Krishna and CEO, National Disability Insurance Scheme (NDIS)
[2024] ARTA 284
•4 December 2024
Krishna and CEO, National Disability Insurance Scheme (NDIS) [2024] ARTA 284 (4 December 2024)
Decision and Reasons for Decision
Division: National Disability Insurance Scheme File Number(s): 2023/6639
Re: Adithya Krishna
APPLICANT
And CEO, National Disability Insurance Scheme
RESPONDENT
DECISION
Tribunal: Senior Member K Bean
Date: 4 December 2024
Place: Sydney
The Tribunal affirms the decision under review.
.................[SGD]..............................
Senior Member K Bean
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether applicant meets the access criteria – whether applicant meets the disability requirements – 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 – whether impairments are, or are likely to be, permanent – whether applicant meets the early intervention requirements – whether impairments are, or are likely to be, permanent – whether treatment was available – impairments not permanent -– disability and early intervention requirements not met – reviewable decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
CASES
Beezley v Repatriation Commission (2015) FCAFC 165
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
National Disability Insurance Agency v Davis [2022] FCA 1002
SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS, 14 October 2024
REASONS FOR DECISION
Senior Member K Bean 4 December 2024
INTRODUCTION
The issue before the Tribunal is whether the applicant, Mr Krishna, meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’).
Mr Krishna is a 24 year old man who lives with his parents in Blacktown, in outer metropolitan Sydney. Although he spoke to the Tribunal during the final hearing, he has been represented in the proceedings by his father, Mr Raveindran.
By application dated 10 August 2022, Mr Krisha sought access to the NDIS on the basis of Autism Spectrum Disorder (‘ASD’), Attention Deficit Hyperactivity Disorder (‘ADHD’), reduced cognitive skills and memory problems1.
On 28 June 2020, a delegate on behalf of the CEO of the National Disability Insurance Agency (‘the Agency’) decided that although Mr Krishna satisfied the age and residency access criteria, he did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act with respect to the conditions identified in the material provided, namely ASD, Cyclothymic Disorder, ADHD, Substance Dependence Disorder or Oppositional Defiance Disorder (‘ODD’).
On 7 December 2023, Mr Krishna sought internal review of the original decision pursuant to section 100 of the NDIS Act. On 4 September 2023, a different delegate affirmed the original decision.2 Mr Krishna then sought review of the internal review decision by this
1 T6.
2 T2.
Tribunal pursuant to section 103 of the NDIS Act on 7 September 2023,3 giving rise to this application.
The Tribunal held a hearing by telephone on 28 August 2024. As already mentioned, Mr Krisha was represented by his father, Mr Raveindran and his mother Mrs Krishnamurti was also in attendance. The Agency was represented by counsel, Ms Josie Dempster.
In arriving at my decision, I have considered the various documents accepted into evidence. These included a set of documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’), a Statement of Facts, Issues and Contentions prepared by the Respondent dated 6 May 2024 and various documents and submissions filed on Mr Krishna’s behalf by his father which are collated in the Applicant’s Tender Bundle (‘ATB') prepared by the Respondent. I have also had regard to communications received from Mr Raveindran after the hearing, most of which did not relate to the issues I am required to determine.
I will first outline the applicable legislative framework before identifying and addressing the issues with more precision.
LEGISLATIVE FRAMEWORK
The access criteria
To become a participant of the NDIS, an applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
3 T1.
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
There is no dispute that Mr Krishna satisfies the age and the residence requirements. What the Tribunal must decide is whether he also satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
I should note that although sections 24 and 25 have since been amended, those amendments only apply to access requests made to the Agency after 3 October 2024.4 Accordingly, I am required to apply the Act as in effect prior to 3 October 2024.
At the relevant time, section 24 of the Act stated:
(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;
4 The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024,
Schedule 1, s 126.
(iv) mobility;
(v)self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If Mr Krishna does not meet the disability requirements, the Tribunal must consider whether he meets the early intervention requirements set out in section 25 of the Act which relevantly stated:
(1). A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in Mr Krishna’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.5
Access Rules
In respect of subsection 24(1)(b) of the Act, concerning permanency of an impairment, the Access Rules provide:
5.4 An 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 I note s 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Act 2024 provides that the Rules made pursuant to s 27 remain in force.
5.5 An 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.
5.6 An 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).
5.7 If 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.
Part 6 of the Access Rules relevantly describe the early intervention requirements under section 25 of the NDIS Act as follows:
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
…
6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5 An 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 may improve.
6.6 An 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).
6.7 If 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.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.6 The relevant Operational Guideline at time of this decision is Our Guidelines – Becoming a participant – Applying to the NDIS (14 October 2024) (‘the Access Guideline’).7
For Mr Krishna to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. Mr Krishna carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.8
I will next proceed to consider whether Mr Krisha meets the relevant criteria, commencing with the disability requirements.
DISABILITY – SUBSECTION 24(1)(A)
The Agency accepts Mr Krishna meets the disability requirements in subsection 24(1)(a) with respect to the following diagnosed conditions:
(a)Cyclothymic Disorder; and
6 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
7 National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (14 October 2024)
8 For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
(b)ADHD.
However, the Agency contends the evidence does not establish that Mr Krishna suffers from ASD, ODD or Substance Dependence Disorder, or that he meets the disability requirements with respect to a right shoulder injury. Mr Krishna contends he suffers all these conditions and satisfies the disability criteria with respect to each of them. Accordingly, it is appropriate that I consider the evidence in relation to each condition and draw my own conclusions before proceeding further.
Cyclothymic Disorder
Mr Krishna saw a psychologist, Mr Sam Albassit, on 16 February 2023 in the context of criminal proceedings. In his report of the same day, Mr Albassit indicated that his assessment revealed Mr Krishna met the diagnostic criteria for Cyclothymic Disorder.9
As there is no other evidence before me which is inconsistent with that conclusion, I accept that Mr Krishna has this condition and the Agency’s concession to this effect is well founded and appropriate.
ADHD
Mr Krishna was assessed by a psychiatrist, Dr Saeed, on 23 March 2022. In his report of the same day, he indicated he considered Mr Krishna’s presentation to be consistent with ADHD, and made recommendations for treatment accordingly.10
Mr Krishna was also seen by a psychologist, Mr Lamarque, who reported on 8 June 2022 that in his opinion Mr Krishna met the criteria for Adult ADHD, as well as having “features commonly seen in people with Autism Spectrum Disorder, and high levels of negative affects including anxiety and depressed mood.”11
In his report of 16 February 2023 referred to above, Mr Albassit relevantly noted that Mr Krishna had reported being diagnosed with ADHD (and ODD) by a paediatrician when he
9 T9/92.
10 T12/14.
11 T4/45.
was six years old. Although Mr Albassit did not expressly diagnose ADHD in his report, it appears this may have been because he regarded the condition as already having been diagnosed. He stated with respect to treatment:
“It is my opinion that Mr Krishna’s receive psychiatric and psychological counselling to assist with treatment of Cyclothymic Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and for Substance Dependence.”12
As the available medical evidence is unanimously to the effect that Mr Krishna does have ADHD, I am also satisfied that he has this condition and the Agency’s concession to this effect has been appropriately made.
ASD
The evidence is more equivocal as to whether Mr Krishna has ASD.
In his report of 23 March 2022 referred to above, Dr Saeed did not refer to the possibility of Mr Krishna having ASD.
In his report of 8 June 2022, as already noted Mr Lamarque commented that Mr Krishna displayed features commonly seen in ASD, however he did not diagnose ASD.
In his report of 16 February 2023 Mr Albassit made no reference to ASD.
In July 2023, Mr Krishna was referred a psychologist, Ms Brittany Raue of Autism Spectrum Australia for an assessment. Ms Raue administered and obtained responses to various diagnostic tools before concluding that Mr Krishna did “not meet criteria for a diagnosis of autism spectrum disorder”.13 She commented that in her opinion Mr Krishna’s challenges could be best accounted for by ADHD and ODD. I note Mr Raveindran has challenged this opinion, and also provided evidence of an order being made by a tribunal requiring that the
$2,000 fee paid for the report be refunded.14 However, there is nothing before me which
12 T9/97.
13 T35/236
14 ATB/773
impugns the validity of the opinion expressed or suggests that Ms Raue subsequently resiled from it.
For completeness, I should acknowledge that Mr Krishna’s Access Request Forms were competed by his General Practitioner, Dr Clifford Ali, who stated that Mr Krishna’s main disability was “Autism Spectrum Disorder”.15 However, Dr Ali did not provide any further details as to how he arrived at this diagnosis. Noting that a General Practitioner would not be in a position to make this diagnosis in the absence of specialist input from a psychologist of psychiatrist, I do not consider this statement from Dr Ali outweighs or puts in doubt the accuracy of the specialist opinions outlined above.
As Mr Krishna has not received a diagnosis of ASD from a psychologist or psychiatrist despite the assessments undertaken, I am not satisfied that he meets the diagnostic criteria for this condition.
ODD
As referred to above, Mr Albassit obtained a history that Mr Krishna had been diagnosed with ODD as a child, and Ms Raue also referred to this condition. However, neither of these practitioners diagnosed ODD and nor did Dr Saeed or Mr Lamarque.
In these circumstances, I am not satisfied that Mr Krishna currently has the condition of ODD.
Substance Dependence Disorder
The only practitioner who has referred to this diagnosis is Mr Albassit, who referred to Mr Krishna having had Substance Dependence Disorder which was currently in remission16 with Mr Krishna having been “abstinent from the use of substances for approximately 11 months.”17
15 T6/67.
16 T9/92.
17 T9/94.
As there is no medical evidence before me to support this diagnosis, I am not satisfied Mr Krishna currently has this condition.
Right shoulder injury
The material before me indicates that on 18 December 2016, Mr Krishna suffered a right shoulder dislocation when playing cricket. On that day, he was referred to a Dr Huang for assessment of recurrent shoulder dislocations and “labral tears”.18
I understand that on 19 July 2017, Dr Huang performed a procedure described as “right shoulder arthroscopic stabilisation/labral repair on background of right shoulder instability and recurrent dislocations”. It was apparently noted in a discharge summary of 20 July 2017 that the procedure was unremarkable, and Mr Krishna was medically cleared for discharge.19
However, no evidence has been provided to indicate that Mr Krishna has ongoing shoulder problems or suffers any impairment relating to use of his right shoulder. In these circumstances, I am not satisfied that Mr Krishna has an ongoing shoulder issue capable of satisfying the relevant criteria.
Conclusions on disability
Consistently with the position taken by the Agency, I am satisfied that Mr Krishna suffers from the conditions of ADHD and Cyclothymic Disorder and has a range of impairments attributable to those conditions.
Accordingly, Mr Krishna satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the NDIS Act with respect to these impairments.
The next question is whether these disabilities are permanent.
18 Applicant’s Tender Bundle, p 42.
19 Respondent’s Statement of Facts, Issue and Contentions, [34].
PERMANENCY – SUBSECTION 24(1)(B)
As explained above, for Mr Krishna to qualify for access to the NDIS, it must be established that his relevant disabilities, being impairments attributable to ADHD and Cyclothymic Disorder, are permanent in the relevant sense.
When will an impairment be considered permanent?
In the decision of Davis20Mortimer J (as she then was) said of the meaning of “permanent” in section 24(1)(b):
[85]…In my opinion, the correct meaning of “permanent” in s 24(1)(b) is “enduring”. This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.
[86] The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
…
[130] …I explained …above my view about the correct construction of “permanent” in s 24(1)(b). The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.
In Davis, Mortimer J also observed that rules 5.4 and 5.6 were exclusionary, in the sense that they “prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in section 24(1)(b)”.21
As to the adjectives in rule 5.4, her Honour observed that:
(a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”.22
20 National Disability Insurance Agency v Davis [2022] FCA 1002 at [85-86] and [130] (“Davis”).
21 See Davis at [75] and [131]. See also [158].
22 Davis at [136].
(b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”.23
(c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”.24
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”25, and what treatment a person can afford will be relevant to this26.
In relation to whether an impairment is likely to be permanent, the Access Guideline states:
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity (s 24(3)). Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
…
We don’t fund supports to treat your impairment.
Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life. They can also help you increase your functional capacity, independence, and your ability to work, study or take part in social life.
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are (NDIS Rules rr 5.4, 6.4.)
• known and available
• appropriate for you and your impairment
• evidence-based – that is, there’s proof they are likely to be effective.
23 Davis at [137].
24 Davis at [137].
25 Davis at [138].
26 Davis at [139.
The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent (Rules rr 5.6, 6.6)
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time: Rules (rr 5.5, 6.5.)
…
Are Mr Krishna’s impairments permanent?
What are the recommended treatments for Mr Krishna’s conditions?
A number of the practitioners referred to above have made recommendations with respect to treatment that would be likely to benefit Mr Krishna.
In his letter of 23 March 2022 addressed to Mr Krishna’s GP, Dr Saeed noted Mr Krishna was trialled on pharmacotherapy for his ADHD “a long time ago” and stated “He will benefit from a trial of stimulant medication.”27 He also considered that Mr Krishna would benefit from psychotherapy with a clinical psychologist and was “likely to do well if he engages in treatment.”28
Dr Saeed went on to make a range of specific recommendations with respect to investigations, monitoring and medication, and indicated he had prescribed four medications:- Vyvnase, Clonidine, Mirtazapine and Gabapentin. He also indicated that he “Strongly recommended Adithya is referred to a clinical psychologist under a GP mental health plan for behavioural skills training, anger management, DBT and CBT”.29 He also recommended some non-pharmacological resources, and suggested Mr Krishna see him again in 8-12 weeks, or earlier if required.
27 T12/114.
28 T12/114.
29 T12/115.
In his report of 16 February 2023, Mr Albassit noted Mr Krishan had not “received any psychiatric or psychological treatment of any real significance that would have treated his chronic mental health conditions”.30 He noted cyclothymic disorder typically takes up to 18 months of intensive therapy to treat and “achieve optimal results.”31 He included in his report a treatment plan which included recommendations for an assessment by a psychiatrist, and suggested Mr Krishna go back to Dr Saeed and engage in treatment with him.
Mr Albassit also recommended pharmacotherapy including anticonvulsant and SSRI medication, CBT and intensive and ongoing psychological therapy, fortnightly consultations with his GP and ongoing treatment though Blacktown Hospital with a Mental Health Clinical Nurse Consultant.32 Mr Albassit also indicated he had offered to provide ongoing treatment to Mr Krishna in accordance with his proposed treatment plan, and Mr Krisha had agreed.33
Ms Raue also noted that Mr Krishna may benefit from therapy directed at improving his “attention and working memory skills (i.e. ADHD related difficulties).”34
The effect of all this evidence is that there are a range of treatments available which are likely to significantly improve Mr Krishna’s functioning and reduce his impairments. Therefore, a critical issue for me is the extent to which Mr Krishna has pursued and received any of these treatments.
To what extent has Mr Krishna received the recommended treatments?
Mr Krishna gave brief evidence at the hearing and each of his parents also addressed this issue during the hearing. The information each of them provided was consistent, both with one another, and with the documentary material.
In essence all the evidence before me indicates that after Mr Krishna saw Dr Saeed in March 2022, he took the medication she prescribed for him. He found this beneficial when he was taking all the medications in combination, although he complained there were
30 T9/95.
31 T9/96.
32 T9/97-98.
33 T9/98.
34 T35/249.
periods when he was only taking one of the medications and he did not find them beneficial in isolation. About 6 months later, he saw his GP and requested repeat prescriptions, however it was explained to him he would need to return to Dr Saeed, or another psychiatrist for further prescriptions for these medications. Mr Krishna indicated he did not have the time or money to keep seeing psychiatrists, and therefore did not pursue this further and simply stopped taking the medications. He also said that for the same reason had not pursued further treatment with a psychologist after seeing Mr Albassit. He confirmed currently he was not taking any prescribed medications for his mental health conditions, or receiving any other treatment, and would only visit his GP if he had a physical ailment. Both Mr Krishna’s parents also expressed the view that they did not think medication would help him. They both stated they had observed medication to have negative side effects on Mr Krishna, and did not consider that medication was “the answer” in Mr Krishna’s case.
It is clear on the evidence therefore that, although he took the recommended medication for a period of about 6 months in 2022, Mr Krishna has not fully engaged with or persisted with the treatment recommended for his conditions of ADHD or cyclothymic disorder.
Discussion as to permanency
As discussed at the hearing, the issue which arises in these circumstances is whether I can be satisfied Mr Krishna’s conditions are permanent when he has not complied with the recommendations made to him with respect to treatment. It is also relevant in this context that a number of practitioners including Dr Saeed have clearly indicated they would expect significant improvements in Mr Krishna’s degree of impairment if he was fully treated for his conditions.
As canvassed above, for me to conclude Mr Krishna’s impairments are permanent, I would need to be satisfied the criteria specified in the applicable rules have been met. In particular, it would need to be established that there was no available and appropriate medical or other treatment that would be likely to remedy the impairment, as required by rule 5.4. I would also need to conclude the impairments did not require further medical treatment and review before permanency or likely permanency could be determined (rule 5.6).
However, having regard to the evidence discussed above, I have ultimately concluded it is not possible for me to be satisfied that Mr Krishna’s impairments are necessarily permanent
in the relevant sense, given he has not received the recommended treatment for his conditions. I also consider it clear that further medical treatment and review are required before an accurate determination with respect to permanency can be made.
I fully accept the possibility that, even if his conditions were fully treated, Mr Krishna may be left with impairments which are significant and permanent. The difficulty I have on the material before me is that, until Mr Krishna undergoes the recommended treatments for the conditions he has, it remains unclear whether his current impairments are permanent and, if so, to what extent.
I should add that in reaching that conclusion, I have considered whether the treatments recommended to Mr Krishna are in fact available to him. I have had regard to Mr Krishna’s evidence with respect to this and accept that there are significant barriers and disincentives to him pursuing treatment, including the time and money involved. On the evidence I have however, I am not satisfied it can accurately be said that the relevant treatments are not available to Mr Krishna.
As I understand the position, to pursue treatment Mr Kirshna would have needed to request a mental health care plan from his GP and made further appointments to see Dr Saeed (or another psychiatrist) and Mr Albassit (or another psychologist), as well as accessing the other resources he was referred to. I accept there are financial and other barriers confronting him in pursuing this course. However, I would expect at least some of these services to have been available on a bulk-billed or subsidised basis. On the basis of Mr Krishna’s evidence, I consider there was an element of choice in his decision not to pursue further treatment, and I do not consider it can accurately be said the recommended treatments are not in fact available to him.
For these reasons, while I accept Mr Krishna suffers significant impairments as a result of his conditions of ADHD and clyclothymic disorder, I am not satisfied those impairments can currently be regarded as permanent in the required sense.
DOES MR KRISHNA MEET THE EARLY INTERVENTION REQUIREMENTS?
Having concluded that Mr Krishna does not satisfy the disability requirements in section 24, the only remaining issue is whether he satisfies the early intervention requirements in section 25.
However, as set out above, subsection 25(1)(a) relevantly specifies that to meet the early intervention requirements a person must have one or more impairments “that are, or are likely to be permanent.” Further, rules 6.4-6.7 of the Access Rules with respect to section 25 mirror rules 5.4-5.7 of the rules relating to section 24.
It necessarily follows therefore that, as Mr Krishna’s impairments are not permanent within the meaning of the Act and the Access Rules, he also does not meet the early intervention requirements contained in section 25.
CONCLUSION
As Mr Kirshna’s impairments have not been appropriately treated and are therefore not necessarily permanent, I have concluded he does not currently meet the requirements for access to the NDIS. Accordingly, I am obliged to affirm the decision under review.
DECISION
The decision under review is affirmed.
Date(s)ofhearing: 28 August 2024 AdvocatefortheApplicant:
MR R Raveindran
CounselfortheRespondent:
Ms J Dempster, Counsel
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