Kelly and National Disability Insurance Agency (NDIS) - [2025] ARTA 460

Kelly and National Disability Insurance Agency (NDIS) [2025] ARTA 460 (23 April 2025)
Applicant/s:  Ms Georgia Kelly
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/9093
Tribunal:General Member D Heron
Place:Brisbane
Date:23 April 2025

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

...............[SGD]..................
General Member D Heron
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – permanency – whether applicant meets disability requirements – NDIS Act s24(1)(b) – whether applicant meets early intervention requirements – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
CASES
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
SECONDARY MATERIALS
National Disability Insurance Scheme - Operational Guidelines – Becoming a Participant – Access, align="center">Statement of Reasons
BACKGROUND

Ms Kelly (the Applicant) is a 33 year old woman who seeks access to the National Disability Insurance Scheme (the NDIS).
Ms Kelly has been diagnosed with cervical radiculopathy, C5-C6, C6-C7, she is currently unemployed and is in receipt of the disability support pension (DSP).
Ms Kelly is currently residing with her mother who is her primary informal support as she does not receive any formal supports on a day-to-day basis.
On 19 July 2023, Ms Kelly made an NDIS access request to become a participant in the NDIS. The Access Request Form stated cervical radiculopathy as her primary disability.
On 24 August 2023, the National Disability Insurance Agency (the Respondent) determined Ms Kelly did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) as it was not satisfied her impairments were permanent.[1]
[1] JTB, T3, Access Request Form, dated 19 July 2023, p 60.
An internal review confirmed this decision on 27 November 2023.[2] On 4 December 2023, Ms Kelly applied to the Administrative Appeals Tribunal (AAT) for a review of this internal decision (Reviewable Decision).[3]
[2] JTB, T1A, Internal Review Decision, dated 27 November 2023, p 34.
[3] JTB, T1, Application for Review of Decision, dated 4 December 2023, p 24.
The hearing was conducted via Microsoft Teams on 31 March and 1- 2, April 2025. In determining this matter, I have considered all the material filed by the parties, including the documents filed in the agreed Joint Tender Bundle (the JTB).
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As Ms Kelly’s request for access was made before 3 October 2024, the Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.
LEGISLATIVE FRAMEWORK
The access criteria
Before turning to the issues, I note the following aspects of the statutory regime regarding access to the NDIS. To become a participant, the following access criteria in subsection 21(1) of the Act must be satisfied:
(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).
The parties agree that Ms Kelly satisfies the age requirements and the residence requirements. The two main questions before me are whether Ms Kelly satisfies the access criteria in section 24 (the disability requirements) or satisfies section 25 (the early intervention requirements) of the Act.
Section 24 of the Act states:
(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.
If I find that Ms Kelly does not meet the above disability requirements, I must then consider whether she meets the early intervention requirements set out in section 25 of the Act. This section states that:
1.A person meets the early intervention requirements if:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii)is a child who has developmental delay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
The relevant rules to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
The NDIS Operational Guidelines also assist in making decisions in accordance with the Act on whether a person meets the disability requirements or the early intervention requirements. The Federal Court in ReDrake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 held that relevant government policy should be applied by the Tribunal unless there is good reason not to do so.[4]
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Issues
To meet the disability requirements, I need to be satisfied that Ms Kelly meets all the criteria set out in section 24 of the Act. If I am not satisfied that Ms Kelly meets the disability requirements, then I need to be satisfied that she meets the early intervention requirements as set out in s 25 of the Act.
The main issues that the parties disagree on is whether Ms Kelly’s impairments are permanent, and then whether they result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management.
Evidence
In support of her NDIS access request, Ms Kelly provided evidence of medical records, letters and scans dated between 2020 to current time.[5] On the final day of the hearing, Ms Kelly also supplied further scans and X-rays to the Tribunal.
[5] JTB, T1-T7 and C1-C19
Evidence of Ms Kelly
Ms Kelly gave oral evidence on the first day of the hearing. Her oral evidence can be summarised as:
·Underwent a corpectomy in August 2024 by Dr Yang, orthopaedic surgeon.
·This surgery focused on structural damage and her myelopathy from worsening.
·The surgery removed vertebrae and installed a cage to stop spine collapsing.
·The surgery has helped with some circulation issues and some balance issues.
·Doctors verbally indicated that this surgery was the final step, there were no other treatments they could undertake to assist outside medication and maintenance therapy.
·Recently underwent lumbar surgery in February 2025, unrelated for purposes of this application.
·Still in recovery phase from this surgery.
·Impairments from cervical radiculopathy are pain radiating from neck to pinky finger and thumb on both sides and generalised upper limb weakness in both shoulders and arms.
·Experiences average days and bad days.
·Pain can be debilitating; medications can cause fogginess and memory issues.
·Currently staying with Mum as requiring full assistance with cooking, lifting, carrying items and other daily activities.
·Cannot lift arms above shoulder height, cannot stretch arms out, cannot hold a phone or book.
·Arms are very weak, unable to cut food as not able to apply the downwards pressure.
·Currently uses lightweight cutlery.
·Holds items to chest in order to carry them, as can’t hold items in hands using arms alone.
·Has cut hair to shoulder-length to make maintenance easier.
·Can only prepare simple meals.
·Doctors have suggested maintenance hydrotherapy and mild exercises.
·Uses a shower chair and toilet raiser.
·Uses a manual wheelchair for moderate distances in community, can’t self-propel.
·Has undertaken chiropractic treatment and physiotherapy.
·Would like to return to living independently, with appropriate support.
Ms Kelly also provided a Statement of Lived Experience dated 14 January 2025 and responses to questions regarding functional capacity.
Evidence of Ms Nivette Kelly
Ms N Kelly is the Applicant’s mother, and she gave oral evidence on the second day of the hearing. Her oral evidence can be summarised as:
·Daughter is currently living with her due to her assistance needs.
·Assists by doing all the cooking, washing and cleaning.
·Undertakes the food shopping, vacuuming, linen changes and yard work.
·Drives Ms Kelly when she needs to go into the community and pushes her wheelchair as she is unable to self-propel.
Ms N Kelly also provided a written statement to the Tribunal confirming the assistance she provides to her daughter.
Evidence of Ms Cummings, occupational therapist
Ms Cummings is an occupational therapist engaged by the Respondent. She gave oral evidence and it can be summarised as:
·Ms Kelly was still recovering from the corpectomy surgery when her assessment was undertaken.
·She reports a long-standing history of spinal issues following a balcony fall at 17 years of age.
·First neck surgery July 2021, cervical discectomy and fusion and follow-up corpectomy August 2024.
·Recommends an occupational therapy review for Ms Kelly when she moves into a new environment for any adaptions that could be suggested or any modifications or equipment that may benefit her.
·Self-limiting in relation to some daily living tasks such as some cleaning tasks, simple meal preparation, simple washing up of a cup or bowl.
·Recommend keeping up tolerances for any self-efficacy tasks and to ensure keep range of movement and muscle conditioning.
Ms Cummings assessed Ms Kelly on 13 September 2024 in her mother’s home. Ms Cummings provided this functional capacity report dated 26 September 2024 to the Tribunal. In her report she states that:
Analysis and interpretation of the medical reports indicates that due to the effects of cervical radiculopathy, Ms Kelly experiences difficulties undertaking tasks that involve:
·moderate, heavy or forceful manual handling including lifting, carrying, pushing and pulling
·prolonged engagement in fine motor tasks
·repetitive or sustained use of the upper limbs above shoulder height in an outstretched or overhead manner due to generalised muscle weakness [6]
[6] JTB, D1, Ms Cummings Functional Capacity Assessment dated 26 September 2024 p 185.

Consideration of Claims and Evidence
Impairment

The Respondent accepts in its Statements of Facts, Issues and Contentions that the Applicant meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of her physical impairments attributable to cervical radiculopathy.[7]
[7] JTB, A1, Respondent’s Statement of Facts, Issues and Contentions, p 4
The Respondent’s Statement of Facts, Issues and Contentions states that ‘the Applicant’s condition results in impairments including pain radiating from her neck to her pinkie finger and thumb, generalised upper limb weakness and reduced balance’.[8]
[8] ibid
Ms Cummings advised in her assessment that ‘Ms Kelly was assessed using the manual muscle testing method as having good (4/5) bilateral grip strength with her left side slightly stronger than her right…Ms Kelly’s biceps strength was considered reduced (3/5), not being able to sustain her position with pressure. Shoulder abduction and adduction was considered good (4/5)’.[9]
[9] JTB, D1, Ms Cummings Functional Capacity Assessment dated 26 September 2024 p 211.
Ms Kelly describes that ‘with being unable to use my arms for stability. Driving I cannot do, I cannot hold a steering wheel or check blind spot because of my arms and neck. This has impacted my life greatly in the sense that I cannot leave the house without somebody to assist me for basics like shopping, doctors and medication. Inside the home I require things to be between waist and chest height. This limits the available space I can use and the type of white goods I can purchase/use. I cannot hang washing on a clothesline to dry, maintain bedding, food prep and cooking, general housekeeping (vacuum, windows, bathroom tiles etc.) because of pain and weakness in arms. I cannot lift more than a 2l milk and this is lifting from waist height to bench height. If the milk is on the floor, I cannot lift a 2l. I cannot do repetitive tasks even if lightweight as this strains the damaged nerve’.[10]
[10] JTB, C18, Applicant’s Statement of Lived Experience, dated 14 January 2025, p 134.
On the evidence before me, I am satisfied that Ms Kelly has a disability attributable to a physical impairment resulting from her cervical radiculopathy and I am satisfied that paragraph 24(1)(a) of the Act has been met.
Permanency
To meet the disability requirements under paragraph 24(1)(b) of the Act, the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent pursuant to subsection 24(2) of the Act which provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person’s lifetime, despite this variation.
The NDIS Act doesn’t define the word ‘permanent’. However, an impairment will be permanent or likely to be permanent under rule 5.4 of the Access Rules only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment. The definitions of ‘known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy’ have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.[11]
[11] National Disability Insurance Agency v Davis [2022] FCA 1002 at 137-139.
I refer to relevant findings of Mortimer J (as Her Honour then was) in Davis that are set out as follows: [12]
‘Available treatment’ contemplates ‘what treatments an individual can, in reality, access’ including their financial capacity to access a treatment.
‘Remedy’ should be understood to mean something approaching a ‘removal’ or ‘cure’ of an impairment.
‘Permanency’ asks if the impairments are enduring in nature and require supports provided and/or funded under the Scheme on an ongoing basis.
[12] Ibid at 130–138.
The question is whether the pain radiating from Ms Kelly’s neck to her pinkie finger and thumb, her generalised upper limb weakness and her reduced balance are permanent impairments. I must be satisfied on the evidence that the impairment, not the medical condition, is permanent or enduring and that there are no known, available, and appropriate treatments that may ‘remedy’ the impairment.[13]
[13] Mortimer J in Davis at 136.
The NDIS Access Guideline states in relation to permanency that:
We need evidence that you’ll likely have your impairment for your whole life… 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.[14]
[14] NDIS Access Guidelines
Ms Kelly has reported that she sustained her spinal injuries during a fall at height, in her late teenage years. She had her first neck surgery in July 2021 which was a cervical discectomy and fusion. She had her second surgery on 5 August 2024, which was the cervical corpectomy. She has also recently undertaken posterior discectomy and fusion of her lumbar spine as of February 2025, that is not in scope in the current matter.
Having regard to Ms Kelly’s cervical corpectomy, this surgery has been undertaken in August 2024. The impact of this surgery on her impairments from the evidence is uncertain, as there has been no evidence from August 2024 onwards provided by treating medical professionals of Ms Kelly put before the Tribunal.
Relevantly, pain is one of the impairments that Ms Kelly experiences as an effect of her cervical radiculopathy. Dr Damodaran who is Ms Kelly’s treating neurosurgeon and spine surgeon wrote a letter, dated 10 November 2022, stating he would like Ms Kelly ‘to have a CT guided transforaminal injection targeting the left C6 and C7 nerve root’. The letter further states ‘I am hopeful that this will improve some of her pain and her exacerbation will settle down’.[15]
[15] JTB, C14 Letter of Dr Damodaran dated 10 November 2022 p125.

In her oral evidence, Ms Kelly explained that she did not engage in this treatment. She described that the idea for the referral for the cortisone injections came from herself. She further explained that Dr Damodaran said he did not think that the injections would make a difference and that the injections would likely not work. Ms Kelly explained that after she ‘begged him’ for a referral due to her pain, he reluctantly provided the referral for the injections to Ms Kelly.
Ms Kelly went on to describe that she didn’t undertake the injections as she wasn’t able to get an appointment in the area where she was residing at the time, and didn’t pursue it further. The Respondent noted Dr Damodaran was not called to give evidence and given the Doctor’s own professional and ethical obligations, it seems unlikely he would recommend treatment that he did not think would have a positive effect.
Ms Cummings in her report stated ‘it is unclear if Ms Kelly’s mobility will improve after lumbar surgery, she may continue to have balance impairment related to her cervical issues. Ongoing recommendations are dependent on the outcome of future surgery’.[16]
[16] JTB, D1, Ms Cummings Functional Capacity Assessment dated 26 September 2024 p 194.
Ms Cummings also stated that:
Ms Kelly reported that her neck will get worse overtime as her discs at higher levels are starting to herniate. She reported that further cervical surgery, including fusion may be needed. In addition, Ms Kelly explained that she is awaiting posterior discectomy and fusion of her lumbar spine once her cervical issues are optimised. Research indicates that patients who undergo a cervical corpectomy generally have favourable functional outcomes. Given that Ms Kelly is still recovering from her surgery and yet to undergo physiotherapy, the outcome of her surgery remains unclear with regard to its impact on her function.[17]
[17] JTB, D1, Ms Cummings Functional Capacity Assessment dated 26 September 2024 p 183.
I am not satisfied that Ms Kelly has completed all known, available and appropriate evidence-based treatments recommended to her by treating medical professionals in respect to her cervical radiculopathy on the evidence provided.
Ms Kelly explained in her oral evidence that following her August 2024 cervical corpectomy, her surgeons have verbally told her that there is nothing further to be done, and her impairments from her cervical radiculopathy are permanent. She explained that these surgeons are either unable or unwilling to provide this evidence to her in writing.[18]
44.I acknowledge this is a difficult position for Ms Kelly to be placed in. In my role, I am bound to follow the strict task of applying the law, and in doing so I am not satisfied on the evidence before me that there are no further treatments that could remedy Kelly’s impairment. I am of the view that the available medical evidence shows Dr Damodaran has referred Ms Kelly for treatment which is available, known and evidence based that she has not undertaken. Further it is unclear on the evidence whether there may be further surgical options for Ms Kelly.
[18] Transcript day one, 47.55
I note that even if the cervical radiculopathy were fully treated, Ms Kelly may well be left with impairments which are significant and permanent. The difficulty on the material before me is that until there is evidence that there are no further treatments to be undertaken, it remains unclear whether her current impairments are permanent under the legislation and, if so, to what extent.
I am not satisfied that the requirement in paragraph 24(1)(b) of the Act in relation to the Applicant’s physical impairment is met.
Early Intervention requirements
Having concluded that Ms Kelly does not satisfy the disability requirements in section 24, the only remaining issue is whether she satisfies the early intervention requirements in section 25.
As set out above in the disability requirements, subsection 25(1)(a) relevantly specifies that to meet the early intervention requirements a person must have one or more impairments ‘that are or are likely to be permanent’. It follows that, as I am not satisfied that Ms Kelly’s impairments are permanent within the meaning of the Act and the Access Rules, she also does not meet the early intervention requirements contained in section 25 of the Act.
Conclusion
As I am not satisfied that Ms Kelly’s impairments are permanent within the meaning of the legislation, she does not currently meet the requirements for access to the NDIS. Accordingly, I am obliged to affirm the decision under review.
Decision
The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of General Member H Heron.

.............[SGD]..............
General Member D Heron
Associate
24 April 2025
Dates of hearing:  31 March 2025, 1 - 2 April 2025
Applicant’s Representative: Self represented
Counsel for the Respondent:         Ms M Stone, of Counsel
Solicitors for the Respondent:       Maddocks Lawyers