JNSH and National Disability Insurance Agency (NDIS) - [2025] ARTA 1481

JNSH and National Disability Insurance Agency (NDIS) [2025] ARTA 1481 (22 August 2025)
Administrative Review Tribunal
Applicant: JNSH
Respondent: CEO, National Disability Insurance Agency

Tribunal Number: 2023/9526
Tribunal:General Member D Heron
Place:Brisbane
Date:22 August 2025

Corrigendum
Date of Corrigendum: 29 August 2025

Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alteration is made to the statement of reasons for the decision:
1. At page 21, paragraph 82, “subsection 25(1)(b) of the NDIS Act” is deleted and substituted with “subsection 25(1)(a) of the NDIS Act”.

.................[SGD]..................
General Member D Heron

JNSH and CEO, National Disability Insurance Agency (NDIS) [2025]
Applicant/s:  JNSH
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/9526
Tribunal:General Member D Heron
Place:Brisbane
Date:22 August 2025
Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

................[SGD]...............
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – does not meet disability requirements – anisometropia – articulation and phonological errors – low mood – anxiety – scoliosis – neurofibromatosis 1 – permanency of impairments.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.
CASES
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle and National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Schwass and NDIA [2019] AATA 28
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Operational Guidelines – Applying to the NDIS, 10 December 2024.
Statement of Reasons
INTRODUCTION

JNSH (the Applicant) is a 9 year old boy who lives with his parents and younger sister. He became a participant in the National Disability Insurance Scheme (the NDIS) established under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) under the early intervention pathway on the basis of his developmental delay in July 2020.
In the course of undertaking an NDIS plan review in October 2023, the National Disability Insurance Agency (the Respondent) determined that JNSH no longer met the access criteria in s 21 of the NDIS Act. His access to the scheme was revoked on 24 October 2023.
The review before me is whether or not JNSH meets the access requirements of the scheme.
Decision under review
During the time JNSH was a participant he had three NDIS plans approved, they were dated 24 July 2020, 28 July 2021 and 9 March 2023.
On 25 October 2023 JNSH’s parents sought internal review of the decision to revoke access and on 15 December 2023 a different delegate determined that JNSH did not meet the access criteria and confirmed the decision under review.
On 18 December 2023 JNSH’s parents lodged an application for external review in the Tribunal. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, JNSH’s application for review was automatically transferred to the ART.
Issues in dispute
JNSH has diagnoses of neurofibromatosis 1 (NF1) and scoliosis. The issue before the Tribunal is whether he meets the access criteria, specifically ss 24 or 25 of the NDIS Act in respect of NF1, scoliosis, anisometropia, articulation and phonological errors, low mood and anxiety.
The Respondent’s position is that JNSH does not meet the access criteria in respect of any of these identified conditions under ss24 or 25 of the NDIS Act.
The hearing
The hearing was conducted by video on 21 and 22 July 2025. JNSH was not legally represented and was advocated for by his parents. JNSH appeared briefly at the beginning of the hearing and said hello to the parties and to the Tribunal. Ms Forsyth, Partner at Moray & Agnew represented the Respondent. The following witnesses gave oral evidence at the hearing:[1]
(a)the Applicant’s father;
(b)the Applicant’s mother; and
(c)Occupational Therapist (OT), Ms LD
[1] The names of local treating practitioners have been altered where they might tend to reveal the identity of JNSH.
The Respondent informed the Tribunal and JNSH’s parents that their witness Ms LD was employed by the NDIS for the period 2013 - 2022. This issue was flagged by the Respondent as an actual or perceived conflict of interest arising under 2.4(a) of the Administrative Review Tribunal (Expert Evidence) Practice Direction 2024.
The Tribunal explained that expert witnesses are required to attest to their qualifications, accreditation, and experience relevant to the making of their therapeutic assessments. The Tribunal also reminded parties that expert witnesses have an overriding duty when appearing in proceedings to the Tribunal, and not to one party or the other.
Ms LD was required to give sworn evidence and affirmed she had read the Code of Conduct for giving evidence as an independent expert. She was also reminded as an expert witnesses that she has an overriding duty when appearing in proceedings to the Tribunal, and not to one party or the other. I am satisfied Ms LD provided independent expert evidence that was cogent and credible, within her field of expertise both written and orally.
I will refer to several other practitioners throughout this decision including:
(a)Spinal Surgeon, Dr RG
(b)Paediatric Neurologist, Dr HY
(c)Associate Professor Dr DM, Paediatrician
(d)School Psychologist, Ms J
(e)Psychologist, Ms KO
In arriving at my decision, I have considered all the oral evidence given at the hearing, the closing written submissions, and the written evidence provided in the joint hearing bundle (the JTB) along with the following exhibits:
·9 videos of JNSH accompanies R4 – Exhibit 2;
·NDIS Technical Advisory Branch advice - Exhibit 3;
·School Counsellor report dated 17 June 2025 - Exhibit 4;
·Email dated 20 July 2025 with 4 reports attached– Exhibit 5; and
·Report of Ms KO dated 18 July 2025 – Exhibit 6.
I will refer to the evidence that is directly relevant to the determination of this matter. My findings are based on consideration of all the evidence, noting that not every piece of evidence is referenced in my discussion of each issue or finding.
Role of the Tribunal

In reviewing the decision:
the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[2] and
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 and section 103 of the NDIS Act, which are in turn informed by the scope of power under section 33(2) of the NDIS Act.[3]
[2] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J); Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[3] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
RELEVANT LAW[4]
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4.
The Amending Act
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions including sections 34 and the introduction of a new section 10.
The question arises whether the Tribunal should apply the provisions of sections 24 or 25 of the NDIS Act that applied at the time the application was made to the Tribunal, or the Act as amended.
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA 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 an access request on or after 3 October 2024.
By reason of s 126(1)(a) of the Amending Act, the amendments to ss 24, 25 and 27 of the Act do not apply to an access request made before the commencement of the Amending Act. This application for review will be determined in accordance with the Act prior to the amendments introduced by the Amending Act.
Disability and Early Intervention Criteria
Section 24 as it was prior to the commencement of the Amending Act provided:
(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) 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.
If JNSH does not meet the disability requirements, I must consider whether he meets the early intervention requirements set out in section 25 as it was prior to the commencement of the Amending Act:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be,
permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake
communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the
person’s carer.
(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.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).
In relation to the question of permanency of an impairment, the Access Rules state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
In relation to substantially reduced functional capacity the Access Rules provide:
Rule 5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[5]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
The Tribunal notes that in Mulligan,[6] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[7] The Full Court of the Federal Court of Australia in Foster also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[8]
EVIDENCE
[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[7] Mulligan at [55].
[8] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [44].
Evidence of JNSH’s father
JNSH’s father gave oral evidence in the morning of the first day of hearing. His evidence can be summarised as follows:
·     JNSH lives with his parents and his younger sister. He attends year 3 at a local primary school.
·     He has a diagnosis of NF1 which is a genetic condition resulting in multi-system complications that include affecting bone development and can lead to scoliosis.
·     There is no cure for NF1, it is a permanent and lifelong condition.
·     JNSH spent a period of 3 months in 2024 in hospital in halo gravity traction where he was fitted with a halo brace, entirely bedbound with weights attached to his skull.
·     At the end of these 3 months JNSH underwent spinal surgery for T3-L3 scoliosis correction and posterior spinal fusion, and was then discharged from hospital.
·     The 3 month hospital stay was deeply traumatic for JNSH. This involved both parents dividing themselves between hospital and home in their caring roles for both JNSH as an inpatient, and his younger sister in the family home.
·     The spinal surgery was successful and definitive, and no further treatments are being trialled. As a post-operative safety precaution JNSH must limit higher-impact activities for a year, he cannot ride a bike or play contact sports.
·     In March 2025, JNSH tripped and fell fracturing the femoral neck of his right hip. As a result, he underwent internal fixation surgery using pins, screws, and plates to stabilise his hip. Following this surgery, he had 6 weeks non-weight bearing, this required JNSH to use a wheelchair for all activities of his daily life.
·     He recently finished the 6 week non-weight bearing period and is currently walking without aids or the use of any equipment.
·     Doctors have explained that JNSH has soft bones as a result of his NF1 diagnosis and that he is deconditioned due to his non-weight bearing period and long hospital stay.
·     Doctors have explained to his parents that JNSH needs regular physiotherapy and occupational therapy to build up his physical conditioning and physical strength.
·     JNSH wears glasses due to his vision issues caused by his NF1 diagnoses.

JNSH’s parents also filed written closing submissions dated 27 July 2025 with the Tribunal. In their written closing submissions, they outline:
[JNSH] requires an NDIS Plan, which we believe he meets the eligibility criteria for, to enable him to access required supports resulting from his diagnosis of Neurofibromatosis and scoliosis that are causing physical, cognitive and psychosocial impairments. Neurofibromatosis is a lifelong condition present at birth. Scoliosis is a known linked secondary condition to having Neurofibromatosis. These impact on [JNSH’s] ability to carry out daily activities, develop at an age-appropriate level, and develop social relationships.[9]
[9] Applicant’s closing written submissions, 27 July 2025.
Evidence of JNSH’s mother
JNSH’s mother gave oral evidence in the afternoon of the first day of hearing. Her evidence can be summarised as follows:
·     JNSH impairments have all been very socially isolating. After surgery, being in the wheelchair made things really difficult for JNSH, especially at school.
·     As parents, we seek to limit his risk of getting hurt as much as possible, as going through this again will destroy JNSH. He has to restrict himself physically at school he should not undertake running, jumping and typical playing at lunchtimes.
·     Before the spinal surgery JNSH was in so much pain, he needed Nurofen and Panadol every day, it was heartbreaking.
·     Since the surgery he is no longer in pain.
·     He does experience separation anxiety, does not like being by himself nor having his parents out of his eyeline when at home.
·     Engages in regular stimming when he is excited, requires regular parental prompting to undertake his self-care and daily activities. Paediatrician appointment scheduled for October or November 2025 to discuss assessing JNSH for autism.
·     Parents always supervise him in the shower in case of a slip or fall.
·     JNSH has trouble with fine motor issues such as using a knife to butter bread or using a knife to cut food. Parents prepare his sandwiches and cut up his food.
·     JNSH is unable to tie his own shoelaces, parents have undertaken years of practice with him on the skill. Parents always tie his laces for him.
·     JNSH fixates on issues, experiences periods of low moods and emotional dysregulation.
·     Currently undertaking psychology through a mental health care plan, this has run out. Parents hope to get this extended to 20 sessions.
·     Currently paying out of pocket and this is very expensive.
Evidence of Ms LD, occupational therapist
Ms LD was called by the Respondent to give oral evidence. Ms LD is an occupational therapist who undertook a Functional Capacity Assessment with JNSH on 14 February 2025. Her oral evidence can be summarised as follows:
·The assessment involved sitting down with JNSH and his parents in their home and talking about what had occurred and particularly in relation to his surgery last year. As part of that conversation, Ms LD explored what JNSH was able to do and what he was doing for himself.
·JNSH demonstrated some functional activities for the assessment of his function. Video footage was taken of these activities.
· He was very cooperative and was quite happy to have a chat about what he was doing at school, at home and in his activities and very cooperative with the physical, functional and physical activities.
· JNSH does walk pigeon-toed and the only thing he had difficulty with during the assessment was tying shoelaces.
Her report dated 24 March 2025 is before the Tribunal. In her report she notes:
JNSH is independent in managing his own self-care to the extent that would be typically expected of a 9-year-old child, other than he is not yet able to tie his own shoelaces. He gets himself ready for the day and is independent in showering, dressing, grooming, and toileting. He does not use nor need any selfcare equipment.[10]
[10] JTB, R4, 66.
JNSH’s parents state that the report by Ms LD does not show a true reflection of JNSH’s functional skills and has overestimated his physical and social abilities in a number of areas, referencing in their closing written submission that:
(a)The OT report is inconsistent with other more recent clinical reports we have referenced in this letter that indicate a higher level of impairment particularly in the areas of physical, cognitive and psychosocial functioning.
(b)The OT report is inconsistent with the previous OT report completed by his therapist that had a thorough understanding of his needs.
(c)The OT did not have experience in assessing individuals with the specific diagnosis and needs of Neurofibromatosis.
(d)The OT has previously been employed by the NDIA which we believe to be a conflict of interest.[11]
[11] Applicant’s closing written submissions, 27 July 2025.
I have taken these considerations into account. On the conflict of interest issue, at the hearing I reminded Ms LD of her role as an expert witness as neither an advocate for one party or the other.
Ms LD undertook an affirmation, and acknowledged her declaration of her an overriding duty to providing impartial assistance to the Tribunal per item 2.2(a) of the Administrative Review Tribunal (Expert Evidence) practice Direction 2024.
In considering the written and oral evidence provided by Ms LD, I am satisfied that it is procedurally fair for both parties to be able to call their own witnesses and make their case pursuant to section 55 of the ART Act. Section 55 of the ART Act mandates that each party be given a reasonable opportunity to present their case, access relevant information, make submissions and adduce evidence. From this point it becomes the Tribunal’s responsibility to decide the weight to be given to the evidence that is adduced in its consideration of the issues.
In my view Ms LD understood her role as an expert witness, presented as a knowledgeable and cogent witness and explained her past employment with the NDIA. This was adequately covered in her evidence in chief. Further I am satisfied that she does have the experience to provide expert evidence as an Occupational Therapist in undertaking JNSH’s functional capacity assessment.
Written Evidence
Dr HY, Paediatric Neurologist
Dr HY is a Paediatric Neurologist who has assessed JNSH on 10 April 2024 and supplied a letter of support dated 23 April 2024.
In her letter she explains that NF1 is a genetic condition that is permanent and lifelong. She states JNSH’s diagnosis has been complicated by his severe scoliosis causing pain, affecting his gait and impacting his ability to participate in activities. She notes at the time of writing her letter JNSH is on the waitlist list for scoliosis operative repair and in the meantime requires intensive physiotherapy to ensure his gait abnormalities do not progress.
She also notes he has a significant speech delay and that this can be a feature of NF1. She recommends ongoing speech therapy. She also mentions his fine motor skills and emotional dysregulation issues as features of NF1. She recommends occupational therapy and ongoing psychology.
Dr RG, Spine Surgeon
Dr RG is JNSH’s Spine Surgeon, and he supplied his report to the Tribunal dated 27 February 2025,
He describes that JNSH underwent spinal surgery in October 2024. Prior to the surgery he undertook a period of traction in hospital from 31 July 2024 to 29 October 2024.
Dr RG states that the spinal fusion operation was successful and recommends ongoing review for maintenance with the Spine Clinic along with regular x-rays and ongoing physical therapy to maintain his fitness, core strength and mobility, and regular strengthening exercises.
Dr RG explains that undertaking regular reviews is necessary to ensure that this correction of JNSH’s scoliosis has been maintained.
Associate Professor Dr DM, Paediatrician
Dr DM is JNSH’s Paediatrician, and he supplied 3 letters to the Tribunal. In his letter dated 26 May 2025 he states JNSH should remain in contact with a physiotherapist to formalise his rehabilitation following the fracture in his hip bone. He also states that JNSH has some physical deconditioning and osteopenia associated with the prolonged scoliosis traction and the subsequent recovery period after surgery.
Dr DM states that due to physical deconditioning following the scoliosis surgery JNSH should avoid body contact sports/risky activity but is encouraged to exercise within the limits of tolerance to improve his bone density. He doesn’t believe bisphosphonate IV infusion is necessary at present nor does he recommend any formal bone density assessment currently. He states that JNSH’s next appointment will be November 2025.
School Psychologist, Ms J
Ms J is JNSH’s School Psychologist, and she supplied a report to the Tribunal dated 17 June 2025.
She explains he was referred to her due to difficulty maintaining focus and attention in class. She notes his classroom teacher along with his parents have also observed sensory sensitivities, social difficulties and self-stimulating behaviours.
She undertook the Conners Comprehensive Behaviour Rating Scale assessment tool via both the classroom teacher and JNSH’s parents undertaking separate questionnaire assessments about JNSH.
She explains in her letter that the results suggested more concerns than average, both in the teacher and parent assessments of JNSH for hyperactivity/impulsivity, problems with mood, problems with anxiety, emotional distress, social skills, physical problems and other atypical behaviour and social problems.
She recommends JNSH undertake a paediatric review to further examine his inattention, hyperactivity, mood, anxiety and autism symptomology due to concerns that these are impacting his learning, school engagement and social relationships.
Psychologist, Ms KO
Ms KO is JNSH’s Psychologist, and her letter dated 18 July 2025 was tendered and marked as Exhibit 6.
Ms KO states that she has been having psychology sessions with JNSH fortnightly via telehealth. She describes that JNSH’s therapeutic goals have targeted two key areas, being increasing his ability to recognise and label emotions, manage feelings of frustration and anxiety, and applying coping strategies, perspective-taking, and problem-solving when faced with social or task-based challenges.
She states he has made emerging progress and recommends 50 hours of psychology support per year, along with 2 hours for progress reporting to allow for consistent, targeted intervention that aligns to his goals, supporting his development across multiple domains.
Consideration of Claims and Evidence
Impairment
The concept of impairment is central to my considerations under section 24 of the Act. As the Tribunal recently observed in Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607:
[25] The term ‘impairment’ is not defined in the NDIS Act. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”. I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis. That definition is a simple rendering of the definition of impairment used in the application of the International Classification of Functioning Disability and Health (ICF), which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”. (Tribunal’s emphasis)
In this sense, an impairment is not merely a reduction in a person’s capacity to do things.[12] Impairment is generally understood as involving the loss or damage to a physical, sensory or mental function.[13] The scheme adopts a functional based view, rather than looking at the medical diagnosis of a person.
[12] Re Schwass and NDIA [2019] AATA28 at [34]-[35].
[13] Mortimer J in Mulligan v National Disability Insurance Agency [2015] FCA 544
As such, a person’s disability, disease, condition or function must be attributable to an impairment under one or more of these listed categories:
·intellectual,
·cognitive,
·neurological,
·sensory
·physical impairments;
·one or more impairments to which a psychosocial disability is attributable.
Does JNSH have a disability which is attributable one or more intellectual, cognitive, neurological, sensory or physical impairments?
The Respondent accepts in its Statements of Facts, Issues and Contentions that JNSH meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of his physical impairments attributable to his NF1 and scoliosis.
The evidence provided by JNSH’s parents is that, to their knowledge, his impairments all flow from his NF1 diagnosis. I am of the view that his impairments cannot be dealt with collectively for the purpose of determining whether an impairment can be said to be permanent.
I acknowledge on the evidence of Ms LD and the videos taken showing his functional capacity, that he continues to experience a physical impairment in the slight internal rotation of his lower limbs with pigeon-toed gait. I am satisfied that JNSH has a disability attributable to a physical impairment resulting from his NF1 and scoliosis and that paragraph 24(1)(a) of the Act has been met.
With respect to JNSH’s amblyopia from anisometropia, as explained by JNSH’s father, this flows from his NF1. It was put to JNSH’s father during the hearing that the evidence relating to his amblyopia from anisometropia is from 2023. I have reviewed this evidence, and I am not satisfied on its relevancy to present-day circumstances for JNSH in establishing that he has a permanent impairment under the NDIS Act.
The lived experience evidence of JNSH’s parents is that JNSH experiences separation anxiety with his parents and has low mood/fixations with stimming behaviours.
Ms J who is a psychologist and JNSH’s School Counsellor provided in her letter that JNSH requires further assessment from his Paediatrician relating to his hyperactivity, autism symptomology and anxiety. JNSH’s parents agree, and have scheduled the next available appointment, being either if there are cancellations October or November 2025. JNSH’s father further agreed during the hearing that currently no suitably qualified practitioner has identified that JNSH has a permanent impairment in relation to articulation and phonological errors, autism, anxiety or his low moods.
The Tribunal does not have evidence before it that identifies any permanent impairment from JNSH’s issues being attributable to an intellectual, cognitive, neurological, sensory, physical impairments, or one or more impairments to which a psychosocial disability is attributable.
The Tribunal also notes JNSH’s parents may be disappointed that their lived experience of his amblyopia from anisometropia, low mood and anxiety is not sufficient probative evidence to satisfy the legal criteria that he does live with these impairments. The Tribunal notes that equally, there must be satisfaction on the level of viable evidence upon which its findings can be made.
The evidence does not persuade me that his impairments flowing from his amblyopia from anisometropia, articulation and phonological errors, low mood and anxiety give rise to any intellectual, cognitive, visual, psychosocial or neurological impairment required under the legislation.
I am satisfied on the evidence that JNSH does have a physical impairment flowing from his NF1 and scoliosis.
Permanency
Does JNSH impairment or impairments that are, or are likely to be, permanent?
To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. I move forward considering only JNSH’s physical impairments flowing from his NF1 and scoliosis.
Permanency is established under rule 5.4 of the Access Rules if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment. The definitions of ‘known, available and appropriate

evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.[14]
[14] National Disability Insurance Agency v Davis [2022] FCA 1002 AT 137-139
The Respondent’s position is that JNSH does meet the criteria for permanent physical impairment.
Dr RG, who is JNSH’s Spine Surgeon states in his report dated 27 February 2025 that JNSH has received extensive posterior spinal fusion for his scoliosis secondary to his NF1. He explains that JNSH undertook traction before this surgery.
JNSH’s traction was undertaken in the period 31 July 2024 to 29 October 2024. Dr RG says that ‘the traction and spinal fusion have been successful in correcting the applicant’s spinal deformity and the definitive spinal fusion has maintained the correction of his deformity thus far in the treatment process’.
The Tribunal accepts the evidence of Dr RG in his letter that the surgery was definitive and further appointments are for monitoring review only.
Having regard to JNSH’s treatment history including pharmacotherapy, orthopaedic surgeons, physiotherapy and paediatric consultations, I accept that his NF1 is a genetic condition for which there is no cure.
On the evidence before me I am not satisfied that his NF1 and scoliosis give rise to a permanent physical impairment under paragraph 24(1)(b) of the Act. On this I rely on the evidence of Dr RG who states in relation to surgery for his scoliosis, secondary to his NF1 diagnosis, that ‘the traction and spinal fusion has been successful in correcting his spinal deformity and the definitive spinal fusion has maintained the correction of his deformity thus far in the treatment process’.[15]
[15] JTB, A4, 24.
I recognise JNSH’s parents hold deep concern for JNSH given his recent history. I understand their reasoning that JNSH is at further risk of hurting himself should he slip or fall at any time. His parents explained they want to alleviate and reduce that risk as much as they humanly possibly can. This is entirely understandable given all that his parents, JNSH and his entire family have been though over the last 2 years.
I acknowledge their circumstances and the impact the trauma has had on their entire family over the past few years, noting that no one but them can begin to properly understand its toll. Under the strict legislation that I must apply, the evidence before me this does not give rise to a permanent physical impairment.
I am not satisfied that the requirement in paragraph 24(1)(b) of the Act in relation to the JNSH’s physical impairment is met, therefore the disability criteria is not met. It follows therefore that I am not required to consider the remaining criteria in paragraphs 24(1)(c) to 24(1)(e) of the NDIS Act.
Early Intervention Requirements
I note JNSH is currently undertaking psychology and that these ongoing therapies are expensive. To meet the early intervention requirements, JNSH must first have an impairment that is permanent under the NDIS Act. As I have not been satisfied on the evidence before me that he has a permanent impairment, the early intervention requirements under section 25 of the Act cannot been met.
The early intervention requirements in section 25 of the NDIS Act are cumulative. Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied, I am not required to consider the remaining criteria under subsection 25(1) of the NDIS Act.
Conclusion
I find that JNSH’s impairments are not permanent under paragraph 24(1)(b) of the Act and therefore he does not meet the criteria in either of sections 24 or 25 of the Act.
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements JNSH will not be granted access to the NDIS.
The Tribunal wishes to be clear that this decision does not affect JNSH’s ability to apply for NDIS access again with further evidence.
DECISION

The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

Date(s) of hearing: 21 and 22 July 2025 – by video

Written closing submissions: 27 July 2025 and 12 August 2025

Applicant representative: JNSH’s parents

Solicitors for the Respondent: Ms G Gehrke, Moray & Agnew

Date(s) of hearing:	21 and 22 July 2025 – by video
Written closing submissions:	27 July 2025 and 12 August 2025
Applicant representative:	JNSH’s parents
Solicitors for the Respondent:	Ms G Gehrke, Moray & Agnew