Kharamesh and National Disability Insurance Agency (NDIS)

[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 Schedule (WHODAS 2.0), World Health Organisation, 2010
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation, (2001), International Classification of Functioning, Disability and Health, Geneva

World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3

Statement of Reasons

Introduction

1. This is an application by Reza Kharamesh (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) for independent review of an internal review decision made under s 100(6) of that Act by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the review delegate, the CEO, the Agency) on 27 September 2023. By that decision, the review delegate affirmed the CEO’s original decision under s 20(1)(a) of the Act made on 18 August 2023 which was that the Applicant did not meet either the disability requirements specified in s 24, or the early intervention requirements specified in s 25, and that accordingly, he did not meet the criteria for access to the NDIS specified in s 21(1)(c) of the Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to conduct an independent review of this decision because it is designated a reviewable decision by Item 1 in the Table to s 99(1) of the NDIS Act.[1]  This application was made to the Tribunal on 28 September 2023 (the application).

   [1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth).  The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

2. 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

3. 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. 

4. 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.

5. 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

6. 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

7. 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.

8. 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. 

9. 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.

10. 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

11. 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

12. 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.[4]  This is a limited sub-category of the total population of persons with disability in Australia.[5]  The NDIS is not intended to support every person with disability in Australia.

    [4] 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. 

    [5] Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 (Mulligan) at [50]

13. The task of this independent review is to determine if the Applicant is a person with disability for whom the NDIS is intended.  That involves the application of the access criteria contained in the Act and the Rules, some of which specify not only a criterion but also a threshold or level which must be satisfied before the criterion can be met.[6]

    [6] Mulligan at [50]

14. To be eligible for access to the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either the disability requirements or the early intervention requirements.[7] 

    [7] s 21(1) of the NDIS Act

15. The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS.[8] These requirements are specified in the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Becoming a Participant Rules). 

    [8] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [82].

16. The Agency has also developed operational policy to assist in its administration of the NDIS, including in relation to deciding if a prospective participant meets the access criteria for the scheme.  While these guidelines are not formally binding on the Tribunal, as the Act and the Rules are, they represent government policy which should be applied unless there is a cogent reason not to do so.[9]  The operational policy applicable in this case is called “Applying to the NDIS- Pre-Legislation Changes” (14 October 2024).[10]

    [9] Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 (Drake No. 2) at [644-5].

    [10] Applying to access the NDIS | NDIS

    A note on the evidentiary onus

17. 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

18. 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.

19. 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

20. 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. 

21. 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

22. When he submitted his Access Request Form the Applicant listed among his health conditions chronic musculoskeletal degeneration in several body parts and associated pain.  As noted above, the impairments represented by or related to those conditions were considered by both the original and internal review delegate when the Access Request was determined.  However, the Applicant has not sought access to the NDIS based on musculoskeletal impairments and associated pain in this independent review.  He has sought access to the NDIS based on impairments to which a psychosocial disability is attributable only.  

23. The health conditions from which the Applicant’s impairments are derivative are not in dispute between the parties.  They are Post Traumatic Stress Disorder (PTSD), Chronic Anxiety and Major Depression.[16]  The parties also agree that the Applicant has impairments of global and specific mental function that are derivative of these conditions, however they disagree as to their scope and specificity.[17] Subject to the contest as to the scope and specificity of these impairments, there is no issue that these impairments are permanent.[18]

    [16] Applicant’s Closing Submissions at [12]; CEO’s Closing submissions at [7c]

    [17] Applicant’s Closing Submissions at [12]; CEO’s closing Submissions at [7c]

    [18] Applicant’s Closing Submissions at [13]; CEO’s Closing Submissions at [7d].

24. The focal point of the contest with respect to the disability requirements is whether the Applicant’s impairments result in substantially reduced functional capacity to undertake the tasks and actions involved in the life activity areas specified in paragraph 24(1)(c).  The Applicant contends that his impairments do result in substantially reduced functional capacity for social interaction, learning, self-care, and self-management (but not communication and mobility).[19]  The CEO does not accept they result in substantially reduced functional capacity in any life activity area.[20]

    [19] Applicant’s Closing Submissions at [8].

    [20] CEO’s Closing Submissions at [7e].

25. If the paragraph 24(1)(d) disability requirement is reached, the parties agree that the Applicant’s impairments affect his capacity for social and economic participation.[21]

    [21] Applicant’s Closing Submissions at [9]; CEO’s Closing Submissions at [7g]

26. However, a contest then arises in relation to the paragraph 24(1)(e) disability requirement.  The Applicant contends that he is likely to require support under the NDIS for his lifetime.[22]  Whereas, the CEO contends that the Applicant’s needs are most appropriately addressed by mental health services and programs.[23]

    [22] Applicant’s Closing Submissions at [10].

    [23] CEO’s Closing Submissions at [7[h].

1. With respect to the early intervention requirements, subject to the contentions about the scope and specificity of the Applicant’s impairments of global and specific mental function, the parties agree that the impairment and permanence elements of the paragraph 25(1)(a) requirement are met.[24] 

   [24] Applicant’s Closing Submissions at [17]; CEO’s Closing Submissions at [8a].

2. However, there is a contest between the parties as to the paragraph 25(1)(b) and (c), and 25(3), requirements.  In short summary, the Applicant contends that early intervention supports are likely to benefit him by reducing his future needs for disability related support, and in each of the ways specified in paragraph 25(1)(c).[25]  The CEO does not accept this.[26]

   [25] Applicant’s Closing Submissions at [18 – 19]

   [26] CEO’s Closing Submissions at [8b].

3. Should the paragraph 25(3) requirement be reached, the Applicant contends that early intervention supports are most appropriately funded or provided by through the NDIS.[27]   The CEO contends that they are most appropriately provided or funded by mental health services or programs.[28]

   [27] Applicant’s Closing Submissions at [20].

   [28] CEO’s Closing Submissions at [8c].

   Does the Applicant meet the disability requirements?

4. The disability requirements for access to the NDIS are found in s 24 of the Act and Part 5 of the Becoming a Participant Rules.

5. Section 24 (as in force prior to 3 October 2024) provided:

   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 and economic participation; and

   (e)the person is likely to require supports 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 supports 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 supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

6. Rules 5.4 to 5.7 of the Becoming a Participant Rules deal with the question of when an impairment is permanent or is likely to be permanent for the purposes of the disability requirements.  Those Rules provide:

   When is an impairment permanent or likely to be permanent for the disability requirements?

   5.4An impairment is, or is likely to be, permanent … 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.

7. Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity.  That rule 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 or self-management … - 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.

8. As will be observed from s 24(1) of the Act, five criteria must be satisfied for the disability requirements to be met.  These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability requirements cannot be met.  Having regard to that fact, one way of conceptualising these criteria is as a series of gateways along a linear pathway.  The criterion specified in s 24(1)(a) must be satisfied before the gate opens to consideration of the criteria specified in s 24(1)(b), and that criterion must be satisfied for the gate to open consideration of the criterion specified in s 24(1)(c), and so on.  If a gateway to consideration of a subsequent criterion does not open, there is no utility in consideration of that or any other subsequent criteria. Concomitantly, if it is clear on the evidence that a later gateway cannot open, there is no utility in considering the earlier criteria.

   Paragraph 24(1)(a): Does the Applicant have a disability attributable to impairment?

9. Paragraph 24(1)(a) requires the Applicant to establish that he has a ‘disability’ that is attributable to one or more intellectual, cognitive, neurological or physical impairments or that he has one or more impairments to which a psychosocial disability is attributable. 

10. In the context of paragraph 24(1)(a), and Chapter 3 of the NDIS Act more generally,[29] the term “disability” has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of “disability”, and from a diagnosed health condition.  Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[30] 

    [29] Davis at [69]

    [30] Davis at [118]

11. The term ‘impairment’ is not defined in the NDIS Act.  However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”.[31]  I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[32]  That definition is a simple rendering of the definition of impairment used in the application of the International Classification of Functioning Disability and Health (ICF), [33] which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”. [34]

    [31] National Disability Insurance Agency, Applying to the NDIS Pre Legislative Changes, 14 October 2024

    [32] At [118] referring to [113].

    [33] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)

    [34] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.

12. Specifically with respect to paragraph 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant’s disability is attributable, because the access criteria contained in paragraphs 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant’s functional capacity and social and economic participation.[35]   In this respect, as I have explained in DQKZ,[36] the ICF is extrinsic material to which the Tribunal may have regard in ascertaining with objective precision the impairment of body structure or function which is at issue for the purposes of s 24.  That is because it is a standardised classification system, which has as one of its primary objectives the provision of a standard language and conceptual framework in relation to human function.[37]

    [35] Davis at [52].

    [36] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] – [149]. I adopt what I have said there for present purposes without repeating it.

    [37] Who (2002), page 2.

13. At the hearing outset I drew the parties attention to the ICF and indicated to them that I proposed to analyse the evidence in relation to the Applicant’s impairments having regard to that classification system.  At the end of the hearing, since it appeared that the paragraphs 24(1)(a) and (b) requirements (impairment and permanence) were no longer in dispute, I invited the parties to submit a statement of agreed facts in relation to the Applicant’s permanent impairments that met these requirements.  Unfortunately, the parties were unable to reach complete agreement as to what these impairments are, although some common ground was found.

14. The Applicant contends, by reference to various aspects of the evidence and the ICF, that the Applicant lives with the following permanent impairments:[38]

    [38] Applicant’s Closing Submissions at [12] – [13].

    -Impairment of energy and drive functions, specifically motivation,

    -Impairment to temperament and personality functions, including low mood, social withdrawal and isolation, openness to experience, optimism and confidence, and psychic stability, including irritability, (in)stability of mood, anxiety and overwhelm, worry, and moodiness,

    -Impairment to emotional functions, including, physiological distress systems, including shaking, nervousness, sweating and breathing fast,

    -Emotional dysregulation, lability and range, avoidance, fear, permanent anxiety, anger/rage and prolonged grief, sorrow and sadness,

    -Impairment to sleep functions, including insomnia, quality of sleep and fatigue,

    -Impairment to attention functions including concentration,

    -Impairment to memory functions,

    -Impairment to perceptual functions, including hallucinations and psychosis,

    -Impairment to thought functions, including paranoia, lack of trust in others, rumination, constant thoughts of death, incoherent confused thoughts, and

    -Impairment to higher level cognitive functions, including decision-making, organisation and planning, carrying out plans, judgements, cognitive flexibility, and problem solving.

15. The CEO contends, by reference to various aspects of the evidence, that the Applicant lives with the following permanent impairments:[39]  fear, impaired concentration, impaired motivation, low mood, irritability, avoidance, and physiological distress symptoms, which includes shaking, nervousness, sweating and breathing fast. 

    [39] CEO’s Closing Submissions at [7]

16. The CEO does not explain in her final submissions why she disagrees with the full extent of the impairments asserted by the Applicant.

17. By reference to the ICF classification system, as I have noted above, the upshot is that both parties agree that the Applicant lives impairments of both global and specific mental functions.  What they disagree about is the scope of specificity of impairments within these broad categories.

18. Upon consideration, I am satisfied that the Applicant lives with the following impairments for the purposes of the paragraph 24(1)(a) requirement:

    i.Impaired global mental functions, being:

    a.Global psychosocial functions,[40]

    [40] ICF b122 “General mental functions as they develop over the life span, required to understand and constructively integrate the mental functions that lead to the formation of the personal skills needed to establish reciprocal social interactions, in terms of both meaning and purpose.”

    b.Temperament and personality functions,[41] specifically, psychic stability,[42] openness to experience,[43]  optimism,[44]  and confidence,[45] 

    [41] ICF b126 “General mental functions of constitutional disposition of the individual to react in a particular way to situations, including the set of mental characteristics that makes the individual distinct from others.”

    [42] ICF1263 “Mental functions that produce a personal disposition that is even-tempered, calm and composed, as contrasted to being irritable, worried, erratic and moody.”

    [43] ICF b1264 “Mental functions that produce a personal disposition that is curious, imaginative, inquisitive and experience seeking, as contrasted to being stagnant, inattentive and emotionally inexpressive.”

    [44] ICF b1265 “Mental functions that produce a personal disposition that is cheerful, buoyant and hopeful as contrasted to being downhearted, gloomy and despairing.”

    [45] ICF b1266 “Mental functions that produce a personal disposition that is self-assured, bold and assertive, as contrasted to being timid, insecure and self-effacing.”

    c.Energy and drive functions,[46] specifically, energy level,[47] and motivation,[48] and

    d.Sleep function,[49] specifically quality of sleep.[50]

    ii.Impaired specific mental functions, being:

    a.attention functions,[51] specifically, the function of sustaining attention,[52]

    b.memory functions,[53] specifically, the function of short-term memory,[54]

    c.emotional functions,[55] specifically, appropriateness of emotion,[56] regulation of emotion[57] and range of emotion,[58]

    d.thought functions,[59] specifically form of thought,[60] content of thought,[61] and control of thought,[62]

    e.higher-level cognitive functions,[63] specifically the functions of organisation and planning,[64] insight,[65] and problem-solving.[66]

    [46] ICF b130 “General mental functions of physiological and psychological mechanisms that cause the individual to move towards satisfying specific needs and general goals in a persistent manner.”

    [47] ICF b1300 “Mental functions that produce vigour and stamina.”

    [48] ICF b1301 “Mental functions that produce the incentive to act; the conscious or unconscious driving force for action.”

    [49] ICF b1340 “General mental functions of periodic, reversible and selective physical and mental disengagement from one’s immediate environment accompanied by characteristic physiological changes.”

    [50] ICFb1343 “Mental functions that produce the natural sleep leading to optimal physical rest and relaxation.”

    [51] ICF b140 “Specific mental functions of focusing on an external stimulus or internal experience for the required period of time.”

    [52] ICF b1400 “Mental functions that produce concentration for the period of time required”.

    [53] ICF b144 “Specific mental functions of registering and storing information and retrieving it as needed.”

    [54] ICF b1440 “Mental functions that produce a temporary, disruptable memory store of around 30 seconds duration from which information is lost if not consolidated into long-term memory”.

    [55] ICF b152 “Specific mental functions related to the feeling and affective components of the processes of the mind.”

    [56] ICF b1520 “Mental functions that produce congruence of feeling or affect with the situation, such as happiness at receiving good news.”

    [57] ICF b 1521 “mental functions that control the experience and display of affect”.

    [58] ICF b 1522 “mental functions that produce the spectrum of experience of arousal of affect or feelings such as love, hate, anxiousness, sorrow, joy, fear and anger”.

    [59] ICF b160 “Specific mental functions related to the ideational component of the mind.”

    [60] ICF b1601, Mental functions that organise the thinking process as to its coherence and logic.

    [61] ICF b1602, Mental functions consisting of the ideas that are present in the thinking process and what is being conceptualised.

    [62] ICF b1602 “Mental functions that provide volitional control of thinking and are recognised as such by the person.”

    [63] ICF b 164 “Specific mental functions especially dependent on the frontal lobes of the brain, including complex goal-directed behaviours such as decision-making, abstract thinking, planning and carrying out plans, mental flexibility, and deciding which behaviours are appropriate under what circumstances; often called executive functions.”

    [64] ICF b1641 ”Mental functions of coordinating parts into a whole, of systematizing; the mental function involved in developing a method of proceeding or acting”.

    [65] ICF b1644 “Mental functions of awareness and understanding of oneself and one’s behaviour.”

    [66] ICF b 1646 “Mental functions of identifying, analysing, and integrating incongruent information into a solution”.

19. I am satisfied that these are cognitive impairments and impairments to which a psychosocial disability is attributable for the purposes of paragraph 24(1)(a).

20. In short summary, I make these findings having regard to the nature of the Applicant’s health conditions and the symptoms associated with those conditions as these are set out in the various medical reports that are before me, including those of Dr H Alhajali, Psychiatrist,[67] Dr Ly-M Lim, Psychiatrist,[68] Ms Camancho, Psychologist,[69] Dr H Stambouliah, Psychologist,[70] and in the Applicant’s own evidence[71]. 

    [67] Hearing Tender Bundle, Tabs T6 pages 46 – 47; T24 pages 171 -172; A2 pages 312 – 314; A7, pages 327 -330.

    [68] Hearing Tender Bundle, Tab R3, pages 363 – 376.

    [69] Hearing Tender Bundle, Tab 21, pages 159 - 166

    [70] Hearing Tender Bundle, Tabs A1, pages 307 – 308; A2, pages 309 - 311

    [71] Hearing Tender Bundle, Tabs A3, pages 316 – 321; A10, pages 339 -343; and, oral evidence given at the hearing.

21. To the extent that it is necessary to resolve the dispute between the parties in relation to the scope and specificity of the Applicant’s impairments, I make the following findings:

    - I accept that the Applicant’s sleep function is impaired,[72] which is a symptom of his PTSD and Chronic Anxiety,

    -I accept that the Applicant’s perceptual functions are impaired.  Again, this is a feature of his PTSD,[73]

    -I have found that the Applicant lives with impaired global psychosocial function.  The ICF description of this impairment appears at footnote 40. It includes the mental functions that lead to the formation of the interpersonal skills needed to establish reciprocal social relations.  It thus encompasses ‘social isolation’ and ‘withdrawal’ insofar as this concerns ‘functional capacity’ as distinct from ‘functional performance’ (as to which see following),

    -other of the Applicant’s described impairments are features of those that I have found.  For example, ‘rumination’ and ‘incoherent/confused thoughts’ are impairments of thought form;  ‘paranoia’ is impaired thought content; ‘anger/rage’ and ‘prolonged grief, sorrow and sadness’ are impaired emotional functions.

    [72] Ms W Berger, Occupational Therapist, Hearing Tender Bundle, page 101; Mr C Camacho. Psychologist, Hearing Tender Bundle, TabT21, page 162; Statement of Reza Kharamesh, Tab A3, Hearing Tender Bundle, Tab A3, page 317; Supplementary Statement of Reza Kharamesh, Hearing Tender Bundle, Tab A10, page 340.

    [73] Dr L-M Lim, Hearing Tender Bundle, Tab R3, pages 370, 407.

1. As the paragraph 24(1)(a) disability requirement has been met, I will go on to consider the paragraph 24(1)(b) disability requirement with respect to these identified impairments.

   Paragraph 24(1)(b): Are the Applicant’s impairments permanent?

2. There is now no dispute between the parties that the Applicant’s impairments are permanent.  As I have discussed above, the parties were unable to reach common ground in relation to the scope and specificity of the Applicant’s impairments of global and specific mental function, but the CEO did not challenge the broader range of impairments the Applicant contends for on the basis that they are not permanent.

3. Having regard to the medical and other evidence before me, which includes that of Dr H Alhajali, Psychiatrist,[74] Dr L-M Lim, Psychiatrist,[75] Ms Camancho, Psychologist,[76] Dr H Stambouliah, Psychologist,[77] and in the Applicant’s own evidence[78] I am satisfied of the following matters having regard to paragraph 24(1)(b) and Rules 5.4 to 5.6:

   - the Applicant’s impairments are derivative or features of PTSD, Chronic Anxiety and Major Depression.  These are long-standing diagnoses,

   -the Applicant has received and continues to receive pharmacological and cognitive behavioural therapies in relation to these conditions.  None of these therapies have, or have the potential to, remedy the impairments associated with these conditions in the sense that they will be ‘cured’ or alleviated entirely. They are enduring in the sense described by the Court in Davis[79],

   -on the evidence before me, there are no known, available and appropriate evidence-based, medical or other treatments that would be likely to remedy these impairments.  There is no opinion evidence to the contrary of this conclusion,

   -the pharmacological and cognitive treatments for the Applicant’s conditions may, over time, and cross-sectionally, improve or result in fluctuations in the degree of impairment he experiences, but they will not ‘cure’ these conditions,[80]

   - no further treatment or review is necessary before I can decide whether the Applicant’s impairments are permanent.  The medical and other evidence before me is decisive in this respect.

   [74] Hearing Tender Bundle, Tabs T6 pages 46 – 47; T24 pages 171 -172; A2 pages 312 – 314; A7, pages 327 -330.

   [75] Hearing Tender Bundle, Tab R3, pages 363 – 376.

   [76] Hearing Tender Bundle, Tab 21, pages 159 - 166

   [77] Hearing Tender Bundle, Tabs A1, pages 307 – 308; A2, pages 309 - 311

   [78] Hearing Tender Bundle, Tabs A3, pages 316 – 321; A10, pages 339 -343; and oral evidence given at the hearing.

   [79] Davis at [85].

   [80] Ibid at [58], [137]

4. For the foregoing reasons, I conclude that the Applicant’s impairments, as found in the paragraph 24(1)(a) enquiry, are permanent. 

5. The gateway therefore opens to consideration of the paragraph 24(1)(c) requirements.

   Paragraph 24(1)(c): Do the Applicant’s impairments result in substantially reduced functional capacity in a specified life activity area.

6. As noted above, the Applicant contends that his permanent impairments as found in the paragraph 24(1)(a) and (b) enquiries result in substantially reduced functional capacity for social interaction, learning, self-care and self-management.  The CEO contests this.

7. The Applicant does not contend that his impairments result in substantially reduced functional capacity for communication or mobility.  On the evidence before me I am also satisfied that that the Applicant has substantial functional capacity for communication and mobility.  It is not arguable that he has substantially reduced functional capacity in these areas. [81]  I make those findings.

   Substantially reduced functional capacity

   [81] As this is not in issue it is sufficient to point to the evidence of Mr G Stretton (independent Occupational Therapist) in relation to these life activity areas, which I accept: Hearing Tender Bundle, Tab A4, page 385, 391 - 393.

8. In Burrows[82] I concluded that the determination of what constitutes ‘substantially reduced functional capacity’ should be approached with the interpretative assistance available from the World Health Organisation Disability Assessment Schedule (WHODAS:2.0),[83] which is a standardised assessment tool for measuring health and disability under the framework of the ICF.[84] 

   [82] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607.

   [83] T B Ustun, N Kostanjsek, S Chatterji and J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010.

   [84] Ibid at page v.

9. WHODAS:2.0 assesses the ‘degree of difficulty’ a person experiences in doing specified activities of daily living in terms of “increased effort”, “experience of discomfort or pain”, “slowness” and “changes in the way a person does the activity” (the difficulty factors) according to a five-point scale expressed as a % of functional limitation which is ‘none’ (or ‘no problem’, 0 - 4%), ‘mild’ (or ‘mild problem’, 5 – 24%), ‘moderate’ (or ‘moderate problem’, 25 - 49%), ‘severe’ (or severe problem’, 50 – 95%), and ‘extreme or cannot do’ (or ‘complete problem’, 96 – 100%) (the difficulty ratings). I note that the comparator base for the difficulty factors and ratings is a person who does not have the subject person’s health condition/impairments.[85] 

   [85] Ibid at page 38; see also World Health Organisation, International Classification of Functioning, Disability and Health, Geneva, 2001 at page 22.

10. In Burrows I expressed the opinion that the statutory concept of ‘substantially reduced functional capacity’ should be understood as involving a degree functional limitation greater than moderate having regard to the ICF/WHODAS2.0 difficulty ratings.  That is, it requires a determination that the subject person’s impairments result in functional limitations that are 50% or greater than the degree of function expected of a person who does not have their health condition/impairment.[86]  In this case, I invited the parties to consider the approach I took in Burrows on this issue.[87]  Neither has challenged this approach in their final submissions.

    Scope of the paragraph 24(1)(c)activity areas

    [86] at [64]; see also footnote 69.

    [87] Preliminary issues, Hearing Day 1.

11. A second preliminary issue that requires comment is in relation to the approach to be taken in determining the scope and content of each of the paragraph 24(1)(c) activity areas.  I have set out my thinking in relation to this issue at some length in Burrows [88] I adopt what I said there for present purposes without repeating it. 

    [88] Burrows at [73] to [95]

12. I note that I reached essentially two conclusions at the end of that discussion.  First, that the scope of each activity area is to be treated as determinate rather than variable or elastic so that the statutory test can be applied consistently rather than arbitrarily.  Second, in determining the scope of each activity area, the Tribunal is to look at the parameters drawn by the Agency’s operational policy, supplemented where necessary by the specific descriptions of the tasks and actions that are involved in each subtask area that are contained in the ICF.[89]

    [89] See also my decision in Foster and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 718 (Foster (on remittal)) at [64] and [91].

13. I reached those conclusions against a backdrop of Tribunal level decisions that have applied the paragraph 24(1)(c) test differently with respect to functional limitations to undertake the tasks and actions involved in domestic activities (such as domestic cleaning, laundry, garden maintenance etc), some concluding these activities fall within the self-care, others the self-management, others the mobility life activity area.  My conclusion in Burrows was that domestic tasks and actions of this kind do not fall into any of the paragraph 24(1)(c) life activity areas, which is why there is inconsistency of approach in Tribunal level decisions (no prior Tribunal to that point having squarely asked the question whether domestic tasks fall within the scope of paragraph 24(1)(c) at all) .

14. The conclusion I reached in relation to paragraph 24(1)(c) and domestic tasks was a conclusion of law only.  I have nothing to say about whether that is appropriate government policy.[90]

    [90] In this respect, I do not ascertain any inconsistency between the Agency’s operational policy and the Act and Rules of the kind referred to in Drake (No.2).

15. In this case the Applicant has sought to challenge my conclusion on two bases. 

16. First it is asserted that the conclusion I reached in Burrows is inconsistent with an opinion that I expressed on the same point in Foster (on remittal) which represents the correct position.[91] However, the passage of the decision in Foster (on remittal) the Applicant cites in support of that contention is a quoted passage from the CEO’s submissions in that case.[92]  It is not my opinion.  My opinion on this point in Foster (on remittal) is found at [63] – [64] of that decision. It is, in effect, a restatement of the opinion I expressed in Burrows.

    [91] Applicant’s Closing Submissions at [36].

    [92] Foster (on remittal) at [95] quoting the CEO’s submissions at [32] – [33].

17. Second, the Applicant points to the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth).  It is submitted that these Rules make it clear that the NDIS is intended to provide participants with supports for domestic activities where they have substantially reduced functional capacity to undertake those tasks.  That is undoubtedly the case, and that position long predates these Rules.  However, those Rules are made for the purposes of s 33(2) and 34(1) (reasonable and necessary supports), they do not govern the assessment of whether a prospective participant meets the disability or early intervention requirements for access to the NDIS. These are separate inquiries.

18. With respect to domestic activities, the scope of the paragraph 24(1)(c) life activity areas is likely to continue to be vexed until such time as there is a clarification of the law, or government policy, by government, which puts the issue beyond doubt, [93] or there is a Tribunal Guidance or Appellate Court decision that resolves the issue. I note that this is not only an issue with respect to the paragraph 24(1)(c) enquiry, but also, now, with respect to the paragraph 34(1)(aa) enquiry in ‘plans’ cases.[94]  It is obviously a serious issue.  However, on the present state of the law, I am not persuaded it is appropriate for me to depart from the opinion I have expressed in Burrows on this point.

    The distinction between functional capacity and functional performance

    [93] In this respect I respectfully note the Tribunal’s recent decision in Banoub and National Disability Insurance Agency (NDIS) [2025] ARTA 1552 at [55] – [60].

    [94] Sayadi and National Disability Insurance Agency (NDIS) [2025] 1217 at [76]

19. A third preliminary issue requires comment as a preface to the paragraph 24(1)(c) inquiry.  In Mulligan[95] and Foster[96] the Courts observed that the paragraph 24(1)(c) inquiry requires the decision maker to ascertain with precision what, from a practical point of view, a person can and cannot. This draws into focus the distinction between a person’s functional capacity to undertake a task or action (that is, what objectively they can do) and their functional performance of that task or action (that is, what they do so, including but not limited to what they choose to do).  In Foster (on remittal)[97] I expressed the opinion that paragraph 24(1)(c) is concerned with a prospective participant’s functional capacity to perform a task or action in a life activity area, whereas the prospective participant’s functional performance of that task or action is a matter that goes to the paragraph 24(1)(d) requirement.  I adopt that analysis for present purposes.

    The questions the Tribunal must pose and answer for the purposes of the paragraph 24(1)(c) analysis

    [95] Mulligan and National Disability Insurance Agency (2015) 233 FCR 201 at [55].

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

    [97] Foster and National Disability Insurance Agency (NDIS [2025] ARTA 718 (Foster on remittal) at [83]

20. In Foster(on remittal) I set out in some detail the questions the Tribunal must pose and answer, and the chain of analysis required, to determine if a prospective participant experiences substantially reduced functional capacity to undertake the tasks and actions in a paragraph 24(1)(c) life activity area due to their permanent impairments.  I adopt what I said there for present purposes without repeating it.[98]

    ‘Causation’ and substantially reduced functional capacity

    [98] Ibid at [104] – [108]

21. Finally, by way of preliminary observations about principles of analysis, I note that the structure of the s 24(1) inquiry requires, relevantly, the Applicant to establish a ‘causal’ relationship between the permanent impairments, or impairments, that are found in the paragraph 24(1)(a) and (b) inquires and substantially reduced functional capacity contended for in the paragraph 24(1)(c) inquiry.[99]  These inquiries do not operate independently of each other. 

    [99] Mulligan at [51] – [56]

22. The fact that I have found that the Applicant lives with permanent impairments of various global and specific mental functions does not inevitably mean that he experiences a substantially reduced functional capacity for every or any task or action involved in daily life because of those impairments.  An impairment may have a functional impact on capacity to undertake some tasks and actions involved in a life activity area, or it may have none. Having regard to this, it does not ultimately assist the Applicant that he has established various impairments of global and specific mental function.  His ultimate task is to demonstrate how any one or more of those impairments result in substantially reduced functional capacity to perform the bundle of tasks involved in the life activity areas specified in paragraph 24(1)(c).  That is a separate and distinct task from establishing permanent impairment.

    Some preliminary observations about the opinion evidence

23. The Tribunal received and accepted into evidence two statements[100] made by and heard oral evidence from Ms Anwaar Al Khamisi.  Ms Al Khamisi is the Applicant’s current mental health ‘Care Coordinator’ with an organisation trading as ‘Stride Mental Health’ which is a non-government organisation that receives funding under the Commonwealth Psychosocial Recovery Program.  Ms Al Khamisi provides non-clinical social assistance to the Applicant under that program and he also participates in a group based peer support program conducted under program, called ‘Connector Hub’.

    [100] Hearing Tender Bundle, Tabs A4 and A9, pages 315 and 334 - 338 respectively.

24. The published guidelines for the Commonwealth Psychosocial Recovery Program indicate that it is designed for people living with severe mental health challenges who need short-term help to function day to day.  It is designed to help them to connect with the clinical care and other services they need, build their capacity in managing day-to-day activities, strengthen social skills, friendships and relationships with their family, and increase their educational, vocational and training skills.[101] 

    [101] Australian Government Department of Health Disability and Ageing, Commonwealth Psychosocial Recovery Program, Commonwealth Psychosocial Support Program | Australian Government Department of Health, Disability and Ageing

25. Ms Al Khamisi’s formal qualifications, if any, are not in evidence. In her supplementary statement dated 12 May 2025, and in her oral evidence, Ms Al Khamisi expresses opinions about the Applicant’s degree of impairment and functional limitations.  I am satisfied that these are to be treated as ‘lay’ opinions, rather than the professional or expert opinion of a qualified clinician.

26. These opinions are sometimes significantly at odds with the Applicant’s own evidence about his function, the opinion evidence of Dr Stambouliah, Psychologist, the independent expert evidence of Mr Stretton, Occupational Therapist, and with other objective evidence.

27. Ms Al Khamisi presented as a passionate advocate for the Applicant’s access to the NDIS. I am satisfied her evidence is to be approached in that light. It is not the evidence of a dispassionate professional.  This affects the weight that may be given to it.

28. The CEO engaged Dr Lyn-May Lim, Consultant Psychiatrist, to provide a medicolegal opinion based on a ‘file review’ in relation to a series of questions that are set out in Appendices A to C of her letter of instruction. [102]  Those questions deal with the issues of diagnosis, impairment, permanency, early intervention and functional capacity. Her initial report was provided to the CEO on 2 January 2025.[103]  Relevantly for present purposes, Dr Lim concluded with respect to the Applicant’s functional capacity that:

    [the Applicant’s] functioning has been highly compromised for many years and he displays profound impairment in regard to his self-care, communication, social interactions, capacity for learning and vocational abilities and management.[104]

    [102] Hearing Tender Bundle Tab R1, letter of instruction dated 18 December 2024

    [103] Hearing Tender Bundle Tab R3, pages 363 – 376.

    [104] Ibid at page 370.  This opinion is elaborated upon at pages 372 – 273 with respect to each paragraph 24(1)(c) life activity area.

29. On or about 21 March 2025, the CEO received the report of Mr G Stretton, Occupational Therapist, who had been commissioned as an independent expert to conduct a functional capacity assessment of the Applicant.[105]  Upon receipt of that report, the CEO briefed Dr Lim to provide a supplementary opinion having regard to Mr Stretton’s findings, and a further Statement filed by the Applicant, based upon the following instruction (relevantly):

    4.Following your review of the enclosed documents, and with reference to your previous report, please let us have your report commenting on, but not limited to the following questions.

    (a)Does the occupational therapist report and supplementary statement of the Applicant alter any other opinions or conclusions provided in your report dated 2 January 2025? If so, please provide details of the change in your opinion and reasons for altering or updating any particular opinion or conclusion.

    (b)You were asked to provide your opinion without directly assessing the Applicant and based on a review of the documents provided.  What limitations, if any, does that pose on the opinions and conclusions provided in your report?

    …

    [105] Hearing Tender Bundle, Tab R4, pages 377 – 402.

30. In a supplementary report dated 6 June 2025,[106] Dr Lim revises the opinion she gave in her principal report, relevantly, as follows:

    With this additional, current information, I have revised my opinion to the following:

    [The Applicant’s] functioning has been moderately compromised for many years and he displays profound impairment in regards to his self-care, communication, social interaction, capacity for learning and vocational abilities and self-management.

    …

    It is evident that [the Applicant] is moderately impaired due to his psychiatric illnesses.  Furthermore I would prefer the evidence to substantiate this using the basis of Mr Stretton’s report, as summarised above this has been independently sourced and is the most current information available of his recent function.

    [106] Hearing Tender Bundle, Tab R6, pages  406 - 413

31. In relation to question 4(b) of her supplementary instructions, Dr Lim states:

    A report based purely on a file review has a number of limitations including the following:

    ·This does not provide a contemporaneous mental state examination of the client;

    ·The lack of direct assessment of the client does not provide the opportunity to clarify the reported symptoms of dysfunctions or the full context of this;

    ·The provided file records may not be complete, and omitted information may be significant in fully informing the provided opinion; and

    ·There may be bias in the provided documents, depending on the author and their relationship with the client, and this subjectivity may result in inaccuracies in the provided opinion.

1. Dr Lim gave oral evidence on day 2 of the Hearing.  In initial examination she stated with respect to the documents with which she had been briefed, relevantly:[107]

   These documents have provided me with a broad clinical impression of [the Applicant], and from what … I have read, I feel that there are significant issues in terms of motivation and ability to achieve goal directed tasks.

   [107] Hearing Transcript, day 2, page 39, lines 27 - 30.

2. In cross-examination,[108] Dr Lim was taken to her principal report and to the conclusion set out at paragraph 75 above.  She was asked if she agreed that ‘profound impairment is equivalent to or means substantially reduced …’ to which she responded: ‘Yes. Yes I would …’  She then elaborated on that opinion stating: ‘…overall I think he does have substantially reduced impairment …’ and that these impairments give rise to substantially reduced functional capacity in each of the domains.  She was then asked if the Applicant has substantially reduced functional capacity in any one or more domains specifically, to which she responded:

   There were a number of domains that stood out to me as more compromised, and I would suggest that these are social interactions, capacity for learning, vocational abilities.  Those three in particular stood out for me

   [108] Hearing Transcript, day 2, page 41 line 23 to page 42, line 16.

3. Before re-examination, I asked Dr Lim some questions that were directed at ascertaining if her opinion regarding the Applicant’s functional capacity was referrable to an instrument of assessment, including the World Health Organisation’s Disability Assessment Scale (WHODAS 2.0).  She indicated her opinion was not based on that assessment scale and she did not identify any other reference point for her assessment.[109]

   [109] Hearing Transcript, day 2. page 42, lines 20 -39.

4. In re-examination, Dr Lim was asked if she ‘stood by’ the opinion expressed in her supplementary report, being that the Applicant experienced ‘moderate’ impairment and reduced function, to which she answered ‘yes.’[110]  It was then put to her that she had appeared to just express a different opinion in cross-examination. This involved the following exchange:[111]

   Counsel for the CEO: … You’ve just given evidence in cross-examination that you agreed that he has substantially reduced functional capacity.  Yet, in this paragraph at the bottom it says “I would revise my opinion.  It is evident that he is moderately impaired due to his psychiatric illnesses’ and you go on to refer to Mr Stretton’s report:

   Dr Lim: So I think one of the issues as to why there’s a inconsistency comes back to one of the first comments I made which is that my opinion has been formulated not based on my direct assessment of this client.  And depending on what information I’ve been given – and I’ve now been given information at a serial or different points – one’s opinion can very.  So it is extremely difficult to fully assess a case like this with this level of complexity and longitudinal history without directly assessing the client.

   [110] Hearing Transcript, day 2, page 43, line 41 – page 44, line 4.

   [111] Hearing Transcript, day 2, page 46, line 18 – 28.

5. With respect, I have significant difficulties accepting Dr Lim’s evidence.  Her assessment has the limitations she draws attention to herself, which is that it was based principally on non-contemporary medical records, and in the absence of a direct assessment of the Applicant. Additionally, however, I have a concern about Dr Lim’s clinical independence.  She demonstrates a propensity to change her opinion in response to suggestion, both in response to the CEO’s suggestions in her request for a supplementary report, then in response to questions from the Applicant’s representative in cross examination.  I am also concerned that Dr Lim was unable to provide a foundation for her opinion with respect to substantially reduced functional capacity by reference to some assessment tool or other objective measure.  For these reasons, I am not prepared to give Dr Lim’s evidence significant weight.

   Social interaction

6. I have set out above the Applicant’s permanent impairments as found in the paragraph 24(1)(a) and (b) enquiries. In closing submissions, the Applicant does not identify expressly those impairments that he contends are causal of the substantially reduced functional capacity he contends for in the social interaction life activity area.[112] 

   [112] Applicant’s Closing Submissions at [38] –[40].

7. Doing the best that I can on the evidence and submissions before me I will proceed on the basis that it is contended that it is the Applicant’s impaired global mental functions of temperament and personality and energy and drive functions, and his impaired specific mental functions of attention, memory, and emotion result in his substantially reduced functional capacity for social interaction.

8. Having regard to the Agency’s Operational Guidelines, the tasks and actions involved in the social interaction life activity area (or ‘socialising’ as it referred to in the Guidelines) are:

   -          tasks and actions associated with making and keeping friends,

   -tasks and actions associated with interacting with other people in the community (who are not friends),

   -tasks and actions associated with behavioural and emotional regulation in a social context.

9. This short description of tasks and actions may be elaborated by reference of the clusters of tasks and actions specified in the d710, d 720, and d730 - d750 activity clusters in Chapter 7 of the ICF, which are in summary:

   - d710 Basic interpersonal interactions: interacting with people in a contextually and socially appropriate manner, such as by showing consideration and esteem when appropriate, or responding to the feelings of others.  Inclusions: showing respect, warmth, appreciation, and tolerance in relationships; responding to criticism and social cues in relationships; and using appropriate physical contact in relationships,

   -d720 Complex interpersonal interactions: maintaining and managing interactions with other people, in a contextually and socially appropriate manner, such as by regulating emotions and impulses, controlling verbal and physical aggression, acting independently in social interactions, and acting in accordance with social rules and conventions.  Inclusions: forming and terminating relationships, regulating behaviours within interactions, interacting according to social rules; and maintaining social space,

   -d730 Relating with strangers: engaging in temporary contacts and links with strangers for specific purposes, such as when asking for directions or making a purchase,

   -d740 Formal relationships: creating and maintaining specific relationships in formal settings, such as with employers, professionals or service providers. Inclusions: relating with persons in authority, with subordinates and with equals,

   -d750 Informal social relationships: entering into relationships with others, such as casual relationships with people living in the same community or residence, or with co-workers, students, playmates or people with similar backgrounds or professions. Inclusions: informal relationships with friends, neighbours, acquaintances, co-inhabitants and peers,

10. The evidence in relation to the Applicant’s functional capacity for social interaction may be summarised as follows:[113]

    [113] This summary is taken principally from the Applicant’s supplementary Statement, Hearing Tender Bundle, Tab A 9, pages 334 – 338; the Functional Capacity Assessment Report prepared by Mr G Stretton, Occupational Therapist, Hearing Tender Bundle, Tab R4, pages, 354 – 362, and the oral evidence of the Applicant and Mr Stretton given at the hearing.

    - he has limited motivation to self-initiate participation in social events and to sustain social interactions with others. This is related to low self-esteem, fear of judgement by others, poor trust in others, and low mood,

    - he maintains close relationships with his daughters in his country of origin.  This involves frequent weekly, usually daily, telephone contact.  He both initiates and receives this contact.  Although for the reasons I stated in Cofffey[114] family relationships do not come within the scope of the social interaction life activity area, the skills he demonstrates in maintaining relationships with his daughters are relevant,

    [114] Coffey and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 634 at [69] – [70].

    -he moves about his neighbourhood independently daily, for more than 1 hour each day.  He engages in appropriate incidental social interactions with others when doing so (saying a short ‘Hello’ to people he recognises),

    -despite having lived in his neighbourhood for some years he has not developed any friendships, however.  He is lonely,

    -he is religiously observant, but worships at home alone, rather than attend his local Mosque,

    -he is generally a courteous, hospitable, appreciative and respectful person who interacts with others in that manner,

    -he has long-term relationships involving recurring appropriate contacts with a General Practitioner, Psychiatrist and Psychologist,

    -he participates successfully in the peer support program conducted by Stride Mental Services.  This typically involves attendance at a weekly coffee club, a monthly cooking class, and a monthly BBQ with other participants in that program. He interacts with other participants and staff during these events, including by playing games. His participation in this program is structured.  That is, he requires a degree of prompting and reassurance to attend, and to continue to participate,

    -the Applicant interacts daily, or at least frequently on a weekly basis with staff in shops to buy food, cigarettes and to make other purchases.  He can travel on public transport,

    -there is some background incident of him acting in an antisocial way which has involved a conviction leading to a correction order.  There are scant details about this in the evidence.  It appears to be a single historical event,

    -there is some background of him behaving in emotionally and behaviourally dysregulated ways in social contexts.  However, this is historical. It has been managed with treatment.

    I make these findings.

11. I do not accept the following evidence in relation to the Applicant’s functional capacity for social interaction:

    -Ms Al Khamisi’s evidence to the extent that it portrays the Applicant as almost wholly dependent on others for social interaction, including in relation to his participation in the Stride Mental Health peer support program. Having regard to the other evidence before me as set out above, I am satisfied that Ms Al Khamisi’s evidence involves significant exaggeration motivated by her desire to obtain access to the NDIS for the Applicant,

    -Dr Lim’s evidence to the extent that she opines that the Applicant experiences ‘profound’ functional limitations for social interaction. I have set out some of the reasons I do not accept this evidence above.  Additionally, it does not accord with the Applicant’s own evidence or with the other evidence I have set out above.

    -Dr Stambouliah’s and Mr Stretton’s evidence in their reports about the degree of impaired function the Applicant experiences in social interaction.  Rather, I accept their oral evidence in relation to this, given after they had the benefit of the Applicant’s own evidence, given after their reports, being put to them.  I note that both were positively surprised to learn the greater extent to which the Applicant has participated in the Stride Mental Health program peer support events.

12. Having regard to this evidence, I turn first to consider Rule 5.8.  I am not satisfied that this Rule is engaged in this case.  The Applicant can perform the tasks and actions involved in social interaction without assistive technology, equipment or home modifications, and he does not usually require physical assistance, guidance, supervision or prompting from other people to do so.  That is the case notwithstanding the fact that I have accepted that he does benefit from Ms Al Khamisi’s prompting and reassurance to attend the Stride Mental Health peer support program.  However, the Applicant’s participation in that program does not reflect the totality of tasks and actions within the social interaction activity area.

13. I now turn to consider if the Applicant’s impairments result in substantially reduced functional capacity to undertake the tasks and actions involved in the social interaction life activity area otherwise than in the circumstances specified in the Rule. 

14. I am not satisfied that they do.

15. In this case there is no doubt that the Applicant’s impairments affect his capacity for social and economic participation.  That is, they result in his demotivation to form friendships and other sustained informal relationships with others.  That is a real and serious impact.  However, this relates to the Applicant’s functional performance of the tasks and actions involved in social interaction, not his functional capacity to perform these tasks and actions. 

16. On the evidence before me it cannot be said that the Applicant does not have the functional capacity to perform the tasks and actions associated with making and keeping friends or interacting with other people in the community. He has the functional capacity to show respect, warmth, appreciation, tolerance, and reciprocity in relationship.  He can engage in temporary contacts and links with strangers for specific purposes, such as when making purchases. He can create and maintain formal relationships with service providers, such as his health practitioners.  He has been able to form casual relationships with other participants in the Stride Mental Health peer support program, which includes socialising over coffee, in cooking classes, over meals, and playing games.

17. Nor can it now be said that he is unable to maintain emotional and behavioural regulation in a social context. There may have been issues of this nature in the past.  But the evidence is to the effect that this is no longer the case.

18. I therefore conclude that the Applicant does not have substantially reduced functional capacity for social interaction.

    Learning

19. I have set out above the Applicant’s permanent impairments as found in the paragraph 24(1)(a) and (b) enquiries. In closing submissions, the Applicant identifies his impaired specific mental functions of attention, memory, and higher-level cognitive functions as being causal of his substantially reduced functional capacity for learning.[115]

    [115] Applicant’s Closing Submissions at [12].

20. Having regard to the Agency’s Operational Guidelines, the tasks and actions involved in the learning life activity area are:

    -tasks and actions associated with acquiring knowledge, skills or understanding (how you learn, how you practice and use new skills),

    -          tasks associated with cognition (how you understand),

    -          tasks associated with memory (how you remember things).

21. This short description of tasks and actions may be elaborated by reference of the clusters of tasks and actions specified in the d130-159 and d160-179 activity clusters in Chapter 1 of the ICF, which are in summary:

    -d130-159 Basic learning:

    -copying (imitating or mimicking as a basic component of learning …); rehearsing (repeating a sequence of events or symbols as a basic component of learning …),

    -learning to read (developing the competence to read written material … with fluency and accuracy, such as recognising characters and alphabets, sounding out words with correct pronunciation, and understanding words and phrases),

    -learning to write (developing the competence to produce symbols that represent sounds, words or phrases in order to convey meaning, … such as spelling effectively and using correct grammar),

    -learning to calculate (developing the competence to manipulate numbers and perform simple and complex mathematical operations, such as using mathematical signs for addition and subtraction and applying the correct mathematical operation to a problem),

    -acquiring skills (developing basic and complex competencies in integrated sets of actions or tasks so as to initiate and follow through with the acquisition of a skill, such as manipulating tools or play games ….) Inclusions:

    -Acquiring basic skills (learning elementary, purposeful actions, such as learning to manipulate eating utensils, a pencil and a simple tool),

    -Acquiring complex skills (learning integrated sets of actions so as to follow rules, and to sequence and coordinate one’s movements, such as learning to play games … or to use a building tool).

    -d160-d179 Applying knowledge:

    -Focusing attention (intentionally focusing on specific stimuli; such as by filtering out distracting noises),

    -thinking (formulating and manipulating ideas, concepts, and images, whether goal oriented or not, either alone or with others, such as creating fiction, proving a theorem, playing with ideas, brainstorming, meditating, pondering, speculating or reflecting),

    -reading (performing activities involved in the comprehension and interpretation of written language … for the purpose of obtaining general knowledge or specific information),

    -writing (using or producing symbols or language to convey information, such as producing a written record of events or ideas or drafting a letter),

    -calculating (performing computations by applying mathematical principles to solve problems that are described in words and producing or displaying the results, such as by computing the sum of three numbers or fining the result of dividing one number by another),

    -solving problems (finding solutions to questions or situations by identifying and analysing issues, developing options and solutions, evaluating potential effects of solutions, and executing a chosen solution, such as in resolving a dispute between two people). Inclusions:

    -solving simple problems (finding solutions to a simple problem involving a single issue or question, by identifying and analysing the issue, developing solutions, evaluating the potential effects of the solutions and executing a chosen solution),

    -solving complex problems (finding solutions to a complex problem involving multiple and interrelated issues, or several related problems, by identifying and analysing the issue, developing solutions, evaluating the potential effects of the solutions and executing a chosen solution,

    -making decisions (making a choice among options, implementing the choice, and evaluating the effects of the choice, such as selecting and purchasing a specific item, or deciding to undertake and undertaking one task from among several that need to be done.

22. The evidence in relation to the Applicant’s functional capacity for learning may be summarised as follows:[116]

    [116]  See footnote 113

    -          he had very limited formal education in his country of origin,

    -          he speaks Farsi, and can read and write in Perso-Arabic script,

    -since emigrating to Australia, he has learnt to speak, read and write English at least to the level of functional (or basic) communication.  He is unable to understand more complex English without assistance of an interpreter, and sometimes is unable to read, or misreads signs in English (such as traffic control signs),

    -he has learnt to play on-line games using his telephone, and he has learnt to play games with others in the context of the Stride Mental Health peer support group.

    -since being released from immigration detention he has learnt to use public transport.  He benefits from some initial wayfinding assistance to travel to new locations,

    -since being released from immigration detention, he has learnt NSW road rules and obtained a NSW Driver’s Licence,

    -he does his own budgeting including paying bills and purchasing food and clothing. He does so by budgeting his available income.  He has developed strategies for purchasing food and cigarettes at the lowest possible price,

    -he has sometimes experienced some short-term memory difficulties regarding taking medication and wayfinding in the community.

    I make these findings.

1. I do not accept Ms Al Khamesi’s evidence as to the degree to which she contends the Applicant is cognitively impaired, cannot concentrate or remember or learn new tasks. As I have said above, this is inconsistent with the Applicant’s own evidence and with the objective evidence.  I am satisfied that it is exaggerated and motivated by a desire for the Applicant to obtain access to the NDIS.

2. Having regard to this evidence, I turn now consider Rule 5.8.  I am not satisfied that this Rule is engaged in this case.  The Applicant can perform the tasks and actions involved in learning without assistive technology, equipment or home modifications, and he does not usually require physical assistance, guidance, supervision or prompting from other people to do so.  That is the case notwithstanding the fact that I have accepted that he does benefit from initial way finding assistance to travel to unfamiliar locations.  I also assume that he will have received some form of education from another person in relation to acquiring basic proficiency in Perso-Arabic, and the English language and in driving instruction.  However, the fact that the Applicant has received assistance from other people in these ways does not amount to him usually requiring the assistance of another person to undertake the totality of tasks and actions within the learning activity area.

3. I now turn to consider if the Applicant’s impairments result in substantially reduced functional capacity to undertake the tasks and actions involved in the learning life activity area otherwise than in the circumstances specified in the Rule. 

4. I accept that the Applicant experiences some short-term memory limitations that impact on his functional capacity for learning.  Having regard to the WHODAS difficulty factors, this may result in it taking him longer to learn new tasks and actions compared to a person who does not have that impairment.  However, on the evidence before me, I do not consider it open to me to find that this degree of difficulty is any greater than a mild problem (being a reduction in function 25% or less than that of a typical person).   That cannot constitute substantially reduced functional capacity for learning.  In any event, memory is only one task clusters in the learning life activity area.  Reduced function in that task cluster is not capable of constituting reduced functional capacity in this life activity area overall.

5. Otherwise, on the evidence I am satisfied that the Applicant has substantial functional capacity for basic learning (he can copy, learn to read, write, calculate and acquire basic and complex skills).  He also has substantial functional capacity for the application of knowledge, which I will address in relation to the self-management life activity area.

6. I therefore conclude that the Applicant does not have substantially reduced functional capacity for learning.

   Self-care

7. I have set out above the Applicant’s permanent impairments as found in the paragraph 24(1)(a) and (b) enquiries. In closing submissions, the Applicant identifies his impaired global mental function of motivation, and specific mental functions of memory, as being causal of his substantially reduced functional capacity for self-care.[117]

   [117] Applicant’s Closing Submissions at [12].

8. Having regard to the Agency’s Operational Guidelines, the tasks and actions involved in the self-care life activity area are:

   -          tasks associated with personal care, including personal hygiene and grooming,

   -          tasks associated with eating and drinking, and

   -          tasks associated with health care.

9. This short description of tasks and actions may be elaborated by reference of the clusters of tasks and actions specified in the d510 to d 570 activity clusters in Chapter 5 of the ICF, which are in summary:

   -d510 Washing oneself: washing and drying one’s whole body, or body parts, using water and appropriate cleaning and drying materials or methods, such as bathing, showering, washing hands and feet, face and hair, and drying with a towel,

   -d520 Caring for body parts: looking after those parts of the body, such as skin, face, teeth, scalp, mails and genitals, that require more than washing and drying,

   -d530 Toileting: planning and carrying out the elimination of human waste (menstruation, urination and defecation), and clean oneself afterwards,

   -d540 Dressing: Carrying out the coordinated actions and tasks of putting on and taking off clothes and footwear in sequence and in keeping with climatic and social conditions, such as by putting on, adjusting and removing shirts, skirts, blouses, pants, undergarments, saris, kimono, tights, hats, gloves, coats, boots, sandals and slippers,

   -d550 Eating: Carrying out the coordinated tasks of eating food that has been served, bringing it to the mouth and consuming it in culturally acceptable ways, cutting or breaking food into pieces, opening bottles and cans, using eating implements, having meals, feasting or dining,

   -d560 Drinking: Taking hold of a drink, bringing it to the mouth, and consuming the drink in culturally acceptable ways, mixing, stirring and pouring liquids for drinking, opening bottles and cans, drinking through a straw or drinking running water such as from a tap or spring; feeding from the breast,

   -d570 Looking after one’s health: Ensuring physical comfort, health and physical and mental well-being, such as by maintaining a balanced diet, and an appropriate level of physical activity, keeping warm or cool, avoiding harms to health, following safe sex practices, including such as using condoms, getting immunisations and regular physical activities.

10. The evidence in relation to the Applicant’s functional capacity for self-care may be summarised as follows:[118]

    [118] See footnote 113.

    -he can wash the whole of his body independently. His own evidence is that he showers daily, including washing his hair, as a religious observance and courtesy to others,

    -          he can perform all tasks and actions in relation to toileting independently,

    -he can comb or brush his hair independently, and attends a barber to have his beard and moustache trimmed,

    -he has dentures, which he cleans sometimes. They have been broken and have been repaired by him to restore function.  He is on a public dental waiting list for their replacement,

    -he can dress his upper and lower body, including by donning and doffing socks and shoes independently,

    -          he can perform all tasks and actions in relation to drinking and eating independently,

    -          he walks every day for at least 60 minutes for exercise, and to improve his mood,

    -he is prescribed medication for the management of his health conditions.  There have been times when he has forgotten to take it in the past.  To avoid this, he places his medication beside his microwave which he uses daily to make breakfast, so that he will be reminded to take it.  He also speaks by telephone with his daughters daily who check to ensure that he has taken his medication.  There is no evidence of other than minor incidental non-adherence to prescribed treatment,

    -he attends scheduled appointments with his General Practitioner, Psychiatrist and Psychologist independently,

    -there is no evidence of squalor in the Applicant’s home or in his personal presentation.

    I make these findings.

11. This evidence is inconsistent with Ms Al Khamisi’s evidence to the effect that the Applicant goes for days without washing and showering, or changing his clothes, and is frequently malodorous and that he frequently fails to take prescribed medication.  However, I do not accept that evidence for the reason already stated.

12. Having regard to this evidence, I turn to consider Rule 5.8.  I am not satisfied that this Rule is engaged in this case.  The Applicant can perform the tasks and actions involved in self-care without assistive technology, equipment or home modifications, and he does not usually require physical assistance, guidance, supervision or prompting from other people to do so.  He does receive some prompting to take his medication, but this does not amount to daily supervision to do so.  Even if it did, it would still not amount to the Applicant usually requiring supervision or prompting in relation to the performance of tasks actions involved in the self-care life activity area overall.

13. I now turn to consider if the Applicant’s impairments result in substantially reduced functional capacity to undertake the tasks and actions involved in the self-care life activity area otherwise than in the circumstances specified in the Rule. 

14. I am not satisfied that they do.

15. The Applicant can undertake the tasks and actions associated with all aspects of his personal care, including washing his whole body and taking care of body parts, such as his beard, moustache, prosthetic teeth, and perineum.  He can dress his whole body independently.  He can perform all tasks and actions in relation to toileting independently. He can eat and drink independently. He is engaged with health care professionals and adherent with prescribed treatment.  There is no evidence of squalor.

16. Even if I were to accept, contrary to his own evidence, that the Applicant is sometimes demotivated to wash himself and change his clothes, this would, on the evidence before me, constitute a mild problem, not sufficient to amount to substantially reduced functional capacity with respect to those task clusters, or in relation to the self-care life activity area overall.

17. I therefore conclude that the Applicant does not experience substantially reduced functional capacity for self-care.

    Self-management

18. I have set out above the Applicant’s permanent impairments as found in the paragraph 24(1)(a) and (b) enquiries. In closing submissions, although not entirely clear, it appears that  the Applicant identifies his impaired global mental function of motivation as being causal of his substantially reduced functional capacity for self-management.[119]

    [119] Applicant’s Closing Submissions at [12].

19. Having regard to the Agency’s Operational Guidelines, the tasks and actions involved in the self-management life activity area are:

    -          cognitive tasks associated with personal organisation,

    -          cognitive tasks associated with personal planning,

    -          cognitive tasks associated with personal decision-making,

    -          cognitive tasks associated with self-care,

    -          cognitive tasks associated with problem solving, and

    -          cognitive tasks associated with personal financial management.

20. This short description of tasks and actions may be elaborated by reference to the clusters of tasks and actions specified in the d175 (solving problems) and d177 (making decisions),  of the ‘Learning and applying knowledge’ activity clusters in Chapter 1 of the ICF, which are set out above.  Additionally, they may be elaborated by reference to the clusters of task and actions specified Chapter 2 ‘General tasks and demands’, and Chapter 8 ‘Major life areas’ of the ICF, which are in summary:

    -d210 Undertaking a single task: carrying out simple or complex and coordinated actions related to the mental and physical components of a single task, such as initiating a task, organising time, space and materials for a task, pacing task performance, and carrying out, completing and sustaining a task.  Inclusions: undertaking a simple or complex task independently or in a group,

    -d220 Undertaking multiple tasks: carrying out simple or complex and coordinated actions as components of multiple, integrated and complex tasks in a sequence or simultaneously.  Inclusions: undertaking multiple tasks; completing multiple tasks; undertaking multiple tasks independently and in a group,

    -d230 Carrying out daily routine: carrying out simple or complex and coordinated actions in order to plan, manage and complete the requirements of day-to-day procedures or duties, such as budgeting time and making plans for separate activities throughout the day.  Inclusions: managing and completing the daily routine; managing one’s own activity level,

    -          d860-d879 Economic life:

    -d860 Basic economic transactions: engaging in any form of simple economic transaction, such as using money to purchase food or bartering, exchanging goods or services, or saving money.

    -d870 Economic self-sufficiency: Having command over economic resources, from private or public sources, in order to ensure economic security for present and future needs: Inclusions:

    -d8700 Personal economic resources: Having command over personal or private economic resources, in order to ensure economic security for present and future needs,

    -d8701 Public economic entitlements: Having command over public economic resources, in order to ensure economic security of present and future needs.

21. The evidence in relation to the Applicant’s functional capacity for self-management may be summarised as follows:[120]

    [120] See footnote 113

    -he is a tenant of a social housing provider.  There is no evidence that he is unable to perform his obligations as a tenant, including by regularly paying rent,

    -he lives alone and carries out all household duties without assistance.  He prepares all his own meals without assistance. His household management and cooking are modest and may be affected by low mood and motivation, but there is no evidence of squalor or malnutrition,

    -he receives an income support payment which he manages himself.  No financial administrator has been appointed to manage his affairs,

    -he pays all his own bills independently, either via direct debit payments, or by attending the post office to pay utility bills etc.  He has a debit card and can use Automatic Teller Machines independently,

    -he budgets his income to be able to meet his own subsistence needs.  He has developed strategies for purchasing preferred food and consumables at lowest available prices (attending the supermarket close to closing to purchase pre-cooked marked down chickens, and shopping for discount cigarettes). He obtains additional food assistance from a welfare agency.  He does so at his own volition,

    -he does all his own shopping, which includes making decisions about what items to purchase,

    -he has obtained under Medicare a Mental Health Care Plan which involves 10 consultations annually with a psychologist.  He is also supported by Medicare to attend upon a psychiatrist annually.  He sees a General Practitioner regularly. He has achieved this at least in part because of the assistance he has obtained from Ms Al Khamisi, 

    -he makes his own medical appointments and attends them independently.  This may involve a degree of prompting by reminders he programs into his mobile phone, and by Ms Al Khamisi and his daughters, but even if this is the case, the Applicant is independently motivated to maintain treatment in relation to his health conditions,

    -he is independently motivated to maintain adherence to prescribed treatment because he understands that this is necessary to maintain his health.  He may receive prompts and checks in relation to taking medication, but this is not because he is resistant to treatment,

    -he engages on low intensity exercise daily (walking) because he accepts clinical advice that this is good for his general and mental health,

    -he is a frequent smoker of cigarettes. He states that he understands the health risks associated with smoking, but is unable to stop smoking,

    -he seeks advice from appropriate professional sources when an issue arises, for example in relation to his residency status, that he does not fully understand.

    I make these findings.

22. For reasons I have already given, I do not accept Ms Al Khamisi’s evidence with respect to the Applicant’s self-management, which is to the effect that he is heavily dependent upon her and others in this life activity area.  I do accept that he consults her when he receives unfamiliar communications from government concerning his residency status and that he has benefited from her assistance in obtaining treatment for his health conditions under Medicare.  But this help seeking and receiving behaviour is indicative of functional capacity for self-management, not incapacity.

23. Having regard to this evidence, I turn to consider Rule 5.8.  I am not satisfied that this Rule is engaged in this case.  The Applicant can perform the tasks and actions involved in self-management without assistive technology, equipment or home modifications, and he does not usually require physical assistance, guidance, supervision or prompting from other people to do so. 

24. That is the case notwithstanding the fact that I have accepted that he does benefit from prompting and checking by other people in relation to medication adherence and attendance at clinical appointments. However, I do not accept that the Applicant would not have the functional capacity to undertake these tasks and actions without direct assistance, and even if I did, this would not constitute substantially reduced functional capacity to undertake the tasks and actions in the self-management life activity area overall.

25. I now turn to consider if the Applicant’s impairments result in substantially reduced functional capacity to undertake the tasks and actions involved in the self-management life activity area otherwise than in the circumstances specified in the Rule. 

26. I am not satisfied that he does.

27. For the reasons stated above, I am satisfied that the Applicant can successfully apply his acquired knowledge. He demonstrates an ability to focus attention, think, read, write, calculate and solve simple and complex problems.  He can make his own decisions. He can complete simple and complex tasks (shop, cook, budget, pay bills, cook, exercise etc) independently.  He has an established daily routine which involves carrying out multiple tasks in sequence (breakfast, exercise, paying games on his phone, prayer, talking to his daughters by phone etc, which includes periodic attendance at clinical appointments and Stride Mental Health peer support events).  He is competent to perform simple financial transactions independently and can manage his own funds.  He has obtained access to public resources including income support and a Medicate Mental Health Care Plan for psychology to meet his needs.  I accept that this may have been with some professional assistance. However, as I have said, help seeking behaviour to obtain such assistance is evidence of functional capacity for self-management, not incapacity.

28. In summary, the Applicant demonstrates substantial functional capacity in relation to the cognitive tasks associated with personal organisation and planning, personal decision making, self-care, problem solving and personal financial management. Although he does experience functional limitations in this life activity area, this amounts to a mild to moderate problem. He does not experience substantially reduced functional capacity for self-management.

    Conclusion with respect to the paragraph 24(1)(c) requirement

29. For the foregoing reasons, the Applicant does not experience, as he must, substantially reduced functional capacity to undertake the tasks and actions involved in any one of the paragraph 24(1)(c) life activity areas.  He therefore cannot meet the disability requirements for access to the NDIS. 

30. There is therefore no utility in considering whether he meets the paragraph 24(1)(d) and (e) disability requirements.

    Does the Applicant meet the early intervention requirements?

31. The early intervention requirements are found in s 25 of the Act and Part 6 of the Becoming a Participant Rules.

32. Section 25 (as in force prior to 3 October 2024) provided (relevantly):

    25       Early intervention requirements

    (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 of more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; …

    (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

    (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    (i)mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

    (ii)preventing the deterioration of such functional capacity; or

    (iii)improving such functional capacity; or

    (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

    Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

    1(A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

    …

    (3)Despite subsection (1) …, the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

    (a)as part of a universal service obligation; or

    (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. Rules 6.4 to 6.7 of the Becoming a Participant Rules deal with the question of when an impairment is permanent, or likely to be permanent for the purposes of the early intervention requirements.  These Rules are essentially the same as Rules 5.4 to 5.7 except that Rule 6.5 does not contain the words “including their psychosocial functioning”.

2. Rules 6.8 and 6.9 of the Becoming a Participant Rules deal with the question of whether the provision of early intervention supports is likely to benefit the person:

   Deciding whether provision of early intervention supports is likely to benefit the person

   6.8… the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person … is to consider evidence going to those matters, as indicated in paragraph 6.9 below….

   Where evidence is required

   6.9.In deciding whether provision of early intervention supports is likely to benefit the person … 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.

3. The Applicant applies for access to the NDIS on the basis that he meets the early intervention requirements, in the alternative to the disability requirements.  However, with respect to the Applicant, this is to grasp at a straw. His case has no substantive form in relation to the early intervention requirements.

4. With respect to the paragraph 25(1)(a) requirements, for the reasons stated in relation to the paragraphs 24(1)(a) and (b) requirements, I accept that the Applicant has permanent impairments of global and specific mental function, which are impairments to which a psychosocial disability is attributable. 

5. These impairments are derivative of PTSD, chronic anxiety, and Major Depression.  These are long-standing diagnoses in relation to which the Applicant receives ongoing pharmacological and cognitive treatment from a psychiatrist and psychologist.  This treatment is also of long-standing.

6. The Applicant’s ongoing treatment for his health conditions assists in the management of the impairments that are derivative of these. On the evidence before me, this treatment is not forecast to change in any substantive way.  It is unlikely that it will result in the remedy of these impairments, although they may improve and fluctuate in response to this treatment.

7. Against this backdrop, with respect to the paragraph 25(1)(b) and (c) early intervention requirements, the Applicant bears a threshold practical onus of identifying with reasonable precision the early intervention supports that would have the effects particularised in those paragraphs.[121]  Although this is an ’access’ not a ‘supports’ case, it is necessary to know what specific early intervention supports the Applicant contends would have any of those beneficial effects in order to be able to undertake a sensible analysis of these requirements.

   [121] National Disability Insurance Agency v Jones [2025] FCA 877 at [24]

8. The Applicant has not identified any specific early intervention supports he contends would have the beneficial effects specified in paragraphs 25(1)(b) and (c).  Nor do any supports of this nature arise in any of the evidence that is before me.  It is therefore not open to me to find that that the requirements of these paragraphs are met.

9. Having regard to this, paragraph 25(1)(c) is not reached (no early intervention supports are identified in the evidence that are appropriately provided by any system of support).

10. For the foregoing reasons, I conclude that the Applicant does not meet the early intervention requirements for access to the NDIS.

    Conclusion

11. For the foregoing reasons, the decision under review is affirmed.

Date(s) of hearing:	3 and 4 July 2025
Advocate for the Applicant:	Ms Tarni Lynch, Ms Anwaar Al Khamisi and Mr Mitch Mulqueen
Counsel for the Respondent:	Ms Theresa Baw
Solicitors for the Respondent:	Ms Jessica Fenech, Maddocks Lawyers