KBBW and National Disability Insurance Agency (NDIS)
[2025] ARTA 1033
•24 June 2025
KBBW and National Disability Insurance Agency (NDIS) [2025] ARTA 1033 (24 June 2025)
Applicant/s: KBBW
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/6812
Tribunal:General Member W Strange
Place:Brisbane
Date: 24 June 2025
Decision:The Tribunal affirms the decision under review.
................[SGD]..................
General Member W Strange
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – becoming a participant - access criteria – whether Applicant meets disability criteria – Post Traumatic Stress Disorder, depression and asthma - likely permanency of impairments – whether impairments result in substantially reduced functional capacity – early intervention requirements – decision under review affirmed
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
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Coffey and CEO, National Disability Insurance Agency [2025] ARTA 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FBJV and National Disability Insurance Agency [2021] AATA 913
G v Minister for Home Affairs [2019] FCAFC 79
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Holmes and National Disability Insurance Agency [2017] AATA 2750
James and National Disability Insurance Agency [2019] AATA 4248
Kelly v National Disability Insurance Scheme [2024] FCA 1462
Kilgallin and the National Disability Insurance Agency [2017] AATA 186
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and National Disability Insurance Agency [2015] AATA 974
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201, [2015] FCA 544
MZHQ and National Disability Insurance Agency [2019] AATA 810
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) FCAFC 11
Nika and National Disability Insurance Agency [2021] AATA 2127
Puster and National Disability Insurance Agency [2023] AATA 1760
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286
Sutherland v National Disability Insurance Scheme [2024] AATA 411
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
XVYL and National Disability Insurance Agency [2024] AATA 498
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guideline, Applying to the NDIS (14 October 2024 applicable to NDIS requests made before 3 October 2024)
National Disability Insurance Agency, NDIS Operational Guideline, Assistive Technology (equipment, technology and devices), 20 December 2023
Statement of Reasons
INTRODUCTION
The Applicant in this review is KBBW, a 36-year-old female who lives in regional Queensland. KBBW’s life is impacted by a number of medical conditions. She has been diagnosed with asthma, Post Traumatic Stress Disorder (PTSD), depression, immunodeficiency and, more recently, renal and heart conditions.
In July 2022, KBBW suffered a particularly severe episode of asthma.[1] She was transported first to her local hospital, and subsequently airlifted to the Intensive Care Unit of a major metropolitan hospital.[2] These events were frightening and highly impactful for KBBW, who has since lived with significant anxiety about the possibility of having another such life-threatening episode.
[1] Known as status asthmaticus
[2] Evidence of KBBW, 24 February 2025, and Hearing Bundle (Exhibit 1), T-Document T1B, Hospital Discharge Summary, pages 11-21.
By an application dated 31 May 2023, KBBW applied to access the National Disability Insurance Scheme (the NDIS). In Part E of the form used by KBBW to apply (the NDIS Access Request Form),[3] which asked for information about her disability, KBBW stated that her main disability was ‘Status Asthmaticus severe airways disease’ and listed her other disabilities as PTSD, depression and ‘Immunodeficiency IGG.’[4]
[3] Hearing Bundle, T-Document T4, NDIS Access Request Form, pages 68-94, at page 78.
[4] Immunoglobulin (IgG).
On 18 July 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) refused KBBW’s application to access the NDIS.[5] That same day, KBBW requested that decision be internally reviewed, and on 12 September 2023 another delegate of the CEO upheld the original decision.[6] On 14 September 2023 KBBW applied to the former Administrative Appeals Tribunal (the AAT) for a review of that decision (the decision under review).[7]
[5] Hearing Bundle, T-Document T5, Letter, pages 95-99.
[6] Hearing Bundle, T-Document T2, Internal Review Decision, pages 57-66.
[7] Hearing Bundle, T-Document T1, Application for Review, pages 1-7.
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 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
For following reasons, the Tribunal affirms the decision under review.
PROCEDURAL HISTORY OF THE TRIBUNAL’S REVIEW
KBBW represented herself during the review. The Agency was represented at the hearing of the review by Sparke Helmore Lawyers, who instructed Ms Genevieve Yates of Counsel.
As the review proceeded through the Tribunal’s pre-hearing processes, KBBW confirmed that she sought access to the NDIS only on the basis of the impairments arising from her asthma. The matter was listed for hearing on 24 and 25 February 2025, on that understanding. However, following an exchange of emails with the Agency’s lawyers, on 29 January 2025 KBBW confirmed that she wished to seek access to the NDIS also on the basis of her mental health conditions, being her PTSD and depression. KBBW subsequently advised on 5 February 2025 that she was not intending to submit any further evidence in relation to those conditions, beyond that which she had already provided. On that basis, the Agency did not oppose this ‘widening’ of KBBW’s position, and prepared and filed an Amended Statement of Facts, Issues and Contentions dated 20 February 2025 (the Agency’s Amended SFIC).
After the Agency filed and provided a copy of its Amended SFIC to KBBW, by emails sent late on the evening of Friday 21 February 2025 and very early on the morning of the first day of the hearing (Monday 24 February 2025), KBBW provided her comments upon various points made in the Agency’s Amended SFIC[8], noting in particular the impacts of her renal and heart conditions, and also referring to her Obsessive Compulsive Disorder. KBBW also submitted a number of medical documents, including several that related to the medications she was currently taking.
[8] By way of an annotated version.
The hearing proceeded, by way of Microsoft Teams, on Monday 24 and Tuesday 25 February 2025. At the commencement of the hearing, KBBW confirmed that she wished to have her further medical conditions, including her renal and heart conditions, considered in the review. She noted that a report from the consultant who was treating her renal condition had previously been provided.[9] The Agency objected to the inclusion in the review of additional impairments or disabilities relating to these diagnoses, and to the late provision of the other material by KBBW, which the Agency had not been able to then consider, given the timing of its provision.
[9] Hearing Bundle, Report of Dr Aung Tan, dictated 21 November 2024, pages 303-304.
After hearing the parties on these matters, the Tribunal ordered, pursuant to section 53 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), that the scope of the review be limited to the impairments arising from the Applicant’s asthma, PTSD and depression. The Tribunal was satisfied that such an order was appropriate, having regard to the period of time that KBBW’s review had been before the Tribunal (approximately 18 months) and the need for the Tribunal to ensure reviews are progressed in a timely and efficient way;[10] the procedural history of the matter and particularly how the Agency had proceeded in its preparation to date, including accommodating the relatively late change of position to include in the scope of the review KBBW’s impairments arising from her PTSD and depression; and noting the relatively early stage of the diagnoses of KBBW’s renal and heart conditions and the limited nature of the information provided by KBBW about them.
[10] See the objectives of the Tribunal, as set out in the Administrative Review Tribunal Act 2024, s.9.
The Tribunal also decided that it was appropriate to make a confidentiality order pursuant to section 70 of the ART Act, in the form of a non-publication order regarding the identity of the Applicant. The basis for the making of such an order arose from evidence before the Tribunal about KBBW being a victim survivor of childhood sexual abuse.
At the hearing, the Tribunal had before it the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-documents), and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which also contained relevant excerpts from legislation and the NDIS Rules and Guidelines. The Hearing Bundle also contained documents produced by a hospital, and a medical centre (attended by KBBW) pursuant to summonses, issued by the Tribunal at the request of the Agency. The Hearing Bundle became Exhibit 1 in the proceedings. Additionally, the Agency provided a List of Authorities, containing the case law it considered to be relevant to the review. The bundle of material provided by KBBW, being her annotated reply to the Agency’s Amended SFIC, and the various medical materials, was originally marked for identification and later accepted into evidence as Exhibit 2.
KBBW gave evidence at the hearing. The Agency called as a witness Ms Catherine Cummings, an Occupational Therapist who had undertaken an independent functional assessment of KBBW at the Agency’s request. Ms Cummings’ report, dated 22 March 2024, was in evidence as part of the Hearing Bundle.[11]
[11] Hearing Bundle, Functional Capacity Assessment Report of Catherine Cummings, Occupational Therapist, dated 22 March 2024, (Ms Cummings’ report) pages 320-363.
THE ISSUES IN THE REVIEW
The primary issue before the Tribunal in this review is whether KBBW meets the criteria for access to the NDIS (the access criteria) as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). In short, this involves meeting the age requirements;[12] the residence requirements,[13] and either of the disability[14] or early intervention[15] requirements.
[12] NDIS Act, s 22.
[13] NDIS Act, s.23.
[14] NDIS Act, s 24.
[15] NDIS Act, s 25.
The Agency noted that the evidence supported, and the Tribunal so finds, that KBBW meets both the age requirements (by being aged under 65 when her request to access the NDIS was made), and the residency requirements (by residing in Australia and being an Australian citizen).
The Agency contended however that KBBW does not meet the disability requirements, nor the early intervention requirements, under the NDIS Act.
THE ROLE OF THE TRIBUNAL[16]
[16] This and some following sections of this decision dealing with the applicable law have been adapted from a prior NDIS access decision of this Tribunal Member.
In undertaking a review, the Tribunal’s role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:
The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[17]
The Tribunal effectively ‘stands in the shoes’ of the maker of the decision under review.[18] In undertaking its review, the Tribunal may exercise all the powers and discretions that are conferred on the maker of the decision under review.[19] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[20]
[17] [78].
[18] Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286, 324-325, 327 (Kiefel J).
[19] Administrative Review Tribunal Act 2024 (Cth), s 54.
[20] Shi (n 7) 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).
In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[21]
[21] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Scheme [2024] AATA 411 [53].
THE LEGISLATIVE FRAMEWORK
The applicable legislation in this review is the NDIS Act. Section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements and the section 25 early intervention requirements. Those rules, being the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), are also applicable.
A preliminary issue
After KBBW filed her application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note is the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[22] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when KBBW applied to access the NDIS, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
[22] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s. 2.
The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, KBBW’s application must be determined in accordance with the provisions of the NDIS Act existing before that date.
Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.
The NDIS Act[23]
[23] The following excerpts reflect how these provisions read prior to 3 October 2024.
Section 18 of the NDIS Act provides that a person may make a request (an access request) to the Agency to become a participant in the NDIS. Pursuant to section 20 of the NDIS Act, the Agency’s CEO must decide if the person making the access request meets ‘the access criteria’. Section 21(1) of the NDIS Act (as it read prior to 3 October 2024) sets out the relevant requirements for this, and provides:
21 When a person meets the access criteria
(1) A person meets the access criteria if:
(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).
Section 9 of the NDIS Act defines ‘meets the disability requirements’ to have the meaning given by section 24, which provides 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 five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met. In this review, the Agency submitted that the evidence did not support KBBW meeting the following disability requirements:[24]
(a)the permanence criteria under section 24(1)(b);
(b)the substantially reduced functional capacity criteria pursuant to section 24(1)(c), in any of the six listed activities; and
(c)the requirement of support under the NDIS for the person’s lifetime, under section 24(1)(e).
[24] Respondent Agency’s Amended Statement of Facts, Issues and Contentions (Agency’s Amended SFIC), dated 20 February 2025, [12].
Section 25(1) provides as follows, in relation to the early intervention requirements:
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;
(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.
Similarly, the early intervention requirements under section 25(1) are cumulative. The Agency submitted that KBBW does not meet the requirements for early intervention,[25] in that:
(a)Her impairments attributable to asthma and to a psychosocial disability are not permanent, within the meaning of section 25(1)(a).[26]
(b)As such, early intervention would not be appropriate because the evidence does not establish that early intervention supports:
(i)are likely to reduce the Applicant’s future needs for support – section 25(1)(b); and
(ii)will mitigate or alleviate the impact of the Applicant’s impairments; or prevent the deterioration of her functional capacity; or improve her functional capacity; or strengthen the sustainability of informal supports available to KBBW - section 25(1)(c).[27]
[25] Ibid, [12].
[26] Ibid, [78].
[27] Ibid, [79].
The NDIS Rules
As noted, section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements, or the section 25 early intervention requirements. Section 27 provides:
27National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or
(b)one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or
(c)one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or
(d)the provision of early intervention supports is likely to benefit a person by reducing the person’s future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or
(e)the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person’s functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or
(f)the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person’s carer for the purposes of subparagraph 25(1)(c)(iv).
Section 9 of the NDIS Act defines ‘National Disability Insurance Scheme Rules’ as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:
209 The National Disability Insurance Scheme rules
(1)The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:
(a)required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or
(b)necessary or convenient to be prescribed in order to carry out or give effect to this Act.
NDIS Rules relating to the disability and early intervention requirements have been made; namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules). Relevantly, Part 5 of those Rules addresses ‘[W]hen does a person meet the disability requirements?’ and the requirements of ‘permanency’ and ‘substantially reduced functional capacity to undertake relevant activities.’
Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements. These Rules provide as follows:[28]
[28] Again, these excerpts relate to the Rules as they were before 3 October 2024.
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An 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.
5.5An 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.
5.6An 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).
5.7If 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.
Rule 5.8 addresses the issue of when does an impairment result in substantially reduced functional capacity to undertake one or more of the relevant activities outlined in section 24(1)(c) of the Act, and provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
Part 6 of the Access Rules addresses ‘[W]hen does a person meet the early intervention requirements?’ and again addresses the requirement of ‘permanency’, and additionally ‘deciding whether provision of early intervention supports is likely to benefit the person.’
The NDIS Operational Guidelines
The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA’s ‘operational information’: ‘[T]hey explain what we need to consider and how we make decisions based on the legislation.’ [29] The guidelines of relevance to this review are those entitled Applying to the NDIS (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.
[29] See >
Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[30] As such, the Guidelines set out the NDIA’s policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[31]
DOES KBBW MEET THE DISABILITY REQUIREMENTS?
[30] G v Minister for Home Affairs [2019] FCAFC 79, [18].
[31] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).
Section 24(1)(a) – disability attributable to impairments
The first of the section 24 disability requirements is that the person applying for access to the NDIS 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.
In her written evidentiary statement provided for this review, KBBW outlined how she was subjected to physical and sexual abuse, which commenced when she was around three years of age and continued for some years, until KBBW disclosed the abuse to her mother. The offender was subsequently investigated, prosecuted and convicted.[32]
[32] Hearing Bundle, Statement of the Applicant (undated), page 285.
KBBW reported being diagnosed with PTSD when she was around nine years of age,[33] and also experiencing depression ‘from a young age’.[34] Subsequent traumatic events in KBBW’s life, as described in her written statement,[35] have at times impacted upon her mental health. KBBW reported that she experienced night terrors, panic attacks and anxiety as a result of her PTSD.[36]
[33] Ibid, page 286.
[34] Hearing Bundle, Ms Cummings’ Report, page 326.
[35] Hearing Bundle, Statement of the Applicant, pages 285-302.
[36] Ibid, pages 326 and 330.
KBBW also reported that she was first diagnosed with asthma when about two years of age.[37] Since suffering her severe asthma attack in July 2022, she suffers shortness of breath upon exertion, and considerable anxiety about having another similar attack.[38]
[37] Ibid, page 326.
[38] Hearing Bundle, Statement of the Applicant, page 294.
In this review the Agency accepted that section 24(1)(a) is met, on the bases that KBBW:
(a)has physical impairments (shortness of breath/increased breathlessness and acute asthma attacks) attributable to asthma; and
(b)lives with impairments (that is, those arising from PTSD and depression, including social anxiety and impaired memory and concentration), to which a psychosocial disability is attributable.[39]
[39] Agency’s Amended SFIC, [20].
The Tribunal finds that KBBW satisfies the requirement of section 24(1)(a).
Section 24(1)(b) – permanency
Throughout this review the Agency contended that neither KBBW’s physical impairments arising from her asthma, nor her impairments to which a psychosocial disability is attributable, meet the permanence requirements in section 24(1)(b) of the NDIS Act. While accepting that KBBW’s diagnoses of asthma and at least her PTSD were long-standing in their nature,[40] the Agency submitted that applying Rules 5.4 and 5.6 of the NDIS Rules, there was insufficient evidence before the Tribunal to support conclusions that KBBW’s impairments were permanent, for the purpose of satisfying section 24(1)(d) of the NDIS Act.[41]
Asthma
[40] Counsel for the Agency’s opening submissions, 24 February 2025
[41] Agency’s Amended SFIC [21] – [32], and Counsel’s opening and closing submissions before the hearing, 24 and 25 February 2025.
The Agency’s contentions
Turning first to KBBW’s physical impairments arising from her asthma, the Agency contended that there was evidence to establish that KBBW’s asthma had historically been poorly controlled, and that there were known, appropriate and available treatments and interventions that were likely to substantially relieve KBBW’s asthma related impairments. Specifically, the Agency noted in its Amended SFIC that KBBW had been recommended for intranasal steroids and desensitisation treatments,[42] referring to a 2022 report observing that KBBW ‘would benefit from control of respiratory symptoms through desensitisation’.[43] The Agency also pointed to Section 2 of KBBW’s NDIS Access Request form, completed on 5 May 2023 by KBBW’s then General Practitioner (GP), Dr Fedichkina, where that doctor had responded positively to Question 7 in the form which asked ‘[A]re there any available, evidence-based treatments/interventions that are likely to substantially relieve the applicant’s impairment?’; noting the possible treatment of ‘IL-5 antagonist/IL-5 receptor antagonist’, and stating that KBBW was “not on it.[44] KBBW’s GP further noted that the ‘[E]xpected results of available treatments’ would be ‘[I]mprovement of quality of life (reduce SOB[45], fatigue) and prevent asthma exacerbations.’[46]
[42] Agency’s Amended SFIC at [27], citing Progress Notes – Final Report of Dr Dunlop (Dr Dunlop’s report), dated 20 November 2023, Hearing Bundle, page 365.
[43] Agency’s Amended SFIC at [27], citing a referral report from Dr Hegerty dated 26 October 2022, Hearing Bundle, Document T1E, page 26.
[44] Hearing Bundle, Document T4, page 83.
[45] Abbreviation for ‘Shortness of Breath’.
[46] Hearing Bundle, Document T4, page 84.
In opening and closing submissions Counsel for the Agency relied on the submissions made in the Agency’s amended SFIC, and additionally addressed evidence given by KBBW during the hearing that she declined to receive desensitisation or nasal steroid treatment on the basis that one of her treating practitioners (Dr Gilles, an Immunologist) did not consider either of these to be appropriate treatments for her. The import of the Agency’s submission on this point was that there was no objective evidence of Dr Gilles’ reported opinion, noting that a brief letter dated 21 March 2023[47] from the doctor (that was in evidence in the review), did not refer to this issue.[48]
[47] Hearing Bundle, Document T1H, Letter from Dr Gilles dated 21 March 2023, page 32.
[48] Counsel for the Agency’s closing submissions, 25 February 2025.
KBBW’s contentions and evidence
KBBW’s evidence was that she was first diagnosed with asthma in her early childhood.[49] Her evidence about her asthma condition was accurately reflected in the following summary prepared by the independent Occupational Therapist, Ms Cummings, on the basis of KBBW’s medical records, as provided to her by the Agency:
Asthma - KBBW reported that she was diagnosed with asthma at approximately 2 years old, but it did not stop her from being an active child. She stated that in July 2022 she went into anaphylaxis and was rushed into … hospital and airlifted to Brisbane where she was ventilated. KBBW stated that this attack led to changes in her quality of life. KBBW stated that the immunologist and respiratory specialists are still trying to find out the triggers, pollen is reportedly a known trigger. KBBW reported that usual medications did not control the attacks and that symptoms can come fast and resolve just as fast. KBBW reported that she is terrified of having another attack that would result in being airlifted to hospital or dying. Therefore, she avoids exertional activity that will increase her heart rate and possibly cause an asthma attack.[50]
[49] Hearing Bundle, NDIS Access Request form, page 81.
[50] Hearing Bundle, Ms Cummings’ report, page 326.
KBBW provided evidence about the asthma related medications that she is currently taking,[51] which include the inhalants Symbicort and Ventolin, Prednisone (a steroid) and Dupilumab (Dupixent), which she receives each fortnight by injection. KBBW also provided evidence about her past medication regimes.[52] Additionally, various medical records in evidence described KBBW’s asthma, including:
[51] Exhibit 2, List of medications, 24 February 2025.
[52] For example, Hearing Bundle, T-Document T1A, Hospital Discharge Medication Record, 29 July 2022, pages 11-13.
(a)A Centrelink Medical Certificate completed by KBBW’s former GP, Dr Swainston, dated 5 October 2022, describing asthma as KBBW’s primary condition and as being ‘severe’.[53] Dr Swainston also completed a form for KBBW’s claim for total and permanent disablement benefit, signed on 1 March 2023, in which the doctor noted that KBBW’s prognosis was ‘constant medical attention, life-threatening, it is unlikely she will return to work. Weekly blood transfusions limit this also.’[54]
(b)A letter dated 23 March 2023 from Dr Gilles, Immunologist, describing KBBW’s asthma as ‘severe’, ‘requires constant medical attention’ and ‘life threatening’.[55]
(c)The ‘Government-contracted doctor Disability Medical Assessment’ form completed on 14 April 2023,[56] in which the reporting doctor:
(i)described KBBW’s reported symptoms as ‘GP Dr Swainston reported 5.10.22 impaired physical capability, shortness of breath and fatigue. Dr Gilles reported severe ongoing symptomotology despite preventative treatment. It was reported that applicant has incredibly severe asthma and it would be best if she did not live alone due to needing supervision in case of another serious deterioration. He is of the opinion that applicant is unable to work in any job for 24 months or more due to the impacts of her asthma. Applicant reported shortness of breath on minimal exertion limiting all activities of daily livings’;
(ii)opined that KBBW’s asthma condition was likely to persist for more than 24 months; and
(iii)described the stability of KBBW’s asthma condition in these terms: ‘[G]iven the nature of the condition and the appropriate interventions, as well as no significant improvement is expected within 24 months, this condition is to be considered fully diagnosed, fully treated and fully stabilised.”
(d)The ‘Treating Medical Professional’s Information’ provided by Dr Fedichkina in KBBW’s NDIS Access Request form, in which this GP described KBBW’s asthma as ‘permanent’.[57]
[53] Hearing Bundle, T-Document T1D, Centrelink Medical certificate dated 5 October 2022, signed by Dr Swainston, page 26.
[54] Hearing Bundle, T-document T8F, Initial Statement of KBBW – Claim for total and permanent disablement benefit, 5 May 2023, page 136.
[55] Hearing Bundle, T-Document T1E, Letter from Dr Gilles dated 21 March 2023, page 35.
[56] Hearing Bundle, T-Document T1I, Disability Medical Assessment ‘Government-contracted doctor Disability Medical Assessment’ form, 14 April 2023, pages 36-39.
[57] Hearing Bundle, NDIS Access Request form, page 85.
KBBW’s written statement[58] and her evidence during the hearing clearly demonstrated that KBBW was deeply impacted by her severe asthma/status asthmaticus episode in July 2022, and that she remains gravely concerned about the possible consequences should she experience a similar episode in the future, commenting ‘I’m terrified I’m going to die.’[59]
[58] Hearing Bundle, Statement of the Applicant (undated), pages 285-301.
[59] KBBW’s evidence, 24 February 2025.
In responding to the specific concerns expressed by the Agency about known, available and appropriate evidence-based clinical, medical or other treatments and interventions that might be likely to remedy her asthma-related impairments, KBBW gave evidence that:[60]
(a)The references in her records to her asthma being ‘poorly controlled’ reflected that her condition was treatment resistant, rather than reflecting adversely upon her efforts to address it.
(b)She thought the recommendation for available treatment noted by her GP in the NDIS Access Request form had been addressed by her current use of Dupixent, and that the GP was incorrect, or may not have known, that KBBW was using this treatment when completing the form. KBBW also referred to the relatively brief nature of her patient relationship with Dr Fedichkina (KBBW’s evidence was that she had attended upon this doctor on only two occasions before submitting her NDIS Access Request)[61] and possible ‘language’ difficulties in their communication.[62] The NDIS Access Request Form completed by Dr Fedichkina and dated 5 May 2023 appears to reflect that she had treated KBBW for a period of ‘1.5 months.’ [63] [64] KBBW’s evidence was also that she engaged primarily with her treating specialists about her asthma, rather than her GP. While in her evidence KBBW was unable to recall when she commenced taking Dupixent, the Tribunal notes that other evidence reflects that KBBW received her first Dupixent injection on or about 28 October 2022,[65] which is approximately seven months prior to the GP completing the NDIS Access Request form for KBBW.
(c)She relied on her medical specialists to prescribe her medication.
(d)She had discussed the recommendation for desensitisation treatment with her doctors, particularly Dr Gilles, who ‘ruled it out’. KBBW explained her understanding, that given her severe asthma it would be dangerous for her to undergo this form of treatment, both when giving her evidence during the hearing, and also in her annotated reply to the Agency’s Amended SFIC:
… it is too dangerous for me to have the treatment as they will not be able to stop an attack if I react to one …
Post Traumatic Stress Disorder and Depression
[60] Ibid.
[61] Exhibit 2, KBBW’s Annotated Reply to the Agency’s Amended SFIC, at [32].
[62] KBBW’s evidence 24 February 2025 and Hearing Bundle, Statement of the Applicant, pages 297-298.
[63] Hearing Bundle, NDIS Access Request Form, page 84.
[64] While this handwritten reference is somewhat difficult to decipher, corroboration for this interpretation arises from KBBW noting in a superannuation claim form that was in evidence that her first visit to Dr Fedichkina was on 3 April 2023 (that is, a little over one month before Dr Fedichkina completed the NDIS Access Request Form) - Hearing Bundle, T-Document T8F, Claimant Initial Statement (completed by KBBW), dated 7 April 2023, page 132.
[65] Hearing Bundle, T-Document T1F, Letter from Ms Neill, Respiratory Nurse Practitioner, 28 October 2022, page 31.
The Agency’s contentions
Regarding KBBW’s impairments arising from her PTSD and depression, the Agency contended that the evidence was unclear as to what treatment the Applicant had engaged in, including whether the Applicant has undertaken psychiatric or psychological treatment and whether such treatment is completed, and the extent to which the Applicant’s use of antidepressant medication was effective.[66] The Agency contended that the evidence indicated that even if KBBW had received some treatment for these impairments, ‘she would benefit from further treatment, principally through counselling, psychological intervention, and/or other antidepressants,’[67] in the sense that these treatments (in the language of the NDIS Rules), were known, available and appropriate to KBBW, and likely to remedy her impairments, if engaged in on a regular and consistent basis.[68]
[66] Agency’s Amended SFIC [29], and Counsel’s submissions before the hearing.
[67] Agency’s Amended SFIC, [31].
[68] Counsel for the Agency’s opening submissions, 24 February 2025.
Again, the Agency noted comments made by KBBW’s GP in the NDIS Access Request Form:[69]
[t]he Applicant’s access request form for the NDIS completed by her General Practitioner … refers to the fact that the Applicant would benefit from assistance to participate in “psychological support groups and individual psychological sessions.”[70] There is a suggestion that the Applicant has been treated with ‘counselling’ and antidepressants’ however there is a simultaneous suggestion that the Applicant would benefit from further “counselling” and “antidepressants”.[71]
[69] Agency’s Amended SFIC, [30.3].
[70] Hearing Bundle, NDIS Access Request Form, page 90.
[71] Ibid, page 93.
Additionally, the Agency noted the content of two forms completed by the Applicant and contained in the T-documents, being:
(a)An insurance ‘Claim for total and permanent disablement benefit’ form submitted by KBBW and dated 5 May 2023, wherein KBBW, in answering a question which asked her to ‘Provide the details of any other health practitioners (physiotherapist, chiropractor, psychologist, alternative providers’ etc) you have attended for your current condition but no longer attend’, stated ‘counsellor, psychology, N/A, awaiting’.[72]
(b)A ‘Government-contracted doctor Disability Medical Assessment’ form dated 21 April 2023 which concluded that given a lack of ‘input from a psychiatrist or clinical psychologist this condition is not to be considered fully diagnosed, fully treated and fully stabilised.’[73]
[72] Hearing Bundle, T-Document T8F, Initial Statement of KBBW – Claim for total and permanent disablement benefit, 5 May 2023, page 129.
[73] Hearing Bundle, T-Document T1I, Government-contracted doctor Disability Medical Assessment, 21 April 2023, page 35.
Further, the Agency relied on evidence provided by Ms Cummings about the potential availability to KBBW of counselling and psychological therapy through community-based supports and services.[74]
[74] Hearing Bundle, Ms Cumming’s report, page 346.
In closing submissions, Counsel for the Agency submitted that notwithstanding the evidence given by KBBW about counselling services she had accessed over the years (as dealt with in the next section of this decision), the evidence before the Tribunal was insufficient to satisfy it that the permanency requirements were met.[75]
[75] Counsel for the Agency’s closing submissions, 25 February 2025.
KBBW’s contentions and evidence
KBBW provided evidence that she received counselling as a child, following upon the abuse committed upon her by her perpetrator and her consequent trauma. This was initially on a weekly basis, and later monthly.[76] KBBW’s written statement, and her oral evidence given at the hearing, was that she had received counselling for her PTSD and depression from time to time in her adult years, on a regular but often infrequent basis (at times once per year), and at times subject to her means.[77] In her Annotated Reply to the Agency’s SFIC, KBBW stated:
I have a current mental health care plan and see a private psychologist when funding can provide without NDIS support this relies solely on my pension. The availability of public health Psychologists is low in my area (which I am on a waiting list for) … [78]
[76] Hearing Bundle, Statement of the Applicant (undated), page 3.
[77] Ibid, pages 4 and 7; KBBW’s evidence, 24 February 2025.
[78] Exhibit 2, KBBW’s Annotated Reply to the Agency’s Amended SFIC, at [32].
In her oral evidence KBBW additionally explained that she was currently receiving regular counselling, free of charge, from a provider who worked at a local QuIHN service, and some other occasional ‘telehealth’ providers. The service from QuIHN is provided about once each month, commencing ‘about a year ago’.
In cross-examination, KBBW agreed that this service provided support to people who used drugs and alcohol. However, KBBW denied that was the basis on which she was engaging with this counsellor.
KBBW also gave evidence that she took antidepressant medication daily.[79]
[79] KBBW’s evidence, 24 February 2025; Hearing Bundle, Ms Cumming’s report, page 329; Exhibit 2, KBBW’s List of Medications, dated 24 February 2025.
Consideration
The Agency contends that for each of KBBW’s impairments, there is insufficient evidence for the Tribunal to be positively satisfied that there are no known, available and evidence-based clinical, medical or other treatments that would be likely to remedy these impairments; that is, that none of KBBW’s impairments is ‘permanent’, for the purposes of the NDIS Act. It is to be noted that the concept of ‘impairment’, within section 24 of the NDIS Act, is generally understood ‘as involving the loss of or damage to a physical, sensory or mental function.’[80]
[80] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51] (Mulligan).
The NDIS Act does not define the term ‘permanent’. However, the meaning of that term, and also the relevant rules in Part 5 of the Access Rules, have been considered in previous Federal Court decisions, including by Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), and more recently by McEvoy J in Kelly v National Disability Insurance Scheme [2024] FCA 1462 (Kelly). In that latter decision, McEvoy J said the following of Mortimer J’s decision in Davis:
In that case Mortimer J rejected an argument advanced by the NDIA that permanent meant “irreversible” or “untreatable” (at [77]). Her Honour instead held (at [85]) that the correct meaning of “permanent” in s 24(1)(b) is “enduring”, noting that
… This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[81]
[81] Kelly, [15].
In Davis, in deciding that the correct meaning of “permanent” in s 24(1)(b) is “enduring”, Mortimer J further commented about the effect of the adjectival use of “permanent” to the noun “impairment” in s 24(1):
“The focus of the text, consistently with the purposes of the scheme, is whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.” [82]
[82] Davis, [86].
Rule 5.4 of the Access Rules provides that an impairment will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. In Davis, Mortimer J considered the meaning of the word ‘remedy’ in Rule 5.4:
In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.[83]
[83] [136].
Kelly dealt with a challenge to the validity of Rule 5.4 of the Access Rules; McEvoy J finding that the Rule was valid.[84] The decision of the Tribunal that was appealed to the Federal Court in Kelly had found that the applicant in that matter had satisfied s.24(1)(a) of the NDIS Act, in that she had a disability attributable to a physical impairment, with the Tribunal then going on to consider section 24(1)(b) and the question of the permanence or likely permanence of that physical impairment. The Tribunal’s consideration of the meaning of the word “likely” was as follows:
One key word that appears in the legislation and the rules [that] does not appear to have been addressed in the authorities is ‘likely’. The Macquarie Dictionary defines likely as: ‘probably or apparently going or destined (to do, be, etc.)’. Likewise, the Oxford English Dictionary defines the word as ‘probable’ in the sense of ‘having a high chance of occurring’. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation.[85]
[84] Kelly, [63].
[85] Kelly, [65].
McEvoy J found that in defining “likely” by reference to probability, in contradistinction to possibility or mere speculation, the construction adopted by the Tribunal accorded with the ordinary meaning of the word “likely”, and also appropriately reflected the beneficial and remedial nature of the NDIS.[86]
[86] Kelly, [71].
The Access Guidelines also help in assessing permanency (footnotes omitted):
Is your impairment likely to be permanent?
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
…
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
· known and available
· appropriate for you and your impairment
· evidence-based – that is, there’s proof they are likely to be effective.
The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time.
For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects.
Accordingly, the issue for the Tribunal to determine is whether, using the language of Rule 5.4 of the NDIS Rules, ‘there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment’; being the impairments that KBBW has that arise respectively from her asthma, and her PTSD and depression.
Mortimer J’s consideration of the term ‘remedy’ in Davis has been set out above. In Davis, Mortimer J also considered the proper construction of the descriptors ‘known’, ‘available’ and ‘appropriate’ in Rule 5.4[87]:
[87] Davis, [135] – [140].
The executive has chosen to use three descriptors, each of which must be given work to do. See Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, Griffith CJ; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], McHugh, Gummow, Kirby and Hayne JJ; Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487 at [146]; District Council of Streaky Bay v Wilson [2021] FCAFC 181; 287 FCR 538 at [63]. On the application of principles of statutory interpretation to delegated legislation, see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [28]. See also Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417; Acts Interpretation Act 1901 (Cth) s 46(1); Legislation Act 2003 (Cth) s 13(1).
The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured
As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.
The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
“adjective 1. suitable or ready for use; at hand; of use or service … ”
(Original emphasis.)
Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is “available” to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is “available” to that individual, even if it might be “available” to a person without agoraphobia.
Asthma
While KBBW did not call any of her past or current treating doctors to give evidence at the hearing, as outlined, the Tribunal had before it a body of evidence about KBBW’s asthma, her related impairments and the treatments that had been considered and/or provided to KBBW in recent years, particularly following her status asthmaticus episode in July 2022. The overall picture arising from KBBW’s evidence at the hearing, together with the records and materials relating to her asthma that were tendered in evidence during the review, is that KBBW takes a very keen interest in her asthma condition and the physical impairments arising from it, and in her treatment. Such an interest is consistent with and entirely understandable in the context where KBBW lives in daily fear of having another status asthmaticus episode, and the possible life-threatening consequences of that.
The Tribunal accepts KBBW’s explanation regarding the references in her medical records to her asthma being ‘poorly controlled’ as reflecting that her condition was treatment resistant, rather than reflecting adversely upon her efforts to address it. Such explanation accords with the ordinary usage of this medical term and is consistent with the relevant references in the medical records of KBBW that were in evidence.[88]
[88] See, for example, Hearing Bundle, Referral letter from Dr Hegerty, Immunologist, dictated 26 October 2022, page 28.
Turning to the issue of the possible treatment of ‘IL-5 antagonist/IL-5 receptor antagonist’ as recommended by KBBW’s then GP, Dr Fedichkina, in Section 2 of KBBW’s NDIS Access Request form completed on 5 May 2023, KBBW referred to her treatment with the drug Dupixent (dupilumab) which, as noted, commenced in October 2022.
KBBW also provided some explanatory information about Dupixent, which noted that it belongs ‘to the drug class called ‘interleukin inhibitors’; that it can be used to treat ‘eosinophilic or oral corticosteroid-dependent asthma’; and that it’s mechanism of action ‘involves targeting and blocking two key inflammatory proteins in your body, interleukin-4 (IL-4) and interleukin-13 (IL-13).’[89] KBBW also reported experiencing significant side-effects, in the form of fatigue, by way of reaction to her regular injections of Dupixent.[90]
[89] Exhibit 2, Dupixent Injection: Uses, Dosage, Side Effects, Warnings, sourced from on 24 February 2025.
[90] See, for example, Hearing Bundle, Ms Cummings’ report, page 329, and Statement of the Applicant, page 292.
The NDIS Access Request Form completed by Dr Fedichkina provided information about how KBBW’s asthma-related impairments were currently being treated (at Question 5), and information about ‘previous treatments/interventions’ (Question 6).
In answering Question 5, Dr Fedichkina listed the following as KBBW’s current treatments/interventions:
1. Cluster MAX for desensitisation (immunotherapy)
2. SCIg for Ig replacement due to hypogammaglobulinemia
3. Steroids inhaler + Ventolin and Atrovent nebuliser
In answering Question 6, Dr Fedichkina listed as KBBW’s previous asthma treatments/interventions ‘oral prednisone, steroid inhaler, Atrovent, Ventolin’.
Dr Fedichkina did not give evidence at the hearing, and hence no opportunity arose to seek clarification of her entry in KBBW’s NDIS Access Request Form about her notation concerning the ‘IL-5 antagonist/IL-5 receptor antagonist’ treatment. Dr Fedichkina listed this treatment in answer to Question 7 in the form, which asked ‘[A]re there any available, evidence-based treatments/interventions that are likely to substantially relieve the applicant’s impairment?’. In answering that question ‘Yes’ the doctor wrote ‘(she is on it)’ and then described the available treatments in these terms:
Ig replacement, Immunotherapy} (she is on it)
IL-5 antagonist, IL-5 receptor antagonist (she is not on it)
KBBW provided evidence that she receives the medication ‘Cuvitru’ for her immunoglobulin immunodeficiency,[91] which is received as a weekly infusion.[92] KBBW also noted her current use of prednisone, Symbicort and Ventolin for her asthma.[93] It can be seen that the lists of current and past treatments outlined by Dr Fedichkina in the NDIS Access Request Form refer to all of these types of treatments, as well as Cluster Max injections for desensitisation/immunotherapy, but do not contain any reference to Dupixent, or to the class of drugs to which it belongs.
[91] Exhibit 2, Applicant’s List of Medications, 24 February 2025.
[92] Hearing Bundle, Ms Cummings’ report, page 329.
[93] Exhibit 2, Applicant’s List of Medications, 24 February 2025
Having regard to the information and evidence about KBBW’s use of Dupixent, the Tribunal accepts that at the time Dr Fedichkina completed KBBW’s NDIS Access Request Form KBBW was receiving this medication, which would appear to be consistent with what was recommended by the GP as an available treatment. Accordingly, the Tribunal is satisfied, in the language of Rule 5.4 of the NDIS Rules, that Dr Fedichkina’s reference in the Access Request Form does not support a view that there is a known, available and appropriate evidence-based treatment for KBBW’s asthma-related impairments that she has not pursued.
Finally, there is the evidence and the Agency’s contentions regarding the desensitisation and nasal steroid treatments noted in KBBW’s medical records. Specifically, the Agency referred to the following medical reports that were in evidence:
(a)Referral report of Dr Hegerty, Immunology/Rheumatology Registrar, Sunshine Coast University Hospital, dictated 26 October 2022 and addressed to KBBW’s then GP, Dr Swainston.[94] In this report Dr Hegerty noted KBBW’s history of asthma and treatments, and her ‘allergic rhinitis’, commenting that KBBW was ‘[L]ikely to benefit from improved control of upper respiratory symptoms through desensitisation.’ The doctor recommended KBBW:
[94] Hearing Bundle, T-document T1E, pages 28-30.
‘commence cluster max for grass and HDM[95] – order sent – If asthma control poor at time of initiation, to do build-up phase through conventional regime over 1 week (i.e. 0.2mL initially, then 0.5 mL one week later).
[95] Abbreviation for ‘Household Dust Mite’.
Dr Hergerty also noted that among KBBW’s medications was ‘Dymista nasal spray’, commenting further that KBBW ‘was not able to afford currently’. He recommended KBBW:
‘Take regular antihistamines, IN[96] corticosteroids if can afford.’
[96] Abbreviation for ‘intranasal.’
(b)Progress notes of Dr Dunlop dated 20 November 2023, regarding Outpatient Immunology/Allergy treatment of KBBW.[97] In this report Dr Dunlop noted:
[97] Hearing Bundle, pages 367-368.
Severe Asthma
- dupilumab
- symbicort, asthma/atrovent PRN
- oral prednisolone PRN
- using spacer; compliant with therapies
Allergic Rhinosinusitis
- sIgE positive to johnson, bahia and bermuda grasses
cat, dog, grass, HDM
- using decongestant tablets
- not using intranasal steroids; has found benefit from dymista in the past, but expensive
regarding desensitisation, would want to wait until asthma controlled- KBBW not interested in commencing currently; will defer decision for another six months
Notwithstanding the above references made by Dr Fedichkina in KBBW’s NDIS Access Request form to KBBW receiving Cluster Max desensitisation injections, KBBW was clear in her evidence that she was not currently receiving and was unwilling to so receive this treatment. Her evidence was that one of her treating immunologists, Dr Gilles, was of the view that she should not undergo this treatment due to the potential danger of an adverse reaction and bringing on a severe asthma attack.
The only other evidence provided by KBBW in relation to Dr Gilles’ views was a short letter dated 31 March 2023, in which Dr Gilles opined that KBBW ‘has severe asthma and requires constant medical attention. It is life threatening.’[98] However, Dr Gilles’ letter is silent on the issue of desensitisation treatment for KBBW.
[98] Hearing Bundle, T-document T1H, page 35.
KBBW’s concerns about the recommended desensitisation treatment are perhaps best encapsulated in the following excerpts; first, from her written statement, where she refers to some test results establishing that she is allergic to some common grasses;[99]
showing allergens to three common grasses sparking a very high positive to
further show that this is something that may not be able to be eliminated and
due to the analphalaxis and nature of the condition of my already deteriorated
airways it hasn’t been possible to even desensitise me without possibly killing
me.[100]
Secondly, from KBBW’s annotated response to the Agency’s Amended SFIC:
As already discussed during the Tribunal and as Dr Gilles has said, this treatment was considered two years ago when I first started seeing an immunologist, I never had these treatments and still haven’t in fact (so isn’t really viable that it is still an option or I would have embarked on the treatment by now) is fatal to the conditions I am now diagnosed with. The only treatments that they have looked at for the status asthmaticus from an immunology (which is desensitisation treatment) is the only treatment there is! However status asthmaticus means it’s a sudden onset of asthma that they are unable to treat, literally the definition, it is too dangerous for me to have the treatment as they will not be able to stop an attack if I react to one and I will subsequently either suffocate or suffer from a heart attack and cardiac arrest whether I am in a hospital or not.[101]
[99] Hearing Bundle, Allergy Testing Results, dated 31 May 2023, page 255.
[100] Hearing Bundle, Statement of the Applicant (undated), page 301.
[101] Exhibit 2, KBBW’s annotated response to the Agency’s Amended SFIC, paragraph 29.
Other medical records in evidence reflected that as of the time of her status asthmaticus episode in 2022, KBBW was not up to date with either her influenza or COVID vaccines; due to an adverse drug reaction to the flu vaccine; and for the COVID vaccine, a family history of anaphylaxis and her allergy history.[102] Her Hospital Discharge Summary form, completed upon her discharge following the status asthmaticus episode in July 2022, noted ‘adverse reactions’ to the influenza vaccine in the form of ‘asthma exacerbation’ and ‘rash’.[103]
[102] Hearing Bundle, T-document T1B, Redcliffe Hospital Discharge summary, 2 August 2022, page 15.
[103] Hearing Bundle, Hospital Discharge Form, page 371.
During her closing submissions the Tribunal sought specific comment from KBBW on the recommended treatments of desensitisation and internasal steroids. On the desensitisation treatment, KBBW noted that this treatment was directed to her allergy, and her most recent severe asthma/status asthmaticus episode was not an allergic asthma attack.[104]
[104] KBBW’s closing submissions, 25 February 2025.
As can be noted from the above reports relied on by the Agency, KBBW has been diagnosed with allergic rhinitis/rhinosinusitis, additional to her history of asthma. In October 2022 Dr Hegerty had opined that KBBW was ‘likely to benefit from improved control of upper respiratory symptoms through desensitisation’. Approximately one year later Dr Dunlop discussed desensitisation with KBBW, noting ‘would want to wait until asthma controlled’; that KBBW was ‘not interested in commencing currently’, and ‘will defer decision for another six months.’[105] KBBW gave evidence that she advised Dr Dunlop of Dr Gilles’ concerns, and her consequential reluctance to undergo desensitisation treatment, and he agreed with her position.[106]
[105] Hearing Bundle, Dr Dunlop’s report, page 367.
[106] KBBW’s evidence, 24 February 2025.
Dr Dunlop’s report lends some support, in the Tribunal’s view, to the position adopted by KBBW regarding desensitisation treatment. Dr Dunlop’s report reflects no firm recommendation for KBBW to undertake this treatment; rather, there appears from the wording of the report to be an acceptance of the importance of waiting until her asthma was controlled, and that a decision on this treatment was to be deferred. This outcome is suggestive of recognition of the relevance of KBBW’s concerns about this treatment, as articulated by her during the hearing.
In evaluating the available medical evidence, the Tribunal is also mindful of the body of evidence before it that reflects KBBW’s constant and pervasive level of concern about her asthma and particularly her terror of experiencing another status asthmaticus episode. It is not inappropriate, in the Tribunal’s view, to describe these concerns as governing KBBW’s life; her evidence was that she avoids anything that might cause her to have another severe asthma attack. The available medical evidence also reflects that KBBW has, particularly in recent years since that severe episode, visited various medical practitioners and persevered with a number of treatments to address her asthma-related impairments, including at least one (the Dupixent injections) which regularly produces significant adverse side-effects for her. This body of evidence, together with the Tribunal’s observations of KBBW throughout the hearing and her repeated references in her evidence to her concerns about experiencing another significant asthma attack, is difficult to reconcile with a view that KBBW would refuse to undergo a recommended treatment that was likely to ‘remedy’ her asthma related impairments, without good reason.
As noted in Davis, an ‘appropriate’ treatment is one which has the capacity to remedy the impairment, and which is suitable for the particular individual concerned to undergo. Having regard to the available evidence as set out above, and particularly the view noted by Dr Dunlop in late 2023, the Tribunal is not satisfied that the recommendation for desensitisation treatment is an available treatment for KBBW, within the meaning of Rule 5.4.
Lastly, regarding the recommendation for KBBW to use intranasal steroids (for example, Dymista), it would appear from the reports of Doctors Hegerty and Dunlop that this treatment was recommended for KBBW’s allergic rhinitis/rhinosinusitis, and further that the affordability of this medication was an issue for KBBW, who is a recipient of a Disability Support pension.[107] The evidence reflects that KBBW regularly uses a number of other steroid based treatments for her asthma and allergy related impairments. The Hospital Discharge Medication record, produced upon KBBW’s discharge after her hospitalisation in July 2022, reflects that KBBW was prescribed, among other medications, an inhaler that contained the same ingredient as Dymista.[108]
[107] Hearing Bundle; T-Document T1, AAT Application for review of decision, 14 September 2023, and Statement of the Applicant, pages 292-293.
[108] Fluticasone – see Hearing Bundle, T-Document T1A, Discharge Medication Record, 29 July 2022, page 11.
Again, the Tribunal finds that KBBW not using this one specific treatment on a regular basis does not enliven the exclusionary circumstances envisaged within Rule 5.4.
The Tribunal finds that KBBW satisfies the requirements of section 24(1)(b) of the NDIS Act regarding the permanence of her physical impairments related to her asthma.
Post Traumatic Stress Disorder and Depression
The evidence before the Tribunal regarding KBBW’s diagnoses of PTSD and depression, and the treatment of these conditions and the impairments arising from them, was much less detailed than the evidence regarding KBBW’s asthma and related impairments.
In KBBW’s NDIS Access Request Form Dr Fedichkina listed PTSD and depression as ‘other disabilities’ substantially affecting KBBW’s everyday life, noting that KBBW had experienced her PTSD since 1995. Dr Fedichkina also provided some comments about KBBW’s perceived early intervention needs, referring to counselling, and how KBBW’s PTSD and depression affected her functional capacity in the domains of socialising, learning and self-management. The doctor also added the following as an ‘additional note’ in Part F of the Form:
Treatment for PTSD, depression current and past: counselling, antidepressants (Efexor-XR 75ug). Abuse was reported to police.
- Antidepressants daily
- counselling regularly[109]
[109] Hearing Bundle, NDIA Access Request Form, page 96.
Some of the other evidence referring to KBBW’s PTSD and depression has already been noted above, in the context of the Agency’s and KBBW’s respective contentions about permanency.
Additionally, KBBW gave evidence at the hearing about her PTSD and depression, and her related impairments, and also provided other materials that addressed those matters, such as her written statement;[110] her Annotated Response to the Agency’s Amended SFIC;[111]and a written statement from her mother.[112]
[110] Hearing Bundle, Statement of the Applicant. Pages 285-301.
[111] Exhibit 2.
[112] Hearing Bundle, ‘Affidavit’ of Applicant’s mother, dated 29 September 2022, page 25 (Note: while this statement was made on an affidavit form and signed by the statement-maker, it was not witnessed).
The evidence that was before the Tribunal does support a view that KBBW’s PTSD and depression are long-standing in nature. Additionally, the Tribunal accepts the now well-established understanding, supported by research, about how child sexual abuse affects a child’s psychosocial development and how these effects manifest differently throughout a survivor’s life, with significant life experiences at times heightening survivors’ trauma and their needs for therapeutic support.[113] Indeed, KBBW’s written statement demonstrably speaks to her own life experiences in this context, and the exacerbating impacts of some traumatic life events upon her mental health conditions.
[113] See, for example, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Volume 9, Advocacy, support and therapeutic treatment services, December 2017, at page 235.
However, as previously detailed, the decision in Davis provides that the focus upon ‘permanency’ for the purposes of section 24(1) of the NDIS Act, is on the enduring nature of the Applicant’s impairments, rather than upon the cause of their impairments or the diagnosis which might be applied to a medical condition.
The evidence that was before the Tribunal about KBBW’s treatment for the impairments arising from her PTSD and depression was primarily provided by KBBW.[114] Some of that evidence has been outlined above. Additionally, KBBW gave evidence that she has in place a mental health plan with her GP; that she has ‘done everything I could’ for her mental health, and explained that due to financial hardship she was not currently seeing a psychologist, although she was on a waiting list for public services. KBBW also gave evidence that she had taken out private health insurance and after serving out her waiting period may be able to access such services more readily. KBBW also noted the limited services available in her regional location.
[114] KBBW’s evidence, 24 February 2025.
During cross-examination by the Agency’s counsel, KBBW repeated her evidence that she had undertaken counselling throughout her adult life on a regular but infrequent basis, at times once per year. KBBW stated that this was why she had answered question 9 in her superannuation claim form[115] as she did; that is, she had attended upon a counsellor/psychology previously and was ‘awaiting’ further treatment.
[115] Hearing Bundle, Claim for Total and Permanent Disablement, page 129.
Ms Cummings also provided evidence about the community-based supports and services or relevance to KBBW’s circumstances and which might be of benefit to her.[116]
[116] Hearing Bundle, Ms Cummings’ report, pages 27-28, and evidence given by Ms Cummings, 25 February 2025.
As noted, while some of the medical and other records in evidence referred to KBBW’s PTSD and depression, many of these materials were somewhat aged in nature,[117] and there was nothing in the nature of a specialist medical report(s) dealing with these conditions and particularly providing the type of information about the details of treatments undertaken by KBBW for the impairments arising from those conditions, the outcomes of those treatments and her prognosis, such as might support a positive finding by the Tribunal regarding the requirements of the Access Rules.
[117] For example, screenshots of Pharmaceutical benefits reports regarding KBBW’s prescriptions for an anti-depressant medication (escitalopram) in 2019; Hearing Bundle, Pharmaceutical benefits reports dated 28 August 2019, pages 267-270. See also the reference to KBBW having ‘a fluctuating level of anxiety’ in a 2014 medical report; Hearing Bundle, Report of [name deleted] General Practice, dated 6 February 2014, page 238.
There were no records produced to the Tribunal regarding the current counselling from QuIHN that KBBW outlined in evidence, nor about the providers or details of previous counselling. There was no specific medical evidence about KBBW’s prescribed use of anti-depressants, in the form of evidence from any treating doctor about, for example, the various forms of medication that KBBW has used,[118] their outcomes in addressing KBBW’s impairments, why KBBW’s prescription was changed, and her future treatment needs.
[118] KBBW’s evidence reflected that she had used different anti-depressants in recent years; see Hearing Bundle, Pharmaceutical benefits reports dated 28 August 2019, pages 267-270 (reflecting KBBW’s use of escitalopram) and Exhibit 2, List of Medications provided by KBBW, 24 February 2025 (reflecting KBBW’s use of Venlafaxine).
The Tribunal accepts the evidence that KBBW gave about the ongoing trauma that she experiences as a result of being subjected to abuse in her childhood, and her experience of other traumatic events that have occurred subsequently n her life. The Tribunal also accepts KBBW’s evidence about the treatments that she has received for her PTSD and depression and does not question the genuine character of KBBW’s efforts to secure affordable treatment and support for those conditions. However, it remains that there is a lack of evidence before the Tribunal as to the efficacy of those treatments in addressing her related impairments, such as might assist the Tribunal to reliably form a view about whether the impairments are likely to be permanent, or alternatively, whether those treatments might be likely to support her recovery to the point of remedying her impairments, within the meaning or Rules 5.4, 5.5 and 5.6 of the NDIS Access Rules.
Having regard to all of the evidence about KBBW’s PTSD and depression and her related impairments and treatment, the Tribunal is not satisfied that the available evidence supports a finding that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments that result from KBBW’s PTSD and depression, or that the impairments do not require further medical treatment or review in order for their permanency or likely permanency to be demonstrated.
As such, the task of the Tribunal is assessing KBBW’s functional capacity is effectively two-fold. The first is to consider whether her circumstances are included within the deeming effect of Rule 5.8. Should Rule 5.8 not be enlivened, the Tribunal must still proceed to determine whether KBBW’s functional capacity in any of the six activities is substantially reduced, as a result of her asthma related impairments.
There are three subparagraphs in Rule 5.8. They operate as alternatives. Subparagraph (a) of Rule 5.8(a) requires an assessment as to whether KBBW is unable to participate ‘effectively or completely’, or to perform tasks or actions required to undertake or participate effectively or completely in one or more of the relevant activities, without assistive technology, equipment (other than commonly used items), or home modifications.
Alternatively, Rule 5.8(b) addresses whether KBBW usually requires assistance from other people to participate in the activity, or to perform tasks or actions required to undertake or participate in the activity. Finally, Rule 5.8(c) addresses whether KBBW 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.
In National Disability Insurance Agency v Foster (2023) FCAFC 11 (Foster), the Full Court of the Federal Court considered the proper construction of the words ‘effectively or completely’ in Rule 5.8(a), concluding that a person will not necessarily be deemed to have a substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.[159]
[159] National Disability Insurance Agency v Foster (2023) FCAFC 11, [88].
Further, in Mulligan, Mortimer J said the following about the operation of section 24(1)(c) of the Act:
[55] Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
[56] That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. 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.[160]
[160] Mulligan, [55] – [56].
In the context of how section 24(1)(c) is to operate, the Agency in its Amended SFIC also noted the guidance provided by Mulligan, and previous decisions of the AAT:[161]
The word ‘substantially’ within the meaning of section 24(1)(c) carries a high threshold.[162] It must be considered in the context that the NDIS was not intended to provide support to every person with disability.[163] The word should also be understood in the context of ensuring financial sustainability of the NDIS.[164] The Respondent submits that the test under s 24(1)(c) is one of objective functional capacity. [165] A subjective comparison between what a person could do before the onset of their disability and their function currently is ‘not the appropriate yardstick’.[166] It is important to distinguish between what the person does not do, as opposed to what they cannot do.[167] As such, the Tribunal must consider both what the person can and cannot do.[168]
[161] Agency’s Amended SFIC, [35.3], citing Mulligan v National Disability Insurance Agency (2015) 233 FCR 201.
[162] Citing Garcia Albiol and National Disability Insurance Agency [2024] AATA 496, [68].
[163] Citing Mulligan, [50].
[164] Citing the NDIS Act, section 3(3)(b).
[165] Citing Mulligan at [55].
[166] Madelaine, [109].
[167] Citing Mulligan at [56] and Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, [96].
[168] Citing Mulligan at [55]-[56] and Foster at [64].
Further, the Agency noted that while medical opinions are relevant in determining whether a person’s capacity has been ‘substantially’ reduced, it is the role of the Tribunal to make such findings:
Merely because a medical assessor uses the word ‘substantially’ in forming his or her opinion does not make it determinative that the Applicant has a substantially reduced capacity.[169]
[169] Agency’s Amended SFIC, [34].
While the Agency accepted that KBBW has some reduced functional capacities in one or more of the six relevant activities (mobility and self-management), as a result of her asthma related impairments, it also contended that KBBW does not meet the threshold for substantially reduced functional capacity in respect of any of those activities.[170]
[170] Agency’s Amended SFIC, [40].
Before addressing the Tribunal’s consideration of the evidence regarding KBBW’s functional capacity, it can be noted from the above evidentiary analysis that there was not significant contest or disparity between KBBW’s accounts of her functional capacity in the relevant domains, and the observations made and the opinions formed by Ms Cummings as a result of her functional assessment of KBBW. Indeed, KBBW noted when asking questions of Ms Cummings at the hearing that she agreed with the report ‘at the time’, although noting that by the time of the hearing,[171] her circumstances had changed in some ways, including the degree of informal support that KBBW’s mother was able to provide (which had decreased very significantly by the time of the hearing).
[171] Which was nearly 12 months after Ms Cummings conducted her assessment, on 28 February 2025.
Rather, KBBW contended that on the basis of the evidence, she should be found to meet the test for substantially reduced functional capacity. This position was particularly reflected in comments made by KBBW and contained in Exhibit 2, being her Annotated Reply to the Agency’s Amended SFIC.
In considering whether KBBW meets the requirements of section 24(1)(c), the Tribunal will first address the deeming provisions of Rule 5.8 and their potential application to KBBW’s circumstances.
Turning first to Rule 5.8(a), the terms ‘assistive technology’ and ‘equipment’ are not defined in the NDIS Rules. However, the NDIS has issued an ‘Assistive Technology’ Operational Guideline, which provides:
The World Health Organisation has a universal definition of assistive technology.
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability.[172]
[172] NDIS Operational Guideline, Assistive Technology (equipment, technology and devices), 20 December 2023, page 2.
The evidence is that KBBW does not currently use any assistive technology or equipment to undertake or participate in any relevant activities. The Tribunal is satisfied that KBBW’s circumstances do not meet Rule 5.8(a).
Moving to paragraph (b) of Rule 5.8, KBBW will be deemed to meet this requirement if the Tribunal is satisfied that she usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in one of the six activities specified in section 24(1)(c), or to perform tasks or actions required to undertake or participate in the activity. In this context, the Access Guidelines provide that a person’s impairment will substantially reduce their functional capacity if they ‘usually need disability-specific supports to participate in or complete’ tasks required to undertake an activity, and that such support from other people is to be of ‘a high level’.’
While the evidence provided by KBBW, and also Ms Cummings, addressed how others from time to time assist KBBW in undertaking some of her daily activities, the Tribunal is of the view that the evidence does not support a contention that KBBW usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in any one of the six specified activities, or to perform tasks or actions required to undertake or participate in those activities. The mobility and self-care related tasks with which KBBW requires assistance; for example, driving long distances to attend medical appointments, and lawn and yard maintenance, are ones that are not performed every day.
In considering the possible operation of Rule 5.8(b), the Tribunal is required to make an assessment based upon the bundle of tasks and actions that form these activities,[173] and the degree to which KBBW can participate in them.[174] The collective effect of the evidence is that KBBW is able to independently perform many of the tasks and actions required to mobilise about her home and in the community, and to undertake her self-care, without assistance from another person. As such, the Tribunal does not find that she usually requires assistance from another person to participate in these activities, such as to enliven the deeming effect of Rule 5.8(b).
[173] Foster, [65] - [66].
[174] Ibid, [88].
Finally, the evidence does not suggest, in terms of the possible application of paragraph (c) of Rule 5.8, that KBBW is ‘unable’ to participate in any of the six specified activities or to perform tasks or actions required to undertake or participate in the activities, even with assistance from another person. Hence, paragraph (c) of Rule 5.8 also does not assist KBBW.
While KBBW does not fall within the deeming operation of Rule 5.8 to satisfy the requirement of substantially reduced functional capacity for any of the activities set out in section 24(1)(c) of the NDIS Act, in accordance with Mulligan, the Tribunal must still undertake the statutory task of considering whether KBBW’s functional capacity is substantially reduced in any one of the six activities.[175] Again, this needs to be considered only in the context of KBBW’s asthma related impairments.
[175] Mulligan, [77].
Throughout the review it was not positively contended that KBBW has substantially reduced functional capacity in the domains of communication and learning. The evidence relevant to her capacities and these activities has been noted above, and the Tribunal finds that KBBW does not have substantially reduced functional capacity in these two domains. The other domains will be dealt with individually.
Social interaction: As noted, the evidence reflects that KBBW has a limited group of family and friends that she engages with regularly. Some of her friendships are long-standing in their nature. Ms Cummings noted that KBBW has isolated herself over the years, and that she did not particularly want friendships at this stage of her life due to her health and past trauma.[176] In part, this approach arises from anxiety when interacting with others, likely associated with her PTSD, although the Tribunal accepts, on the basis of KBBW’s evidence, that her anxiety levels are also impacted by her constant fear of experiencing another severe asthma attack. Ms Cummings also noted that KBBW ‘ … reported that she is happy with her own company and does not often feel lonely.’[177] In turn, KBBW commented:
Through NDIS support a carer might pop around and be able to provide some company should I wish to not spend the rest of my life alone. At the moment I don’t have an option, so yeah I learnt to be OK with that.[178]
[176] Hearing Bundle, Ms Cummings’ report, page 334.
[177] Ibid, page 335.
[178] Exhibit 2, KBBW’s Annotated Reply to the Agency’s SFIC, commentary upon paragraph [49].
The Agency contended that while KBBW may have some reduced capacity for socialising, there does not appear to be any particular impairment resulting from her asthma to KBBW undertaking tasks relating to this activity, such as participating in a conversation, socialising with others, or developing new relationships.[179]
[179] Agency’s Amended SFIC, [47].
As noted above, the Agency also referred the Tribunal to the earlier decision in Kilgallin and the National Disability Insurance Agency.[180] In that matter the Tribunal stated:
“Social interaction as referred to in 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.”[181]
[180] [2017] AATA 186.
[181] Kilgallin and the National Disability Insurance Agency [2017] AATA 186, [19].
Although KBBW purposely limits her engagement in some forms of social interaction, and those with whom she engages, the Tribunal is satisfied that the evidence establishes that she is capable of engaging with her family and friends and others, and with the community, and that consequently her functional capacity for social interaction is not substantially reduced.
Mobility: The relevant evidence outlining how KBBW mobilises about her home, and in the community, has been set out above. The Agency accepts that KBBW’s functional capacity in this domain is reduced because of her asthma related impairments but contended that this was not to the level of a substantial reduction.[182] The Agency also submitted that the Tribunal should adopt the approach, in assessing the Applicant’s functional capacity for mobility, as outlined in the case of Madeleine. Relevantly, that approach was:
Once again, the threshold requirements to achieve functional capacity in relation to this activity are relatively modest. 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 movable, not fixed, free to move.[183]
[182] Agency’s Amended SFIC, [58], and Counsel’s closing submissions.
[183] Madelaine, [104], noting the previous Tribunal decisions of Holmes and National Disability Insurance Agency [2017] AATA 2750, and MZHQ and National Disability Insurance Agency [2019] AATA 810.
The evidence in the review establishes that KBBW can independently mobilise about her home and in the community, such as while at the shops, to undertake the activities of daily living. At times KBBW does this in a paced or modified way, in order to manage episodes of breathlessness and/or mitigate the risk of bringing on a severe asthma attack. The Tribunal acknowledges those challenges faced by KBBW; however, this does not necessarily mean that KBBW cannot participate effectively or completely in the activity of mobilising.
There was no dispute in the evidence that at times KBBW needs assistance from others to mobilise, such as when undertaking longer trips in a vehicle, as KBBW no longer drives. However, her evidence about this acknowledged that while she experienced anxiety and was concerned about exacerbating her asthma when she previously drove for longer distances, at the present time her absence from driving arises principally because of the mechanical failure of her vehicle and her financial limitations in funding repairs.[184] While KBBW may not be able to independently undertake all of the tasks or actions that might fall within the domain of mobility, again this does not necessarily mean that she has a substantially reduced functional capacity in that domain.[185]
[184] Evidence of KBBW, 24 February 2025.
[185] Foster, see Note [159] above.
On the evidence about what KBBW can do independently in mobilising, and having regard to ‘relatively modest’ nature of the threshold requirements to achieve functional capacity as outlined in Madelaine’s case, the Tribunal is satisfied that KBBW does not have a substantially reduced functional capacity to mobilise.
Self-care: Similarly to the domain of mobility, the evidentiary picture relating to KBBW’s capacity for self-care establishes that she can undertake many of the activities relating to her personal self-care independently, at times using pacing and/or modified strategies, and that assistance from others is required to undertake or perform some tasks, such as lawn mowing and yard maintenance, and attending some of her medical appointments.
The Tribunal is satisfied that the evidence does not establish, in the language used in Madeleine’s case, that there are significant gaps in KBBW’s capacity to maintain her personal health, safety and well-being.[186] The Tribunal is satisfied that the evidence does not establish that KBBW’s functional capacity in the domain of self-care is substantially reduced.
[186] Madeleine, [121].
Self-management: Again, the evidence regarding KBBW’s functional capacity to undertake activities in the domain of self-management was that she was mostly independent, receiving assistance to attend some appointments and to access the community.
The Tribunal is satisfied that the evidence does not establish that KBBW’s functional capacity in the domain of self-management is substantially reduced.
Conclusions on section 24(1)(c) – substantially reduced functional capacity
As the Tribunal is not satisfied that KBBW’s asthma related impairments result in substantially reduced functional capacity to undertake one or more of the six activities specified in section 24(1)(c) of the NDIS Act, it follows that KBBW does not meet the disability requirements, for the purposes of the access criteria in the NDIS Act. Having regard to the cumulative nature of the disability requirements in section 24(1), it is not necessary for the Tribunal to proceed to determine if KBBW meets the criteria in paragraphs (d) and (e) of section 24(1); namely, whether KBBW’s asthma related impairments affect her capacity for social and economic participation, and whether KBBW is likely to require NDIS supports under the Scheme for her lifetime.
DOES KBBW MEET THE EARLY INTERVENTION REQUIREMENTS?
Having determined that KBBW does not meet the disability requirements of the NDIS Act, it remains for the Tribunal to determine if she meets the early intervention requirements.
In Mulligan, the Federal Court noted a recommendation made in the Productivity Commission’s 2011 Inquiry Report, “Disability Care and Support”[187] which said that individuals receiving support through the NDIS should have a disability that is or is likely to be permanent, and would meet one of two conditions, with (relevantly) those “in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective.”[188]
[187] Which informed the establishment of the NDIS.
[188] Mulligan, [54]
The Tribunal has found that KBBW’s physical impairments attributable to her asthma are, or are likely to be permanent, meaning that she meets the requirement in section 25(1)(a). Paragraph (b) of section 25(1) requires, in the context of this review, that the Tribunal be satisfied that the provision of early intervention supports for KBBW is likely to benefit her, by reducing her future needs for supports in relation to disability. Additionally, paragraph (c) requires the Tribunal to be satisfied that the provision of early intervention supports for KBBW is likely to benefit her by mitigating or alleviating the impact of KBBW’s impairments upon her functional capacity in the six domains already discussed; or by preventing the deterioration of such functional capacity or improving it; or strengthening the sustainability of informal supports available to KBBW.
Part 6 of the Access Rules addresses the early intervention requirements. Rule 6.9 sets out the issues to be considered in in deciding whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs (b) and (c) of section 25(1) of the NDIS Act:
Where evidence is required
6.9In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a) the likely trajectory and impact of the person's impairment over time; and
(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Access Guidelines relevantly explain that “[E]arly intervention is usually early access to support, to help reduce the functional impacts of your impairment … You won’t need these supports for your lifetime, so your treating professional … will tell us how early intervention support could benefit you.”[189] The Access Guidelines also provide the following commentary (footnotes omitted):
[189] Applying to the NDIS Operational Guideline, at page 11.
How will early intervention help you?
We need to decide that getting early intervention supports means you’ll likely need fewer disability supports in the future.[i]
We need to know that early intervention supports will help you with at least one of the following:
· addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
· preventing your functional capacity from getting worse
· improving your functional capacity
· supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
· how your impairment might change over time
· how long you’ve had your impairment
· if there’s been a significant change to your impairment
· if your needs are likely to change soon, such as if you’re finishing school.
The Access Rules require a consideration of the likely trajectory and impact of KBBW’s asthma-related impairments over time, and the potential benefits of early intervention on the impact of those impairments on her functional capacity and in reducing her need for future supports.
The Agency contended throughout the review that none of KBBW’s impairments, whether attributable to her asthma or to a psychosocial disability, were permanent within the meaning of section 25(1)(a) of the NDIS Act. On that basis, and as noted above, the Agency contended in its Amended SFIC that early intervention for KBBW was not appropriate because the evidence does not establish that early intervention supports were likely to reduce KBBW’s future needs for support (section 25(1)(b) of the NDIS Act); and would mitigate or alleviate the impact of KBBW’s impairments, or prevent the deterioration of, or improve her functional capacity, or strengthen the sustainability of informal supports available to her (section 25(1)(c) of the NDIS Act).[190]
[190] Agency’s Amended SFIC, [78]-[79].
For the reasons already explained, the Tribunal has determined that KBBW’s asthma-related impairments meet the test of permanency in section 24(1)(b) of the NDIS Act, and that the impairments arising from her PTSD and depression, to which a psychosocial disability is attributable, do not. For those same reasons, the Tribunal finds that only KBBW’s physical impairments which are attributable to her asthma meet section 25(1(a) of the NDIS Act, for the purpose of considering KBBW’s potential eligibility for early intervention.
In the case of James and National Disability Insurance Agency, the Tribunal said the following about the early intervention requirements under section 25:
The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the long term. Accordingly, the early intervention requirements look at the likely trajectory and impact of a person’s impairment over time and the potential benefits for early intervention on the impact of the impairment on the person’s functional capacity.[191]
[191] James and National Disability Insurance Agency [2019] AATA 4248, [49].
In that decision the Tribunal also commented on the operation of the ‘second gateway’ set out in section 25(1)(b):
… the section is concerned not with ‘early’ intervention in terms of an early diagnosis, but rather early during the impairment where early intervention is likely to have a significant impact on the course taken by that impairment.[192]
[192] Ibid, [52].
The evidence noted above establishes that KBBW has suffered from asthma since she was a small child. While KBBW’s impairments have worsened since around the time of KBBW’s status asthmaticus episode in 2022, these impairments are enduring and cannot be said to be at an early stage of their trajectory.[193] The provision of supports at this time could not in turn be considered ‘early’.
[193] FBJV and National Disability Insurance Agency [2021] AATA 913, [170]; Puster and National Disability Insurance Agency [2023] AATA 1760, [67]; XVYL and National Disability Insurance Agency [2024] AATA 498, [145].
When completing KBBW’s NDIS Access Request Form, Dr Fedichkina indicated that the provision of early intervention supports would be likely to reduce KBBW’s future support needs, in that such supports would ‘alleviate the impact’, ‘prevent deterioration of’ and ‘improve’ functional capacity. However, in the section of the form seeking a description of the interventions recommended, Dr Fedichkina noted ‘financial support for her to be able to afford her treatment/medications, counselling.’ When asked to describe the duration or frequency of these interventions, Dr Fedichkina noted ‘lifelong, regularly’.[194]
[194] Hearing Bundle, NDIS Access Request Form, page 85.
The reference by Dr Fedichkina to ‘counselling’ must be assumed to relate to the impairments KBBW experiences which are attributable to a psychosocial condition. The only other ‘intervention’ recommended by the doctor related to financial support for KBBW. There is no other evidence before the Tribunal as to any recommended intervention that might contribute to any of the outcomes required under section 25(1)(c) of the NDIS Act. Rather, the evidence is that KBBW will require ongoing treatment for her asthma-related impairments, possibly for her lifetime, and of the same or a similar nature to what she now receives.
The Tribunal considers that the medical evidence available to it is not sufficient to satisfy it that the provision of early intervention supports for KBBW is likely to benefit her by reducing her future needs for supports in relation to disability, or by achieving the functional and other outcomes contemplated by subparagraphs (1)(c)(1) to (iv) of section 25.
For these reasons, the Tribunal finds that KBBW does not meet the early intervention requirements under section 25 of the NDIS Act.
CONCLUSION
It follows that as KBBW does not meet either the disability requirements under section 24 or the early intervention requirements under section 25, she does not meet the access criteria under section 21 of the NDIS Act.
In so deciding, the Tribunal acknowledges that because of her disability and impairments, KBBW does experience a reduction in some areas of her functional capacity (although not to the level required by the NDIS Act for access to the NDIS), and more generally, that her quality of life is significantly impacted.
However, this outcome must be viewed in the context of what the NDIS is intended to do. In a recent Tribunal decision of Coffey and CEO, National Disability Insurance Agency [2025] ARTA 634 Senior Member French explained this context in the following way:
The NDIS is a Commonwealth program of social assistance which has as its target group persons with disability who are Australian residents under the age of 65 who experience substantially reduced functional capacity to perform essential tasks in one or more designated life activity areas due to one or more permanent intellectual, cognitive, neurological, sensory, or physical impairments or one or more permanent impairments to which a psychosocial disability is attributable.[195] This is a limited sub-category of the total population of persons with disability in Australia.[196] The NDIS is not intended to support every person with disability in Australia.
[195] The NDIS also provides time-limited early intervention assistance to other persons with disability who experience intellectual, cognitive, neurological, sensory, or physical impairments or impairments to which a psychosocial disability is attributable, which are permanent or likely to be permanent, who will benefit from such support in specified ways. Again, this is a limited sub-category of the total population of persons with disability in Australia.
[196] Mulligan, at [50].
DECISION
The Tribunal affirms the decision under review, pursuant to section 105(a) of the Administrative Review Tribunal Act 2024.
Date(s) of hearing: 24 and 25 February 2025 The Applicant:
In person
For the Respondent:
Ms G Yates of Counsel, instructed by Sparke Helmore Lawyers
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