Kharamesh and National Disability Insurance Agency (NDIS)

Case [2025] ARTA 1749

Kharamesh and National Disability Insurance Agency (NDIS) [2025] ARTA 1749 (10 September 2025)

Applicant/s:  Reza Kharamesh

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2023/7145

Tribunal:Senior Member P French

Place:Sydney

Date:10 September 2025

Decision:The Tribunal affirms the decision under review.

..........................[SGD]..............................................

Senior Member P French

Catchwords

National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – found – whether impairments are, or are likely to be, permanent – found –
whether impairment or impairments result in substantially reduced functional capacity for social interaction, learning, self-care or self-management – not found – disability requirements for access to the NDIS not met – whether applicant meets the early intervention requirements – not found – no form of early intervention support identified that is likely to have the beneficial effects required – reviewable decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 25
Administrative Review Tribunal Act 2024 (Cth), s 12
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth); Schedule 16, item 24
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 5, 17A, 20, 21, 22, 23, 24, 25, 99, 100, 103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth), Schedule 1
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.4, 5.5, 5.6, 5.7, 5.8
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules, 2024 (Cth)

Cases
Beezley v Repatriation Commission [2015] FCAFC 165
Banoub and National Disability Insurance Agency [2025] ARTA 1552
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 606
Coffey and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 634
Drake v Minister for Immigration and Ethnic Affairs 91979) 2 ALD 60; 24 ALR 577
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
DQKZ and CEO, National Disability Insurance Agency [2024] AATA 2276
Foster and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 718
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan and National Disability Insurance Agency (2015) FCA 544; 233 FCR 201
Sayadi and National Disability Insurance Agency (NDIS) [2025] 1217
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Jones [2025] FCA 877

National Disability Insurance Agency v Foster (2023) 295 FCR 521

Secondary Materials

Australian Government Department of Health Disability and Ageing, Commonwealth Psychosocial Recovery Program, author
National Disability Insurance Agency, Applying to the NDIS – Pre-Legislation Changes, 14 October 2024
T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment…

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Details
AGLC
Kharamesh and National Disability Insurance Agency (NDIS) [2025] ARTA 1749
Case
[2025] ARTA 1749
Decision Date

CaseChat Overview and Summary

The Tribunal was asked to review a decision by the Chief Executive Officer of the National Disability Insurance Agency (NDIS) that the Applicant did not meet the requirements for access to the NDIS. The Applicant contested this decision, arguing that he was eligible for NDIS support due to his impairments and the potential benefits of early intervention. The Tribunal conducted an independent review, reassessing the evidence before the original decision-maker and additional evidence presented at the hearing.

The central legal issues before the Tribunal were whether the Applicant met the disability and early intervention requirements for access to the NDIS. Specifically, the Tribunal needed to determine if the Applicant's impairments were permanent, if they resulted in substantially reduced functional capacity in one or more specified activity areas, and if there was a form of early intervention support likely to benefit the Applicant in the ways outlined in the NDIS Act. The Tribunal also had to consider the applicable legal framework, given that the Applicant's access request was made before recent legislative amendments to the NDIS Act.

The Tribunal concluded that while the Applicant had impairments that affected his functional capacity, these impairments did not result in the substantial reductions required to meet the disability criteria. The Tribunal found that the Applicant's impairments were not likely to be permanent, nor did they substantially reduce his functional capacity in any of the six specified activity areas. Additionally, the Tribunal determined that no form of early intervention support was identified that would likely benefit the Applicant in the ways specified by the NDIS Act. Consequently, the Tribunal affirmed the decision of the NDIS, holding that the Applicant did not meet the requirements for access to the NDIS.

In summary, the Tribunal upheld the NDIS decision that the Applicant did not meet the eligibility criteria for access to the NDIS. The Applicant's impairments, while real and impactful, did not meet the statutory requirements for disability and early intervention support under the Act.

Orders

Orders of the court

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Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal’s role in conducting this independent review has been to reach its own conclusion as to whether the CEO by her delegate was correct in concluding that the Applicant does not meet the disability or early intervention requirements for access to the NDIS.[2] That has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[3][2] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589[3] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]The evidence and hearing I have considered the following evidence in this independent review:(a)A Joint Tender Bundle filed on 25 June 2025. I note that this contained:(i)The Applicant’s Statement of Facts, Issues and Contentions dated 12 May 2025,(ii)The CEO’s Statement of Facts, Issues and Contentions dated 13 June 2025,(iii)A Statement made by the Applicant dated 30 April 2024,(iv)A supplementary Statement made by the Applicant dated 12 May 2024,(v)Two letters written by Mr Hadi Stambouliah, Psychologist, dated 28 October 2023 and 25 January 2025,(vi)A letter and report authored by Ms Anwaar Al Khamisi, Care Coordinator, dated 30 April 2024 and 12 May 2025, respectively,(vii)A report prepared by Dr Lyn-May Lim, Consultant Psychiatrist, dated 2 January 2025,(viii)A supplementary report by Dr Lyn-May Lim, Consultant Psychiatrist, dated 4 June 2025,(ix)A report by Mr Gary Stretton, Occupational Therapist, dated 18 December 2024,(b)A supplementary Joint Tender Bundle filed on 2 July 2025,(c)The CEO’s Closing Submissions filed 1 August 2025, and(d)The Applicant’s Closing Submissions filed 12 August 2025. The hearing was conducted in person on 3 and 4 July 2025 with the assistance of a Farsi interpreter. 3 witnesses appeared by video link. The Applicant gave oral evidence under oath with the assistance of the Farsi interpreter. He called as witnesses, Ms Anwaar Al Khamisi, Care Co-ordinator, and Mr Hadid Stambouliah, Psychologist, who gave oral evidence under oath and affirmation respectively. The CEO called as a witness two independent experts it had engaged to assess the Applicant, being Mr Garry Stretton, Occupational Therapist, and Dr Lyn-May Lim, Consultant Psychiatrist. Both gave evidence under affirmation.A note on the applicable law On 3 October 2024 the NDIS Act was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the amending Act). Schedule 1, Items 19 to 27 of that Act introduced changes to the disability and early intervention requirements. However, by operation of Item 126 of the schedule those changes apply only to an access request made after 3 October 2024. The Applicant’s access request was made to the Agency on 24 July 2023, so these changes are inapplicable in this case. Item 126 of the amending Act also provides that the NDIS Rules as they were in force prior to 3 October 2024 continue to apply to an access request made prior to that date. This independent review will therefore apply the disability and early intervention requirements as they stood prior to 3 October 2024.Eligibility for access to the NDIS

Decision

Reasons for decision

For the reasons set out following, the Tribunal has determined that the decision under review is correct. There is no doubt that the Applicant lives with permanent impairments of global and specific mental function to which a psychosocial disability is attributable, or that these impairments result in some reduction in his functional capacity undertake some tasks and actions involved in some life activities areas. However, he does not experience, as he must to satisfy the disability requirements for eligibility for the National Disability Insurance Scheme (NDIS), substantially reduced functional capacity in any of the six activity areas specified in paragraph 24(1)(c). Nor with respect to the early interventions, has he established that there is any form of early intervention support that would benefit him in any of the ways contemplated by s 25(b) and (c) of the NDIS Act. The decision under review has therefore been affirmed.The decision under review The Applicant has asked the Tribunal to conduct an independent review of the decision of the delegate of the CEO made on 23 September 2023 on internal review which was that he does not meet the requirements for access to the NDIS. By that decision the delegate determined that the applicant met the age and residence, but not the disability and early intervention, requirements for access to the NDIS. Specifically with respect to the disability requirements, the review delegate was satisfied that the Applicant lives with physical impairments and impairments to which a psychosocial disability was attributable, and that these impairments affected his capacity for social and economic participation. However, they were not satisfied these impairments are, or are likely to be, permanent, or that they result in substantially reduced functional capacity for communication, learning, social interaction, mobility, self-care or self-management, or that the Applicant is likely to require support under the NDIS for his lifetime. Specifically with respect to the early intervention requirements, the review delegate was not satisfied that the Applicant’s impairments were permanent, or that early intervention supports are likely to reduce his future support needs arising from his disability. They were satisfied that the provision of early intervention supports would likely benefit the Applicant in each of the ways specified by paragraph 25(1)(c) but were not satisfied that this support was most appropriately provided or funded through the NDIS.The Tribunal’s role The Tribunal’s role in conducting this independent review has been to reach its own conclusion as to whether the CEO by her delegate was correct in concluding that the Applicant does not meet the disability or early intervention requirements for access to the NDIS.[2] That has involved the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[3][2] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589[3] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]The evidence and hearing

Ratio Decidendi

Legal Principle Established

Section 21(1) of the NDIS Act provides that a prospective participant will meet the access criteria for the NDIS if the CEO is ‘satisfied’ that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[11] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing or pointing to evidence before the Tribunal that can persuade it that each of the access criteria are met.[12]Consideration[11] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60][12] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]The age requirement The age requirement for access to the NDIS is found in s 22 of the NDIS Act and Part 3 of the Becoming a Participant Rules. A prospective participant will meet the age requirement if they were aged under 65 when the Access Request was made. The temporal focus for this eligibility criteria is the time the Access Request was made. Provided the prospective participant was under the age of 65 when the Access Request was made, it will not matter that they may be older than 65 when the Access Request is decided. In this case, the Applicant was just over 54 years of age when his Access Request was made on 24 July 2023. The Applicant’s age is verifiable in the material before me by reference to various health records that have been submitted into evidence. Additionally, I note that in the context of his access application the Applicant consented to the CEO verifying his age by reference to his Centrelink Customer records, which she did.[13] The CEO submits that the Applicant meets the age requirement for access to the NDIS. I am also satisfied on these bases that the Applicant meets this requirement.[13] Hearing Tender Bundle, Tab T25, page 178.The residence requirement The residence requirement for access to the NDIS is found in s 23 of the NDIS Act and Part 4 of the Becoming a Participant Rules. Relevantly to the Applicant’s circumstances, a person will meet the residence requirement if they reside in Australia and are the holder of a permanent visa. When they determined the access request, the original and review delegates found that the Applicant met the residence requirement on the basis that he is an Australian Citizen.[14] He is not. He is the holder of a Protection Visa (Subclass 866) which is a permanent visa for the purposes of paragraph 23(1)(b)(ii) of the NDIS Act. That appears clearly on the Access Request Form he submitted to the Agency, and it is supported by evidence of that Visa.[15] I am satisfied that the Applicant meets the residence requirement on this basis.[14] Hearing Tender Bundle, Tan T1B, page 22.[15] Hearing Tender Bundle, Tab T25, page 175.The contested issues for determination