatfield Chiropractic dated 6 February 2018, 22 February 2018, 23 March 2018, and 16 November 2018.
On 27 November 2018, Ms Georgis issued a letter stating that Mr Jack’s lumbar range of motion was “mildly reduced”, there was a loss of lordosis and that “his muscle strength indicates that his core strength is poor”.[31] She notes that Mr Jack underwent the following treatment with her: light manual adjusting, soft tissue therapy, flexion distraction, kinesiological taping, laser, mobilisations, and home rehabilitation exercises.[32] She recorded that Mr Jack reported a slight improvement in the pain and stiffness in his lower back. Ms Georgis stated that she observed an increase in Mr Jack’s lumbar range of movement.[33]
[31] Refer NDIA’s Tender Bundle at TB21/1-2.
[32] Ibid at TB21/2.
[33] Ibid.
On 14 February 2018, Mr Jack underwent a cardiac assessment by Dr Al-Fiadh, Interventional Cardiologist, Austin Hospital, who referred him on for further cardiovascular testing.[34] Dr Al-Fiadh, in his letter of the same date, referred to Mr Jack having been investigated by Dr Alhami, Endocrinologist, who diagnosed him with possible hypoglycaemia.[35] When Dr Francis was asked about Mr Jack’s hypoglycaemia at the hearing,[36] he informed the Tribunal that he “thinks” that Mr Jack had seen a specialist and was under specialist care, suggesting this “may have” happened on 23 July 2021 at Northern Health, and that he was on medication for this condition.
[34] Refer NDIA’s Tender Bundle at TB13.
[35] Ibid.
[36] Ibid. Hypoglycaemia, also known as a hypo, occurs in people with diabetes when their blood glucose level drops below 4mmol/L. Hypos can occur in people with diabetes who take insulin or other types of glucose-lowering medications.
In a subsequent letter dated 28 March 2018, Dr Al-Fiadh reports that a CT coronary angiography demonstrated a calcium score of 12, which corresponded to “a low risk of cardiovascular disease”.[37] In the same letter, Dr Al-Fiadh noted that an ultrasound showed “no evidence of obstructive disease” but did show “mild plaque” in the right carotid bulb.[38] A transthoracic echocardiogram was recorded as having demonstrated “normal” left ventricular size and systolic function and “mild LVH with impaired relaxation”.[39] Dr Al-Fiadh arranged for a sleep study to be performed on Mr Jack.[40]
[37] Refer NDIA’s Tender Bundle at TB14.
[38] Ibid.
[39] Ibid.
[40] Ibid.
Dr Rajiv Sharma, Respiratory and Sleep Physician, Heartscope Victoria, wrote to Mr Jack’s CPAP therapist reporting that Mr Jack had “moderate symptomatic OSA AHI 17/hr” and requested that he be started on automatic positive airway pressure (APAP), and then continuous positive airway pressure (CPAP) after two weeks, on 90% pressure.[41] A trial of a CMAP ramp between 5 to 20cm was also requested.[42]
[41] Refer NDIA’s Tender Bundle at TB19.
[42] Ibid. A CMAP ramp is a feature on certain CPAP machines and allow users to commence with low air pressure.
On 12 April 2018, a right knee X-ray was performed on Mr Jack showing some moderate degenerative change involving the patellofemoral joint and a small suprapatellar bursal effusion.[43]
[43] Refer T-Documents at T9/19.
On 12 April 2018, Dr Francis issued a Patient Medication Sheet for Mr Jack recording that Mr Jack was taking medications including Endep, 10mg; Frusemide, 20mg; Lyrica, 75mg; Norspan, 5mg (an opiate-based pain patch); paracetamol; and Voltaren, 100mg.[44]
[44] Ibid.
On 2 July 2018, Dr Al-Fiadh reviewed Mr Jack a further time, and opined, in his letter of the same date, that he believed most of Mr Jack’s symptoms were “due to [him] being overweight” and on account of his OSA condition.[45] Dr Al-Fiadh indicated that no further investigations were required in relation to Mr Jack’s heart, but he needed to see an ENT specialist.[46]
[45] Ibid at TB18.
[46] Ibid.
On 28 July 2016, Dr Tahir reviewed Mr Jack in relation to his “complicated soft tissue rheumatism” and “chronic neck and lower back pain”.[47] He stated that Mr Jack had complained at that time of “moderate to severe pain in the right shoulder and the neck”.[48] It was recorded that Mr Jack was going to try some strengthening and shoulder exercises prior to considering a Cortisone injection.
[47] Refer NDIA’s Tender Bundle at TB3/10.
[48] Ibid.
On 29 August 2018, an X-ray showed that Mr Jack’s pelvis and left hip replacement appeared to be in a satisfactory position.[49] On 31 August 2018, Mr Jack was referred for orthopaedic review due to pain in his right hip affecting his daily activities, which was reportedly not responding well to analgesia.[50]
[49] Refer NDIA’s Tender Bundle at TB20/31.
[50] Refer T-Documents at T15.
Dr Al-Fiadh saw Mr Jack again on 20 March 2019 and the doctor noted that Mr Jack’s symptoms were ongoing, and that he had not seen an ENT specialist.[51] It was recorded that Mr Jack “could not tolerate” CPAP therapy.[52] Dr Al-Fiadh ruled out any underlying cardiac cause to explain the recurrent episodes of loss of consciousness that Mr Jack was experiencing at that time.[53]
[51] Refer NDIA’s Tender Bundle at TB22.
[52] Ibid.
[53] Ibid.
On 18 October 2019, Mr Jack was placed on the waiting list for surgery on his nose, that is, “revision septoplasty & turbinate reduction”.[54] This procedure was categorised as a semi-urgent procedure due to his congested sinuses. At the hearing, Dr Francis informed the Tribunal that Mr Jack was also waiting to get his molar removed, which would impact his sinuses.
[54] Ibid at TB23.
Dr Francis gave evidence at the hearing that he had referred Mr Jack to an orthopaedic surgeon due to his “ongoing problems”, but Mr Jack had not yet been seen by an orthopaedic surgeon. When asked whether he had sought advice about anything in particular, Dr Francis said he “could not decide”, so he sent Mr Jack to a specialist. Dr Francis told the Tribunal that the Applicant has been placed on, and still is on, a waiting list to see an orthopaedic surgeon. Ms Ginsberg asked Mr Jack whether he was on the waiting list. Mr Jack responded that he was “waiting for several appointments”. Dr Francis referred to the Applicant having seen a rheumatologist, privately.
The Tribunal notes that Mr Jack saw Dr Victor Karlov, Rheumatologist, for the first time on 21 March 2020.[55] Dr Karlov ordered an MRI of Mr Jack’s right hip and CT scan of his thoracolumbar spine.[56] In his letter of the same date, Dr Karlov states that Mr Jack was suffering from pain extending the entire length of his spine, and he had pain involving both hips (the right more than the left). Dr Karlov also recorded in his report that:[57]
(a)Mr Jack had complained of pain extending the entire length of his spine and pain involving both hips, the right more than the left;
(b)Mr Jack’s right hip joint movements were limited, his back was stiff, and he barely reached to his knees when he tried to touch his toes; and
(c)Mr Jack’s hip movements were reported as being painful.
[55] Refer NDIA’s Tender Bundle at TB24.
[56] Ibid.
[57] Ibid.
In a further medical report dated 27 April 2020, Dr Karlov referred to Mr Jack having had an MRI of his right hip that showed the joint itself was normal, but that he had trochanteric bursitis and that he “could benefit from an ultrasound or CT-guided bursal injection”.[58]
[58] Refer letter by Dr Karlov dated 27 April 2020.
Dr Francis gave evidence at the hearing that he was unsure if Mr Jack had seen a specialist about his right hip. Dr Francis said that he had not mentioned ongoing symptoms relating to his right hip.
Mr Jack was referred back to Dr Georgis for further chiropractic treatment on 4 May 2021 and completed another five sessions.[59] Dr Georgis recorded that she had administered to Mr Jack, “light manual adjustments, Soft tissue therapy, Flexion Distraction, Kinesiological Taping, Laser, Mobilisations, and Home Rehabilitation exercise”.[60] This report also stated that Mr Jack had reported a slight improvement in his lower back.
[59] Refer NDIA’s Tender Bundle at TB27.
[60] Ibid.
At the hearing, Mr Jack told the Tribunal that he had attended the Austin Hospital about weight loss. He said he attended once a week, as a result of a recent referral by a doctor. Mr Jack confirmed that his general practitioner had referred him to a specialist regarding his stomach surgery and that once he has blood tests, he would be sent to an appointment with a “different doctor”.
Mr Jack is also reported to have low levels of testosterone. At the hearing, Dr Francis indicated that low levels of testosterone may impact Mr Jack’s bones and his “tiredness”.
The Tribunal notes Mr Jack has received shiatsu massage therapy from Mr Sean Bezard, Shiatsu Therapist at The Foundation House, since the end of 2017.[61] Mr Bezard reported in his clinical notes that Mr Jack has a number of chronic and complex health issues which have caused him a lot of pain, limit his bodily movements, and his ability to move around the home easily and generally. Mr Bezard stated that after Mr Jack receives massage therapy, he is able to move with greater ease and has less pain for up to one week, which is reported to relieve him physically and mentally but that such relief is temporary.
[61] Refer Mr Bezard’s letter dated 1 July 2020.
Mr Jack has previously sought to reduce his weight. He underwent bariatric surgery in 2015 as mentioned above in paragraph [3], resulting in significant weight loss in the order of 40kg to 50kg. He was also referred by Dr Francis on 14 July 2017 to a dietician at Daniella Health. However, based on Mr Jack’s evidence given at the hearing, and upon consideration of the clinical/medical records before the Tribunal, the Tribunal did not gain an impression that Mr Jack has made reasonable attempts to control (by reducing) his weight through dietary means. He consumes an excessive amount of sugar per day in his tea (that is, 21 teaspoons daily). By his own evidence, he consumes several meals throughout the day which his wife cooks for him. There was no evidence given of concerted efforts having been made by Mr Jack to go on, and stay on, a calorie-controlled diet. There was no detailed evidence before the Tribunal in relation to treatment he said he had started receiving at the Austin at the time of the hearing. Even if there was such evidence, this treatment program had only recently commenced.
It was also evident at the hearing, from the answers given by Mr Jack, that he was not committed to exercising on a regular and ongoing basis. He gave evidence that he has a treadmill in his house. This equipment would enable Mr Jack to exercise, but which, by his own admission, he does not use. Mr Jack further stated in evidence that he had only used the treadmill once, due to it hurting his leg. However, the Tribunal does not accept this evidence because it inconsistent with Mr Jack’s evidence of having walked as a form of exercise on occasions. However, from the clinical notes kept by Mr Bezard, it was evident that Mr Jack has not prioritised the maintenance of any regular and consistent walking regime. There was no evidence that Mr Jack has maintained any home rehabilitation exercises which the Tribunal considers were likely to have improved his core strength, posture, and to have assisted him to lose weight, and to rebuild his core strength, as a means by which to improve his physical impairments.
In relation to Mr Jack’s OSA condition, an ambulatory sleep study was performed on Mr Jack on 24 April 2018, from which it was concluded that Mr Jack had “moderate obstructive” OSA with oxygen desaturation to a nadir of 84%.[62] Dr Bassem Dawood, Sleep Physician, recommended treatment options including CPAP, mandibular advancement splints,[63] Provent nasal therapy[64] and also recommended weight reduction.[65] This was followed by a review by Dr Al-Fiadh on 30 May 2018 at which time he recommended that Mr Jack “probably” needed to have CPAP, but also needed to lose weight and exercise.[66]
[62] Refer NDIA’s Tender Bundle at TB15.
[63] Mandibular advancement splints are worn in the mouth to advance the lower jaw to maintain an open airway while sleeping.
[64] Provent is a disposable, nightly-use nasal device that uses the power of your own breath or exhalation to create EPAP and effectively treat OSA and Snoring.
[65] Refer NDIA’s Tender Bundle at TB15.
[66] Ibid at TB16.
At the hearing, Dr Francis informed the Tribunal that Mr Jack used a CPAP machine every night. This is inconsistent with Mr Jack’s evidence at the hearing that he used the CPAP machine once every two or three nights. Mr Jack described it as being “itchy”, but he “needed it to breathe”. At the hearing, Mr Jack told the Tribunal he started using a CPAP machine about three years ago. When Dr Francis was asked by the Tribunal whether this treatment was effective, he said it depended on Mr Jack’s compliance and frequency of use.
A clinical note of Mr Bezard, from a session with Mr Jack on 9 July 2020, reported that Mr Jack was feeling very weak due to not getting enough oxygen, due to his problem with his nasal passages. Mr Jack had reportedly started using the CPAP machine again, after a period of not doing so because of reported skin sensitivity.[67]
[67] Refer NDIA’s Tender Bundle at TB28/48.
The Tribunal finds that Mr Jack has not complied with his doctor’s recommendations in relation to the consistent use of the CPAP machine to help him breathe and sleep during the night. This is likely to have impacted on the effectiveness of this treatment.

At the hearing, it was put to Dr Francis during cross-examination that it might assist Mr Jack if he were to lose weight, to which Dr Francis agreed. Dr Francis was asked why he had not referred Mr Jack to undertake an exercise program. Dr Francis said that Medicare would not pay for more than five sessions. The Tribunal asked whether Dr Francis had placed Mr Jack on a medical management plan, and he confirmed he had done so on 6 October 2020. A copy of this plan was lodged with the Tribunal.[68] The summonsed medical records also included historical GP Medical Plans, which were also issued for Mr Jack on 29 December 2017, 21 November 2018, and 23 October 2019.
[68] Refer SRMC Medical Records Part 1 at pp 6-7.
In a letter dated 10 June 2020, Dr Francis stated that Mr Jack was not fit for any work, his problems were permanent, and he was not responding to treatment. Dr Francis recorded that Mr Jack required assistance when walking, used a walking stick and occasionally, a “4 WF” when walking.[69] In a progress note by Dr Francis, for a consultation with Mr Jack on 10 June 2020, the following notation appears:
LAPAROSCOPIC - Was advised that this was only a category 3 and patient had only been waiting for 63 days. The wait list for this is very very long they said.[70]
[69] Refer Dr Francis’s letter dated 10 June 2020.
[70] Refer SRMC Medical Records Part 1 at p 11.
Mr Bezard refers in his clinical notes to Mr Jack having undergone emergency surgery to remove his gall bladder. This took place in June or July 2020.[71] Following this procedure, Mr Jack was reportedly feeling “much better”, his body was “feeling good” and he “did not feel weak”. Mr Bezard recorded in his clinical notes dated 9 July 2020:
Headaches, tiredness, weakness and fever are gone. Needs to be lying down to rest. In good spirits and has the feeling of wanting to be active again or pay sports…
[71] Ibid at pp 114, 120 and 128.
In a subsequent Zoom consultation with Mr Bezard on 11 August 2020, Mr Bezard recorded that Mr Jack had walked 15 minutes (each way) from a car park to see a dentist and that he was happy he could walk. Mr Jack sought advice from Mr Bezard as to how to build up and improve his muscles, and to build up fitness with a reference in the notes to “exercises at home”.
The Tribunal reviewed Dr Francis’s clinical notes which evidence a long history of Mr Jack having been counselled by him in relation to adopting a healthy lifestyle, undertaking treatment properly, engaging in daily exercise and observing a sugar free and low-fat diet. Specifically, in progress notes of Dr Francis of consultations with Mr Jack on 10 and 23 October 2019, 7 and 14 November 2019, 12 December 2019, 16, 30 January 2020, 4, 12 February 2020, 24, 27 March 2020, 6, 14, 16 April 2020, 14, 20, 26, 27 May 2020, 10 June 2020, 3 and 20 July 2020, 5, 18 and 31 August 2020, 3 September 2020, 6 October 2020, Dr Francis made the following entries (or combinations of those entries):[72]
[72] Refer SRMC Medical Records Part 1 at pp 5-44.
education, explaining, counselling, symptomatic treatment
analgesia prn
advise for healthy lifestyle
take treatment properly
advise to quit smoking
daily exercise
analgesia + local NSAID prn
stop smoking
4-smoking cessation counselling
education, explaining, counselling, CBT, sleep hygiene
sugar free, low fat & salt diet
Regarding the issue of weight loss through dietary control and exercise, the Tribunal notes a letter by an accredited practising dietician dated 14 July 2017 referring to Mr Jack having attended regular reviews with her over the previous year.[73] The dietician states she had concerns about Mr Jack’s sugar intake, stating that he was having a minimum of 21 spoons of sugar in his three or four cups of tea per day which he reportedly took to “make himself feel better”.[74]
[73] Refer NDIA’s Tender Bundle at TB9/15.
[74] Ibid.
On 2 July 2018, Dr Sharma advised Mr Jack to keep losing weight with his diet.[75]
[75] Ibid at TB199/30.
At the hearing, when asked, Dr Francis said he was not aware whether Mr Jack had engaged in hydrotherapy. The Tribunal notes an email from Mr Bezard dated 10 November 2020, referring Mr Jack to be assessed by a physiotherapist for his suitability for hydrotherapy.[76] Mr Bezard states in this letter that Mr Jack had recently been diagnosed with fatty liver and osteopenia and “would benefit from exercise” which was less impactful to his hip replacement in one hip, and osteoarthritis in the other.[77] On the second day of the hearing, Mr Jack said that there was a hydrotherapy program in Craigieburn which included exercises for his neck and back. Mr Jack said he was due to go back to this program with the COVID-19 lockdown ending.
[76] Ibid at TB39.
[77] Ibid at TB26/39.
The Tribunal enquired of Mr Jack whether he had followed through with any attempt to do water aerobics between 2016 and his acceptance into the hydrotherapy program, or whether he ever went to the community centre to undertake exercise. Mr Jack’s reply was that he did not know about that and he considered he could not simply turn up and participate but instead, he needed to be part of a program. The Tribunal asked Mr Jack whether he had ever made any enquiries in that regard. He said he did not know about their existence. When asked about whether he had an interest in attending, Mr Jack responded that “whenever they sent me, I will go”. When asked why Mr Jack was not more proactive in finding out information about this, he told the Tribunal that he was suffering from a raft of medical problems. He said “I would see doctors all throughout the week. I am being moved around like a robot”. The Tribunal does not accept that Mr Jack had insufficient time in his day to follow up in relation to engaging in hydrotherapy or some other form of low-impact exercise at his local community centre or at home. By his own evidence, Mr Jack was not engaged in any employment during the day or in the evenings. Mr Jack gave evidence that he was in receipt of the disability support pension from which it can be reasonably inferred that he would be eligible to attend the local community centre for a concessional fee.
The Tribunal acknowledges that Mr Jack has undertaken a range of treatments seeking to remedy his physical impairments, including the following:
(a)Mr Jack underwent a total left hip replacement reportedly with a “fair” result. His left hip is shown by radiological findings to be in a satisfactory position;
(b)Mr Jack had undergone bariatric surgery in 2015 which resulted in a significant degree of weight loss;
(c)Mr Jack has sought medical advice from a number of general practitioners and specialists, including a rheumatologist, a respiratory and sleep physician, intervention cardiologist and vascular surgeon;
(d)Mr Jack has remained under constant medical supervision and yearly GP Management Plans were issued by Dr Francis;
(e)Mr Jack has received some chiropractic treatment comprising five sessions in 2018 and another five sessions in 2021;
(f)Mr Jack has received some physiotherapy from Mr Dale-Kummer in 2016;
(g)Mr Jack has sought some limited treatment from a dietician;
(h)Mr Jack has received shiatsu massage therapy at Foundation House since the end of 2017 which has provided temporary relief in relation to the pain he has experienced; and
(i)Mr Jack has been prescribed and has taken pharmacological medications specific to his conditions.
However, Rule 5.4 of the Access Rules provides that the Tribunal may only conclude that Mr Jack’s physical impairments are considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairments”.
The Tribunal is satisfied from the medical and clinical opinions of Dr Francis, Dr Tahir, Dr Al-Fiadh, Dr Sharma, Mr Dale-Kummer and Dr Georgis, that treatments designed to achieve weight loss and to improve his core strength, were and still are likely to remedy Mr Jack’s impairments. The Tribunal accepts that weight loss by Mr Jack will not, alone, cure those impairments. However, the Tribunal is satisfied that if Mr Jack achieves weight loss, he will substantially relieve the physical impairments arising from the musculo-skeletal medical conditions and OSA. As mentioned above at paragraph [59], Dr Al-Fiadh opined that most of Mr Jack’s symptoms were due to him being overweight and his OSA condition.
Mr Jack’s treating health practitioners have repeatedly recommended to Mr Jack that he undertake exercise, and at the very least, that he should engage in hydrotherapy, water aerobics and/or walking as a form of exercise to achieve weight loss. Such types of exercise are readily available to Mr Jack. They may be engaged in at a low intensity as Mr Jack’s fitness and bodily strength gradually improves over time as a consequence of exercising. He could undertake a graduated walking program nearby his home, as demonstrated by him having with Mr Bezard near his home previously, and/or he could walk in the pool, ride and exercise bike or attend hydrotherapy at his local community centre (all of those being non-weight activities). By his own evidence, Mr Jack also has a treadmill in his home which he could use to engage in walking exercise at his pace and at a low intensity as required. Mr Jack is not currently employed, so he could use the treadmill conveniently located at his home on a daily basis. While the Tribunal acknowledges the reports of Mr Jack’s mild to moderate physical limitations, the Tribunal was not satisfied that such types of low intensity exercise are beyond him, or his medical and allied health therapists would not have repeatedly recommended that he undertake them. The Tribunal also notes that Mr Jack was active by his own evidence, that he did small things around the house, which included on one occasion, transporting a 10kg barbeque gas bottle to Bunnings to replace it. These activities demonstrate that Mr Jack has the capacity to undertake physical activities from which it can be reasonably inferred he has the capacity to undertake low intensity exercise.
As for Mr Jack’s diet, there was no evidence before the Tribunal that he has engaged in a calorie-controlled diet on a sustained basis. On the evidence, there did not appear to be any reason why he could not have done so. Mr Jack’s morbid obesity is not at the extreme end of the scale (based on his BMI, weight, and height). He attended a dietician from which it can be reasonably inferred that Mr Jack had access to advice about how to find out about calorie-controlled diets. Mr Jack also has a computer, which he told the Tribunal at the hearing he is able to use, and so he has had access to information on the internet about calorie-controlled weight loss diets. And yet, there was insufficient evidence before the Tribunal that Mr Jack went on, and stayed on, a calorie-controlled diet in an effort to try to lose weight.
In conclusion, the Tribunal is not satisfied on the evidence that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments likely to remedy Mr Jack’s physical impairments. The available and appropriate treatments which Mr Jack could receive, but has not yet received, undertaken, or completed, include:
(a)the daily use of his CPAP machine, instead of once every two or three nights, as recommended by Mr Jack’s sleep physicians and Mr Francis;
(b)a dedicated and ongoing weight loss and core strengthening exercise program; and
(c)a calorie-controlled diet for a sustained period, aimed at achieving weight loss.
The Tribunal is satisfied that the above treatment, if undertaken by Mr Jack, would substantially relieve his physical impairments. For this reason, the Tribunal finds that Mr Jack’s physical impairments are not, or are not likely to be, permanent. Accordingly, the Tribunal concludes that in respect of Ms Jack’s physical impairments, the mandatory criterion in subsection 24(1)(a) is not met.
Mr Jack’s sensory impairment
The Tribunal will now consider whether Mr Jack’s sensory impairments in relation to whether his hearing loss is, or likely to be, permanent.
On 25 June 2018, Mr Jack’s hearing was assessed by Ms Meriam Beshay, Audiologist, from Australian Hearing.[78] Ms Beshay issued a report confirming that Mr Jack had presented with concerns about having difficulty communicating with family and friends and watching television.[79] An audiogram was performed. Ms Beshay concluded in her report that Mr Jack has hearing loss. However, she does not describe the extent of the hearing loss. Ms Beshay recommended that Mr Jack trial or be fitted with hearing aids but beyond that, she did not recommend any other treatment.
[78] Refer T-Documents at T10.
[79] Ibid.
The Tribunal finds that Mr Jack’s sensory impairment is, or is likely to be, permanent based on Ms Beshay’s audiology report. Accordingly, the Tribunal concludes that in respect of Ms Jack’s sensory impairments, the mandatory criterion in subsection 24(1)(a) is met.
Mr Jack’s impairments attributable to psychiatric conditions
The Tribunal will now consider whether Mr Jack’s impairments attributable to psychiatric conditions of PTSD, depression, and anxiety, are, or are likely to be, permanent.
It was not in dispute that Mr Jack suffers from mental health issues which appear, on the evidence, to have been a lot worse previously than they are now.
Mr Jack commenced receiving medical and therapeutic intervention in relation to his mental health issues, not long after his arrival in Australia. Mr Jack was:
(a)first issued with a Mental Health & Well Being Care Plan (Mental Health Plan) by his treating general practitioner on 31 May 2016;[80] and
(b)referred to The Foundation House on 5 April 2016.[81]
[80] Refer SRMC Medical Records Part 1 at p 108.
[81] Ibid at p 22.
There is a Mental Health Clinic at The Foundation House. Dr Gabriel Feiler is a Psychiatrist at this clinic. Dr Feiler carried out a mental health assessment of Mr Jack in the period May to July 2016, consisting of four 60-minute sessions, and issued a detailed report dated 14 July 2016.[82] Dr Feiler recorded in this report that Mr Jack previously worked in several jobs in Iraq, including as a professional journalist, an editor in charge of a newspaper, a construction contractor and car mechanic/salesman.[83]
[82] Refer NDIA’s Tender Bundle at TB3/5.
[83] Ibid.
In this 14 July 2016 report, Dr Feiler stated that Mr Jack:
(a)has had three years of symptoms including flashbacks, nightmares, affective dysregulation, pervasive low mood, anhedonia, tension, insomnia, low motivation, and energy;
(b)had acknowledged having passive suicidal ideation but he did not have a history of self-harm or suicide attempts;
(c)met the criteria for PTSD, and his general practitioner had diagnosed him with depression and anxiety.
In terms of proposed further treatment, Dr Feiler opined, in July 2016, as follows:
Further up-titration and monitoring of sertraline is proposed, however given the severity of his PTSD and depressive symptoms, as well as the ongoing stress related to his grief and loss, it is expected that his symptoms will not significantly improve. He will require ongoing psychiatric monitoring and management and will require substantial grief work related to the loss of role.
Dr Feiler, in 2016, considered that Mr Jack’s PTSD was unlikely to improve over the next two years[84] (from July 2016) and that he remained preoccupied and fixated on his losses.
[84] Relevant at the time as to whether Mr Jack was eligible for the disability support pension.
Mr Feiler stated, in 2016, that Mr Jack:
(a)required weekly support for his psychiatric needs in addition to his physical treatment;
(b)could not bathe independently and had difficulty accessing low seating including toilets;
(c)walked with a one-point stick and was unable to bend to pick up things from the floor;
(d)stayed at home during the day when he did not have medical appointments and could not concentrate to watch television;
(e)was in constant anxiety and distress and was isolating himself from friends, neighbours, and family at times;
(f)had slowed cognitive function, with slowed verbal responses, appearing preoccupied at times;
(g)was learning English, but cited his poor concentration as limiting his ability to focus on that;
(h)was preoccupied with his grief and loss and could not think of little else; and
(i)was unable to attend work, education, or training sessions due to his PTSD and severe depression and anxiety symptoms.
On 3 January 2017, Dr Feiler wrote to Mr Jack’s general practitioner to report that Mr Jack was currently on Sertraline, 100mg, with reported “good effect”, which he should raise to 200mg-300mg if his symptoms worsened.[85] Dr Feiler recorded that Mr Jack had attended psychotherapy weekly, to address his traumatic loss and adjustment to resettlement.[86]
[85] Refer NDIA’s TB7/12.
[86] Ibid.
On 4 May 2017, Dr Rasha Rahman, Psychiatry Registrar, The Foundation House, issued a letter which referred to Mr Jack experiencing worsening insomnia and anxiety and that his dose of Sertraline was titrated up to 200mg.[87] This was not tolerated and resulted in side effects leading to the dose of Sertraline being reduced to 50mg, in combination with Melatonin and Temazepam. Dr Rahman also referred to the continuation of psychotherapy on Mr Jack.[88]
[87] Ibid at TB8/13.
[88] Ibid.
Mr Jack’s mental health began to improve significantly in the second half of 2017. Mr Rahman issued a further letter dated 12 October 2017 reporting that Mr Jack had presented well over the previous several months and had not required additional sedatives.[89] Dr Rahman reported that Mr Jack’s Sertraline was down to 25mg daily. He opined that the Lyrica and Endep that Mr Jack had commenced at night, had assisted Mr Jack with his back pain and sleeping issues.[90] Dr Rahman reports Mr Jack’s mood as “euthymic and stable”, and that he had “continued to engage well”.[91] Dr Rahman indicated that he would continue to see Mr Jack weekly or fortnightly but in February 2018, he would consider whether to discharge Mr Jack from the clinic or to hand him over to the next Registrar.[92]
[89] Ibid at TB10/16.
[90] Ibid.
[91] Ibid.
[92] Ibid.
Dr Tahmineh Salehi, Senior Psychiatry Registrar, issued a letter dated 19 November 2019 confirming that he had seen Mr Jack on a weekly basis at that time to provide him with psychotherapy.[93] In this letter, Dr Salehi reported that Mr Jack’s mental state remained “fragile”, that he had been experiencing “family stressors” and his presentation has been “fluctuating lately”.[94] Dr Salehi also noted that Mr Jack had recently experienced fainting episodes, said to be secondary to hypoxia, and he was on a wait list for surgery.[95]
[93] Refer T-Documents at T22/54.
[94] Ibid.
[95] Ibid.
At the hearing, Dr Francis told the Tribunal that he had initially prescribed Mr Jack with a tricyclic anti-depressant medication which has been ceased, and then he has continued him on 50mg of Zoloft which he was still taking. Mr Jack was issued with a further Mental Health Plan on 6 April 2020, as confirmed by Dr Francis, and has continued receiving treatment at the Mental Health Clinic at The Foundation House.[96]
[96] Refer SRMC Medical Records Part 1 at p 17.
Despite the fluctuations in Mr Jack’s mental health since his arrival in Australia as detailed in the above paragraphs, and bearing in mind Access Rule 5.5, the Tribunal is satisfied the Mr Jack’s impairments arising from his psychiatric conditions of PTSD, anxiety and depression are, or likely to be, permanent. Mr Jack’s mental health has been under regular medical management by his treating general practitioners including more recently under a Mental Health Plan dated 6 April 2020. This has enabled Mr Jack to have access to a significant degree of ongoing counselling and psychotherapy from psychiatrists and other allied health therapists based at The Foundation House. Mr Bezard’s clinical notes reveal that his approach to therapeutic treatment has delivered a form of ongoing counselling treatment to Mr Jack.

The evidence referred to in the paragraphs above reveals that Mr Jack’s mental health-related treatment has taken place extensively and consistently over the past six years. These supports have had an overall positive effect on Mr Jack.
The evidence from the treating general practitioners demonstrates that Mr Jack has been prescribed and taken different medications for his mental health conditions in varying doses at most times, since his arrival in Australia. Those medications have provided Mr Jack with some relief from his conditions, relieved his pain and assisted him to sleep.
Based on the matters referred to in the last three paragraphs, the Tribunal is satisfied on the evidence that there are no known, available, and appropriate evidence-based clinical, medical, or other treatments likely to remedy Mr Jack’s impairments arising from his psychiatric conditions. For this reason, the Tribunal finds that those impairments are, or are likely to be, permanent.
Accordingly, the Tribunal concludes that the mandatory criterion in subsection 24(1)(a) is met in respect of Ms Jack’s impairments arising from his psychiatric conditions of PTSD, anxiety, and depression.
Section 24(1)(c) – Substantially reduced functional capacity to undertake specified activities
The Tribunal has found that Mr Jack’s sensory impairment and his impairments arising from his psychiatric conditions (which the Tribunal will refer to collectively as Mr Jack’s Permanent Impairments), are, or likely to be, permanent and therefore, Mr Jack satisfies the s 24(1)(b) of the NDIS Act. The next step is for the Tribunal to consider whether one or more of those Permanent Impairments have resulted in a substantially reduced functional capacity of Mr Jack to undertake one or more of the activities prescribed in s 24(1)(c) of the NDIS Act, being communication, social interaction, learning, mobility, self-care, and self-management (Prescribed Activities). The Access Guidelines provide as follows:
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.[97]
[97] Refer Access Guidelines at p 1.
As observed by Justice Mortimer in Mulligan, at [55] and [56], this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Justice Mortimer in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that “…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…”.[98]
[98] Refer Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [56].
Rule 5.8 of the Access Rules elaborates upon when an impairment is taken to have resulted in a “substantially reduced functional capacity” to undertake any one or more of the Prescribed Activities. This rule provides as follows:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
Rule 5.8 is reflected in the following section of the Access Guidelines (footnotes omitted):[99]
…Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks. These disability-specific supports include:
• a high level of support from other people, such as physical assistance, guidance, supervision or prompting
• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help…[100]
[99] Refer the Access Guidelines at page 9.
[100] Ibid.
As cautioned by Justice Mortimer in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under s 24(1)(c), by considering their circumstances only through the prism of Rule 5.8 of the Access Rules.[101] Instead, her Honour made clear that the statutory task remained to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[101] Refer Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [77].
When Mr Jack made his First Access Request, he submitted medical evidence signed by Dr Aiad Al-Essa that referred to Mr Jack experiencing difficulty with three of the Prescribed Activities, of mobility, self-care, and learning. When he made his Second Access Request, Mr Jack submitted medical evidence signed by Dr Al-Essa referring to Mr Jack experiencing difficulty with those same Prescribed Activities, as well as self-management, as follows:[102]
(a)Mobility: it was claimed Mr Jack required a walking stick and supervision and could not walk long distances due to back pain;
(b)Learning: due to his language barrier;
(c)Self-care: it was claimed he need assistance when showering and bathing, as well as with dressing, and to turn overnight and a four-wheeled frame when toileting; and
(d)Self-management: it was claimed he became stressed when handling money.
[102] Refer T-Documents T18.
The Tribunal is not limited to considering only those activities as identified by the treating doctors. In relation to Mr Jack’s Permanent Impairments, the Tribunal considers it appropriate to also consider the two remaining Prescribed Activities of “communication” and “social interaction”, in addition to those identified by Dr Al-Essa.
Dealing with each in turn:
Communication
The first Prescribed Activity of “Communication” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that “communication” includes “how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you”.[103]
[103] Refer Access Guidelines at p 8.
Dr Francis identified that Mr Jack had difficulty communicating. At the hearing, Dr Francis gave evidence that Mr Jack did not require assistance with communication on account of his cognition, but due to “the language barrier”. Dr Francis did not mention anything about Mr Jack’s hearing loss. The communication difficulty experienced by Mr Jack when he is speaking to a person, who does not speak Arabic, is unrelated to his Permanent Impairments.
The Tribunal acknowledges that there appears to be confirmation from Ms Beshay that Mr Jack has hearing loss and there is evidence in her report that Mr Jack complained of difficulty communicating with family and friends and watching television back in 2018. However, there was insufficient evidence before the Tribunal for any findings to be made about the extent of this hearing loss and whether it had resulted in a substantially reduced functional capacity in the activity of communication. The Tribunal accepts that Mr Jack may have some trouble hearing. However, during the course of the hearing of this application the Tribunal was unable to detect that Mr Jack had any noticeable trouble hearing. In fact, Mr Jack positively demonstrated an ability to hear and understand what the Tribunal and the Respondent’s representatives were saying to him, from the coherent answers he gave to the questions asked of him. When Mr Francis gave evidence, he did not speak of Mr Jack having difficulty with his hearing. By his own evidence, Mr Jack referred to spending time talking to his children on the telephone.
On balance, the Tribunal finds that Mr Jack’s Permanent Impairments have not resulted in a substantially reduced functional capacity when Mr Jack is engaging in the activity of communication.
Social Interaction
The second Prescribed Activity of “Social Interaction” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that “social interaction” includes “how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations”.[104]
[104] Refer Access Guidelines at p 8.
The Tribunal has found that Mr Jack has impairments attributable to his psychiatric conditions. The Tribunal notes that some of the early reports issued by the treating psychiatrists at The Foundation House painted a grim picture (at the time they were written) in relation to Mr Jack’s mental health and referred to him staying at home and being quite isolated. There were some inconsistencies between these opinions and the other evidence before the Tribunal providing an indication that Mr Jack was more active than he might have been reporting to his doctors. Irrespective of those earlier reports as to Mr Jack’s mental health, the Tribunal is satisfied from the medical report of Dr Rahman dated 17 October 2017, Mr Jack’s mental health had significantly improved and had stabilised. Specifically, consideration was given at that time by Dr Rahman, as to whether Mr Jack should be discharged from the Mental Health Clinic at The Foundation House.[105]
[105] Refer NDIA Hearing Bundle at TB10/16.
Dr Francis gave evidence at the hearing that Mr Jack does not require assistance with social interaction and that his mental health condition was being managed by the medications he was on.
The Tribunal accepts this evidence as it is consistent with the evidence before the Tribunal as to the following facts:
(a)Mr Jack and his wife have successfully raised a large family consisting of five children and five grandchildren. Mr Jack has an extensive immediate family network with whom he interacts socially, even if he does so by telephone in respect of those family members based overseas;
(b)Mr Jack reported to some of his treating doctors that he did not have any friends. He gave inconsistent evidence during the hearing when he referred to having friends, when answering some of the questions asked of him – see paragraphs [137], [138] and [142] below. Ms Beshay’s report also referred to Mr Jack have some friends with whom he said he had difficulty communicating with due to his hearing loss. Based on Mr Jack’s own evidence at the hearing, the Tribunal finds that he has some friends (who were from Iraq originally) with whom he interacts with socially;
(c)Mr Jack gave evidence at the hearing that he enjoyed his visits to The Foundation House and that sometimes he would go there early before his appointment was due. It is clear from the clinical notes that he has established a strong rapport with some of the medical and health professionals within this organisation and, in particular, with Mr Bezard, who has provided him with a form of social interaction, albeit in a professional context; and
(d)The entries in the clinical notes referred to in paragraph [52] show that Mr Jack has been actively engaged in a way that has, according to the Clinical Notes of Chatfield Chiropractic dated 6 February 2018, 22 February 2018, 23 March 2018, and 16 November 2018, prevented him from attending his clinical appointments. Based on Mr Jack’s own evidence, he visits the community to go shopping and on one instance he attended Bunnings to change over a 10kg gas bottle from his barbeque. This evidence shows that Mr Jack is active in and about the community which is consistent with the fact that Mr Jack still owns and drives a car.
In conclusion, the Tribunal is not satisfied that Mr Jack is socially isolated. To the contrary, he has a fair degree of social interaction arising from his interactions with his large immediate family network (some of them by telephone only as they are based overseas), friends (who originated from Iraq) and within the broader community, such as those treating and assisting him at The Foundation House. The evidence does not establish that Mr Jack requires assistance or prompting from others in order to undertake the activity of social interaction or that he is unable to undertake this activity effectively or completely. The Tribunal finds that Rule 5.8 does not apply to Mr Jack in relation to this activity. The Tribunal is not satisfied, based on the evidence referred to above, that Mr Jack’s Permanent Impairments have otherwise substantially reduced his functional capacity to undertake the activity of social interaction.
The Tribunal finds that Mr Jack’s Permanent Impairments do not result in a substantially reduced functional capacity in the activity of social interaction.
Learning
The third Prescribed Activity of “Learning” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that “learning” includes “how you learn, understand and remember new things, and practise and use new skills”.[106]
[106] Refer Access Guidelines at p 9.
At the hearing, Dr Francis gave evidence Mr Jack had mental health issues, but this had not affected his cognition. This is consistent with the Tribunal’s observations of Mr Jack during the hearing where he responded appropriately to the questions being asked of him. Dr Francis accepted that Mr Jack does not require assistance with the activity of “learning”. Based on Dr Francis’s medical opinion, the Tribunal does not accept that Mr Jack experiences any difficulty with learning. Mr Jack may experience difficulty reading and understanding documents written in English, but this is unrelated to his Permanent Impairments and does not establish that Mr Jack has any reduced capacity to undertake learning.
The Tribunal finds that Mr Jack’s Permanent Impairments do not result in a substantially reduced functional capacity in the activity of “learning”.
Mobility
The fourth Prescribed Activity of “Mobility” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that mobility means “how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about, and use your arms or legs”.[107]
[107] Ibid.
At the hearing, Mr Jack gave evidence that he owns a car and is able to drive. He said he sometimes drove to appointments with Mr Bezard, or that his wife would drive him. Mr Jack gave evidence that he used to be a car mechanic back in Iraq. In a clinical note of Mr Bezard taken on 25 June 20220, Mr Bezard states as follows, “Send reminder text message yesterday evening with Zoom link. Jimmy had forgotten about our appointment, was at mechanics garage with friends, thought app was next week. Have rescheduled to next week same time”.[108] At the hearing, when asked about this clinical notation, Mr Jack denied working as a mechanic in that car garage. Mr Jack said he was there because his car had a problem with its brakes. Not without some doubt, the Tribunal accepts Mr Jack’s evidence in this regard. Nonetheless, this evidence demonstrates that Mr Jack is sufficiently mobile to be able to take his car to the garage to get it fixed when it has mechanical issues (being an example of his mobility out in the community).
[108] Refer set of documents produced by The Foundation House at p 114/141.
Mr Jack was asked by the Tribunal what else he did with his time, aside from attending medical appointments. He said he did not do a lot, “just small things around the house”. Upon further questioning, Mr Jack told the Tribunal he spends his time either watching television, playing games on his mobile phone, or speaking to his children based overseas. He said he would also see friends for small meetings. When asked, Mr Jack confirmed that he was computer savvy and that he could read things on the computer.
Dr Francis opined, in his letter dated 10 June 2020, that Mr Jack required assistance when walking and that he used a walking stick and occasionally a “4 WF” when walking. At the hearing, Dr Francis gave evidence that Mr Jack had undergone hip replacement surgery and he had seen him walking with a stick.
At the hearing, Mr Jack was questioned about a clinical note of Mr Bezard on 10 November 2020. In this note, Mr Bezard referred to having met Mr Jack outside of Mr Jack’s house and with the “walker”, they had walked towards a reserve near Mr Jack’s house. Ms Bezard stated in his notes that Mr Jack had never walked there before from his house and that Mr Jack “was really charging along behind the walker”.[109] Mr Bezard stated in his notes that they had to “stop a lot” but “managed a couple of hills” and Mr Jack talked about being happy that he had “broken a sweat” by doing so. When asked at the hearing whether Mr Jack had walked around the reserve, he did not answer the question directly, and said that he had only ever met with Mr Bezard like this twice.
[109] Refer NDIA’s Tender Bundle at TB28/61.
Mr Jack was also taken to Mr Bezard’s clinical note of a face-to-face session with him on 17 December 2020, where Mr Bezard stated (emphasis added):[110]
…He has not been walking, but he has been sick, wife has not been well. He has been gardening, mowing the lawn. Back hurting from lifting gas bottle earlier in the week, right in the middle of his back between shoulder and hip. Back pain he feels is affecting his walking, apart from that he is tired. Didn’t sleep much at all last two days, not sure why, felt like his eyes wouldn’t close. Also worried about Niece in UAE who is in hospital with food poisoning.
[110] Ibid at TB28/63.
At the hearing, Mr Jack was asked about his involvement in gardening based on the references in this clinical note. He responded by saying that they did not have much of a garden. He told the Tribunal he did not have to do gardening or to mow the lawn all the time, thanks to help he receives from a friend. Mr Jack had given evidence earlier on in the hearing that he did not have any friends. When this was pointed out to Mr Jack in reference to his statement that a friend had helped him with gardening, he said that he did not have many friends. Mr Jack said he only has two friends and that one of them had helped him. When asked, he said he met those friends in Australia, and they had an Iraqi background. When asked, Mr Jack said he saw them once a week or fortnight.
Mr Jack confirmed that he would change the gas bottle on his barbeque, and that it weighed about 10kg. Mr Jack explained that he “does not lift it for a long time”. He said he goes to Bunnings to change it.
At the hearing, Mr Jack was taken to another clinical note by Mr Bezard of a face-to-face session on 7 January 2021 which stated as follows:[111]
[Mr Jack] is giving up smoking, used to smoke 2-3 packets a day, now 1-3 cigarettes, on some tablets prescribed by his doctor. [Mr Jack’s wife] doing better and has started walking, trying to get [Mr Jack] to come, but he insists on waiting until his [dental] plate is repaired.
[111] Ibid at TB28/64.

Mr Jack said it was possible that this conversation took place between him and Mr Bezard, but he could not recall. The Tribunal finds that this conversation did take place and it reveals an instance where Mr Jack made an excuse (which the Tribunal considers to be unsatisfactory) as to why he did not undertake exercise such as walking with his wife, when he had an opportunity to do so.
At the hearing, Mr Jack give evidence that his wife helped him to shower, by washing him. When asked what he did while his wife was in hospital, Mr Jack said he went into the shower and let the water run over him.
The Tribunal notes from the clinical note of Mr Bezard from his session with Mr Jack on 14 January 2021 that it was recorded that Mr Jack was “walking around the shopping centres”, and that he planned to walk outside again, when his wife started to do so.[112]
[112] Ibid at TB28/66.
At the hearing, Mr Jack confirmed that he had purchased a treadmill in about July or August 2020. He said he had only used it once because it hurt his leg.[113]
[113] Ibid at TB28/67.
The Tribunal notes Mr Bezard’s clinical note on 10 March 2021 stating that there had been a significant reduction in Mr Jack’s pain since the previous treatment. It was also reported that Mr Jack had been a bit low, and he had not been walking. In a subsequent session on 16 March 2021, Mr Bezard recorded in his clinical note as follows:
Jimmy doing okay. Thinks he has some numbness always in his body, can’t feel things very strongly. Talked about how is fatigues very easily and only after a hot shower does he feel better. Often has a second shower in the afternoon. We talked about walking again, still encouraging him, even 5 minutes, he knows it will be good for him but can’t quite make the leap.
Mr Jack confirmed at the hearing his recollection of having this conversation with Mr Bezard.
In Mr Bezard’s clinical notes from the session with Mr Jack on 30 March 2021, Mr Bezard recorded that Mr Jack had been tired and that Dr Francis had done blood tests for iron and testosterone and Mr Jack’s levels for both were low. He was due to see a doctor the following day about having injections for iron and testosterone.[114]
[114] Ibid at TB38/71.
This seems to have had a significant positive impact on Mr Jack’s energy levels, however, he was still not exercising by walking. In his notes from the session with Mr Jack on 21 April 2021, Mr Bezard stated (emphasis added):[115]
Jimmy has started on Iron tablets to regulate his blood sugar since I last saw him. He says he is feeling remarkably improved in the mornings and with his sleep. He is able to wake up and get straight out of bed rather than struggle around and have to call [his] wife, much less pain in his back and his arms are no longer going [numb] when he sleeps on his side. He has to see a [specialist] for the first testosterone injection. He is still hesitant about walking but agreed if there is a warmer day he might go walking with me again.
[115] Ibid at TB38/72.
The Tribunal finds that this conversation took place, and it reveals there was an improvement in Mr Jack’s capacity to engage in the activity of mobility in about April 2021. It also reveals a further instance of Mr Jack making an excuse (which the Tribunal considers to be unsatisfactory), as to why he did not undertake exercise such as walking, when he had an opportunity to do so, except for the fact that he may have had to endure some colder temperatures outside. Mr Jack has a treadmill in his home and had an opportunity to walk on his treadmill inside his house, without going outside.
The Tribunal acknowledges that Mr Jack has difficulty with the activity of “mobility”. However, the Tribunal considers that this incapacity arises predominately from his physical impairments rather than his Permanent Impairments. The Tribunal finds that Mr Jack’s sensory impairment arising from his hearing loss does not impact in any way on Mr Jack’s mobility. The Tribunal acknowledges that Mr Jack’s mental health issues may have reduced his capacity to mobilise by lessening his motivation to do so.
However, based on the evidence showing that Mr Jack’s mental health condition improved and stabilised in the second half of 2017 and given Dr Francis’s evidence that Mr Jack’s mental health conditions were being managed by his medication regime, the Tribunal does not consider that Mr Jack’s impairments attributable to his psychiatric conditions have reduced Mr Jack’s capacity to mobilise. There is evidence before the Tribunal that Mr Jack is active in and around the house and out in the broader community – see paragraphs [137], [138], [140] to [143] and [147]. Mr Jack is able to walk unaided and at times, has managed to walk reasonably long distances. He goes shopping and takes himself to appointments at The Foundation House. He is able to take himself to the local community such as to the car mechanics if his car requires fixing or to Bunnings if the barbeque gas bottle requires replacement.
The Tribunal finds that Rule 5.8 does not apply to Mr Jack on account of the impact of his Permanent Impairments on the activity of mobility. The Tribunal finds that Mr Jack’s Permanent Impairments have not otherwise resulted in a substantially reduced functional capacity of him to undertake the activity of mobility.
Self-care
The fifth Prescribed Activity of “Self-care” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that “Self-care” means “personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet”.[116]
[116] Refer Access Guidelines at p 9.
The Tribunal considers that any reduction in functional capacity of Mr Jack to undertake the activity of self-care does not arise from his Permanent Impairments. The Tribunal acknowledges that Mr Jack requires some assistance from his wife in relation to showering, dressing, and going to the toilet. Dr Francis said that Mr Jack did not need 24/7 care, but that he needed supervision in the shower and that it was hard for him to do it by himself due to the problems with his back, hip, and weight. Dr Francis also said he needs assistance with bathing and sometimes, dressing, because he does not have full range of movement.
At the hearing, Dr Francis was asked whether he was aware how Mr Jack showered. Dr Francis said that Mr Jack “had physical issues” and that he either needed a modified shower or he required assistance. Dr Francis said he was not aware whether Mr Jack had any bathroom modifications and that he had mostly lived in rental properties, where it was “hard to get modifications”. Dr Francis was asked whether he had conducted an occupational therapy assessment on Mr Jack, and it was put to him that he had not had a conversation with Dr Jack about how he tackled having a shower. Dr Francis responded that he had not done so because “it was not his job”. Dr Francis said that Mr Jack had told him that usually his wife would assist him. Dr Francis said he was not surprised by this because he “knew how Mr Jack’s physical condition was”. Dr Francis accepted that there were some things that Mr Jack could do by himself.
When Dr Francis was asked at the hearing how Mr Jack dressed himself, he said he was unaware as to how he did so. Dr Francis said that Mr Jack’s movements were restricted and that he “definitely, sometimes, needed help”. Dr Francis said that Mr Jack did not require assistance for “daily jobs”.
The Tribunal finds that Mr Jack cannot undertake some self-care activities due to his physical impairments, and not due to any one or more of his Permanent Impairments. The Tribunal finds that Mr Jack can eat independently. His wife prepares his meals. There was insufficient evidence before the Tribunal that Mr Jack was unable to prepare his own meals or to order pre-made home-delivered food, had he chosen to do so. The Tribunal observes that Mr Jack is able to attend medical and other appointments independently and that Mr Jack gave evidence at the hearing that sometimes he drove to those appointments or that his wife would drive him. The fact remains that Mr Jack owns and drives a car and is able to, and does, transport himself to appointments with his treating health professionals. By doing those things, he is capable and does attend to his own health-related care.
On balance, the Tribunal finds that Mr Jack’s Permanent Impairments do not result in a substantially reduced functional capacity in the activity of self-care, either by operation of the deeming provision in Rule 5.8, or generally.
Self-management
The sixth Prescribed Activity of “Self-Management” is not defined in the NDIS Act or the Access Rules. The Access Guidelines provide that:
Self-management (if older than 6)” means “how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks. [117]
[117] Refer Access Guidelines at p 9.
Dr Francis gave evidence at the hearing that Mr Jack does not require assistance with self-management. An early medical report referred to Mr Jack becoming stressed in relation to personal financial matters. However, whether a person becomes stressed while doing something does not necessarily equate to a reduced capacity to undertake that activity. The Tribunal notes that Mr Jack successfully applied for and has received social security payments demonstrating an instance of being able to attend to his financial affairs in a capable and effective manner. There was no evidence before the Tribunal indicating that Mr Jack has a reduced capacity when it came to his self-management or that he relies upon others to attend to his financial affairs. By his own evidence, Mr Jack told the Tribunal he spent some of his spare time doing small things around the house and when the car required fixing or the barbeque gas bottle required replacing, the evidence before the Tribunal revealed that Mr Jack is able to and has attended to those things.
The Tribunal accepts the evidence of Dr Francis as referred to in the above paragraph and finds that Mr Jack’s Permanent Impairments do not result in a substantially reduced functional capacity in the activity of self-management either by operation of deeming provision in Rule 5.8 or generally.
Taking all of the above findings in relation to each of the six Prescribed Activities into account, the Tribunal concludes that Mr Jack does not meet the disability requirement under s 24(1)(c) of the NDIS Act.
Sections 24(1)(d) and (e) - Social or economic participation and support required for the person’s lifetime
The Tribunal has found that Mr Jack does not meet the mandatory criteria under ss 24(1)(c) of the NDIS Act in respect of his Permanent Impairments. The six requirements under s 24(1) are cumulative. For this reason, it is unnecessary to proceed to a consideration of whether Mr Jack met the remaining disability requirements under either ss 24(1)(d) or 24(1)(e) of the NDIS Act.
Whether Mr Jack meets the “early intervention requirements” under s 25
The Tribunal has concluded that Mr Jack does not meet the “disability requirements” under s 24. The Tribunal must proceed to a consideration as to whether Mr Jack meets the “early intervention requirements” under s 25 of the NDIS Act.
The NDIA “reviewer” was not satisfied that s 25 of the NDIS Act is met and considered that the evidence did not demonstrate that the provision of early intervention of supports were likely to benefit Mr Jack by reducing his future need for support. The “reviewer” considered that the information provided had not addressed the early intervention supports Mr Jack required, the outcomes that would be achieved in relation to his functional capacity, or the benefits that might be expected were he to receive such supports.
Under s 25, there are three mandatory requirements that a person must meet in order to meet the “early intervention requirements” under the NDIS Act. The first requirement, as relevant to Mr Jack, is that he must have one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent or impairments are attributable to a psychiatric condition and are, or are likely to be, permanent. The Tribunal has found that Mr Jack has one or more impairments which meet this description. They are the Permanent Impairments referred to in paragraph [96] and [114].
The second requirement is that the 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. Relevantly, the Access Guidelines provide as follows (footnotes omitted):[118]
[118] Ibid at page 13.
How will early intervention help you?
We need to decide that getting early intervention supports means you’ll likely need less disability supports in the future.
We need to know that early intervention supports will help you with at least one of the following:
•addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life.
•          preventing your functional capacity from getting worse.
•          improving your functional capacity.
•supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
•          how your impairment might change over time
•          how long you’ve had your impairment
•          if there’s been a significant change to your impairment
•          if your needs are likely to change soon, such as if you’re finishing school.
At the hearing, the Tribunal gained an impression that Mr Jack was seeking assistance under the NDIS in the form of personal supports to help him manage at home with self-care tasks and to look after the domestic tasks in and around the home. There was no other support identified by Mr Jack before or at the hearing which had features aimed at building the capacity of Mr Jack or which were otherwise intended to reduce his future disability-related needs by improving the level of his Permanent Impairments or by preventing them from deteriorating. No occupational therapist or other allied health therapist was called by Mr Jack or the NDIA as an expert witness in this proceeding to give any evidence about the type of early intervention supports that Mr Jack was seeking and what they were intended to achieve.
For this reason, the Tribunal could not identify any early intervention support that was proposed to be provided to Mr Jack and was likely to benefit him, by reducing his future needs for supports in relation to disability. The Tribunal is not satisfied that Mr Jack has met this second early intervention requirement under s 25(1)(b) of the NDIA Act. As the requirements under s 25(1) are cumulative, it is not necessary to proceed to a consideration of whether the third early intervention requirement under s 25(1)(c) of the NDIS Act is met.
The Tribunal concludes that Mr Jack does not meet the early intervention requirements under s 25 of the NDIS Act because he does not meet the second mandatory requirement under s 25(1)(b).
CONCLUSION
The Tribunal concludes that while Mr Jack meets the requirements under ss 21 and 22 of the NDIS Act, he does not meet the “disability requirements” under s 24 of the NDIS Act or the “early intervention requirements” under s 25 of the NDIS Act.
Accordingly, Mr Jack does not meet the access criteria under s 21 of the Act to become a participant under the NDIS. Consequently, the Tribunal affirms the Decision Under Review.

I certify that the preceding 176 (one hundred and seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

...............................[sgd].........................................
Associate
Dated: 8 June 2022

Dates of hearing: 27 and 28 July 2021

Date final submissions received: 30 July 2021

Advocate for the Applicant: Self-represented

Counsel for the Respondent: Ms Krystyna Ginsberg

Solicitors for the Respondent: In-house lawyer, National Disability Insurance Agency

[2022] AATA 1525

8 June 2022

Key Legal Topics

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Administrative Law

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Legal Concepts

Judicial Review

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Statutory Construction

Natural Justice

Procedural Fairness

Appeal

Dates of hearing:	27 and 28 July 2021
Date final submissions received:	30 July 2021
Advocate for the Applicant:	Self-represented
Counsel for the Respondent:	Ms Krystyna Ginsberg
Solicitors for the Respondent:	In-house lawyer, National Disability Insurance Agency