Jalali and National Disability Insurance Agency (NDIS)
Jalali and National Disability Insurance Agency (NDIS) [2025] ARTA 1093 (24 July 2025)
Applicant/s: Hossien Jalali Asheghabadi
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9820
Tribunal:Senior Member J Collins
Place:Brisbane
Date:24 July 2025
Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.
................[SGD]...................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – PTSD – anxiety – depression – dementia – psychosocial impairment – whether applicant meets disability requirements – NDIS Act s24(1)(c) – whether impairments substantially reduce functional capacity – social interaction – communication – mobility – learning –functional assessment – NDIS Act s25 – early intervention requirements – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024(Cth) sections 105
National Disability Insurance Scheme Act 2013 (Cth) sections 21,22, 23, 24, 25, 27
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Foster v NDIA [2025] ARTA 718
Re Schwass and National Disability Insurance Agency [2019] AATARooney and National Disability Insurance Agency [2021] AATA 3523
Madelaine v National Disability Insurance Agency [2020] AATA 4025
Kilgallin v National Disability Insurance Agency [2017] AATA 186
Garcia Albiol v National Disability Insurance Agency [2024] AATA 496
Moxham v National Disability Insurance Agency [2025] ART
TZQP v CEO, NDIA [2025] ARTA 839
Coffey v CEO,NDIA [2025] ARTA 634
Burrows v CEO,NDIA [2025] ARTA 607
BFYK v NDIA [2025] ARTA 1006
KNNW v NDIA [2025] ARTA 1033Secondary Materials
NDIS – Applying to the NDIS access guidelines, as of 11 March 2025.
Statement of Reasons
Mr Hossien Jalali Asheghabadi (Mr Jalali) is a 67-year-old man. He seeks access to the National Disability Insurance Scheme (‘the scheme’) so that he can receive supports to assist him.
Mr Jalali applied to the National Disability Insurance Agency (‘the Agency’) for access to the scheme on 12 March 2023.[1]
[1] T1, T5
In his NDIS Access Request form[2] Dr Ram Ganapathy, general practitioner, referred to Mr Jalali’s post-traumatic stress disorder (‘PTSD’) with depressive and anxiety features. Mr Armani, psychologist also referred to PTSD which had been present since 1980.[3]
[2] T9
[3] T5
Mr Jalali’s application for access was refused at first instance by the Agency and again upon internal review.[4] Mr Jalali subsequently applied to the Administrative Appeals Tribunal (‘AAT’) on 25 December 2023 for review of the Agency’s internal review decision (‘the decision under review’).[5]
[4] T2.
[5] T1, T1A, T Documents; section 103 of the NDIS Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
At the hearing Mr Jalali’s son, Kiarish Jalali Asheghabadi (KJA) advocated on his behalf. The Agency was represented by Ms Baw of Counsel instructed by Maddox Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Mr Jalali does not meet disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act. Mr Jalali therefore does not meet the access criteria under section 21 of the NDIS Act and cannot have access to the scheme.
ISSUES
Access to the scheme requires Mr Jalali to satisfy that he meet the ‘access criteria’ under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
When a person meets the access criteria
(1) A person meets the access criteriaif:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
…………………………………………………………………………….
Determination of this issue is made pursuant to the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.
The age[6] and residence[7] requirements remain unchanged in the Act. However, sections 24 and 25 of the NDIS Act have been amended by the Amending Act with effect from 3 October 2024.
[6] Section 22 NDIS Act
[7] Section 23 NDIS Act
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 of the NDIS Act apply to access requests that are made to the Agency by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made a request to access the Agency under the new Amending Act requirements on or after 3 October 2024.
Subitem 126(3) of Schedule 1 to the Amending Act also provides that the National Disability Insurance Scheme Rules made under section 27 of the Act as in force before 3 October 2024 continue to apply on and from 3 October 2024.
As Ms Jalali’s request for access to the scheme was made before 3 October 2024, the amendments to sections 24 and 25 of the NDIS Act will not apply to this review. The Rules in place prior to 3 October 2024 will also continue to apply to Mr Jalali’s request for access to the scheme.
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
24 Disability requirements
1. A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2.For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
3.For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
4.Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
25 Early intervention requirements
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention
requirements and therefore become a participant.1AFor the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
2.The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3.Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
a. as part of a universal service obligation; or
b. in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (‘the Access Guidelines’).[8]
[8] ourguidelines.ndis.gov.au: Applying to the NDIS.
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[10] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …[12]
[9] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[10] [1979] 24 ALR 577 at [590].
[11] [2018] FCA 1229.
[12] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Jalali meets the disability requirements or the early intervention requirements.
Whether Mr Jalali meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[13] with a relatively high degree of precision and be positively satisfied.[14]
[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[14] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
Mr Jalali’s position
Mr Jalali relies on the following conditions in respect of his application for access to the scheme:
·Post-traumatic stress disorder (PTSD);
·Depression;
·Anxiety: and
·Dementia.
Mr Jalali contends that he meets the access criteria pursuant to section 21 of the NDIS Act in relation to impairments dues to all of these conditions. In particular Mr Jalali contends that he satisfies both the disability requirements and the early intervention requirements for the purposes of subsection 21(1)(c) of the NDIS Act in respect of impairments as a consequence of each of these conditions.
The Agency’s position
Age and residence requirements
No contention is raised by the Agency that Mr Jalali does not meet the residence requirements.[15]
[15] Subsection 21(1)(b) of the NDIS Act, A3 at [15]
The Agency raises as a contention a temporal issue in relation to the construction of sections 21 and 22 of the NDIS Act, as to whether the Tribunal can consider the impairments arising out of Mr Jalali’s dementia in circumstances where his symptoms of dementia did not appear until after turned Mr Jalali 65 years of age. On the basis I am not satisfied that Mr Jalali has a diagnosis of dementia (as referred to in reasons which will follow) this is not an issue that is required to be addressed by the Tribunal.
Disability requirements
The Agency accepts that Mr Jalali has as a psychosocial impairment as a consequence of PTSD, depression and anxiety for the purposes of section 24 (1)(a) of the NDIS Act. The Agency also accepts that Mr Jalali’s psychosocial impairment affects his capacity for social or economic participation pursuant to subsection 24(1)(d) of the NDIS Act.
The Agency disputes that Mr Jalali’s psychosocial impairment;
·is permanent, or likely to be permanent for the purposes of subsection 24(1)(b) of the NDIS Act;
·results in a substantially reduced functional capacity for any of the activities in subsection 24(1)(c ) of the NDIS Act;
·is likely to require support under the scheme for his lifetime, within the meaning of s 24(1)(e) of the NDIS Act, on the basis that the supports may be provided to him by the aged care system.
The Agency also disputes that Mr Jalali has a diagnosis of dementia, or the Alzheimer’s form of dementia. In doing so, the Agency contends that Mr Jalali does not satisfies the requirements under section 24 of the NDIS Act in respect of any impairment as a consequence dementia.
Early intervention requirements
In relation to the early intervention requirements for the purposes of section 25 of the NDIS Act the Agency disputes that Ms Jalali’s impairments due to PTSD, depression and anxiety:
· Are permanent, or likely to be permanent, within the meaning of s 25(1)(a) of the NDIS Act;
· Are likely to benefit from the provision of early intervention supports by reducing Mr Jalali’s need for supports within the meaning of s 25(1)(b) of the NDIS Act;
The Agency also contends that early intervention supports will not be mitigate or alleviate the impact of Ms Jalali’s impairments, or prevent the deterioration of his functional capacity, or improve his functional capacity or strengthen the sustainability of informal supports available to him within the meaning of s 25(1)(c) of the NDIS Act.
The Agency also contends that any early intervention support is more appropriately funded or provided through other general systems of service delivery, namely the aged care system, pursuant to s 25(3) of the NDIS Act.
Finally in the absence of a diagnosis of dementia, the Agency contends that Mr Jalali does not meets any of the early intervention criteria under s 25(1)(a),(b) and (c) of the NDIS Act. Further, and in the alternative, if the Tribunal accepts the diagnosis of dementia, and if the Tribunal finds that the subsection 25(1) of the NDIS Act ‘early intervention’ criteria are met Mr Jalali does not meet s 25(3) of the Act. This is on the basis that early intervention support is more appropriately funded or provided through other general systems of service delivery, namely the aged care system.
Evidence of Mr Jalali
Mr Jalali did not give evidence at the hearing.
Mr Jalali did however provide a statement of his ‘lived experience’ in correspondence addressed to the Agency and dated 26 March 2024. Mr Jalali’s correspondence which I note was authored by him, is well written in structure and form.
Mr Jalali’s correspondence helpfully details his challenges with everyday living and refers to the following matters:
· That he is ‘grappling with severe PTSD, anxiety, depression, and dementia’;
· His various medications;
· Memory lapses and difficulties with articulating thoughts and understanding inquiries promptly;
· The unwavering support of his son;
· Isolation and feelings of sadness, depression and anxiety;
· The encouragement that he receives from his son to access the community for activities which includes going to parks, shopping centres and coffee shops;
· His ability to move around his home and perform basic tasks such as getting in and out of a bed and a chair;
· The ability to walk distances ‘equal to or less than one hundred meters’ before facing ‘challenges with knee and back pain’ due to arthritis;
· The impact of his arthritis and his challenges navigating stairs which necessitates assistance from his son or the use of handrails;
· That currently he does not require the use of any walking aids;
· The requirement for prompting for showering and meals; and
· The ability to choose what he wears.[16]
[16] Exhibit 1 pages 307- 312
Evidence about Mr Jalali
Mr Jalali lives with his wife and his son KJA. His wife, who is also his first cousin suffers from dementia. Mr Jalali has two other sons who do not reside in Australia.
KJA cares for both his parents. In his capacity as a carer KJA provided written statements[17] in which he referred to some of the following matters:
· Even on ‘good days’ Mr Jalali requires assistance with personal hygiene and feeding. On bad days he requires complete assistance with bathing, grooming, toileting and dressing;
· Mr Jalali requires constant and vigilant supervision due changes in his behaviours and also to manage episodes of agitation and ensure his safety;
· Mr Jalali is unable to undertake food preparation. He requires a specialised diet including ‘Persian dishes’;
· Mr Jalali is profoundly impaired and struggles with even the simplest decision making;
· Caring for his father is an exhausting and unrelenting task.
[17] T14, Ex 1 – document 19
KJA also gave oral evidence at the hearing. His oral evidence was of little assistance to the Tribunal. KJA presented to the Tribunal as evasive, even in respect of simple questions relating to Mr Jalali. Notwithstanding, KJA’s oral evidence, at best, can be summarised as follows:
· Mr Jalali does not speak English and only speaks Farsi;
· Each day is different for his father, with good days and bad days;
· Ms Jalali will often say things that don’t make sense;
· When attending with a Farsi speaking doctor, Mr Jalali will ‘sometimes’ and ‘with encouragement’ speak the doctor;
· He attends with his psychologist Mr Armani who also speaks Farsi. These appointments generally take one hour and Mr Jalali attends these appointments on his own and without a third person;
· Mr Jalali leaves the home ‘every other day’. He takes his father to the park, the Baha’i centre, coffee shops, supermarkets and shopping centres. This is because Mr Armani has advised it’s ‘good for him to be out’;
· Mr Jalali will sometimes talk to his wife. Sometimes however he will mistake his wife for another cousin;
· He is able watch Persian movies with his wife and eat meals at the dining table with his family;
· He is visited on occasion by members of the Baha’i community;
· He sees various doctors which include Dr Leung, GP and Dr Miller, neurologist and Dr Gananpathy, psychiatrist;
· He seeks the NDIS so that he can receive physiotherapy, occupational therapy, psychology and the services of a dietician. Mr Jalali’s GP has advised that these services are available through the NDIS;
· Mr Jalali has not applied for ‘Aged Care’ support;
· Mr Jalali’s wife is a participant in the scheme;
· Mr Jalali is able to walk and does not rely on any assistive technology such as a walking stick;
· Mr Jalali can complete chair and toilet transfers. He can also get in and out of bed;
· Mr Jalali is at times incontinent of both his bladder and bowels;
· At times Mr Jalali needs to be ‘directed’ and ‘prompted’ to use the toilet and to shower;
· Mr Jalali requires assistance showering which includes turning on the tap, adjusting the water temperature, shampooing his hair and drying off;
· Mr Jalali can eat food using a spoon and drink fluids from a cup;
· KJA collects his father’s medication from the pharmacy and provides these medications to him daily.
Dr Francis Leung
Dr Leung, General Practitioner, completed Mr Jalali’s NDIS Application form. In doing so it is evident that no detailed functional assessment of Mr Jalali was undertaken by Dr Leung.[18]
[18] T7 exhibit 1 page 150
Mr Massoud Armani
Mr Massoud Amani is a clinical psychologist and has been treating Mr Jalali since May 2022 . He provided several reports to the Tribunal.[19] These reports provided diagnoses of severe depression with anxiety and panic attacks, also PTSD.
[19] T1B. T4, T6
Mr Armani also completed Mr Jalali’s NDIS Access Request form dated 12 March 2023 in which he stated that Mr Jalali had a Psychosocial disability[20] with a primary impairment of PTSD. Mr Armani also referred to adjustment disorder, severe anxiety, severe depression and severe stress as having a significant impact upon him. In the Access Request form Mr Armani stated, ‘When he is anxious he cannot recall the words and forgets even his date of birth, he will be speechless when distressed[21]
[20] T5, T6
[21] T5
Mr Armani also completed an ‘evidence of psychosocial disability’ form. In doing so he referred to Mr Jalali’s difficulties with social interaction, self-management, self -care, self-management, communication, learning, mobility. These references are made broadly and not in the context of a detailed function assessment. They appear for the most part to be on the basis of Mr Jalali’s self-reporting, or at least a third person.
Mr Armani’s report dated 8 February 2023 [22] makes no reference to a dementia diagnosis. The report refers to a psychological assessment and diagnoses of adjustment disorder, panic attacks and PTSD. Mr Armani states that Mr Jalali exhibits normal non-verbal communication, body movements and speech patterns. Also that Mr Jalali expressed his thoughts, feelings and emotions adequately. Mr Armani states that Mr Jalali ‘reported’ to him a ‘short attention span‘ and that Mr Jalali believed his memory and powers of concentration has deteriorated.[23]
[22] T4
[23] Exhibit 1 page 126
Mr Armani’s report dated 1 December 2023 also makes no reference to a diagnosis of dementia as another medical condition.[24] Mr Armani states that Mr Jalali presents with a severe case of depression with anxiety and panic attacks symptoms and PTSD.
[24] Exhibit 1 pages 109- 110
In Mr Armani’s report dated 9 March 2024[25] he states that Mr Jalali ‘states that he feels increasingly stressed since his arrival in Australia’.
[25] Exhibit 1 page 315
Over the years Mr Armani has provided Mr Jalali with Cognitive Behavioural Therapy (CBT), Interpersonal therapy and psychodynamic therapy. He stated that Eye Movement Desensitization and Reprocessing (EMDR) therapy did not work for Mr Jalali and was therefore not an effective treatment option for him.
Mr Armani’s most recent report was dated 15 August 2024[26] and provided at the request of the Agency. Mr Armani stated that,
….all available treatments which could alleviate the impairment of functioning for these conditions have been undertaken without any improvement. Mr Hossein Jalali Asheghabadi’s mental health impairment on daily life is permanent, and it will require the assistance of another person on most daily tasks or assistive equipment to support his daily life.
[26] Exhibit 1- 14
Mr Armani further explained that Mr Jalali did not have the capacity to engage in cognitive and behavioural therapies, learn new skills , strengthen independence and develop coping and adaptive strategies. Mr Armani confirmed that he had completed a ‘general diagnostic interview’ of Mr Jalali using the PTSD Checklist for DSM-5. He had also completed a Depression, Anxiety, and Stress Scale assessment (DASS-21) which is a self-report questionnaire used to assess the severity of depression, anxiety and stress.
Dr Ram Ganapathy
Dr Ram Ganapathy, is Mr Jalali’s treating psychiatrist. He provided a number of reports to the Tribunal.[27]
[27] T1C, T3, T12, T 20
In his report dated 5 January 2023 Dr Ganapathy provided a diagnosis of PTSD with depressive and anxiety features.[28] Dr Ganapathy did not provide a diagnosis of dementia. Dr Ganapathy described Mr Jalali’s symptoms as chronic and made the following broad statement,
Mr Jalali has enduring symptoms that has affected his functioning in aspects of
communication, social interaction, learning, self-care and self-management. His
impairment is likely to be permanent and will need ongoing monitoring as well as supervision.[29].
[28] T3
[29] Exhibit 1 page 123
In June 2023 Dr Ganapathy completed an NDIS Access Request- supporting Evidence Form.[30] At that time Dr Ganapathy referred to PTSD with depressive and anxiety features. Dr Ganapathy referred to his diagnosis as being made pursuant to the DSM-5
[30] T 9
In Dr Ganapathy’s report dated 20 December 2023 again provided a diagnosis of PTSD with depressive and anxiety features. Likewise this report did not refer to a diagnosis of dementia. Dr Ganapathy stated,
‘Mr Jalali has enduring symptoms that has affected his functioning in aspects of communication, social interaction, learning, self-care and self-management. His impairment is likely to be permanent and will need ongoing monitoring as well as supervision’[31]
[31] Exhibit 1 page 112
In his report dated 26 March 2024 Dr Ganapathy refers to a significant and rapid decline in Mr Jalali’s functions over the last 3-4 months.[32]
[32] Exhibit 1 page 326
In his final report dated 26 August 2024 Dr Ganapathy stated,
Mr Jalali has enduring symptoms that has affected his functioning in aspects
of communication, social interaction, learning, self-care and self- management.
His impairment is likely to be permanent and will need ongoing monitoring as well as supervision. There has been a significant and rapid decline in his day to day functioning over the last 3-4 months due to the Dementia . Mr Jalali needs constant supervision and the conditions with associated impairment is likely to be permanent. Mr Jalali meets the criteria for DSP and NDIS input.
No reference is made in any of the material provided by Dr Ganapathy to him having undertaken a detailed functional assessment of Mr Jalali in respect of the activities in subsection 24(1)(c ) of the NDIS Act.
Dr Niluni Kamaladasa
Dr Kamaladas is also a psychiatrist who has treated Mr Jalali. Correspondence by Dr Kamaldas dated 2 October 2025 was provided to the Tribunal.
In this correspondence Dr Kamaladas states, ‘Mr Jalali is presenting with severe and widespread impairment of his cognitive abilities, which have been gradually progressing over a period of approximately 12 to 18 months.
No reference is made in any of the material provided by Dr Kamaladasa to having undertaken a detailed functional assessment of Mr Jalali in respect of the activities in subsection 24(1)(c ) of the NDIS Act.
Dr Henry Miller
Dr Henry Miller has been Mr Jalali’s treating neurologist since January 2024. He provided a number of reports to the Tribunal.[33] In his first report dated 15 February 2024 Dr Miller stated ‘This man has severe dementia and is incapable of doing anything for himself’[34].
[33] Exhibit 1- 10, 14, 15, 20
[34] Exhibit 1 page 314
Dr Miller has prescribed Mr Jalali with donepezil a medication that treats symptoms of Alzheimer's disease like memory loss and confusion.
In his report dated 26 August 2024 Dr Miller stated,
He has severe dementia but I am not definite that this is Alzheimer's disease, even though Alzheimer's disease is the most likely cause. His clinical findings do not easily fit in other commonly seen forms such as frontotemporal dementia as disinhibition has never been a prominent part of his diagnosis.
Dr Miller also referred to Mr Jalali’s ‘real deterioration in the last six months with an inability to cook in the last three months, having to be prompted to shower and speech that was often non-sensical.’
Dr Miller’s final report was dated 14 April 2025. This report was requested by the Agency and was in response to an assessment and report by Dr John O’Neill which I will subsequently refer to. Dr Miller stated in this report,
‘Even if this is malingering, this would have to be an extreme form as he is incontinent of urine and faeces. malingering this severe I think is a severe disability warranting NDIS support. In reality, I don’t think this is malingering. I think this is an atypical dementia.’
No reference is made in any of the material provided by Dr Kamaladasa to having undertaken a detailed functional assessment of Mr Jalali in respect of the activities in subsection 24(1)(c ) of the NDIS Act.
Dr John O’Neill
Dr John O’Neill is a neurologist with 40 years of experience. He assessed Mr Jalali on 31 January 2025 and provided a report. [35]
[35] Exhibit 1 - 23
In his report Dr O’Neill states,
I strongly disagree with the diagnosis of Alzheimer's disease/dementia as made by Dr Miller. Memory would not appear to have been an issue until late 2023. Impaired language would also not appear to have been an issue until around that time. In other words, there would appear to have been an acute onset of memory impairment and language difficulty, which is not what would be seen in a dementing process other than in the subacute conditions such as Creutzfeldt-Jakob disease, which is clearly not present here.
Dr O’Neill recommended that Mr Jalali be reviewed by a cognitive neurologist with expertise in the various forms of dementia, also that he undergo a neuropsychological assessment.
Dr O’Neill also provided oral evidence at the hearing which can be summarised as follows:
· During the assessment Mr Jalali was unable to speak in order to provide any meaningful medical history;
· Dr O’Neill’s clinical physical examination caused him to form an opinion that Mr Jalali was either malingering or affected by a psychosomatic illness;
· Dr O’Neill described ‘malingering’ as behaviour with a purpose of some secondary gain with benefits;
· He did not consider that Mr Jalali’s ‘physical symptoms’ of memory loss or his inability to speak could be attributed to a diagnosis of dementia;
· Whether Mr Jalali’s ‘physical symptoms’ could be attributed to PTSD is outside his area of expertise;
· The onset and progression of Mr Jalali’s physical symptoms, over a period of only eighteen months, to the point where he has no memory and is unable to speak is far too rapid for ‘any of the degenerative dementias’.
· Mr Jalali’s symptoms should have been further investigated for a cause other than dementia;
· ‘Young onset dementia’ refers to the development of dementia under the age of 65. Mr Jalali’s symptoms commenced in 2022, when he was under 65 years of age. On the basis that Mr Jalali does have dementia he would be considered to have ‘young inset dementia’.
· The period of time from the onset of symptoms until the development of physical symptoms to the level and extent as those exhibited by Mr Jalali for ‘young onset dementia’ was generally 5 years;
· The appropriate course in 2022 would have been referral to a cognitive dementia specialist to determine whether there was a ‘reversible’ cause for his dementia;
· That whilst an MRI of Mr Jalali showed ‘small vessel disease’ this is usually not a cause for dementia;
· The results of a PET scan were very nonspecific and mild;
· The was nothing in either the PET scan or the MRI which indicated an alteration to the frontotemporal regions;
· Dr Miller’s diagnosis of dementia included an ‘assumption’, inappropriately made, which related to the fact that Mr Jalali’s wife had dementia and that they are first cousins;
· An experienced neuropsychologist can usually determine whether an apparent memory impairment is due to severe PTSD or dementia;
· He feels very strongly that Mr Jalali does not have dementia and that his presentation is totally not ‘typical for the dementias’. Also that there is no hard evidence that has been given by any doctor or psychologist to make the diagnosis of dementia absolutely certain;
· That review of Mr Jalali by a cognitive neurologist would now be appropriate for Mr Jalali.
SECTION 24: THE DISABILITY REQUIREMENTS
I have considered all the written evidence filed with the Tribunal, the oral evidence provided at the hearing on 25 and 26 June 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. However, the fact that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.
Consideration
Does Mr Jalali have a disability which is attributable one or more intellectual, cognitive, neurological, sensory or physical impairments?; or
Does Mr Jalali have one or more impairments to which a psychosocial disability is attributable? – subsection 24(1)(a) of the NDIS Act
The Agency accepts that Mr Jalali has a psychosocial impairment as a consequence of PTSD, depression and anxiety for the purposes of section 24 (1)(a) of the NDIS Act.
Mr Armani and Dr Ganapathy have both treated Mr Jalali and have provided these diagnoses for him.
Dr Miller describes Mr Jalali as also having ‘severe dementia’. Notwithstanding, in his final report he describes Mr Jalali’s condition as ‘atypical dementia’.
Dr O’Neill strongly refutes the diagnosis of dementia. He maintains emphatically that symptoms as a severe as those exhibited by Mr Jalali would only develop over a period of 5 years in the context of ‘young onset dementia’.
In the context of his disagreement with Dr O’Neill he recommends review by a cognitive neurologist to ascertain whether there is another cause for Mr Jalali’s symptoms.
Dr O’Neill also recommends review by neuropsychologist and states that an experienced neuropsychologist would be able to determine whether Ms Jalali’s symptoms of speech and memory loss are due to dementia or due to PTSD.
Having considered the evidence I am satisfied that Mr Jalali has a psychosocial impairment as a consequence of PTSD, depression and anxiety for the purposes of section 24 (1)(a) of the NDIS Act.
I am not however ‘positively satisfied’ that Mr Jalali has a disability that is attributable to an impairment caused by dementia for the purposes of subsection 24(1)(a) of the NDIS Act. This is because I am not satisfied that Mr Jalali has dementia and that this is the cause of this symptoms of memory and speech loss. My considerations are as follows:
Dr O’Neill’s oral evidence was well-reasoned on the basis of his findings following a detailed clinical examination of Mr Jalali;
Dr O’Neill’s oral evidence was persuasive and I am not satisfied that a diagnosis of dementia has been satisfactorily made;
I accept Dr O’Neill’s opinion that there remains an unsatisfactory explanation for Mr Jalali’s symptoms which include a complete loss of speech and memory over a relatively short period of time. I accept that this is atypical for ‘young onset dementia’. Further that in circumstances of ‘young onset dementia’, symptoms such as those exhibited by Mr Jalali would ordinarily develop over a period of approximately five years;
The documentary evidence provided does not support the onset and development of such symptoms within this timeframe;
I am not satisfied that Mr Jalali’s symptoms of memory loss and speech loss have been adequately investigated;
I accept that further investigation by an experienced neuropsychologist would have assisted the Tribunal in respect of whether Mr Jalali’s symptoms can be explained by dementia or another cause such as PTSD;
That until such investigation is undertaken other possible causes for Mr Jalali’s symptoms include, PTSD, depression, a psychosomatic illness or even malingering;
Dr Miller’s concedes that Mr Jalali has an ‘atypical dementia’.
A state of positive satisfaction in respect of the criteria of section 24(1) of the NDIS Act is paramount in the Tribunal’s decision making function and fundamental to the statutory requirement of giving effect to the object of the NDIS Act and the need to ensure the financial sustainability of the scheme.[36] In respect of a diagnosis of dementia I am unable to reach a positive state of satisfaction.
[36][36] Section 3(3) NDIS Act
Conclusion
Mr Jalali has a psychosocial impairment as a consequence of PTSD, depression and anxiety. Subsection 24(1)(a) of the NDIS Act is satisfied.
Mr Jalali does not have a disability that is attributable to an impairment in relation to a diagnosis of dementia for the purposes of subsection 24(1)(a) of the NDIS Act.
Subsection 24(1)(c): Does Mr Jalali’s psychosocial impairment result in a substantially reduced functional capacity for him to engage in the activities of communication, social interaction, learning, mobility, self-care or self-management?
To be granted access to the scheme the Tribunal must be ‘positively satisfied’ as a mandatory requirement that Mr Jalali has a ‘substantially reduced functional capacity’, as a consequence of his psychosocial impairment, in respect of any one or more the activities it referred to in subsection 24(1)(c) of the NDIS Act.
Based on the evidence before the Tribunal I am unable to be positively satisfied that Mr Jalali has a substantially reduced functional capacity in respect of any of the activities in subsection 24(1)(c ) of the NDIS Act due to his psychosocial impairment caused by PTSD, depression and anxiety. My reasons follow.
In Mulligan v National Disability Agency[37] Mortimer J considered the Tribunal’s task of assessing a prospective participant’s functional capacity and stated as follows,
…. the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important. (Tribunal emphasis)
[37] [2015] FCA 544 at 56
The Tribunal’s task of considering and determining a prospective participant’s functional capacity is onerous. The onerous nature of this task appropriately gives effect to the need to ensure the financial sustainability of scheme.[38]
[38] Section 3(3) NDIS Act
In Mulligan v National Disability Agency[39] Mortimer J also stated,
Section 24(1)(c) of the Act requires that the Tribunal assess with a relatively high degree of objective precision what, from a practical functional perspective, a prospective participant can and cannot do. It is an objective test because it does not depend upon the prospective participant's own assessment of what they can and cannot do, including what they could do before the onset of impairment as compared with what they can do after its onset. (Tribunal emphasis)
[39] [2015] FCA 544 at 56
Of significant relevance in this review is the absence of any detailed functional assessment of Mr Jalali’s functional capacity with respect to the activities in subsection 24(1)(c ) of the NDIS Act. KJA’s contention that the broad statements made by Dr Ganapathy, Dr Miller and Mr Armani in respect of Mr Jalali’s capacity, suffice for the purposes of the Tribunal’s review is misconceived. The Tribunal is required to determine with a high degree of objective precision, and from a practical perspective, what Mr Jalali can and cannot do. The evidence of which KJA refers to does not meet this standard and fails to assist the Tribunal with its onerous task.
The absence of a detailed functional assessment of Mr Jalali’s functional capacity, particularly by an occupational therapist, was raised directly by the Tribunal with KJA.
In response to the Tribunal’s enquiry KJA provided the following oral evidence;
In acknowledging that an assessment of Mr Jalali by an occupational therapist had been requested and offered by the Agency, KJA stated that he had made a decision on behalf of Mr Jalali not agree to this assessment. He provided the following reasons, ‘Because the appointment date that they could have given was too close to the hearing.’ Also that, ‘I need time, you know, when I get the report, go through it and study, you know, so I, I wasn't sure, you know, that the assessment of the OT would reach me in time when you know, for preparation for the hearing.’;
KJA also stated that one of his reasons for not accepting an appointment for assessment of Mr Jalali was ‘I didn't know when the report would have been ready and if I have enough time to go through it and read it’
In purporting to rely solely on the timing of the Agency’s request, KJA was subsequently referred by the Tribunal to various material contained in the Agency’s tender bundle.[40] This material dealt specifically with the Agency’s request for an assessment of Mr Jalali by a neuropsychologist and an occupational therapist. This material included the email exchanges between the parties in respect of the Agency’s request.
[40] Exhibit 2 pages 58 - 82
Despite significant efforts by the Tribunal to ascertain whether ‘timing’ was the primary reason for the refusal of a functional assessment, KJA failed to provide in his oral evidence any satisfactory or clear response which would assist the Tribunal to this refusal. Simply put, KJA was evasive and did not provide any meaningful response to even to the most basic and simple questions.
On this basis I have given little weight to KJA’s oral evidence in relation to Mr Jalali’s refusal to consent to an independent assessment by an occupational therapist or a neuropsychologist. Rather, in respect of this refusal my opinion has been informed by contemporaneous documentary evidence provided to the Tribunal.
Documentary evidence
Having reviewed material before the Tribunal, I am satisfied of the following matters:
On 27 March 2025 the Tribunal forwarded a Listing Notice to parties advising of that a substantive hearing of the application for review was scheduled on 18 and 19 June 2025;
On 9 April 2025 the Agency wrote to Mr Jalali seeking his consent to participate in an assessment by an independent occupational therapist.
On 10 April 2025 KJA, on behalf of his father wrote to the Agency advising that Mr Jalali did not consent to an assessment and provided the following reasons:
·There was no direction from the ART that Mr Jalali Asheghabadi must participate in this assessment;
·The ART had not indicated that this assessment was required for a fair and just determination of this matter;
·He was concerned that arranging and conducting an assessment at this time would lead to further, unnecessary delays[41]
[41] Exhibit 2 page 71
On 29 April 2025 the Agency wrote again to KJA as follows;
·The Agency extended a second invitation to Mr Jalali to consent to an assessment by an occupational therapist. The Agency referred to their previous correspondence dated 9 April 2025 and repeated the reasoning for this request stating ‘the Agency considers a report from an independent occupational therapist will assist the Tribunal in this matter. It is for the Agency to decide what evidence it seeks to seeks to obtain in the course of these proceedings and the Agency is not required to obtain a direction from the Tribunal in respect of any independent assessments. Further, it is open to the Applicant to consent to an assessment in the absence of a Tribunal direction.’
·The Agency stated that an appointment with an occupational therapist had been ‘secured’ on 3 June 2025 with a report to be provided by 11 June 2025.[42]
·A request for Mr Jalali to be assessed by neuropsychologist was also made in this correspondence with an appointment with a neuropsychologist having been ‘secured’ on 15 May 2025. As a reason for requesting an assessment by a neuropsychologist the Agency stated. “The reason the Agency considers an assessment with a neuropsychologist will assist the Tribunal is that the Agency’s expert, Dr O’Neil, states in his report that ‘a formal neuropsychological assessment might also be required”.[43]
[42] Exhibit 2 page 71
[43] Exhibit 2 page 71- 72
On 2 May 2025 KJA provided a lengthy reply to the Agency’s correspondence dated 29 April 2025.[44] The following commentary is noted in KJA’s response to what was a very simple request for an assessment by an occupational therapist:
[44] Exhibit 2 page 62
KJA stated ‘I must unequivocally reject this request. We contend that this assessment is unnecessary, unduly burdensome, and appears to contradict the NDIA's already established arguments regarding Mr. Hossein Jalali Asheghabadi's functional capacity.
That an appointment with occupational therapist on 3 June 2025 with a hearing on 18-19 June 2025,
‘raises serious concerns about procedural fairness and would significantly prejudice the Applicant's ability, represented by his son and primary carer, to adequately review, analyse, and prepare a response to this new evidence. The imposition of KJA further stated that, ‘The Respondent has already presented a comprehensive case arguing against the very functional limitations an occupational therapist would be tasked with assessing’[45]
KJA thereafter referred to the evidence provided by Mr Armani, Dr Tam, Dr Ganapathy and Dr Miller and stated,
In essence, the NDIA has already built a detailed legal argument asserting that the existing evidence fails to demonstrate the requisite level of functional impairment. Requesting an occupational therapist assessment now appears to be a strategically motivated attempt to obtain further information without a clearly articulated rationale as to what specific functional aspects remain unaddressed by the current comprehensive clinical picture, potentially leading to unnecessary delays and complications. We firmly maintain that the consistent clinical evidence from Mr. Hossein Jalali Asheghabadi's treating specialists, who possess a longitudinal understanding of his complex condition, provides a far more ecologically valid and reliable assessment of his functional capacity than a single, late stage occupational therapy evaluation.
…………………………………………………………………………………………
Therefore, we challenge the necessity and probity of this request.
………………………………………………………………………………………..The extensive reports from Mr. Hossein Jalali Asheghabadi's treating specialists – his psychologist, geriatrician, psychiatrist, and neurologist – collectively offer a detailed and consistent understanding of his impairments and the resultant impact on his functional capacity across multiple life domains. These reports, compiled by professionals with direct and longitudinal knowledge of his condition, provide a holistic picture that directly addresses the requirements of the National Disability Insurance Scheme Act 2013 and its associated rules.
……………………………………………………………………………………..
We respectfully submit that the existing clinical evidence, provided by Mr. Hossein Jalali Asheghabadi's treating specialists, already demonstrably satisfies the criteria outlined in this crucial rule across multiple life domains, rendering the proposed additional assessment duplicative and unnecessary.[46]
[45] Exhibit 2 page 63
[46] Exhibit 2 page 64
In his correspondence dated 2 May 2025 KJA also specifically addressed the Agency’s request for an assessment by a neuropsychologist and stated,
Having carefully considered this request within the context of the comprehensive medical evidence already before the Tribunal, we respectfully advise that Mr. Hossein Jalali Asheghabadi will not be consenting to this assessment at this juncture. Our considered position rests on the principle that the existing expert clinical evidence provides a robust and legally sound basis for determining Mr. Hossein Jalali Asheghabadi's cognitive capacity, rendering a further independent neuropsychological assessment both clinically and evidentially superfluous for a just determination of this matter.
In this correspondence dated 2 May 2025, KJA included in some detail Mr Jalali’s contentions in relations to his capacity in respect of each of the domains within subsection 24 (1)(c ) of the NDIS Act also as a basis for obviating the need for an assessment by either a neuropsychologist or an occupational therapist.
On 6 May 2025 the Agency wrote to Mr Jalali and stated ‘The Respondent maintains the position that the proposed independent assessments with an occupational therapist and neuropsychologist will assist the Tribunal. The Respondent also maintains that the proposed dates for the assessments will not prejudice the hearing nor the Applicant’s preparation for the hearing. However, the Respondent acknowledges that the Applicant has declined to provide his consent to participate in the proposed independent assessments with an occupational therapist and a neuropsychologist, as he is entitled to do. Given the Applicant’s position, the Agency will now cancel the appointments it has made with the independent occupational therapist and independent neuropsychologist.’[47]
[47] Exhibit 2 page 62
On 4 June 2025 a second listing notice was sent to the parties advising that the matter had be re-listed one week later for a substantive hearing on 25 and 26 June 2025.
Conclusion
I have formed the view that KJA’s contention that the proposed assessments by an occupational therapist or neuropsychologist ‘left him with an unconscionably short timeframe for effective preparation for the hearing’ is not the primary reason for the refusal of a detailed functional assessment by an occupational therapist or an assessment by a neuropsychologist.
I am satisfied of the following matters:
An assessment by an occupational therapist was first proposed by the Agency on 9 April 2025, 10 weeks prior to the schedule hearing of the matter commencing 18 June 2025;
KJA on behalf of Mr Jalali refused to consent to this assessment ‘from the outset’ as evidenced by correspondence sent the following day on 10 April 2025;
A second invitation for an assessment by an occupational therapist was made on 29 April 2025. The Agency proposed an appointment on 3 June 2025 with a report to be completed by 11 June 2025, one week prior to the hearing on 18 June 2025;
On 29 April 2025 consent for an assessment by a neuropsychologist was also sought. This was 7 weeks prior to the scheduled hearing of the matter commencing 18 June 2025. An assessment was proposed on 15 May 2025, almost 5 weeks prior to the commencement of the hearing on 18 June 2025;
I acknowledge KJA’s concerns regarding the timing of these assessments in relation to the scheduled substantive hearing date however I am not satisfied that this concern was the primary reason for the refusal of a detailed functional assessment. I am satisfied that whilst these concerns were validly raised, the primary reason for refusal was motivated by a desire not to introduce any expert evidence which may be contrary to Mr Jalali’s interests.
In forming this view my considerations are based on the content of KJA’s correspondences which are clearly and demonstratively focussed on other contentions which include;
(a)Firstly, there being no ‘direction’ from the Tribunal for a detailed functional assessment or that a functional assessment is required for a fair and just determination of the review;
(b)Secondly that sufficient evidence had already been provided to the Tribunal by Mr Jalali to satisfy the criteria under subsection 24(1)(c) of the NDIS Act. This contention was reinforced and emphasised at some length by KJA including a submission that the evidence provided by Mr Jalali constituted ‘irrefutable evidence’ which established Mr Jalali’s ‘rightful entitlement’ to the scheme;[48]
(c)Thirdly, that that the Agency has already had the opportunity to provide a ‘comprehensive case arguing against the very functional limitations an occupational therapist would be tasked with assessing’;
[48] Exhibit 1 page 61
I am therefore satisfied based on KJA’s conduct in his various lengthy correspondences that the refusal for a detailed functional assessment by an occupational therapist or an assessment by a neuropsychologist was primarily motivated by a desire not to introduce any expert evidence which may be contrary to Mr Jalali’s interests.
I am also not persuaded that KJA would not have been unable to consider, absorb and respond to any further evidence provided one week to the substantive hearing. I note that in any event the substantive hearing of this matter was subsequently delayed a further week. This is because the nature and content of KJA’s various correspondences, in particular the correspondence of 2 May 2025, demonstrates KJA’s proven ability to competently and efficiently consider matters relevant to JLA’s application and respond at some length and detail, with reference to complex legal and medical matters within 3 days;
Despite the above commentary it is an Applicant’s right to refuse any assessment proposed by the Agency and to conduct their case as seen fit. That right is respected by the Tribunal.
Whilst a detailed functional assessment by an occupational therapist and an assessment by a neuropsychologist would have greatly assisted the Tribunal I am satisfied that KJA on behalf of Mr Jalali has made this forensic choice deliberately and intentionally.
Having made this forensic choice the Tribunal’s task of considering whether Mr Jalali has a substantially reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act continues. The Tribunal’s task has continued and been based on the evidence before it.
The Tribunal’s task
Having not satisfied subsection 24(1)(a) of the NDIS Act in relation to an impairment due to dementia, Mr Jalali’s functional capacity as a consequence of a diagnosis of dementia is irrelevant.
The Tribunal task is confined to determination of whether Mr Jalali has a substantially reduced functional capacity in relation on or more of the activities in subsection 24(1)(c ) of the NDIS Act as a consequence only of his psychosocial impairment due to PTSD, depression or anxiety.
The Tribunal’s task is twofold.
The ‘first task’ is to consider whether Mr Jalali’s circumstances are captured within the deeming effect of rule 5.8 of the Access Rules. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must proceed to a ‘second task’. The second task requires the Tribunal, on the evidence available, to determine whether Mr Jalali’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially’ reduced.
The first task: Whether Mr Jalali can rely on the deeming effect of rule 5.8 of the Access Rules to establish that he has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
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
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
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.
(Tribunal emphasis added)
Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Mr Jalali can participate ‘effectively or completely’ on the basis that he is unaided by assistive technology, equipment or home modifications other than ‘commonly used items’.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’). In Rooney the Tribunal identified the indicia in respect of what are to be considered ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·relatively simple to use; and
·relatively inexpensive.
Mr Jalali does not rely on walking stick. He will use a handrail to navigate stairs.
There is no evidence before the Tribunal to suggest that Mr Jalali relies on any assistive technology (AT) or equipment in respect of any of the activities referred to in subsection 24(1)(c) of the NDIS Act. There is also no evidence of home modifications being undertaken in Mr Jalali’s home, or of him requiring home modifications.
The Agency contends that there is no evidence that Mr Jalali requires assistance (including physical assistance, guidance, supervision or prompting) in respect of any of the activities in subsection 24(1)(c) of the NDIS Act.
KJA provided evidence that Mr Jalali requires prompting at times to use the toilet and to shower and eat.
I am not persuaded to accept the self-reporting of KJA for reasons of which I have already referred to.[49] There is also no other evidence such as a detailed functional assessment by an independent person or expert which persuades me that Mr Jalali requires assistance (including physical assistance, guidance, supervision or prompting) in respect of any of the activities in subsection 24(1)(c) of the NDIS Act.
[49] [40]
The Agency’s submission is accepted.
Conclusion
Mr Jalali cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.
The second task: Does Mr Jalali have a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?
The fact that Mr Jalali does not satisfy the requirements of rule 5.8 does not disqualify him from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether Mr Jalali has a ‘substantially reduced functional capacity’ for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held: [50]
As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
[50] Mulligan at [77].
Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held:[51]
The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
------... No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.[51] Mulligan at [55]–[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[52]
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[52] Foster at [64]–[65].
Therefore, the Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Mr Jalali can and cannot do with respect to the six activities in subsection 24(1)(c). This assessment requires consideration of the ‘bundle of tasks’ and actions that comprise any given activity being considered.[53]
[53] Ibid.
Previously in the decision of Garcia Albiol v NDIA[54] I considered the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. That decision has not been appealed and has in fact been adopted in this Tribunal.[55]
[54] [2024] AATA 496.
[55] Moxham v NDIA [2025]; TZQP v CEO,NDIA [2025] ARTA 839; Coffey v CEO,NDIA [2025] ARTA 634; Burrows v CEO,NDIA [2025] ARTA 607; BFYK v NDIA [2025] ARTA 1006; KNNW v NDIA [2025] ARTA 1033Foster v NDIA [2025] ARTA 718
In Albiol, my reasoning for my determination that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’ was based on the following:
· The recommendation of the Productivity Commission which was that the scheme provide supports only to a subcategory of persons within a much larger category of persons who have a disability.[56]
· That the Productivity Commission also recommended that the scheme provide supports ‘judiciously rather than routinely’. This recommendation is logical and central to the operation of the scheme and ensures its financial sustainability.
· The scheme was never intended to provide support to ‘every person with a disability’.
· Rather, as part of one of its functions, the scheme was intended to support persons with disability to receive supports outside of the scheme through mainstream services. This would of course include persons with a disability who do not fall within the subcategory of persons for whom the scheme was intended.
· The scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant State and Territory governments.
· The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribe rules in relation to access to the scheme. By way of example, rule 5.8 of the Access Rules operates to categorise certain persons ‘into’ the category of persons with a ‘substantially’ reduced functional capacity.
· The concept of prescribing rules in relation to a category of certain persons who would be mandatorily ‘excluded’ from the category of persons with a ‘substantially’ reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision-maker with an informed approach by way of practical examples and circumstances in which access will not be granted.[57]
[56] Mulligan at [50].
[57] Garcia Albiol v NDIA [2024] AATA 496.
My view of a ‘high threshold’ for reduced functional capacity remains unchanged.
The Tribunal’s consideration of Mr Jalali’s functional capacity relates specifically to his ‘daily life activities’. Relevantly, the current Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
(Tribunal emphasis)Communication
The Operational Guidelines describe communication as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you
The communication threshold was considered in Madelaine v NDIA[58] to be of ‘a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something, and so on’.
[58] [2020] AATA 4025 at [79].
Mr Jalali did not give oral evidence at the hearing.
KJA stated that Mr Jalali has difficulties with speaking and ‘word finding’. Also that Mr Jalali speaks in non sensical phrases and struggles with basic comprehension. KJA contends that Mr Jalali’s communication difficulties are due to severe dementia, a diagnosis which is not accepted for the purposes of this review.
Dr O’Neill stated that Mr Jalali took considerable time to respond to questions during his assessment and then provided responses that did not address the question.
Dr Miller’s evidence is that Mr Jalali speaks very little and when he does it is non-sensical.[59] Dr Miller also states that he first met Mr Jalali in January 2023 and since that time he has never been capable of speech or comprehension of speech.
[59] Dr Miller report dated 18 January 2024
At odds with this evidence is the indication the Mr Jalali attends psychology appointments, of approximately one hour, with Mr Armani on his own and without support. I also note the evidence of Mr Armani in which he specifically refers to matters that were ‘reported’ to him by Mr Jalali.[60]
[60] [45] – [47]
Neither Dr Miller, Dr O’Neill nor Mr Armani performed a detailed functional assessment in respect of Mr Jalali’s ability to communicate.
In the absence of any evidence which satisfactorily explains the cause of Mr Jalali’s inability to speak or communicate I am unable to be positively satisfied that any reduction in his functional capacity to communicate arises as a consequence of a disability attributable to a psychosocial impairment due to PTSD, depression or anxiety.
Furthermore, and in any event, in the absence of a detailed functional assessment in respect of Mr Jalali’s capacity to communicate I am unable to be satisfied whether the reduction in this domain is in fact ‘substantially’ reduced.
Conclusion
I am not positively satisfied that Mr Jalali’s functional capacity to participate in the activity of communication is substantially reduced as a consequence of his psychosocial impairment dues to PTSD, depression or anxiety.
Social interaction
The Operational Guidelines describe social interaction as follows:
Socialising – how you make and keep friends or interact with the community. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine the Tribunal held, ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[61]
[61] Madelaine at [87].
In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[62]
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.
[62] [2017] AATA 186 at [18].
Mr Jalali lives with his wife and son and interacts with them on a daily basis. He speaks, throughout the year, on the telephone to his two other sons who reside overseas.
He watches television, including Persian movies with his wife. He leaves his home ‘every other day’ with KJA and accesses the supermarkets, coffee shops, parks and on occasions the Baha’i centre.
He belongs to the Baha’i community and is visited by members of this community.
He is able to sit at a dining table with family members to eat meals.
I am satisfied that whilst Mr Jalali’s socialisation may have reduced over the years he continues to participate in the tasks comprised of the activity of social interaction. Furthermore there is no evidence to suggest that his capacity for socialisation is ‘substantially’ reduced to the extent that the high threshold requires.
Conclusion
Irrespective of whether Mr Jalali has dementia, I am satisfied based on the evidence that Mr Jalali’s functional capacity to interact socially is not substantially reduced.
Learning
The Operational Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
The evidence refers to Ms Jalali’s reduced concentration span and memory problems.
As stated the cause of this symptom has not been properly investigated and remains unclear.
In the absence of any evidence which satisfactorily explains the cause of Mr Jalali’s memory and concentration problems I am unable to be positively satisfied that any reduction in his functional capacity for learning arises as a consequence of a disability attributable to a psychosocial impairment due to PTSD, depression or anxiety. Furthermore in the absence of an independent detailed functional assessment in respect of Mr Jalali’s capacity for learning I am unable to be satisfied whether a reduction in this domain is in fact ‘substantially’ reduced.
Conclusion
I am not positively satisfied that Mr Jalali’s functional capacity to participate in the activity of learning is substantially reduced as a consequence of his psychosocial impairment due to PTSD, depression or anxiety.
Mobility
The Operational Guidelines describe mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[63]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.[63] Madelaine at [104]–[105].
Dr Miller states that Mr Jalali can walk slowly. He can also sit down in a chair. Dr Miller stated also that Mr Jalali ’walks stably without parkinsonian features’[64] During his assessment Mr Jalali was also capable of standing on both his heels and toes.
[64] Exhibit 1 page 332
Dr O’Neill reports that Mr Jalali’s gait was slow and slightly limping but he was quite stable. Dr O’Neil also reported that Mr Jalali was able to remove his pants, shoes and socks as part of Dr O’Neill’s assessment.
Dr O’Neill also reports that Mr Jalali’s Romberg test was negative, meaning that he is able to maintain his balance.
Mr Jalali has the ability to move freely around his home. He can undertake bed, chair and toilet transfers. He can also access the community regularly for various activities.
Many of the mobility issues Mr Jalali refers to appear to relate to his arthritis and not his psychosocial impairment.[65]
[65] [37]
Conclusion
Irrespective of whether Mr Jalali has dementia, I am satisfied based on the evidence that Mr Jalali’s functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced.
Self-care
The Operational Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
In January 2025 KJA advised Dr O’Neill that Mr Jalali was able to wash and dress himself but sometimes required prompting. He is also able to feed himself with assistance.[66]
[66] Exhibit 1 page 383
Mr Jalali can use a spoon and also hold a cup with fluid to drink. He can also choose what clothes he wishes to wear.[67]
[67] [37]
KJA referred to a few episodes of incontinence but stated that generally Mr Jalali can ‘take himself to the toilet’. On occasions recently KJA stated that he has ‘directed’ Mr Jalali towards the toilet.
The Tribunal’s certainty in respect of this domain is again challenged in the absence of a detailed functional assessment of what Mr Jalali ‘can do’ and what he ‘cannot do’, insofar as his self-care.
On the face of what is very limited evidence, based in part on the self-reporting of KJA, I am not satisfied that Mr Jalali meets the threshold required for a ‘substantially’ reduced functional capacity in the domain of self-care.
Conclusion
I am not satisfied based on the evidence that Mr Jalali’s functional capacity to participate in the tasks comprised of the activity of self-care is substantially reduced.
Self-management
The Operational Guidelines describe self-management as follows:
Self-management – 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.
In respect of the domain of self-management Mr Armani states in his report that Mr Jalali has difficultly with the ability to ‘organise his life, to plan and make decisions, and to take responsibility for himself, completing daily tasks, making decisions, problem-solving and managing his finances.’ [68]
[68] Exhibit 1 page 327
Mr Armani makes no reference in his report to having performed a detailed functional assessment of Mr Armani as a basis to substantiate this commentary.
Mr Armani does refer to having undertaken other assessments which include:
A general diagnostic interview, referred to as ‘The Structured Clinical Interview for DSM-5, to assess Mr Armani’s psychological status (thoughts, emotions and actions as well as daily activities, social interactions and performances);
A Depression, Anxiety and Stress Scale (DASS21) assessment;
A PTSD Checklist; and
An Impact of Event Scale assessment.
The assessments undertaken by Mr Armani do not address Mr Jalali’s functional capacity in the domain of self-management.
I have formed the view, that at best, Mr Armani’s commentary is either based on reporting by KJA, or assumptions he has formed in the absence of any functional assessment.
On this basis I have given no weight to Mr Armani’s report or opinion in respect of Mr Jalali’s functional capacity in the domain of self-management.
In closing submissions KJA states ‘ This impairment renders him utterly incapable of self-management. He cannot plan, initiate, or complete daily tasks, manage his finances, medications, or ensure his own safety’.
For reasons already identified I have given little weight to KJA’s self-reporting.
Having reviewed the evidence Mr Jalali’s application is unencumbered of any detailed functional assessment in respect of his ability to self-manage.
Conclusion
Recognising the importance of a detailed functional assessment as referred to at [85], based on the evidence provided to the Tribunal, I am unable to be positively satisfied that Mr Jalali’s functional capacity to participate in the activity of self-management is substantially reduced.
Conclusion – subsection 24(1)(c) of the NDIS Act
Subsection 24(1)(c) of the NDIS Act is not satisfied.
Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criterion under subsection 24(1) of the NDIS Act. Mr Jalali therefore does not meet the disability requirements and cannot have access to the scheme on this basis.
SECTION 25: THE EARLY INTERVENTION REQUIREMENTS
Mr Jalali contends in the alternative that he satisfies the early intervention requirements of section 25 of the NDIS Act.
Dr Ganapathy stated that Mr Jalali’s PTSD with depressive and anxiety features is long standing and has been present for over 25 years.[69] Likewise Mr Armani referred to a diagnosis of PTSD present since 1980.[70]
[69] T9
[70] T5
The Agency contends that the evidence is insufficient to establish that the
provision of ‘early intervention support’ is likely to benefit Mr Jalali within the meaning of subsections 25(b) and (c) of the NDIS Act. Further, that the evidence suggests that Mr Jalali requires the long-term continuum of the treatment that he has been receiving for some years.[71] The Agency also contends that Mr Jalali’s needs are more appropriately funded or provided through the Aged Care system.[72]
[71] Respondent’s closing submissions para [79]
[72] Section 25(3) NDIS Act, Respondent’s closing submission [81]
There is no evidence before the Tribunal to suggest that the provision of early intervention supports would alter the outcome for Mr Jalali by reducing his future need for supports in relation to his disability. There is however substantial evidence that suggests that the supports sought by Mr Jalali can be accessed thought the Aged care system.[73] Mr Jalali would be wise to proceed with an Aged Care application.
[73] Exhibit 2
The Agency’s submissions are accepted. I am satisfied that Mr Jalali does not satisfy the early intervention requirements in section 25 of the NDIS Act.
CONCLUSION
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements Mr Jalali will not be granted access to the scheme.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).
1. I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
................[SGD].................
Associate
24 July 2025
Date(s) of hearing: 25 and 26 June 2025 Solicitors for the Respondent: Maddox Lawyers Counsel for the Respondent: Ms Theresa Baw
Jalali and National Disability Insurance Agency (NDIS) [2025] ARTA 1093
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