Krasniqi and National Disability Insurance Agency - [2024] AATA 87

Krasniqi and National Disability Insurance Agency [2024] AATA 87 (29 January 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/7564
Re:Mr Iqbal Krasniqi
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member T Bubutievski
Date:29 January 2024
Place:Sydney

The decision under review is affirmed.

....................................[SGD]....................................
Member T Bubutievski
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – CRPS – IBS – persistent depressive disorder with anxious distress–permanence – whether substantially reduced functional capacity – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Holmes and National Disability Insurance Agency [2017] AATA 2870
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan v National Disability Insurance Agency [2015] 233 FCR 201
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
NVRY and National Disability Insurance Agency [2023] AATA 1019
Young and National Disability Insurance Scheme (2014) ALD 694
SECONDARY MATERIALS
NSW Agency for Clinical Innovation – Pain Management Programs – Which patient for which program?, Agency For Clinical Innovation, January 2017
Our Guidelines: How we make decisions’, 30 October 2023, Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth)
REASONS FOR DECISION
Member T Bubutievski
29 January 2024

This application is about whether Mr Iqbal Krasniqi (Mr Krasniqi) should be granted access to the National Disability Insurance Scheme (the NDIS). At the time of his application to become a participant, he was 42 years of age. In his application for access to the NDIS, Mr Krasniqi described his primary disabilities as chronic regional pain syndrome (CRPS) of the left foot and ankle and irritable bowel syndrome (IBS).
Following his application to become a participant, the National Disability Insurance Agency (NDIA or the Agency) decided, on 9 July 2021, that Mr Krasniqi was ineligible to access the NDIS. He sought internal review of this decision by the Agency and on 20 September 2021, an Agency decision maker affirmed the decision. It is this reviewable decision of the Agency which is the subject of Mr Krasniqi’s application to this Tribunal on 15 October 2021 for external merits review under section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act or the Act).
Mr Krasniqi fell off a roof and shattered his left foot and ankle in 2010. At that time, he had an operation requiring screws and plates. In 2017 he had most of this hardware removed and had a fusion of the ankle. Subsequent radiological examinations have shown that the ankle is not completely fused and Mr Krasniqi has developed severe arthritis.[1]
[1] Exhibit 1, report of Dr Victor Tun, 24 January 2017, 24; CT scan, 24 July 2019, 38.
Mr Krasniqi also states that he has IBS. He states that he is intolerant to gluten, sugar and lactose and has frequent episodes of diarrhoea and vomiting. He is meant to manage his condition with the use of a restrictive diet.[2]
[2] Exhibit 1, report of Dr Nicholas Mabarrack, 23 February 2020, 183.
Mr Krasniqi subsequently provided the Agency with evidence that he had been diagnosed with a persistent depressive disorder with anxious distress.[3]
[3] Exhibit 1, report of Rosemary Stone, clinical psychologist, 2 September 2019, 46.
Mr Krasniqi contends that he meets the access criteria under section 21 of the NDIS Act.
To gain access to the NDIS, under section 21 of the NDIS Act, Mr Krasniqi is required to meet:
(a)the ‘age’ access criteria;
(b)the ‘residence’ access criteria; and
(c)either the ‘disability’ access criteria or the ‘early intervention’ access criteria.
The Agency accepts that Mr Krasniqi meets both the ‘age’ and ‘residence’ access criteria but contends that he does not meet the ‘disability’ or ‘early intervention’ access criteria.
LEGISLATIVE FRAMEWORK
The NDIS Act was amended in 2022 with the passage of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Amendment Act). The Tribunal had not completed its review of Mr Krasniqi’s application by the time the amendments commenced. The original decision which the Agency made regarding Mr Krasniqi’s access request, the Agency’s internal review decision, and Mr Krasniqi’s application to this Tribunal for independent merits review were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
‘the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.’
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase ‘one or more impairments to which a psychosocial disability is attributable’. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
‘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.’
The transitional provisions at Schedule 2, Item 54 of the Amendment Act provide that:
(1)The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a)    an access request made on or after the commencement of this item;
(b)    an access request that was pending immediately before that commencement;
(c)    a revocation under section 30 of that Act made on or after that commencement.
As the decision under review relates to the determination of an access request under section 18 of the NDIS Act, it follows that the term ‘an access request that [is] pending immediately before [the] commencement” covers a decision under review, as in this review, that “has not been finalised prior to the commencement’. The Revised Explanatory Memorandum[4] provides, in relation to Schedule 3, Item 56 that the amendment would apply ‘if a decision on their request under section 18 of the Act has not been finalised prior to the commencement’.
[4] Revised Explanatory Memorandum, National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021 (Cth).
Section 24 of the NDIS Act provides as follows:
(1)A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)    the impairment or impairments are, or are likely to be, permanent; and
(c)    the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)    the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)    the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
The early intervention requirements are set out in section 25 of the Act:
(1)A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) 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.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services 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.
Section 27(a) of the NDIS Act provides that the NDIS rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purpose of section 24(1)(b) or section 25(1)(a)(i) or (ii) of the NDIS Act. Such rules have been prescribed, namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (NDIS Access Rules). The Tribunal is bound to apply the legislation as enacted, including the NDIS Access Rules.
Specifically, rules 5.4 to 5.7 of the NDIS Access Rules explain when a condition can be assessed to be ‘permanent’:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Section 27(b) of the NDIS Act also provides that the NDIS Access Rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments result in ‘substantially reduced functional capacity’ of a person to undertake one or more activities for the purpose of section 24(1)(c) of the NDIS Act.
Specifically, rule 5.8 of the NDIS Access Rules elaborates upon when an impairment is taken to have resulted in a ‘substantially reduced functional capacity’ to undertake any one or more of the relevant activities in relation to section 24(1)(c) of the NDIS Act and provides as follows:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
The objects of the NDIS Act are set out in section 3. These include giving effect to international treaty obligations; supporting the independence and social and economic participation of people with a disability; and providing reasonable and necessary supports for participants. Section 4 sets out general principles guiding actions under the NDIS Act. These include that people with disability have the same rights as other members of society to realise their potential and should be supported to participate in and contribute to social and economic life to the extent of their ability. They should also have certainty that they will receive the care and support that they need over their lifetime. The Tribunal has considered the objects and general principles of the NDIS Act in making its decision.
The NDIA has issued Operational Guidelines including in relation to the access criteria under the Act (Operational Guidelines). The Operational Guidelines are published on the NDIA’s website.[5] The way they are written has changed significantly over time to make them more user friendly for potential applicants and participants in the NDIS, but the important parts of the content have not been greatly altered. The Tribunal also had regard to the Operational Guidelines in coming to its decision.
[5] ‘Our Guidelines: How we make decisions’, 30 October 2023,
The Tribunal had before it a joint tender bundle (JTB) which contained almost all the documents lodged by both parties. This was taken into evidence (Exhibit 1).
The Respondent had also provided a Statement of Facts, Issues and Contentions (SFIC) dated 26 June 2023 to which it requested the Tribunal have regard. This was taken into evidence (Exhibit 2).
In addition, there were several documents which had not appeared in the JTB and which were annexures to the report of the independent expert pain management physician, Dr Parikh. These were also taken into evidence and comprise three documents completed by Mr Krasniqi at the time of his consultation with Dr Parikh – a Depression Anxiety Stress Scale (DASS) (Exhibit 3); a Brief Pain Inventory (Short Form) (Exhibit 4); and a Pain Catastrophising Scale (Exhibit 5); and a report by the Agency for Clinical Innovation, Pain Management Programs – Which patient for which program? (Exhibit 6).
Mr Krasniqi gave evidence but did not call any other witnesses. After giving his evidence-in-chief he advised the Tribunal that he was unable to continue with the hearing. Mr Krasniqi explained that he was moving house and the removalists had arrived. He indicated that he would not be able to be available for cross-examination or present for the evidence of the independent experts which had been scheduled to be heard that afternoon and the following morning, but he was content for the proceedings to continue in his absence. Mr Krasniqi had not previously advised the Tribunal of his unavailability.
As the Applicant was unrepresented, both the Tribunal and the Respondent had significant concerns about continuing the hearing. The Tribunal advised that as a last resort it could take evidence from the independent experts and provide Mr Krasniqi with a transcript for him to respond to that evidence before making a decision. Mr Krasniqi advised that he did not wish to be further involved in the proceedings.
The Tribunal offered Mr Krasniqi the option of withdrawing his application in writing. Mr Krasniqi did not wish to withdraw his application but did want the Tribunal to make a decision. The Tribunal considered whether the matter should be deemed to have been dismissed under section 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that Mr Krasniqi had discontinued his application to the Tribunal. It could not form a view that Mr Krasniqi had withdrawn or discontinued his application, as he had attended the hearing and given evidence, and explained that he did want a decision to be made.
After a brief adjournment to take instructions, the Respondent agreed for the matter to be determined based on the evidence before the Tribunal. The Tribunal was satisfied that the issues for determination in this matter could be adequately determined in the absence of further evidence. The Tribunal therefore made directions in relation to the lodgement of final submissions by both parties, after which it proceeded to determine the matter.
The Tribunal noted that the evidence Mr Krasniqi gave at hearing was not tested in cross-examination.
On 11 December 2023, Mr Krasniqi advised the Tribunal that he did not wish to provide any further evidence. The Respondent provided closing submissions in writing on 21 December 2023.
ISSUES BEFORE THE TRIBUNAL
In making the access decision in Mr Krasniqi’s case, the Agency decided that Mr Krasniqi met the criteria in section 24(1)(a) of the NDIS Act, as having a disability attributable to CRPS.[6] The Agency did not accept that Mr Krasniqi has a substantial functional impairment as a result of this disability. The decision-maker accepted that Mr Krasniqi completes tasks differently or more slowly than other people but was not satisfied that he could not do so without disability specific supports. The decision-maker was also satisfied that Mr Krasniqi did not meet the early intervention requirements.[7]
[6] Exhibit 1, 11-12.
[7] Ibid.

On internal review, the reviewer decided that Mr Krasniqi meets the criteria in section 24(1)(a) of the NDIS Act in respect of CRPS and that his disability could be considered to be permanent. The reviewer was also not satisfied that Mr Krasniqi has a substantial functional impairment as a result of his condition as he uses and benefits from a walking stick and grab rails, however these are not specialised equipment or technology but commonly used items. The reviewer was not satisfied that Mr Krasniqi will require the support of the NDIS for his lifetime or that the early intervention requirements were met.[8]
[8] Exhibit 1, 21-22.
It was common ground between the parties that Mr Krasniqi met the age requirements in section 22 and the residence requirements in section 23 at the time that he applied for access to the NDIS. In its SFIC the NDIA argued that:
(a)There is insufficient evidence to establish that Mr Krasniqi’s CRPS and persistent depressive disorder with anxious distress are permanent, or likely to be permanent – sections 24(1)(b), 25(1)(a) and (c);
(b)There is insufficient evidence to establish that Mr Krasniqi has an impairment from irritable bowel syndrome – section 24(1)(a);
(c)Mr Krasniqi does not have a substantially reduced functional capacity in any of the relevant domains – section 24(1)(c);
(d)Mr Krasniqi is not likely to require the support of the NDIS for his lifetime – section 24(1)(e);
(e)There is no evidence that there is any form of early intervention treatment which would benefit Mr Krasniqi and reduce future needs for support - section 25(1)(b); and
(f)Support for Mr Krasniqi’s conditions is not most appropriately provided through the NDIS – section 25(3).
Mr Krasniqi contended that his chronic pain and level of disability are permanent and cause him to have a substantially reduced functional capacity in the domain of mobility. He also states that his ability to undertake household chores, self-care and socialise are affected by his impairments.
For the reasons set out below, the Tribunal finds that the evidence does not establish that Mr Krasniqi’s CRPS is permanent, or likely to be permanent. It also finds that the evidence does not establish that Mr Krasniqi’s gastrointestinal issues and persistent depressive disorder with anxious distress are permanent, or likely to be permanent.
The Tribunal is also not satisfied that Mr Krasniqi has a substantially reduced functional capacity in at least one of the relevant functional domains. This means that the requirements of section 24 of the NDIS Act for access to the NDIS are not met.
The Tribunal cannot find that Mr Krasniqi meets the requirements for entry to the NDIS under the early intervention pathway. He does not meet any of the criteria for access to the NDIS.
FACTS
The medical evidence
Diagnoses
The medical evidence put before the Tribunal about the treatment and history of Mr Krasniqi’s medical conditions covers a significant period of time. In summary, these documents show that Mr Krasniqi had a complex fracture and repair of his left foot and ankle. He has a confirmed diagnosis of cool CRPS affecting his left foot and ankle.[9]
[9] Exhibit 1, report of Dr Benjamin Manion, pain management registrar, 7 August 2019, 42.
The medical evidence also establishes that Mr Krasniqi has a diagnosis of persistent depressive disorder with anxious distress.[10]
[10] Exhibit 1, report of Rosemary Stone, clinical psychologist, 2 September 2019, 45.
The available evidence indicates that Mr Krasniqi has long-standing gut problems which are exacerbated by diet.[11] While Mr Krasniqi has indicated that he suffers from IBS and states that he is intolerant to sugar, gluten and lactose,[12] there is no diagnosis of specific intolerances or allergies in the medical documents presented. Dr Nicholas Mabarrack stated he has been treating Mr Krasniqi for IBS since 20 July 2021 but does not give any information about how this condition was diagnosed, or by whom. The report on Mr Krasniqi’s gut flora provided by an organisation called VIOME specifically states that ‘the information on this report is for educational and informational use only. The information is not intended to be used by the customer for any diagnostic purpose and is not a substitute for professional medical advice.’[13]
[11] Exhibit 1, Gut Intelligence Report by VIOME, 4 September 2020, 139; Report of Dr Benjamin Manion, 7 August 2019, 42; Report of Dr Nicholas Mabarrack, 23 February 2023, 183.
[12] Exhibit 1, NDIS Access Request Form, 11 November 2019, 50.
[13] Exhibit 1, Gut Intelligence Report by VIOME, 4 September 2020, 140.
CRPS
It is agreed between the parties that Mr Krasniqi does have an impairment from CRPS, although it appears that there is some disagreement about the nature of this impairment. The Respondent says that this impairment is an ‘altered gait pattern’.[14] Mr Krasniqi indicates that his impairments are pain, swelling, intolerance to touch and pressure (such as weight bearing), and intolerance to heat.[15]
[14] Exhibit 2, RSFIC, [27].
[15] Exhibit 1, report of Ms Tiffany Hayes, 191.
In NVRY and National Disability Insurance Agency [2023] AATA 1019 at [13], the Tribunal noted that the ‘impairment’ attributable to a disability needs to be identified with some precision. In this case, the Tribunal is not satisfied that identifying Mr Krasniqi’s impairment as an altered gait pattern is sufficiently precise. It is not simply Mr Krasniqi’s gait which is affected by his CRPS. It is also his tolerance for walking, standing, sitting without his left foot elevated, and changes in temperature. It is more precisely considered to be pain and abnormal sensation, one of the consequences of which is an altered gait pattern.
Treatments Undertaken
The evidence before the Tribunal shows that Mr Krasniqi has been treated for fractures by having two surgeries, one in 2010 involving pins and plate; and a second in 2017 which attempted to fuse his ankle joint.[16] This second surgery was undertaken on the advice of Dr Ulrich Dorgelah, an orthopaedic surgeon.[17]The ankle fusion has not been a complete success and Mr Krasniqi has also developed severe arthritis in the foot and ankle.[18] The Tribunal noted that in 2018 Mr Krasniqi was assessed as genuinely unable to work due to his orthopaedic injuries and advised to try rehabilitation to improve his quality of life.[19]
[16] Exhibit 1, report of Dr Victor Tun, 24 January 2017, 24; CT scan, 24 July 2019, 38
[17] Exhibit 1, report of Dr Ulrich Dorgeloh, Orthopaedic Surgeon, 17 May 2016, 123.
[18] Exhibit 1, report of Dr Victor Tun, 24 January 2017, 24; CT scan, 24 July 2019, 38.
[19] Exhibit 1, report of Dr Alexy Borschch, Orthopaedic registrar, 5 June 2018, 26.
Mr Krasniqi has also been treated with pain medication including opioids. He does not presently take opioid medication as he is now on the medicinal cannabis program. His prescriber, Dr Mabarrack, states that Mr Krasniqi manages his pain adequately with a combination of paracetamol, ibuprofen and medical cannabis.[20]
[20] Exhibit 1, Report of Dr Nicholas Mabarrack, 23 February 2023, 183.
Mr Krasniqi attended a multidisciplinary pain management clinic at the Royal Brisbane and Women’s Hospital in 2019, with his first consultation being on 2 August 2019.[21] This program first trialled the use of lidocaine and capsicain creams. Mr Krasniqi’s evidence is that this made his pain worse. He also had a nerve block, which was unsuccessful.[22] Although he was referred to the outpatient LIFE pain management program,[23] there is no evidence before the Tribunal to indicate that Mr Krasniqi engaged in this program, completed it, and what the results were. Mr Krasniqi’s evidence at hearing was that when he made enquiries with the hospital about an intensive pain management program, he was advised that it did not offer one. Dr Parikh has indicated that the outpatient LIFE pain management program would have been suitable for Mr Krasniqi. The Tribunal noted that the Respondent issued summons on the Royal Brisbane and Women’s Hospital and there are no notes provided from this service to indicate that Mr Krasniqi engaged in such a program. The Tribunal cannot find that Mr Krasniqi has completed a pain management program, although he has engaged with a pain management service.
[21] Exhibit 1, report of Dr Benjamin Manion, pain management registrar, 7 August 2019, 42; report of Dr Nikunj Parikh, 20 February 2023, 223.
[22] Exhibit 1, report of Dr Raymond Gadd, 2 January 2020, 61.
[23] Exhibit 1, report of Dr Benjamin Manion, pain management registrar, 7 August 2019, 42.
Mr Krasniqi uses a walking stick and a compression garment on his left leg. In September 2019 it was noted that he had developed a mood disorder secondary to lifestyle changes and was also demonstrating tolerance of and dependence on opioid medication. At that time, it was noted that Mr Krasniqi was well served by Allied Health supports provided through the health system.[24]
[24] Exhibit 1, report of Dr Benjamin Manion, 21 September 2019, 51.
There is evidence that Mr Krasniqi has engaged in physiotherapy for up to ten sessions per year under a care plan provided by his GP. He has also trialled the use of a TENS machine, which gave him some relief.[25] Mr Krasniqi told the Tribunal that he has not investigated the possibility of purchasing a small personal TENS machine as the physiotherapist told him that such machines are expensive. He was referred for orthotics, but the original pair were not comfortable and could not have been modified without expense, so he did not persist with their use. Mr Krasniqi said that he has not attended hydrotherapy or seen an occupational therapist despite being advised to do so.
Treatment which has not been fully engaged in - CRPS
[25] Exhibit 1, report of Dr Nikunj Parikh, 20 February 2023, 227.
There is no evidence that Mr Krasniqi has engaged in a specialist pain management program, as opposed to simply attending consultations at a pain management clinic; accessed hydrotherapy or occupational therapy or had properly fitted orthotics. Both the independent expert reports indicate that these options should be trialled before determining the permanence of Mr Krasniqi’s impairments.[26] Ms Hayes, the independent occupational therapist, was of the view that properly fitted orthotics may assist Mr Krasniqi and that his current choice of footwear, being thongs, are known to contribute to foot pain due to the biomechanics involved.[27] Ms Hayes also noted that Mr Krasniqi had only had limited engagement with several appropriate therapies and would also benefit from some commonly used items such as a nonslip bath mat, shower stool and kitchen perching stool.[28]
[26] Exhibit 1, report of Ms Tiffany Hayes, 28 November 2022, 218-219; report of Dr Nikunj Parikh, 20 February 2023, 231-232.
[27] Exhibit 1, report of Ms Tiffany Hayes, 28 November 2022, 218.
[28] Ibid, 219.
Dr Parikh is of the opinion that Mr Krasniqi requires further treatment in the form of an intensive pain management program. He specifically references the LIFE program to which Dr Manion says that Mr Krasniqi was referred in 2019 but has not undertaken. Dr Parikh states that this ‘is a high intensity pain management program which may help him address the multiple contributors that affect his pain and his function.’ [29] He is also of the view that there should be changes to Mr Krasniqi’s medication and that Mr Krasniqi should engage in hydrotherapy and the use of a TENS machine.[30] Dr Parikh was of the view that as part of a pain management program or separately Mr Krasniqi should have sessions with a clinical psychologist, ‘as the significant psychosocial contributors to his predicament had not been addressed’. He suggests that a six-month program would have an expected outcome of functional improvement, with a possible reduction in Mr Krasniqi’s pain levels.[31]
IBS
[29] Exhibit 1, report of Dr Nikunj Parikh, 20 February 2023, 231.
[30] Ibid.
[31] Exhibit 1, report of Dr Nikunj Parikh, 20 February 2023, 231-232.
The Respondent acknowledges that Mr Krasniqi may have impairments to his digestive or bowel functions such as reflux, vomiting and diarrhoea.[32] Mr Krasniqi says that he has irritable bowel syndrome and that he has ‘leaky gut’ which means that he cannot have certain foods and is required to follow a restricted diet.[33]
Treatment - IBS
[32] Exhibit 2, RSFIC, [35].
[33] Exhibit 1, Mr Krasniqi's answers to targeted questions, 23 January 2022, 134.
Mr Krasniqi says that he has had an endoscopy and colonoscopy and has been advised that he is intolerant to sugar, gluten and lactose. The Tribunal does not have before it any reports about the results of the endoscopy or colonoscopy or the biopsies that were undertaken. It does have before it the report from VIOME. A report from Dr Nicholas Mabarrack, dated 23 February 2023, says that he has been treating Mr Krasniqi since 20 July 2021 for CRPS, anxiety and IBS.[34] On that basis, the Tribunal accepts that Mr Krasniqi has a diagnosis of IBS although it cannot be certain how this came about or what the specific implications are for him medically and functionally. In his report, Dr Mabarrack states that: ‘he has undertaken dietary changes, increased fibre, exercise, with benefit. He used Biome feces testing, which recommended dietary changes that made a big change to his IBS although he still has some symptoms.’[35]
[34] Exhibit 1, Report of Dr Nicholas Mabarrack, 23 February 2023, 183.
[35] Ibid.
Mr Krasniqi has in the past been prescribed Somac 40mg for reflux. It does not appear on his current list of medications.[36] In his own statement, Mr Krasniqi’s indicated that he cannot stand for long enough to make the special meals that he requires for his gut, although his ‘stomach pain is now under control’ since his Viome report.[37] At hearing he advised that he no longer takes medication for reflux and has not experienced vomiting for some time. He agreed with Dr Mabarrack that dietary changes have greatly improved his IBS.
Treatment - persistent depressive disorder with anxious distress
[36] Ibid.
[37] Exhibit 1, Mr Krasniqi’s answers to targeted questions, 23 January 2022, 134.
The report from, Ms Rosemary Stone, clinical psychologist, stated Mr Krasniqi attended for an initial session on 30 August 2019. His goal was to receive a report for his claim for disability support pension, not treatment. It enumerates the events of Mr Krasniqi’s childhood, which would have been extremely traumatic and distressing for him. It states that he was diagnosed with depression by a GP at the age of 19 years and has alternated between the use of antidepressants and marijuana since that time. Mr Krasniqi’s scores on a DASS questionnaire scored in the extremely severe range for anxiety, depression and tension/stress. Ms Stone gives the opinion that this indicates a severe level of symptoms for both depression and anxiety. This report says that Mr Krasniqi intends treatment for this condition in the future.[38]
[38] Exhibit 1, report of Rosemary Stone, 2 September 2019, 45-46.
At hearing, Mr Krasniqi advised that he had not undertaken any further treatment for his psychological condition, and he no longer takes antidepressants.
The evidence before the Tribunal indicates that Mr Krasniqi did not seek further psychiatric or psychological treatment or recommence antidepressants, although he requires it. The Tribunal noted the opinion of Dr Parikh that Mr Krasniqi’s functional impairment and perception of pain from his CRPS are likely impacted by his psychosocial contributors.
CONSIDERATION
Are any of Mr Krasniqi’s impairments ‘permanent’ or likely to be ‘permanent’ for the purpose of section 24 of the Act?
The evidence before the Tribunal indicates that Mr Krasniqi has CRPS, irritable bowel syndrome and persistent depressive disorder with anxious distress.
CRPS
Both Dr Parikh and Ms Hayes indicate that Mr Krasniqi has not yet had the right treatment for the functional impairments associated with his CRPS. He has not attended an intensive pain management program, has not had properly fitted orthotics, has not persisted with the use of a TENS machine, has not engaged in hydrotherapy or occupational therapy and has not had any sort of psychology treatment aimed at reducing his perception and tolerance of pain.
Rule 5.4 outlines that an impairment is only permanent, or likely to be permanent if there are ‘no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.’
The word ‘remedy’ is understood to mean something approaching a removal or cure of the impairment.[39] In this case, Mr Krasniqi has a functional impairment of his foot and ankle, as it does not move as completely as normal joints as a result of his injury and subsequent surgeries. It is unclear how significant this part of his impairment is. The bulk of his impairment appears to be caused by CRPS and the pain; intolerance to pressure, weight bearing and touch; temperature change and swelling. It is this CRPS for which Mr Krasniqi has sought access to the NDIS, not the loss of range of movement in his joints. In this case, there are a number of known, available and appropriate evidence-based treatments that are likely to remedy Mr Krasniqi’s CRPS. These include an intensive pain management program, orthotics and better footwear, hydrotherapy, occupational therapy, the use of a TENS machine and psychological counselling. While these treatments may not remedy the impairment caused by CRPS in Mr Krasniqi’s particular case, this cannot be known until they have all been appropriately trialled and the results considered.
[39] National Disability Insurance Agency v Davis [2022] FCA 1002 ('Davis'), [136].
In the absence of evidence that Mr Krasniqi has fully engaged in all these treatments, and they have not remedied his condition, the Tribunal is unable to form a view that Mr Krasniqi’s CRPS is a permanent medical condition for the purpose of the NDIS Act.
The Tribunal finds that Mr Krasniqi’s CRPS is not permanent for the purpose of section 24(1)(b) of the Act.
Even if the condition was considered to be permanent, the Tribunal could not find that this condition causes Mr Krasniqi a substantial functional impairment in mobility, as required by section 24(1)(c). While Mr Krasniqi is certainly impaired in his mobility, he is able to walk and drive and is presently living alone and managing the activities of daily living, albeit at a slower pace than other people, or at a reduced frequency and with some difficulty. The evidence presented is that Mr Krasniqi can still walk 200 metres, even in inappropriate footwear and without having fully engaged in the above treatments. His capacity is much greater than in many other cases in which a substantial functional impairment has been found (such as in Holmes and National Disability Insurance Agency[40]).
[40] [2017] AATA 2750.
The Tribunal is required to consider all of the tasks which comprise the functional domain of mobility, to make a functional, practical assessment of what a person can and cannot do.[41] This may be quite different from what they actually do. In Mr Krasniqi’s case he appears to limit his activity to reduce his pain, but if the pain was better managed using the treatments he has not presently accessed, he may be willing to do more. Ms Hayes’ report says that her professional assessment indicates that Mr Krasniqi has reduced function within mobility which is exacerbated by his financial strain in not being able to afford taxis or rideshare services. He avoids mobilising where possible. She further observed that ‘[h]is reported and observed mobility appears to be self-limited due to fear of exacerbating his pain. Such self-limiting beliefs, presented through inconsistencies in his self-reported lifting capacity, sitting tolerance and ability to mobilise on unsealed terrains.’[42]
[41] National Disability Insurance Agency v Foster [2023] FCAFC 11, [64].
[42] Exhibit 1, report of Ms Tiffany Hayes, 28 November 2022, 189.

The Tribunal finds that Mr Krasniqi’s impairments from CRPS are not permanent for the purpose of sections 24(1)(b) of the Act. As this is not a permanent impairment, he does not meet the disability requirements for access to the NDIS on the basis of these impairments.
Irritable Bowel Syndrome
Mr Krasniqi clearly has impairments of his gut. Dr Mabarrack says that he continues to experience some symptoms of IBS, although he has undertaken dietary changes and increased fibre and exercise. Dr Mabarrack says that these changes have made a ‘big change’ to Mr Krasniqi’s IBS.[43] Mr Krasniqi’s current list of medications do not include any medications for the management of his gut related symptoms.
[43] Exhibit 1, Report of Dr Nicholas Mabarrack, 23 February 2023, 183.
The Tribunal does not have before it any reports of a gastroenterologist or other specialist to confirm that Mr Krasniqi has IBS. Mr Krasniqi reported that to be the case when he attended the pain management clinic, and it is recorded in his notes from there.[44] Dr Mabarrack is also aware of the diagnosis,[45] but it is unclear whether this information came from Mr Krasniqi himself or from a medical specialist. The Tribunal must approach this diagnosis with some caution. Nonetheless, the Tribunal was satisfied based on the evidence before it, that even if Mr Krasniqi’s IBS was considered to be a permanent condition, there is no evidence that it causes him a substantially reduced functional capacity in the activity of self-care.
[44] Exhibit 1, Report of Dr Benjamin Manion, pain management registrar, 7 August 2019, 42.
[45] Exhibit 1, Report of Dr Nicholas Mabarrack, 23 February 2023, 183.
As the Tribunal cannot be satisfied that Mr Krasniqi has a substantial functional impairment from IBS for the purpose of sections 24(1)(c) of the Act, he does not meet the disability requirements for access to the NDIS based on IBS.
Persistent depressive disorder with anxious distress
Ms Stone’s report recounts a very distressing developmental history.[46] Mr Krasniqi grew up in the USA. His mother disappeared when he was five years old under ‘suspicious circumstances’. He and his younger siblings were raised by his paternal uncle and aunt. He started school one year late and had difficulties from the beginning. From the age of 11 he was expected to look after himself and from the age of 12 he commenced stealing alcohol. He also commenced using marijuana and after a vehicle theft he was placed in residential rehabilitation for nine months. According to Mr Krasniqi, he was diagnosed with depression during this admission and was treated with antidepressants. Upon leaving the program he returned to his father, who did not continue his medication. Mr Krasniqi then had an experience which led him to believe that his father had paid to have him killed. He came to Australia to live with his maternal grandparents when he was 15. He was also diagnosed with depression in Australia and took antidepressants for about two years from the age of 19. Ms Stone reports that Mr Krasniqi considers that his depression has been aggravated in the years since his injury due to the changes in his function and lifestyle. He was found to be in the ‘extremely severe range’ for depression, anxiety and stress on a DASS.
[46] Exhibit 1, report of Rosemary Stone, to September 2019, 45.
The Tribunal notes that although Ms Stone reports that Mr Krasniqi expressed an intention to undertake treatment for his mental health at some point in the future he has not actually done so. His list of current medications does not include antidepressants or mood stabilisers.
It does seem likely that Mr Krasniqi is currently significantly affected by his mental health. This in turn appears to exacerbate the symptoms he experiences from his CRPS. Nonetheless, as there is no evidence before the Tribunal that Mr Krasniqi has been appropriately treated for his psychological condition, the Tribunal is not in a position to say that this is a permanent impairment. It may be that this condition proves to be intractable and resistant to treatment, but the Tribunal simply has no evidence on which to draw such a conclusion.
While there is no formal onus of proof upon Mr Krasniqi, as the Full Court explained in Beezley v Repatriation Commission,[47] Mr Krasniqi must put forward evidence and information sufficient to satisfy the Tribunal that the relevant statutory requirements in section 24 or section 25 are met. If the Tribunal is not so satisfied, Mr Krasniqi cannot succeed (HPSC and National Disability Insurance Agency[48]). The test in Mulligan[49] requiring the Tribunal to be positively satisfied about all the criteria in section 24 cannot be fulfilled in this particular case.
[47] [2015] FCAFC 165; (2015) 150 ALD 11, [68].
[48] [2021] AATA 727, [85].
[49] Mulligan v National Disability Insurance Agency [2015] 233 FCR 201 (‘Mulligan’).
As the Tribunal cannot be satisfied that Mr Krasniqi’s CRPS, IBS and mental health impairments are permanent for the purpose of section 24(1)(b) of the Act, he does not meet the disability requirements for access to the NDIS.
Section 25 – Early Intervention Requirements
Section 25 of the Act sets out the requirements for access to the NDIS under the early intervention criteria. At the time the Agency made its internal review decision, a person met the early intervention requirements under section 25(1)(a)(i) and (ii) if the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent…
Rule 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
‘A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.’
As already discussed and determined, Mr Krasniqi’s physical impairments and mental health impairments are not permanent, or may not be permanent. The Tribunal considered the types of supports Mr Krasniqi requires and came to the view that even if his impairments were considered likely to be permanent, he would not meet the early intervention requirements. His conditions are long-standing, and the treatments Mr Krasniqi requires are for the clinical management of chronic medical and psychiatric conditions. Such clinical treatment is not the responsibility of the NDIS. The fact that he has not accessed adequate treatment through the health system so far does not mean that the NDIS must fill that gap. In Young and National Disability Insurance Agency[50] the Tribunal noted:
‘Whether or not funding is available through other general systems is not the test of whether it is most appropriately funded or provided through the NDIS. The fact that the health system does not fund entirely, or even at all, what is essentially clinical treatment, or some other form of support that is more appropriately funded through the health system, does not make it the responsibility of the NDIS.’
[50] [2014] AATA 401, [41].
The Tribunal finds that even if Mr Krasniqi’s impairments were found to be permanent, or likely to be permanent, he would not satisfy section 25(3) of the Act. Mr Krasniqi does not fulfil the early intervention requirements to enable him to become a participant of the NDIS.
CONCLUSION
The Tribunal is satisfied that Mr Krasniqi does not meet any of the requirements to access the NDIS. The Agency’s decision on internal review dated 20 September 2021 was correct.
DECISION
The decision under review is affirmed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski

...................................[SGD].....................................
Associate
Dated: 29 January 2024

Date(s) of hearing:

Date of final submissions:

23 November 2023

21 December 2023

Solicitors for the Applicant: Self-Represented

Solicitors for the Respondent: M. Pleming, of HWL Ebsworth Lawyers for the National Disability Insurance Agency