Lloyd and National Disability Insurance Agency (NDIS)
[2025] ARTA 2064
•9 October 2025
Lloyd and National Disability Insurance Agency (NDIS) [2025] ARTA 2064 (9 October 2025)
Applicant:Jasmine LLoyd
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/6171
Tribunal:General Member I Selley
Place:Adelaide
Date:9 October 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration, with a direction that the Applicant meets the early intervention requirements for access to the National Disability Insurance Scheme, as set out in section 25 of the National Disability Insurance Scheme Act 2013.
Statement made on 09 October 2025 at 5:00pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s21 of the NDIS Act met – whether disability requirements under s 24 of the NDIS Act met – neurological and psychosocial impairments – whether impairments are, or likely to be permanent - whether impairment results in substantially reduced functional capacity –- whether early intervention requirements under section 25 of the NDIS Act met – whether the provision of early intervention supports is likely to benefit the person - decision under review set aside
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) - s129
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes)
Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024
Administrative Review Tribunal, Common Procedures Practice Direction, April 2025T 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 (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Beezley v Repatriation Commission [2015] FCAFC
Foster v National Disability Insurance Agency [2025] ARTA 718
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Garcia Albiol and NDIA [2024] AATA 496G v Minister for Immigration and Border Protection [2018] FCA 1229
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]
Ray v National Disability Insurance Agency [2020] AATA 3452
Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607
National Disability Insurance Agency v Jones [2025] FCA 877Statement of Reasons
INTRODUCTION
The issue to be determined in this case is whether the Applicant, Ms Lloyd, should be granted access to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports.
In August 2023, the National Disability Insurance Agency (the Agency) refused Ms Lloyd’s request to access the NDIS, and she applied to the former Administrative Appeals Tribunal (AAT) to independently review the merits of the Agency’s decision. In 2024, the Administrative Review Tribunal (ART) was established to replace the AAT, the AAT was abolished, and Ms Lloyd’s application was transferred automatically to the ART[1].
[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Ms Lloyd is 24 years of age. She lives on her own in Melbourne in a unit owned by her parents[2]. She is employed part time casual in retail and has a boyfriend. Her parents and younger sister live nearby in the family home. Her parents work full time. Her mother lives with relapsing, remitting multiple sclerosis.
[2] Testimony at hearing
Ms Lloyd lives with medical conditions which impair her ability to function. They include major depressive disorder (MDD), generalised anxiety disorder (GAD) and attention deficit/hyperactivity disorder (ADHD) [3].
[3] T1A, page 7 of JTB
This decision is, in essence, about whether the impairment, being the loss or damage to Ms Lloyd’s neurological and psychological function that arises from her medical conditions, is of such nature and extent that she meets either the disability requirements in section 24 of the National Disability Insurance Scheme Act 2013 (the Act) or the early intervention requirements in section 25 of the Act.
The Tribunal recognises that Ms Lloyd has impairments that impact her daily life[4]. They impact her relationships with family members, her employment and her sense of self. Nonetheless, the Tribunal has found that Ms Lloyd’s impairments, whilst permanent or likely to be so, do not result in the substantial reduction in functional capacity that gaining lifelong access to the NDIS requires. The Tribunal is satisfied, however, there are early intervention occupational therapy supports that are likely to benefit Ms Lloyd by reducing her future need for supports.
[4] T1A, page 7 of JTB
In summary, the Tribunal has determined Ms Lloyd does not meet the disability requirements but does meet the early intervention requirements. She therefore meets the access criteria in section 21 of the Act and the decision under review is set aside.
How the Tribunal has reached this decision, including its procedure, the evidence it has reviewed, the facts it accepts and the law it has applied, are set out below.
LEGISLATION AND POLICY
The Access Criteria
To become a participant in and access the NDIS, Ms Lloyd must meet the access criteria in section 21 of the Act. This requires her to meet both the age and residence requirements in sections 22 and 23, and then either of the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the Act. It is readily accepted Ms Lloyd meets the age and residence requirements.
The Disability and Early Intervention Requirements
Sections 24 and 25 of the Act were amended after Ms Lloyd made the AAT application, however, those changes apply only to access requests made on or after 3 October 2024[5]. The Tribunal therefore applies the disability and early intervention requirements as they were immediately prior to those amendments and as quoted below.
[5] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1
In summary, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent, or likely to be permanent, and that results in substantially reduced functional capacity requiring lifetime NDIS supports[6]. Section 24 of the Act states:
[6] NDIS Access Rules, paragraph 2.5(a)
(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.
(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 NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The early intervention requirements may provide an alternative basis for meeting the access criteria where the person’s permanent, or likely permanent, impairments do not result in substantially reduced functional capacity. The early intervention requirements consider the likely trajectory and impact of a person's impairment over time, and the potential benefits of early intervention supports on the impact of the impairment on the person's functional capacity[7]. Early intervention is envisaged to be particularly but not exclusively applicable to children.
[7] NDIS Access Rules, paragraph 2.5(b)
Subsections 25(1) and 25(1A) relevantly state:
(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;
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;
(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.
(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
(d)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
NDIS Access Rules
The Tribunal must apply the mandatory instructions for interpreting sections 24 and 25 in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing whether:
·impairments are or are likely to be permanent
·any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities; and
·provision of early intervention supports is likely to benefit the person.
Judicial interpretation of the Access Criteria and Disability and Early Intervention requirements
The Tribunal must apply the relevant jurisprudence of the courts in access matters. The key principles that have been developed by the courts and are applied by the Tribunal are set out below.
The courts have said that the purpose of the access criteria and section 24(1) is to impose a series of “components and thresholds” [8] to gaining access to the NDIS. Given Ms Lloyd must satisfy every component in section 24(1), the Tribunal’s approach is to consider whether each is in turn is satisfied before progressing to the next. If she fails to satisfy one, then she cannot meet the disability requirements, and the Tribunal must turn its attention to whether Ms Lloyd meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.
[8] Mulligan v NDIA [2015] FCA 544, at [18] (Mulligan)
The courts emphasise that the central concept in an access matter is “impairment”[9]. It is not the name of a person’s disability or their medical diagnoses or conditions[10]. Impairment has been defined to involve the loss of or damage to a physical, sensory or mental function[11].
[9] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis)
[10] Davis, at [69]
[11] Mulligan, at [51]
The Tribunal must determine the permanency and severity of the applicant’s impairments and the impact on the applicant’s ability to undertake specified, multi-faceted life activities[12].
[12] Davis, at [82]
As to the requirement of permanency, which is present in both sections 24 and 25 of the Act, the courts have said “permanent” means “enduring”[13]. Further, an impairment may be enduring even if it fluctuates, or it may fluctuate, during a person‘s lifetime, in its intensity and its impact[14].
[13] Davis, at [85]
[14] Davis, at [82]
When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a high degree of precision, a functional, practical assessment of what the applicant can and cannot do[15]. The Tribunal must assess the degree to which the applicant can participate in the life activity[16]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[17]. It would be incorrect to undertake this assessment only in relation to one or a few of such tasks[18]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[19].
[15] Mulligan, at [56].
[16] Foster, at [88]
[17] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[18] Foster, at [64]-[66]
[19] Mulligan, at [55]-[56]
The term ‘substantially’ in this context carriers a “high threshold”[20]. Whether this high threshold is met should be considered with reference to the purposes of the NDIS, including that it was not intended to provide support to every person with disability, and ensuring the scheme is financially sustainable[21]. The NDIS has as its target group limited sub-categories of the total population of people with disability in Australia[22]. The Tribunal emphasises these principles in response to Mrs Lloyd’s evidence of her understanding the NDIS is available to all Australians with permanent disability. The presence of the additional requirements in sections 24(1)(c) to (e) also plainly illustrates the requirements to access the NDIS go beyond permanency.
[20] Garcia Albiol and NDIA [2024] AATA 496
[21] Foster, at [76]
[22] Foster and the NDIA [2025] ARTA 718
As to the early intervention requirements, it is s pre-condition of being able to satisfy the requirements in section 25(3) that the required early intervention supports be identified[23]. The Tribunal cannot speculate as to the early intervention supports an applicant might receive and reach views under section 25 based on hypothetical supports[24]. It follows that the evidence before the Tribunal must identify and reason in favour of the supports sought and their likelihood of reducing the applicant’s need for future supports.
[23] NDIA v Jones [2025] FCA 877, decision 31 July 2025 per Collier J (Jones), at [27]
[24] Jones, at [27]
Regarding the Tribunal’s approach to the evidence, it is required to engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, the applicant and their supports[25]. It is for an applicant to provide the Tribunal with sufficient evidence and information to persuade the Tribunal that they meet the access criteria[26]. It is for the Agency to assist the Tribunal to make the correct or preferable decision[27].
[25] Davis, at [62]
[26] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]
[27] Section 56(1), ART Act
Relevant jurisprudence concerning the Access Rules is discussed below.
NDIS Guidelines
The Tribunal must take into consideration[28], but is not bound by[29], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guideline (the Access Guideline). The Agency’s Operational Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[30].
[28] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[29] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]
[30] Applying to the NDIS (Pre-legislation changes) 14 October 2024
THE APPLICATION, ITS PROCEDURAL HISTORY AND THE DECISION UNDER REVIEW
On an unknown date, using an access request form dated 9 January 2023[31], Ms Lloyd made a request to the Agency to access the NDIS (the access request)[32].
[31] JTB, page 60
[32] JTB, page 49. The access request form is signed by Ms Lloyd on 9 January
On 27 June 2023, the Agency refused the access request[33] (the access decision). The Agency gave few reasons in the decision record. It appeared to accept Ms Lloyd has one or more impairments to which a psychosocial disability is attributable[34] though it did not define the impairments. It accepted Ms Lloyd had been diagnosed with Major Depressive Disorder (MDD) and Generalised Anxiety Disorder (GAD). The Agency did not accept, however, that Ms Lloyd’s impairments arising from those conditions are, or are likely to be permanent[35]. Accordingly, it found that Ms Lloyd did not meet either the disability or the early intervention requirements[36].
[33] JTB, page 79
[34] JTB, page 80
[35] JTB, page 80
[36] JTB, page 80
Ms Lloyd then applied to the Agency for an internal review of that decision, on 27 June 2023[37], and on 7 August 2023, the Agency again determined not to grant her access (the internal review decision)[38]. The internal review decision is the decision that is under review by the Tribunal.
[37] JTB, page 21
[38] JTB, page 21
In the internal review decision, the Agency again accepted Ms Lloyd has impairment to which a psychosocial disability is attributable[39]. In addition, it accepted Ms Lloyd’s diagnosis of ADHD and that it gives rise to a disability attributable to a neurological impairment[40]. However, it again found that none of Ms Lloyd’s impairments are or are likely to be permanent[41]. The Agency reasoned this was because, in relation to Ms Lloyd’s psychosocial impairments, and based on her psychiatrist’s opinion, “optimal treatment has not yet been achieved”[42]. It reached a similar conclusion in relation to Ms Lloyd’s neurological impairment, stating that not all available and recommended treatments had been completed to enable permanency or likely permanency to be determined[43]. It followed that Ms Lloyd could not meet the early intervention requirements either and they were not considered.
[39] JTB, page 25
[40] JTB, page 25
[41] JTB, page 25
[42] JTB, page 26
[43] JTB, page 26.
On 17 August 2023, Ms Lloyd applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision[44]. Her application had been progressing unsuccessfully through alternative dispute resolution until December 2024, when it was constituted to me for hearing and final determination. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[45].
[44] JTB, page 1
[45] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access
EVIDENCE, SUBMISSIONS AND PROCEDURE
On 7 and 11 April 2025, the Tribunal conducted a two-day hearing by Ms Teams video conferencing. Ms Lloyd represented herself with assistance and support from her mother, Mrs Marguerite (Maggie) Lloyd. The Agency was represented by Ms Stephanie Clancy as counsel and instructed by Moray & Agnew Lawyers.
Ms Lloyd and the Agency agree on the documents the Tribunal should consider in making its decision. A Joint Tender Bundle (JTB), Supplementary Tender Bundle (STB) of documents and an internal Agency technical advice (Exhibit 3) were given to the Tribunal between 2 and 4 April 2025 and admitted into evidence at the hearing. They include the documents held by the Agency at the time Ms Lloyd made the Tribunal Application, including the documents the Agency relied on in making the internal review decision, and evidence later obtained by the parties for this proceeding, including voluminous clinical records. The Tribunal was not assisted by the parties’ late filing of some 800 pages of evidence two days before the hearing and in non-compliance with its directions to file by 24 March 2025. Ms Lloyd did not comply with the Tribunal’s direction to file any new statements by 14 February 2025. The Tribunal was asked by both parties to take into consideration the complete clinical records provided to it and has done so.
On Day One of the hearing, the Tribunal heard evidence from Ms Lloyd and her treating psychiatrist, Dr James Meyer-Grieve. On Day Two, the Tribunal heard further from Ms Lloyd, and took evidence from Mrs Lloyd and Mr Elliot Mate, the occupational therapist who conducted an independent functional assessment of Ms Lloyd at the Agency’s instruction[46].
[46] JTB, page 267
Ms Lloyd relies on documents including:
·two statements by her of lived experience, dated 29 November 2024 and April 2025
·three carer impact statements by Mrs Lloyd and dated 9 January 2023 (2023 statement), 10 November 2024 (2024 statement) and April 2025 (2025 statement).
The Tribunal observes there was no written statement from Ms Lloyd in support of either the access or the internal review request.
Ms Lloyd also relies on a fourth statement by Mrs Lloyd dated simply “November 2024” titled “statement of lived experience from carer’s experience” (Mrs Lloyd’s response to Agency), written in response to questions asked of Ms Lloyd by the Agency during ADR designed to explore her functional capacity.
Ms Lloyd seeks to rely on a fifth “statement” by Mrs Lloyd, being a series of electronic comments placed on Mr Mate’s report. No printable nor readable PDF version of this document was provided to the Tribunal making the Tribunal’s task of understanding it difficult. The Tribunal has determined to give these comments little weight, as there is no discernible narrative, and it is unclear the purpose for which they were provided to the Tribunal given the directions made by the Tribunal enabling statements to be filed and the number of statements filed by Mrs Lloyd. The comments appear only to be reactions to Mr Mate’s observations.
The Tribunal observes that Mrs Lloyd overshadowed Ms Lloyd in the proceeding. If found this to be unhelpful to the Tribunal and unhelpful to Ms Lloyd. The Tribunal notes the comments of Dr Matthews in her clinical records suggesting this complex dynamic may be longstanding and driven by multiple factors. The Tribunal notes Dr Matthews’ observation during her first appointment with Ms Lloyd in 2015 that Mrs Lloyd spoke a lot for Ms Lloyd “when in fact it didn’t seem necessary”[47]. Other records describe Ms Lloyd’s reliance on Mrs Lloyd to fix things for her, to merge her identity with hers and unwillingness to accept responsibility[48].
[47] JTB, page 351
[48] JTB, pages 356-357
The Tribunal notes that Mr Lloyd, Ms Lloyd’s father and co-parent, did not give evidence in the proceeding and his views on the application are unknown.
The Tribunal notes there is no evidence from Ms Lloyd’s employers despite claims concerning Ms Lloyd’s functional and social difficulties at work and her consequently being at risk of discriminatory dismissal from employment.
The medical and clinical reports and records Ms Lloyd relies on include:
·neurological assessment report from Dr Michelle Lindsay-Dawe, Clinical Neuropsychologist, dated February 2021
·reports and treatment records from Dr James Meyer-Grieve, Child and Adolescent Psychiatrist, including reports dated November 2023, November 2024 and clinical records created during the 3-year period February 2021 to January 2024
·joint reports from Dr Meyer-Grieve and Dr Catherine Matthews, Senior Clinical Psychologist, dated November 2022 and May 2023
The Tribunal observes that Ms Lloyd has had largely enduring relationships with the practitioners below whose reports and records are before the Tribunal. The Tribunal has considered the longstanding nature of these relationships in its task of assessing the weight to be given to their evidence:
·Dr Catherine Matthews, from 2015 until the present day[49], or some 10 years.
·Dr James Meyer-Grieve, from 2020, or 5 years.
[49] JTB, pages 7, 42, 351, 670 and oral evidence
Doctors Lindsay-Dawe and Matthews did not give evidence at the hearing. The Tribunal notes that Dr Matthews remains Ms Lloyd’s treating psychologist, and that Dr Matthews did not produce or co-author a new report for the purposes of this proceeding.
The Agency relies on two reports prepared by Mr Elliot Mate. Mr Mate is the expert witness who has most closely and recently assessed Ms Lloyd’s functional capacity. He is the only independent expert to address this issue. His principal report is dated 26 June 2024 and records the findings of his assessment of Ms Lloyd in her home on 6 June 2024[50]. The Tribunal notes and accepts the report was prepared in accordance with the AAT Guideline for Expert Opinion and Evidence[51]. Mr Mate’s second and supplementary report, dated 17 February 2025, was prepared on instruction from the Agency to address comments from Dr Meyer-Grieve on Mr Mate’s first report. It was explained to the Tribunal that Exhibit 3 is an internal Agency advice addressing only Mr Mate’s supplementary report. It was accepted into evidence by the Tribunal on the basis that it is to be considered submissions only and on the Agency’s assurance that little if any weight should be given to it. Ms Lloyd had not had an opportunity to consider it in detail prior to the hearing.
[50] JTB, page 194, 196
[51] JTB, page 196
Regarding submissions, the Agency provided a pre-hearing Statement of Facts, Issues and Contentions (SFIC) dated 24 February 2025 outlining the key arguments in its case. Ms Lloyd was also invited to make pre-hearing written submissions but was not required to do so. She did not provide a dedicated document however the April statements from herself and Mrs Lloyd are acknowledged to contain argument as well as evidence. Ms and Mrs Lloyd made oral closing submissions. There was insufficient time for the Agency to make oral closing submissions within the hearing as listed. Accordingly, the Agency provided their closing submissions in writing on 24 April 2025. The Tribunal has had regard to all the materials and oral evidence before it.
As Ms Lloyd did not have legal representation, the Tribunal ensured hearing time was dedicated to her testimony. The Tribunal was flexible and as informal as the proceeding allowed and encouraged Ms Lloyd to request breaks above those scheduled as needed. Breaks were requested and provided.
THE PARTIES’ POSITIONS
Ms Lloyd claims to meet the access criteria are substantially focused on her claims to meet the disability requirements in section 24 of the Act.
Prior to the hearing, the Agency conceded the evidence demonstrates Ms Lloyd meets the permanency requirements in sections 24(1)(b)[52]. In summary, it contends Ms Lloyd meets the criteria in section 24(1)(a), (b) and (d) but not (1)(c) and (e) [53].
[52] JTB, page 332
[53] JTB, and page 338
The Agency submits that the question of whether Ms Lloyd meets the requirements of section 24(1)(c) is at the heart of the matter[54]. Practically, the key issue before the Tribunal is to assess the merits and reliability of the competing expert evidence before it. The Agency agreed with Ms Lloyd that the relevant expert evidence before the Tribunal was not limited to Mr Mate’s and included the clinical records before the Tribunal that may assist the Tribunal to determine what tasks and functions Ms Lloyd can do independently and distinguishing between what she does not do and cannot do[55].
[54] JTB, page 333
[55] Agency opening submissions
The early intervention requirements were little addressed by the parties prior to hearing.
Ms Lloyd did not make submissions to the Tribunal expressly directed to the early intervention requirements or make claims in her access request to meet the early intervention requirements[56]. At a Tribunal case management event in December 2024, Mrs Lloyd informed the Tribunal that Ms Lloyd could not pursue early intervention supports as she has received them since childhood. Whilst the Tribunal respects that position it notes that evidence was given to the Tribunal by both parties relevant to section 25 of the Act. The Tribunal does not expect an unrepresented applicant to fully understand the legal avenues and requirements relevant to her circumstances and the Tribunal considers it must assess the claims arising from the evidence before it even if not so framed by an applicant in accordance with the law.
[56] JTB, page 64
The Agency’s position is that there is insufficient evidence before the Tribunal which would enable a finding that the provision of early intervention supports is likely to benefit Ms Lloyd by reducing her future needs for supports in relation to her disability. It submits the requirements of section 25 of the Act are not met. Its more detailed contentions are addressed in the Tribunal’s consideration of whether Ms Lloyd meets the early intervention requirements below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 24(1)(a): Does Ms Lloyd have a disability that is attributable to an impairment?
Ms Lloyd claims to meet the access criteria because of impairments arising from Major Depressive Disorder (MDD), Generalised Anxiety Disorder (GAD), Attention-Deficit Hyperactivity Disorder (ADHD) and a Sensory Processing Disorder[57]. The Agency does not dispute the clinical diagnoses of GAD, MDD and ADHD and describes the resulting impairments as psychosocial[58].
[57] JTB, pages 5, 7, 12
[58] JTB, pages 4-5
In 2015, Dr Catherine Matthews diagnosed Ms Lloyd with MDD and GAD[59]. She notes Ms Lloyd exhibits “heightened states of distress”, a lack of motivation for change and Ms Lloyd being “very stuck in the thinking that others should be able to fix her problems”[60]. She notes the therapeutic focus on helping Ms Lloyd to find the motivation for change, including through pharmaceutical treatment, so Ms Lloyd can make better use of therapy[61].
[59] JTB page 671
[60] JTB, page 271
[61] JTB, page 271
In 2021, Dr Lindsay-Dawe diagnosed Ms Lloyd with ADHD-predominantly inattentive type[62]. Dr Lindsay-Dawe notes the characteristics of the diagnosis as “inattention, impulsivity, overactivity, social difficulties, difficulty with time management and variability in terms of behaviour”[63]. She concludes:
Despite difficulties with executive and attentional functioning, Jasmine is noted to have many areas of cognitive strength. These difficulties however, will have had a substantial functional impact for Jasmine. Not only has she had to work much harder than her peers, but most aspects of the day tap directly into those areas which are difficult for Jasmine[64].
[62] JTB, page 46
[63] JTB, page 719
[64] JTB, page 719
In November 2023, Dr Meyer-Grieve produced another diagnostic report in response to Ms Lloyd’s negative internal review outcome. There he provides a revised and refined opinion as to Ms Lloyd’s impairments and underlying psychiatric conditions, stating[65]:
Jasmine’s ADHD is best understood as being an acquired brain injury causing dysexecutive syndrome. Her brain injury results from intrauterine growth retardation, prematurity and a perinatal cerebral bleed resulting in hydrocephalus.
[65] JTB, page 182
Dr Meyer-Grieve’s opinion in November 2023 is that Ms Lloyd’s GAD and MDD are secondary to and underpinned by ADHD secondary to Cerebral Palsy[66].
[66] JTB, page 182.
In November 2024, Dr Meyer-Grieve produced a further report, in response to that produced by Mr Mate. He states[67]:
Jasmine has a significant and complex disability secondary to neonatal acquired brain injury… Her executive function deficits underpin her chronic anxiety and mood disorders, and interact with these conditions to create a picture of extreme functional variability.
….
The nature of neonatal ABI is substantially different from discrete adult ABI … and substantially different from the standard neurodevelopmental Attentional Deficit Hyperactivity Disorder. Because of partial compensation occurring during development, there is clinical ambiguity not seen in adult ABI, and marked fatigue-based variability across domains of impairment.
[67] JTB, page 198
At hearing, Dr Meyer-Grieve confirmed his principal diagnosis of acquired neonatal brain injury with resultant dysexecutive disorder, explaining the relationship between Ms Lloyd’s presentations and the parts of the brain affected. He stated it was his clinical view there is a direct correlation between the cerebral bleed, hydrocephalus, premature birth and neonatal complications and the lifelong evidence of impairment for Ms Lloyd. He confirmed his opinion of there being a direct relationship between the ABI and ADHD diagnosis, noting that ADHD is a syndrome of symptoms rather than a diagnosis based on causation. Dr Meyer-Grieve retreated from his diagnosis of Cerebral Palsy, however, stating on reflection that the significant motor coordination difficulties were not present in Ms Lloyd and noting the diagnosis would have been made earlier in Ms Lloyd’s life if it were apparent. He concluded that after writing his November 2023 report:
I subsequently formed the view that conceptualising as an ABI resulting in the executive dysfunction described by the ADHD was the best way of representing the causal sequence of events.
The Tribunal accepts the Respondent’s submission that this evidence from Dr Meyer-Grieve is consistent with Dr Lindsay-Dawe’s 2021 assessment of Ms Lloyd’s impairments[68]. Dr Lindsay-Dawe also diagnosed impairments in attention and executive function by observing and deducing deficits in working memory, attention, processing speed, inhibition, emotional regulation, flexible thinking, and holding and weighing information in mind[69].
[68] CS, page 3
[69] JTB, pages 45-46
Dr Lindsay-Dawe reports a Sensory Processing Disorder was diagnosed at approximately eight years of age[70]. There is mention of Ms Lloyd experiencing Tics at that time, though it is unclear from this report if that was the basis for the diagnosis[71]. Although Drs Matthews and Meyer-Grieve reiterate the diagnosis in November 2022[72], the Tribunal is not on the balance of the evidence before it persuaded the diagnosis remains current and clinically distinct from the diagnoses above. It understands the evidence of Dr Meyer-Grieve at hearing to be that Ms Lloyd’s sensory sensitivities come within her ADHD diagnosis. In the Tribunal application[73] and elsewhere in her evidence, Ms Lloyd does not object to the Agency not having accepted the diagnosis in the Internal Review Decision. In their subsequent May 2023 report, Drs Matthews and Meyer-Grieve focuses on treatments since 2014 for GAD, MDD and ADHD only[74]. Dr Meyer-Grieve in his November 2023 and November 2024 does not address this diagnosis. Further, there is insufficient evidence before the Tribunal as to whether the diagnosis, even if current, is causative of impairments in addition to those discussed above.
[70] JTB, page 41
[71] JTB, page 41
[72] JTB, page 11
[73] JTB, page 5
[74] JTB, page 18
The Tribunal notes that at hearing, claims emerged concerning aggression by Ms Lloyd in the family home. Mrs Lloyd explained to the Tribunal this is why Ms Lloyd was moved out of the family home and into the investment property where she now lives. The difficulty for the Tribunal is that the claims are only euphemistically raised by Mrs Lloyd in her statements as “behavioural challenges”[75]. Ms Lloyd does not raise them and there are no claims before the Tribunal that Ms Lloyd is aggressive outside of the family home. The claims are not addressed in the medical and clinical reports before the Tribunal, particularly the evidence of Dr Meyer-Grieve, who is Ms Lloyd’s principal witness as to her diagnoses, impairments and symptoms. Further, there is evidence in the clinical notes of Dr Matthews that Ms Lloyd’s aggression is something she has control over and is the product of bad choices[76]. As there is no reliable expert and objective report before the Tribunal that speaks to whether this claimed behaviour is associated with Ms Lloyd’s accepted impairments, the Tribunal is not satisfied that it is.
[75] JTB, page 191
[76] JTB, page 365
Based on the above expert evidence, the Tribunal finds that Ms Lloyd has a neurological impairment of executive dysfunction arising from an ABI acquired at birth with symptoms of ADHD including impaired emotional regulation[77], working memory[78], processing speed, flexible thinking, holding and weighing information in mind, fatigue[79], attentional functioning[80] and sensory sensitivity. It finds Ms Lloyd has a psychosocial disability resultant from GAD and persistent MDD. It accepts Ms Lloyd’s neurological impairment underpins her psychosocial impairments of GAD and MDD, with symptoms including anxiety, fatigue and reduced motivation[81]. The impairments combined result in symptoms. Tribunal considers the impacts of these symptoms in assessing section 24(1)(c).
[77] JTB, page 41
[78] JTB, page 46
[79] JTB, page 198
[80] JTB, page 46
[81] JTB, page 46
Conclusions on disability
The Tribunal is satisfied Ms Lloyd has a disability attributable to neurological and psychosocial impairments. Accordingly, Ms Lloyd satisfies the disability criteria in section 24(1)(a) of the Act.
The next question is whether these impairments are permanent.
Section 24(1)(b): Are Ms Lloyd’s impairments permanent or likely to be permanent?
Overview and preliminary considerations
Access Rules 5.4 to 5.7 set out the mandatory criteria for determining permanency of an impairment.
·5.4 An 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.
·5.5 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.
Rules 5.4, 5.5 and 5.6 are particularly relevant in this proceeding. There is no material information before the Tribunal that Ms Lloyd’s impairments are degenerative.
The courts have said that rules 5.4 and 5.6 in practice prescribe mandatory exclusionary circumstances which, if met, require the Tribunal to conclude that the impairment is not permanent[82].
[82] Davis, at [73]-[75]
As to the adjectives in rule 5.4, Mortimer J in Davis observed:
(b)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[83]
(c)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[84]
(d)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[85]
(e)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[86].
[83] Davis, at [136]
[84] Davis, at [137]
[85] Davis, at [137]
[86] Davis, at [138]
In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence of the courts and relevantly state:
·We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
·We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
·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, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
·Generally, we’ll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
·Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy 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:
o known – the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
o available to you – we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
o appropriate for you and your impairment – we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
o evidence-based – there’s proof the treatment is likely to be effective.
·When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
·If you’re still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
·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 are likely to have a permanent impairment.
List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. The Tribunal notes that List B does not include an ABI per se but does include hydrocephalus[87]
[87] Page 36
The Tribunal notes that the focus of Rules 5.4 and 5.6 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and if so, the likely outcomes of Ms Lloyd undertaking it. These rules indicate that consideration of any treatment Ms Lloyd has had to date for his impairments is integral to these considerations. This is further emphasised by the references to the importance of information from treating professionals in the above extracts from the Access Guideline.
Assessment of permanency
Drs Matthews and Meyer-Grieve are Ms Lloyd’s primary treating professionals. Their evidence carries most weight in the assessment of permanency. As the Tribunal has noted above, these treating relationships are longstanding. Further, the summons records and oral evidence satisfy the Tribunal that Ms Lloyd has received approximately fortnightly treatment from Dr Matthews and monthly from Dr Meyer-Grieve for the duration of those relationships to date, with additional appointments to manage crises. This weighs in support of permanency. The Tribunal accepts from the evidence of both doctors that their combined treatment is both pharmacological and psychology. Their summons records indicate that the services of both are at least partially funded by Medicare[88], with Ms Lloyd attending Dr Matthews under a Mental Health Plan.
[88] JTB, age 742-743
Much of the foundational evidence in support of permanency is addressed above in the Tribunal’s determination of the impairments. The Tribunal understands that the experiences of both practitioners in treating Ms Lloyd have assisted to shape their underlying diagnoses.
Dr Lindsay-Dawe noted in November 2021 that many of Ms Lloyd’s childhood treatments were early interventions in physiotherapy, OT and speech pathology[89]. Dr Matthew’s notes in April 2015[90] that despite early milestones being delayed “she has mostly caught up and a cognitive assessment in 2009 revealed average verbal and perceptual reasoning skills, with low average working memory and processing speed”[91].
[89] JTB, page41
[90] The Tribunal considers the stated date of April 2014 to be a typographical error
[91] JTB, page 670
In their November 2022 report, Drs Matthews and Meyer-Grieve only briefly cover treatment. They also note that Ms Lloyd has engaged in various multi-disciplinary therapeutic treatments since childhood but do not elaborate[92].
[92] JTB, page 7
In their May 2023 report, Drs Matthew and Meyer-Grieve provide a detailed discussion of treatments. They note that Ms Lloyd’s multidisciplinary treatments since early childhood have not led to significant improvement[93] and opine it is unlikely Ms Lloyd’s executive dysfunction can be cured given its origins in childhood changes in brain development[94]. They note that since Dr Matthews commenced treatment that Ms Lloyd has undergone all the main evidence-based treatments for depression and anxiety[95] and that her MDD is currently in partial remission[96]. They detail medication and psychology treatments applied and reasons for their limited success and conclude that mild improvements at best are expected in her diagnosed conditions with ongoing treatment and intensive adult/carer support[97].
[93] JTB, page 15
[94] JTB, page 15
[95] JTB, page 15 to 16
[96] JTB, page 17
[97] JTB, page 18
In his November 2023 report[98], Dr Meyer-Grieve describes Ms Lloyd’s executive function deficits as chronic and severe. He opines that Ms Lloyd’s impairments are permanent and resistant to pharmacological treatment. He explains that because the “psychiatric diagnoses are secondary to Jasmine’s neuropsychiatric disorder, usual interventions will be partially effective at best, with all evidence-based best-practice interventions having been already attempted”.
[98] JTB, page 182
Dr Meyer-Grieve reaffirmed these opinions at hearing stating that the “ADHD …pharmacological interventions that are usually so successful for young people have been disappointing for Jasmine”. He affirmed that “Jasmine’s’ emotional regulation difficulties associated with this executive disorder give rise to her depression and her anxiety, which have also proved treatment resistant”. He described the evidence of Ms Lloyd’s impairment as being “lifelong”. He provided a detailed explanation at hearing of the relationship between Ms Lloyd’s executive dysfunction and her emotional dysregulation, particularly heightened and constant anxiety, enormous relational anxiety, consequential cognitive impairment, regular overwhelm and depression.
The Tribunal finds the above expert evidence to be persuasive. It accepts on the medical evidence that Ms Lloyd’s neurological and psychosocial impairments as described above are permanent. The Tribunal is satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy these impairments. It is satisfied they do not require further medical treatment or review for their permanency or likely permanency to be demonstrated.
Conclusion on permanency
The Tribunal is satisfied Ms Lloyd’s neurological and psychosocial impairments are permanent.
Accordingly, Ms Lloyd satisfies the element of permanency in the disability and early intervention requirements, in section 24(1)(b) and section 25(1)(a)(i) of the Act respectively.
Section 24(1)(c): Does Ms Lloyd have substantially reduced functional capacity in a specified life activity area?
Overview and preliminary considerations
Section 24(1)(c) requires that Ms Lloyd’s impairments result in substantially reduced functional capacity to undertake one or more of the following life activities: communication, social interaction, learning, mobility, self-care or self-management. She need only establish he experiences substantially reduced functional capacity in one life activity area[99]. The Agency contends Ms Lloyd does not have substantially reduced functional capacity in any one of these areas[100].
[99] Mulligan at [56].
[100] JTB, page 73
Given the cumulative nature of section 24, the Tribunal must answer this question only with respect to the impairments it has found to be permanent or likely to be permanent, in satisfaction of section 24(1)(b).
Rule 5.8 of the Access Rules is the only rule that applies to the assessment under section 24(1)(c). The courts have determined Rule 5.8 is a “deeming provision”[101]. It deems Ms Lloyd to meet the requirements of section 24(1)(c) if one of the three alternative scenarios stated therein applies[102]. Rule 5.8 states:
5.8 An 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.
[101] Mulligan, at [77]
[102] Mulligan, at [77]
The Tribunal must first consider in addressing each of the life activity areas whether Ms Lloyd’s circumstances are within those sections set out in one of the three alternative limbs of Rule 5.8. If they are, she will be deemed to have a substantially reduced functional capacity[103] and the requirements of section 24(1)(c) are met. If they are not, the Tribunal must go on to holistically assess whether Ms Lloyd’s functional capacity is nevertheless substantially reduced in any of the life activity areas applying the test in section 24(1)(c)[104]. The Access Guideline provides further content to the type and range of tasks and actions that comprise each life activity area. This approach has been summarised recently in Foster and NDIA[105]:
Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of “substantially reduced functional capacity”. The purpose of the Rule, in my opinion, is to enable the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. However, the Rule is not exhaustive of the circumstances in which substantially reduced functional capacity resulting from an impairment may be found. The statutory task therefore is to determine, first, if the prospective participant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, it is, second, to determine in accordance with the Act if the person otherwise has substantially reduced functional capacity in any of these life activity areas.
[103] Mulligan, at [77]
[104] Mulligan, at [76]
[105] [2025] ARTA 725, at [51]
It is helpful to reiterate the principles developed in court and Tribunal decisions about the assessment under section 24(1)(c) that are particularly relevant to Ms Lloyd’s case.
The Tribunal must assess Ms Lloyd’s functional capacity in carrying out the full range of tasks and actions that comprise each of the life activity areas[106]. Ms Lloyd cannot satisfy Rule 5.8 or section 24(1)(c) if there is only one, or only a few, tasks within the activity area that she forgoes altogether, or cannot complete without assistive technology or the assistance of another[107], or in respect of which her functional capacity is otherwise substantially reduced. As discussed below, there are some tasks for which Ms Lloyd does require a level of assistance from others to complete.
[106] Foster, at [64].
[107] Foster, at [64]
Further, that Ms Lloyd undertakes some tasks differently and more slowly that others because of her permanent impairments, does not necessarily mean she cannot participate effectively or completely in an activity area without assistance or that her functional capacity is otherwise substantially reduced[108]. As discussed below, there are tasks that Ms Lloyd does more slowly than others because of her permanent impairments.
[108] Foster, at [67]
Lastly the Tribunal’s focus must be on what Ms Lloyd cannot do, not on what Ms Lloyd does not do[109]. One of the pivotal issues in this proceeding is whether the Tribunal has sufficient, reliable evidence before it to determine, in respect of tasks or activities that are done sometimes or often for Ms Lloyd by her parents, whether that is because Ms Lloyd cannot carry out the task or activity herself due to her impairment, or for reasons unrelated to her impairment. The question of whether an applicant’s functional capacity is reduced in a particular domain must be answered only with reference to those impairments the Tribunal has defined them and accepted as permanent. In some significant part, the Tribunal’s analysis below is dedicated to exploring the reliability of such relevant evidence before it on this issue.
[109] Mulligan, at [55]-[56]
Reliability of the expert evidence
Both parties contend the Tribunal must choose between differing expert opinions. In the Tribunal’s view, the expert opinions before it come from differing engagements with Ms Lloyd and present differing methodologies and purpose. The Tribunal notes that it is not compelled to choose between expert opinions should it find them to be contradictory. It is open to the Tribunal to conclude it is unable to reconcile them and to not be satisfied that either or any should be accepted, or attribute weight to only aspects of them.
The Tribunal considers below the reliability of the various reports and of the lay evidence before it that addresses Ms Lloyd’s functional capacity.
Doctors Matthews and Meyer-Grieve Report November 2022 report
The Tribunal agrees with the Agency’s submission that care should be taken when assessing the weight to be given to the opinions of Drs Matthews and Meyer-Grieve on Ms Lloyd’s functional capacity in their November 2022 report that cannot clearly be related to the activity areas[110]. The Tribunal also accepts that less weight should be accorded to it because it focuses only on what Ms Lloyd has difficulties with, that is in terms of the legal principles, only on what she cannot do and not also on what she can do. There are, however, more serious concerns with this report.
[110] CS, page 5
Ms Lloyd confirmed at hearing that the section on Functional Impairments was drafted based on notes provided by her and by Mrs Lloyd to Dr Matthews. This is corroborated in Dr Matthews’ records dated 27 September and 18 October 2022. However, this methodology is not disclosed by Drs Matthews and Meyer-Grieve in the report itself. On its face, the report purports to be solely their own expert opinions based on their interactions with Ms Lloyd during treatment. This significantly undermines the credibility of the report. Dr Meyer-Grieve was unconvincing in his oral evidence that he had contributed to this aspect of the report based on an assessment he had conducted with Ms Lloyd and there is no record of such in his clinical notes. He gave no indication to the Tribunal that he was aware that Dr Matthews had asked Ms and Mrs Lloyd to provide her with the content on functional capacity. The Tribunal understands from his oral evidence is that he believed the content to have come from Dr Matthews and that he signed the report on the basis it was not inconsistent with his own observations of how Ms Lloyd functions.
As Dr Matthews did not give evidence, the way in which the report was compiled and the extent to which the opinions on functional impairments are to any extent hers cannot be known. That Dr Matthews turned to Ms and Mrs Lloyd for the report’s content on functional impairment causes the Tribunal to doubt the extent to which issues relating to functional impairment had arisen during her treatment of Ms Lloyd over the preceding seven years. The Tribunal is unable to identify a reliable correlation between the content of the report and Dr Matthews’ detailed clinical notes. For these reasons, the Tribunal does not give weight to this section in the report, as the author and provenance of the content is unknown.
The Tribunal understands from his oral testimony that Dr Meyer-Grieve has since refined his opinions and distanced himself from the November 2022 report.
Dr Meyer-Grieve November 2024 report
As is discussed above, the Tribunal has accepted Dr Meyer-Grieve’s diagnostic evidence and found his oral testimony of assistance in understanding the interrelationships between Ms Lloyd’s impairments and her symptoms. In so far as the Tribunal is satisfied his opinions relate to his expert assessment of Ms Lloyd within his field of clinical expertise as a psychiatrist, and are based upon her presentations, the information she has given and the diagnostic assessments undertaken in treatment sessions with him, the Tribunal gives weight to them.
The Tribunal approaches Dr Meyer-Grieve’s evidence in his November 2024 report regarding the extent of Ms Lloyd’s functional capacity with considerable caution, however. The assessment of functional capacity is not Dr Meyer-Grieve’s area of clinical expertise. The Tribunal has no clinical records of him conducting functional capacity assessments or related tests and it is unclear to the Tribunal as to from where his factual claims regarding the type, level and motivation for and outcomes of supports given to Ms Lloyd by her parents are derived. The Tribunal has reviewed Dr Meyer-Grieve’s clinical notes from which it appears Ms Lloyd was accompanied by one or both parents in approximately five treatments over the two-and-a-half-year period April 2021 to December 2023, the latter being the most recent clinical note before the Tribunal. Mrs Lloyd told the Tribunal she seldom attends these appointments. There is negligible information in these notes about the supports provided to Ms Lloyd by her parents as reported to him. The Tribunal accepts the Agency’s submissions regarding the lack of a file review of Dr Matthew’s clinical notes and the generality of his opinions further contribute to their unreliability[111].
[111] CS, page 18
The Tribunal is further satisfied that the early intervention supports of OT are most appropriately funded or provided through the NDIS and not 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.
It follows from there that Ms Lloyd meets the early intervention requirements in section 25 of the Act in relation to her neurological and psychosocial impairments.
As the Tribunal has concluded Ms Lloyd meets the requirements for access to the NDIS, it must set aside the decision under review.
DECISION
The decision under review is set aside.
Dates of hearing: 7 and 11 April 2025 Applicant: Ms J Lloyd Solicitors for the Respondent:
Counsel for the Respondent:
Mr P Snell and Mr B O’Brien, Moray and Agnew Lawyers
Ms S Clancy
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