Lozanov and National Disability Insurance Agency (NDIS)

[2025] ARTA 2216

Lozanov and National Disability Insurance Agency (NDIS) [2025] ARTA 2216 (17 October 2025)

Applicant/s:  Victor Lozanov

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/3395

Tribunal:Senior Member S Webb

Place:Canberra

Date:17 October 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 17 October 2025 at 10:18am

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – request for access – access criteria – disability requirements – disability attributable to physical and sensory impairment – psychosocial disability attributable to impairment – neuromusculoskeletal impairment – pain – impairment of joint range of motion and stability – no treatment ‘likely to remedy impairment’ – reduced functional capacity not substantial – disability requirements and early intervention requirements not met – decision affirmed

Legislation

National Disability Insurance Scheme Act 2013, ss 3, 4, 17A, 20, 21, 24, 25, 34
National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Beezley v Repatriation Commission [2015] FCAFC 165
Davis v National Disability Insurance Agency [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Lampard [2025] FCAFC 139

Mulligan v National Disability Insurance Agency [2015] FCA 544

Statement of Reasons

1. Victor Lozanov made a request to become a participant in the National Disability Insurance Scheme (NDIS). A delegate of the CEO of the National Disability Insurance Agency (NDIA) refused the request. This decision was confirmed by an NDIA reviewer. Mr Lozanov lodged an application for review of this decision by the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (AAT Act).

2. The AAT Act was repealed and the Administrative Review Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal is authorised to complete the review. By the combined operation of s 103 of the National Disability Insurance Scheme Act 2013 (NDIS Act) and s 12 of the ART Act, the Tribunal has jurisdiction and power to conduct this review.

3. The access request is to be decided under the NDIS Act. While the AAT proceedings were on foot, the ‘access criteria’ in Part 1, Chapter 3 of the NDIS Act were amended by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Act). The amendments had effect on 3 October 2024. There is no dispute the amendments do not apply in this case.

   FACTS

4. Mr Lozanov was 64 years old when he requested access to the NDIS on 18 August 2022.[1]

   [1] Exhibit 1, T17.

5. He resides with his mother and sister in his mother’s house. The mother requires and obtains support, including from the sister who also assists Mr Lozanov.

6. On 5 June 2021, Mr Lozanov sustained injuries when he was hit by a motor vehicle while walking.[2]

   [2] Ibid, 115.

7. In the NDIS Application Form, Mr Lozanov described listed his ‘main disability’ as “osteoarthritis, mobility” and other disabilities as “Ischaemic heart disease”, “chronic anxiety”, “mobility issues” and “cervical and lumbar”.[3] His treating general practitioner, Dr Ke-Hwan Kim (Dr Kim), recorded Mr Lozanov’s disabilities as osteoarthritis, ischaemic heart disease and chronic anxiety.[4]

   [3] Ibid, 72.

   [4] Ibid, 76.

8. Dr Kim stated Mr Lozanov had previously undergone surgical treatment: coronary stenting and a lumbar back operation (laminectomy).[5]

   [5] Ibid, 77.

9. On 30 August 2022, Dr Hugh Jones, an orthopaedic surgeon, reported:

   [Mr Lozanov] has advanced osteoarthritis in both knees with varus and patella-femoral pattern with the left more significantly involved than the right knee. He has fixed flexion contracture bilaterally… His x-rays show really advanced degenerative change. Our discussion today has revolved around treatment options i.e. non-operative management … versus total knee replacement. We had a lengthy discussion about the pros and cons of knee arthroplasty which I think he is likely to come to at some stage in the not too distant future… There is no doubt that his MVA has been an exacerbating factor in deterioration of his symptoms.[6]

   [6] Ibid, 91.

10. On 19 October 2022, Dr Louise McGuigan, a rheumatologist reported Mr Lozanov has “degenerative joint disease in both knees to a lesser extent the right ankle and almost certainly has diffuse idiopathic skeletal hyperostosis and degenerative joint disease in his back”.[7]

    [7] Ibid, 100.

11. On 15 November 2022, Dr Saeed Kohan, a neurosurgeon, reported Mr Lozanov has “severe degenerative changes in his cervical spine which are chronic in nature and have developed over several decades and it is quite likely that his fall has caused exacerbation of structural components such as joints in his cervical spine that is causing his neck pain”.[8]

    [8] Ibid, 107.

12. On 17 November 2022, Associate Professor Samuel MacDessi, an orthopaedic surgeon, reported “Ultimately the only thing that is going to help [Mr Lozanov] is that of bilateral knee replacements”.[9]

    [9] Ibid, 108.

13. On 6 December 2022, Mr Lozanov underwent left knee replacement surgery.[10]

    [10] Ibid, 113.

14. On 6 February 2023, Dr Raj Anand, a rheumatologist and pain medicine specialist, reported:

    Mr Loanov [sic] predicament is multifactorial with the primary biomedical contributions suggestive of biomechanical dysfunction of the lumbosacral axial spine.

    He has biomechanical dysfunction of peripheral knee joints – knees – suggestive of osteoarthritis…

    …

    He has a moderate to severe pain related functional disability affecting sleep, mood, and social domains. Sleep dysfunction which is multifactorial due to issues with positioning related to pain, hyperarousal, environmental factors and lifestyle.

    …

    Other associated psychological issues including adjustment disorder, mood dysfunction, personality vulnerabilities are possible significant contributors which needs to be explored.[11]

    [11] Ibid, 116-117; 251-252.

15. On 20 February 2023, Mr Ivanov was admitted to the Waratah Re-Centre Day Program under his treating psychiatrist, Dr David Sturrock. The doctor referred Mr Lozanov to the Cognitive Behaviour Therapy and the Posttraumatic Distress Disorder Day Program “to address his symptoms of depression and anxiety following a motor vehicle accident in 2021”.[12]

    [12] Ibid, 120.

16. On 24 February 2023, Dr Mozghan Karimi, Mr Lozanov’s treating general practitioner, reported Mr Lozanov was “suffering from chronic severe pain in his knees, neck, lower back, right wrist and left ankle [and] depression, anxiety and lack of sleep caused by having these chronic pains which are causing difficulty in his day to day living”.[13]

    [13] Ibid, 121.

17. On 17 March 2023, Dr Karimi completed an Evidence of psychosocial disability form in which he stated in 2021 Mr Lozanov was diagnosed with depression, anxiety and PTSD which result in impairments.[14]

    [14] Ibid, 126 and 133.

18. On 17 March 2023, Dr William Sears, a spinal neurosurgeon, reported:

    [Mr Lozanov] does have marked osteoarthritic changes throughout the lumbar spine. This involves both the disc spaces and the facet joints. There is vacuum effect evident within all of the disc spaces where the discs have undergone quite marked atrophy. Spontaneous fusion of the lower thoracic spine is evident… There may be a significant degree of spinal cord compression present at the L3/4 level.[15]

    [15] Ibid, 124.

19. It was Dr Sears opinion further scans of Mr Lozanov’s thoracic spine were required to determine if there was cord compression and, if not, surgical excision of a disc bulge at the C3/4 level and fusion of the segment should be considered.[16]

    [16] Ibid, 125.

20. On 21 March 2023, Professor Con Yiannikas, a neurologist, reported Mr Lozanov’s symptoms “are due to aggravation of his lumbosacral degenerative disease following his motor vehicle accident and stenosis particularly at L3-4” and considered that other causes, such as peripheral neuropathy and peripheral nerve entrapment should be excluded.[17]

    [17] Ibid, 135-136.

21. This opinion is reinforced by Dr Kohan, who examined Mr Lozanov on 30 March 2023.[18]

    [18] Ibid, 140.

22. On 4 April 2023, Mr Lozanov consulted Dr Sears about continuing sensory disturbance in his lower limbs and difficulty with walking and balance. The doctor recommended surgical decompression of the spinal cord at C3/4 and T8/9/10 levels.[19]

    [19] Ibid, 141.

23. At or about this time, Claire Tinker, an occupational therapist employed by The Sydney Private Hospital, prepared an (undated) Occupational Therapy Functional Impact Report in support of Mr Lozanov’s application for acceptance into the NDIS.[20] Mr Tinker discussed Mr Lozanov’s medical history and related impacts on his physical and mental function. She reported:

    Mr. Lozanov is currently receiving services for cleaning twice weekly, meal preparation assistance and showering 3 times weekly through Regal Home Health.

    Prior to the motor vehicle accident Mr. Lozanov was independent with all of his PADL’s and IADL’s. He was working as a senior project officer/engineer at Sydney Trains…

    Mr Lozanov’s mental health has declined since his accident and ongoing issues with his degenerative joint disease.[21]

    [20] Ibid, T44.

    [21] Ibid, 144-145.

24. On 17 July 223, Dr Jung Sook Kim (Ms Kim), Mr Lozanov’s treating psychologist from 2015, reported Mr Lozanov’s depression and PTSD is “severe” and “His mental health problems and impairment in daily functioning is permanent and unlikely to improve in terms of his daily functioning”.[22] It was Ms Kim’s opinion “treatment options to ‘relieve’ or ‘cure’ [Mr Lozanov] has been exhausted”.[23]

    [22] Ibid, 255.

    [23] Ibid, 256.

25. On 19 October 2023, Dr Anand examined Mr Lozanov and reported his clinical findings, which included:

    1) Still has ongoing widespread pain

    2 ) Had surgeries to the neck (ACDF – C3/4)/wrist - /knee- TKJR

    a. Mild improvement in symptoms – though not specific which symptoms was better or worse.

    b. Swelling on leg.

    c. Gained weight

    d. Pain in the back of his neck – mainly right side- goes to scalp – worse after surgery.

    e. Pain in front of neck.

    3) Right wrist cortisone injection – helped – still wears wrist supports

    4) Came in with frame/ stick – struggling to manage at home- help with meal preparation/ self care three times/ week. – pay for it. Shopping – ask friends to support.

    5) Sleep – has a lot of flashbacks – pain interferes with sleep sometimes leg.

    6) Moderate to severe degree of pain related functional disability affecting all domains mainly social, recreational, sleep.

    7) …

    8) Activity impact

    a. Independent with ADLs but needing increased time and effort. Struggles with dressing/showers.

    b. Daily household activity participation reduced

    c. Sleep - Variable

    d. Hydrotherapy – twice a week – Ashfield Private.[24]

    [24] Ibid, 260-261.

26. On 18 March 2024, Ms Kim reported Mr Lozanov’s “condition has been persistent over the last 3 years”, the condition has “stabilised” and “all treatment options have been exhausted”.[25] On 3 July 2024, the psychologist reported “Mr Lozanov may benefit better from psychiatric assessment/intervention rather than psychological treatment”.[26] On 14 July 2024, Ms Kim reported Mr Lozanov “has also consulted a psychiatrist” and his “condition has stabilised at severe level”.[27]

    [25] Ibid 269.

    [26] Ibid, 271.

    [27] Ibid, 274.

27. On 28 August 2024, Dr David Sturrock, Mr Lozanov’s treating psychiatrist from November 2022, confirmed the diagnoses of moderate PTSD and Major Depression and reported Mr Lozanov has “psychological impairments”. It was the doctor’s opinion Mr Lozanov did not require other treatments, although he stated Mr Lozanov “has not has EMDR, a recognised treatment for PTSD” and “It is possible he would benefit further from EMDR”.[28]

    [28] Ibid, 282.

28. On 29 August 2024 and 27 February 2025, Dr Anand produced reports addressing Mr Lozanov’s impairments and functional capacities.[29]

    [29] Ibid, 284-298.

29. On 20 January 2025, Professor Yiannikas recommended a conservative approach to management in the context of Mr Lozanov’s persisting degenerative disease.[30]

    [30] Ibid, 317.

30. On 31 January 2025, Mateusz Miszczuk, an occupational therapist employed by Axiom Health Pty Ltd, produced an Occupational Therapy Functional Capacity Assessment report for the NDIA for the purposes of these proceedings. Mr Miszczuk undertook the assessment in Mr Lozanov’s home on 19 December 2024. Mr Miszczuk made the following recommendations[31]:

    [31] Ibid, 352-353.

OCCUPATIONAL THERAPY RECOMMENDATIONS See Section 7 for details of various community-based supports and services that may be available to meet the applicant’s needs
Recommendations for each domain have been considered in the context of maximising the applicant’s safety and independence. The emphasis of supports is to maximise applicant task participation in activities of daily living. Support worker assistance has only been recommended in instances where independence is not likely to be achieved due to the effects of the applicant’s medical conditions.
DOMAIN	Assistance required?	Recommendations
Communication See Section 5.1.1 for details	NO	Not withstanding difficulties arising from social isolation and refusal to answer questions due to frustration with the assessment process, the applicant is independent in the domain of communication and no formal support or interventions are required.
Social interaction See Section 5.1.2 for details	YES	In my opinion, the applicant has the capacity to build on his partial capacity to engage socially. In order to further improve and maximise the applicant’s functional capacity in this regard (and notwithstanding recommendations for mobility, outlined in Section 5.1.4) I support: ·    An experienced mental health support worker to support him in identifying and accessing meaningful community-based social activities ·    Occupational therapy intervention (as per Section 6.1)
Learning See Section 5.1.3 for details	NO	Not applicable. The applicant is independent in the domain of learning and no formal support or interventions are required.
Mobility See Section 5.1.4 for details	NO	The applicant has multifactorial impairments to his mobility, for which he attends weekly treatment (as per Section 3.3.2). No additional formal support or interventions are required. Though, a graded approach encouraging self- management would be required to support the applicant in meeting activity guidelines1 (see Section 5.1.5). The applicant may otherwise benefit: ·    Financially from Taxi Transport Subsidy. ·    Additionally, he may be eligible for additional community transport through My Aged Care.
Self-care See Section 5.1.5 for details	YES	Notwithstanding his mental health, impairments to the applicant’s mobility impact his capacity for self-care and domestic tasks. However, the applicant’s home care services currently meet this need. It seems unlikely that the applicant would engage in treatment designed to increase his participation in domestic tasks in the home (such as meal preparation, dishwashing and light laundry tasks). Nonetheless, the applicant would benefit from: ·    Support worker for advice around nutrition, maintaining a healthy diet ·    He may also be eligible for additional supports through My Aged Care
Self-management See Section 5.1.6 for details	NO	Notwithstanding intermittent difficulties with planning, problem solving and making decisions arising from the applicant’s mental health, the applicant otherwise demonstrates functional independence in the domain of self- management.
THERAPY AND TREATMENT RECOMMENDATIONS
Occupational therapy service provision (if applicable)	YES	Occupational therapy service provision is supported for advice and recommendations in relation to: ·    for advice regarding techniques to manage his psychological symptoms in a social context
OCCUPATIONAL THERAPY RECOMMENDATIONS See Section 7 for details of various community-based supports and services that may be available to meet the applicant’s needs
Recommendations for each domain have been considered in the context of maximising the applicant’s safety and independence. The emphasis of supports is to maximise applicant task participation in activities of daily living. Support worker assistance has only been recommended in instances where independence is not likely to be achieved due to the effects of the applicant’s medical conditions.
·    Functional education regarding energy conservation techniques, fatigue management and pacing/grading of activity ·    Support to improve and maximise independent living skills
Other medical and therapy intervention	YES	The medical evidence indicates the applicant may benefit from access to the following medical treatment and therapeutic interventions: ·    Physiotherapy (to improve knee range of motion and improve his gait) ·    Bilateral knee replacements ·    EDMR (Eye Movement Desensitisation and Reprocessing) for the treatment of PTSD ·    Multidisciplinary Pain Program I defer to medical opinion to confirm recommended treatment for the applicant and the impact such treatment may have on their functional capacity in the future.

…

QUANTUM OF SUPPORT WORKER ASSISTANCE AND DOMESTIC SUPPORT
DOMAIN / ACTIVITY	Assistance required?	Nature of assistance?	Hours	Frequency	Ratio	Average hours/week
Nature of Assistance Key SW = Support Worker. Applicant requires the direct assistance of a support worker to facilitate task completion. EMP = Employment Supports. Applicant participates in supported employment and requires support. DOM = Domestic Assistance. Commercial domestic assistance is supported. GDN = Gardening Assistance. Commercial yard and garden maintenance assistance is supported.
An experienced mental health support worker to support the applicant in identifying and accessing meaningful community-based social activities	YES	SW	1.5	Twice weekly	1:1	3.00

1. On 13 March 2025, Dr Kim issued a medical certificate stating Mr Lozanov is suffering from PTSD which requires treatment.[32]

   [32] Ibid, 299.

2. Also on 13 March 2025, Dr Anand reviewed Mr Lozanov and reported the following findings:

   Impairments

   - Mr. Lozanov has a moderate to severe pain related functional disability secondary to his joint pain affecting sleep, mood, and social domains.

   - He has restriction in joint function

   • Shoulders -

   • abduction 100 right and 110 on left

   • Restricted internal rotation both sides

   • Left Knee - swollen - flexion restricted at 95 extension normal

   • Right Knee - swollen - flexion restricted at 95 extension normal

   • Right wrist - restricted range and reduced grip strength.

   •  Neck - restricted range- minimal extension, reduced flexion and lateral rotation.

   • Left ankle – pain

   - Poor functional tolerances

   • Sitting - few minutes

   • Standing - few minutes

   • Walking - 20 minutes

   • Lying - unchanged

   - The impairments are a combination of his age-related changes which were further aggravated following his accident. It is hard to tease the contribution of each of the factors. But in combination have left Victor with significant disability

   - He has undertaken multidisciplinary treatments - physiotherapy, psychology, hydrotherapy, joint replacements, pain medications

   - He continues to have ongoing rehabilitation

   - There are no reversible treatments. A few surgeries have been proposed to right cervical and lumbar knee and wrist, but those are not curative but supportive in maintaining his function.

   - The current therapies including medications, physical and psychological therapies and interventions are directed at maintaining his daily function.[33]

   [33] Ibid, 304.

3. On 8 May 2025, Dr Anand reported:

   Management plan

   1. Advised to defer the procedure - right L5 neuroforaminal as symptoms improving to a great degree.

   2. In view of the multiple surgeries Mr. Lozanov has undertaken and limited response to current surgeries, a surgical approach to the managing his lumbar/ cervical spine has high risk of ongoing pain and disability in context of the multilevel spondylarthritic changes.

   3. Continue Norspan to 10mcg.

   4. Support ongoing therapies, both physical and psychological, are aimed at maintaining his function.

   a. His condition has stabilized, and they will be days of fluctuating symptoms.

   b. He continues to have ongoing pain.

   5. Follow up in eight weeks.

1. At or about this time, Dr Kim reported:

   [Mr Lozanov] has severe osteoarthritis affecting his entire body: neck; thoracic back; lower back; knees.

   This is permanent and will gradually get worse with time.

   There is NO cure for osteoarthritis. He’s had all the appropriate treatments including medications, cortisone injections, physiotherapy and operations to his neck, lower back and knee.

   He still has CHRONIC PAIN which is PERMANENT.[34]

   [34] Ibid, 309.

2. On 16 April 2025, Mr Lozanov underwent a guided cortisone injection to his right middle finger and right wrist joints.[35]

   [35] Ibid, 319.

3. On 16 June 2025, Professor Yiannikas suggested further cortisone injections at the C8 and L4-5 levels.[36]

   [36] Ibid, 320.

4. On 10 July 2025, Dr Sears supported further massage, physiotherapy and further image-guided steroid injections.[37]

   [37] Ibid, 322.

5. On 31 July 2025, Dr Anand reported that Mr Lozanov’s condition has stabilised, there will be days of fluctuating symptoms and Mr Lozanov continues to have ongoing pain. The doctor reported ongoing therapies are aimed at maintaining [Mr Lozanov’s] function.[38]

   [38] Ibid, 325.

   ISSUES

6. The issue for determination is whether Mr Lozanov meets the access criteria set out in s 21 of the NDIS Act.

7. It is accepted he meets the age and residence criteria in s 22 and s 23. This is so even though Mr Lozanov is presently over 65 years old, as he had not reached that age when he applied for access to the NDIS.

8. The key issue is whether Mr Lozanov meets the ‘disability requirements’ in s 24 or the ‘early intervention requirements’ in s 25.

9. The ‘disability requirements’ are in the following applicable terms:

   (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 support 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).

   Disability and impairment

10. The basis on which the threshold in s 24(1)(a) is met needs to be clearly understood. The requirement is that the person has a ‘disability’ or a ‘psychosocial disability’ which is attributable to one or more ‘impairments’. The conceptions of ‘disability’ and ‘impairment’ are separate and distinct. It is not helpful for these to be confused or conflated with medical conditions or diagnoses. In the context of s 24(1), ‘impairment’ is of central importance. The threshold in s 24 is squarely directed to the severity and permanency of the effects of impairments.[39]

    [39] National Disability Insurance Agency v Foster [2023] FCAFC 11, [46].

11. The language used in the NDIA’s Statement of Fact, Issues and Contentions exemplifies the point. In this document, the NDIA accepts Mr Lozanov has:

    … the following psychosocial impairments as a result of the conditions of PTSD, anxiety and depression, osteoarthritis, degenerative joint disease and cervical lumbar – chronic pain and fracture:

    (a)       anxiety;

    (b)       impairment of sleep functions;

    (c)       nightmares;

    (d)       flashbacks and disturbing unwanted memories;

    (e)       hyper alertness;

    (f)        negative thoughts

    (together, Psychosocial Impairments).

    … the following sensory and/or physical impairments as a result of the conditions of osteoarthritis, degenerative joint disease and cervical lumbar – chronic pain and fracture:

    (a)       pain in knees, neck/cervical spine, lower back, right wrist and left ankle;

    (b)       lower limb numbness and weakness;

    (c)impairment of the range and ease of movement of the peripheral joints (knees, ankle and right wrist), cervical spine and lumbosacral spine;

    (d)       weakness in hands;

    (e)       antalgic unsteady gait;

    (together, Sensory and Physical Impairments).[40]

    [40] Respondent’s Statement of Facts, Issues and Contentions, 9 July 2025, [21]-[22].

12. Focusing on the cause of an impairment might be relevant when determining if the impairment is, or is likely to be, permanent, but it is unlikely to assist determining if the person has disability attributable to one or more impairments for the purposes of s 24(1)(a).

13. The ‘disability requirements’ have been in effect since 2013. Over more than 10 years, they have been discussed in many decisions of the Federal Court, the AAT and this Tribunal. The central conception of ‘disability’ attributable to ‘impairment’ has been squarely discussed in binding authorities.[41] ‘Impairment’ refers to the loss of or damage to a physical, sensory or mental function.[42]

    [41] Davis v National Disability Insurance Agency [2022] FCA 1002, [101]-[118]; Mulligan v National Disability Insurance Agency [2015] FCA 544, [50]-[52].

    [42] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51].

14. On the evidence of Dr Anand, Dr Sears, Dr Karimi, Dr Kim, Dr McGuigan, Emanuel Menegakis (a physiotherapist)[43] and Alexa Calic (another physiotherapist)[44], Mr Lozanov has physical impairments involving reduced ranges of motion in his neck, cervical spine, thoracic spine, lumbosacral spine, shoulder, elbow, wrist, knee and ankle joints which cause disability. It is probable his physical impairments involve degenerative changes in body structures which result in altered motion, pain and weakness.

    [43] Ibid, T35.

    [44] Ibid, T10.

15. Adopting the World Health Organisation International Classification of Functioning Disability and Health (ICF)[45] approach to the standard classification and description of body function or body structure impairment, it is probable Mr Lozanov has impaired neuromusculoskeletal functions, involving;

    (a)muscle power functions (weakness);

    (b)mobility of joint functions (restricted range of joint motion: neck, spine, shoulder, elbow, right wrist, knees, left ankle);

    (c)stability of joint functions (joint degeneration: cervical, thoracic and lumbosacral spine, knees); and

    (d)movement functions (antalgic gait) (collectively neuromusculoskeletal impairment).

    [45] (2011), Geneva.

16. On the evidence of Dr Sturrock, Mr Lozanov has psychosocial disability attributable to impairments of psychological or mental functions including unwanted memories, flashbacks, hyper-alertness, agitation, as well as becoming easily upset and having trouble falling asleep and concentrating.[46] Ms Kim explained Mr Lozanov has difficulties with concentration, cognitive inflexibility, communicating in social settings, paranoia, agitation and becoming easily unsettled, as well as memory difficulties, difficulties absorbing or acquiring new information, and difficulty with planning.[47]

    [46] Exhibit 1, 282-283.

    [47] Ibid, 273-275.

17. Once again, adopting the ICF standard classification nomenclature, it is probable Mr Lozanov has impaired mental functions, particularly:

    (a)energy and drive functions (motivation);

    (b)sleep functions (difficulty falling asleep);

    (c)attention functions (difficulty concentrating);

    (d)memory functions (unwanted memories and flashbacks);

    (e)psychomotor functions (agitation and hyper-alertness);

    (f)emotional functions (low mood and anxiety);

    (g)thought functions (rumination and unwanted thoughts); and

    (h)higher-level cognitive functions (difficulty with planning and cognitive flexibility) (collectively mental impairment).

18. I am satisfied Mr Lozanov has disability, including psychosocial disability, attributable to these impairments.

19. Mr Lozanov has chronic pain. On the evidence of Dr Anand, it is not clear Mr Lozanov’s pain is, itself, an impairment. The doctor associates Mr Lozanov’s experience of pain with physiological changes (including degenerative, disease and age-related changes, and traumatic changes from the motor vehicle accident) and restrictive effects (in respect of ranges of motion, for example).

20. The IDF categorises pain within sensory functions. In Burrows and National Disability Insurance Agency[48] (Burrows), the Tribunal found that Ms Burrows lived with pain and the pain was ‘a loss or variation to typical body function (typical body function does not involve persistent experience of pain)’ and it was, therefore, an impairment.[49] On the facts of Ms Burrows’ case, the pain she experienced was described (at least in part) as ‘neuropathic pain’. Neuropathic pain results from damage to the somatosensory nervous system. If that is correct, the damage to her somatosensory nervous system would likely be a neurological impairment. Under the ICF classification system, this would probably be an impairment of her sensory function, consistent with the Tribunal’s finding.

    [48] [2025] ARTA 607.

    [49] Ibid, [40].

21. The evidence in Mr Lozanov’s case does not suggest he lives with neurological pain, rather the chronic pain is a response to physiological changes affecting particular joints and body parts as a result of degenerative processes stemming from disease, trauma and age.

22. Mr Lozanov’s chronic pain is not an impairment of neurological function, rather it is a debilitating sensory experience which is related to impairments of other bodily functions, affecting the motion and stability of joints for example. It is perfectly clear that Mr Lozanov’s pain adversely affects his ability to function and to undertake activities of daily life. It is possible the chronicity of his pain might be treated as an impairment in the sense of a variation of his typical body function. One would not expect chronic pain to be a typical body function. Whether or not Mr Lozanov’s chronic pain is itself an ‘impairment’, it is instrumental in and a result of neuromusculoskeletal impairments to which I have already referred, and it is a vector by which those impairments adversely affect Mr Lozanov’s ability to function.

23. I am satisfied Mr Lozanov meets the threshold in s 24(1)(a) of the NDIS Act.

    Permanent impairment

24. The next consideration is if one or more of Mr Lozanov’s impairments is, or is likely to be, ‘permanent’.

25. For the purposes of s 24(1)(b) of the NDIS Act, in reference to an ‘impairment’, ‘permanent’ has been taken to mean ‘enduring’.[50] It refers to an impairment which is not ‘likely to be removed or cured’[51]. The cause of the impairment or the diagnosis of a related medical condition is not to the point, which is squarely focussed on the enduring quality of the impairment experienced by the person.[52]

    [50] National Disability Insurance Agency v Davis [2022] FCA 1002, [85].

    [51] Ibid, [136].

    [52] Ibid, [86].

26. The applicable thresholds for determining if an impairment is permanent are set out in the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Participant Rules):

    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.

    5.5 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.

27. The word ‘remedy’ in s 5.4 of the Participant Rules has been taken to mean ‘something approaching a removal or cure of the impairment’.[53]

    [53] Davis, [136].

28. The NDIA asserts Mr Lozanov has not engaged in all relevant treatments which would be likely to remedy his neuromusculoskeletal and mental impairments. Consequently, the NDIA contends Mr Lozanov’s impairment cannot be considered permanent for the purposes of s 24(1)(b) of the NDIS Act. In the NDIA’s submission, s 5.4 of the Participant Rules cannot be met without evidence there are no known treatments that would be likely to remedy the impairment.

29. Mr Lozanov rejects this and argues his impairments are of long-standing and any treatments are for short-term symptomatic relief or to prevent further deterioration.

30. There is no formal onus on Mr Lozanov. It is for the Tribunal to apply s 5.4 of the Participant Rules and determine if it is positively satisfied there are no known treatments likely to remedy Mr Lozanov’s impairments, separately considered, on the materials placed before it. If positively satisfied, the Tribunal must then determine if the impairment is permanent for the purposes of s 24(1)(b).[54] The key point is whether there are no treatments that would be likely to remedy the impairment in the sense that the remedy does more than relieve or improve the impairment and it is something approaching a removal or cure of the impairment.[55]

    [54] National Disability Insurance Agency v Lampard [2025] FCAFC 139, [30]-[37] and [81].

    [55] Ibid [34] and [81], citing National Disability Insurance Agency v Davis [2022] FCA 1002, [136].

31. On Dr Anand’s report on 31 July 2025, following decompression surgery at the C3/4 level, a surgical approach to managing [Mr Lozanov’s] lumbar/cervical spine has a high risk of ongoing pain and disability in context of the multilevel spondylarthritic changes.[56] Dr Sears’ April 2023 recommendation of ‘surgical decompression of the spinal cord compression at C3/4 and T8/9/10’[57] should be viewed in this context, noting that the doctor did not repeat the recommendation in his 10 July 2025 report.[58] The same can be said in respect of Dr MacDessi’s discussion of Mr Lozanov undergoing a right knee replacement.[59]

    [56] Exhibit 1, 325.

    [57] Ibid, 141.

    [58] Ibid, 322.

    [59] Ibid, 114.

32. I am not persuaded that further surgical treatment of Mr Lozanov’s spine and right knee are likely to remedy his neuromusculoskeletal muscle weakness, joint mobility, joint stability and movement impairments. On Dr Anand’s evidence, such treatment would risk exacerbating his pain and disability. This might well make his impairments worse.

33. Dr Sears reported it would seem reasonable to undertake further image-guided steroid injections as well as therapeutic massage and physiotherapy for his ongoing problems with chronic neck and low back pain.[60] This is consistent with Professor Yiannikas’ recommendation of steroid injection at the L4-5 level and at the C8 level.[61] Ultrasound guided cortisone injections to Mr Lozanov’s right middle finger MCP joint and his right wrist joint were recommended.[62] On 31 July 2025, Dr Anand discussed Mr Lozanov’s ongoing treatments in respect of his knees, neck and spine. Treatments included hydrotherapy, injections to left L5 perineural and pharmacological medications.[63] On 21 December 2023, Dr Anand discussed the possibility of pulsed radio-frequency treatment but this does not appear to have been pursued.[64]

    [60] Ibid, 321; 322.

    [61] Ibid, 320.

    [62] Ibid, 319.

    [63] Ibid, 323-325.

    [64] Ibid, 264.

34. I accept Dr Anand’s evidence these treatment modalities are supportive, not curative,[65] and Dr Kim’s evidence Mr Lozanov has had all appropriate treatments including medications, cortisone injections, physiotherapy and operations to his neck, lower back and knee.[66] They are unlikely to reverse the degenerative causes of Mr Lozanov’s symptoms, although some temporary symptomatic relief might be obtained. Temporary relief of symptoms, including chronic pain, is not curative.

    [65] Ibid, 304.

    [66] Ibid, 309.

35. I am not persuaded further steroidal injections would be likely to remedy Mr Lozanov’s neuromusculoskeletal impairments and related chronic pain in his neck, lower back, knees and right upper limb.

36. I do not accept the NDIA’s assertion there is insufficient evidence to be satisfied there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mr Lozanov’s neuromusculoskeletal impairments.

37. Considering all the relevant material, I am satisfied there are no known treatments which would be likely to remedy Mr Lozanov’s neuromusculoskeletal impairments or his chronic pain. While there might be some fluctuation in the intensity of Mr Lozanov’s multiple neuromusculoskeletal joint impairments and his chronic pain, I am satisfied these impairments are permanent for the purposes of s 24(1)(b) of the NDIS Act.

38. With regard to Mr Lozanov’s mental impairments, on Ms Kim’s evidence, Mr Lozanov’s treatment options have been exhausted and his current treatment is mainly focused on preventing deterioration but not improvement in his functional capacity,[67] and his impairment is permanent and unlikely to improve for the rest of his life.[68] This is consistent with Dr Sturrock’s guarded prognosis and his statement I do not expect significant improvement and I do not believe he requires any other treatments.[69]

    [67] Ibid, 269.

    [68] Ibid, 273.

    [69] Ibid, 282.

39. Dr Sturrock observed that Mr Lozanov has not had EMDR (eye movement desensitisation and reprocessing) treatment for PTSD.[70] It was the doctor’s opinion Mr Lozanov might possibly benefit from such treatment, although he reported Mr Lozanov’s impairments from PTSD and depression are not in the early stages of their trajectories.[71] The doctor was not called to give oral evidence so the nature and extent of the possible benefit he reported cannot be tested. His evidence is not sufficient to establish EMDR treatment ‘would be likely to remedy’ Mr Lozanov’s mental impairments.

    [70] Ibid.

    [71] Ibid, 283.

40. The possibility EMDR treatment might be beneficial in the context of Mr Lozanov’s PTSD does not address the likelihood of such treatment remedying his mental impairments.

41. PTSD is one factor in Mr Lozanov’s mental impairments and his psychosocial disability. Depression is another. There is no evidence EMDR treatment would be likely to remedy Mr Lozanov’s mental impairments due to depression. Dr Sturrock referred to the possibility a different, unspecified, anti-depressant medication might be beneficial. This does not raise the prospect that any such treatment might remedy Mr Lozanov’s mental imairments.

42. The evidence of Dr Sturrock and Ms Kim does not point to known, medical, clinical or evidence-based treatments which would be likely to remedy Mr Lozanov’s mental impairments. I accept Ms Kim’s evidence treatment options have been exhausted and ongoing treatments are intended to prevent deterioration. On her evidence, I am satisfied there are no known treatments which would be likely to remedy Mr Lozanov’s mental impairments.

1. Considering the evidence as a whole, I am satisfied Mr Lozanov’s mental impairments are permanent for the purposes of s 24(1)(b) of the NDIS Act.

   Substantially reduced functional capacity

2. The next step is to determine if Mr Lozanov’s permanent neuromusculoskeletal and mental impairments result in a substantially reduced functional capacity to undertake one or more of the six activities listed in s 24(1)(c) of the NDIS Act, namely communication, social interaction, learning, mobility, self-care and self-management.

3. The term ‘substantially reduced functional capacity to undertake’ an activity is not given any special meaning.

4. This requires a functional, practical assessment of what the person can and cannot do.[72] The focus is squarely on the effect of the person’s permanent impairment on their functional capacity to undertake the activity, rather than the person’s functional performance of the activity which might be affected by a variety of incidental or extrinsic factors.[73] The thresholds set out in s 5.8 of the Participant Rules apply to the person’s functional capacity to undertake each specific activity rather than the person’s functional performance of the activity.

   [72] Mulligan v National Disability Insurance Agency [2015] FCA 544, [56].

   [73] National Disability Insurance Agency v Lampard [2025] FCAFC 139, [51].

5. When determining if the impairments result in a substantially reduced functional capacity to undertake one or more of the specified activities, each permanent impairment must be considered separately and in combination with any other permanent impairment. The focus is squarely on the person’s functional capacity to undertake each activity. This requires consideration of the overall activity. It is unlikely to be met by reference to a single task within the activity.[74]

   [74] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].

6. Section 5.8 of the Participant Rules is applicable:

   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. 

7. These rules do not exhaustively define the concept of a ‘substantially reduced functional capacity’ for the purposes of s 24(1)(c) of the NDIS Act.[75] They have a deeming effect which is, nevertheless, applicable.

   [75] Ibid, [77].

8. There is no bright dividing line between a reduction and a substantial reduction in the person’s functional capacity to undertake the specified activities. A substantially reduced functional capacity refers to a considerable or sizeable reduction in the person’s functional capacity to undertake one or more of the listed activities.

9. It is germane to refer to the ‘Applying to the NDIS’ operational guidelines issued by the NDIA (Access Guidelines) in respect of the six activity domains:

   Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

   Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

   Learning – how you learn, understand and remember new things, and practise and use new skills.

   Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.

   Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

   Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

   Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.

   These disability-specific supports include:

   -    a high level of support from other people, such as physical assistance, guidance, supervision or prompting.

   -    assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.[76]

   [76] Exhibit 1, 141-142.

10. Even though the Access Guidelines do not have the binding force of legislation, they may be adopted unless there is a good reason not to do so.

11. The NDIA relies on the Functional Capacity Assessment report of Mr Miszczuk. In the NDIA’s submission, Mr Lozanov has failed to provide sufficient evidence to enable the Tribunal to make detailed findings of what he can and cannot do in each of the 6 activity domains, without which the Tribunal cannot be positively satisfied the statutory threshold is met.[77]

    [77] Beezley v Repatriation Commission [2015] FCAFC 165, [68].

    Communication

12. Ms Kim reported Mr Lozanov has difficulties with concentration and cognitive inflexibility which affects his ability to understand and communicate in social interactions and that his communication is impeded by being paranoid, easily unsettled and agitated.[78] This is consistent with Dr Sturrock’s report Mr Lozanov “struggles to concentrate and is easily agitated in social situations.[79]

    [78] Exhibit 1, 274.

    [79] Ibid, 282.

13. Mr Miszczuk reported Mr Lozanov is independent in communication, notwithstanding difficulties arising from social isolation.[80]

    [80] Ibid, 345.

14. I am satisfied Mr Lozanov’s mental impairment reduces his capacity to engage in communication in a social situation. It is probable his communication function is adversely affected by experience of pain stemming from his neuromusculoskeletal impairments and by his mental impairments, particularly disturbed sleep, anxiety, variable mood, difficulty concentrating and acquiring new information.

15. Viewed through the lens of communication activities generally, even though Mr Lozanov has some reduction in his functional capacity to undertake communication, I am not persuaded his functional communication capacity is substantially reduced by his neuromusculoskeletal and mental impairments, or by his chronic pain, separately or in combination.

    Social interaction

16. Ms Kim reported Mr Lozanov has difficulties engaging in social activities, he is unable to maintain meaningful relationships and he tends to be withdrawn and disconnected which places him in a negative cycle.[81]

    [81] Ibid 274.

17. On the evidence of Ms Kim and Dr Sturrock, Mr Lozanov’s functional capacity to engage in social interaction is reduced by his difficulty concentrating and his tendency to become agitated in social situations.

18. On Dr Anand’s evidence it is probable severe pain affects Mr Lozanov’s sleep, mood and social domains.[82]

    [82] Ibid, 303.

19. Mr Lozanov gave evidence of his social withdrawal and the retraction of his social life and friendship group, but accepted he has made new friends with whom he communicates. By his own account he has returned to work on a part-time basis, albeit in a reduced role.

20. Consistent with Dr Sturrock’s evidence, Mr Lozanov explained he participated in Waratah Hospital out-patient group therapy sessions, although he did not consider these were helpful.

21. Mr Miszczuk reported Mr Lozanov’s mobility, psychiatric conditions, poor coping strategies and avoidant behaviours contribute to his social withdrawal and impact his capacity to engage and participate in social activities.[83]

    [83] Ibid, 346.

22. I am satisfied Mr Lozanov is socially withdrawn. In all likelihood Mr Lozanov’s functional capacity to engage in social interaction is reduced by his chronic pain and his neuromusculoskeletal impairments, particularly his difficulty mobilising. I am also satisfied, Mr Lozanov’s functional capacity to engage in social interaction is reduced by his mental impairments, particularly the vectors of anxiety, agitation, difficulty concentrating, disturbed sleep and mood, as well as the negative cycle Ms Kim referred to.

23. Nonetheless, I am satisfied Mr Lozanov’s functional capacity to undertake social interaction is not substantially reduced.

24. There is an important distinction between functional capacity to undertake social interaction activities and performance of such activities. The focus of the enquiry is squarely on functional capacity rather than performance, which might be affected by factors unrelated to impairment.[84] Even though pain-related impediments to Mr Lozanov’s performance of social interaction activity, including variable motivation and social withdrawal, are consistent with his reduced functional capacity to undertake the activity, I am not persuaded the reduction in his functional capacity to undertake social interaction is substantial or considerable.

    [84] Foster and National Disability Insurance Agency [2025] ARTA 718, [82].

25. Considered separately and in combination, I am not persuaded Mr Lozanov’s neuromusculoskeletal and mental impairments result in substantially reduced functional capacity to participate or engage in social interaction activity. I am not persuaded Mr Lozanov is unable to participate effectively or completely in social interactions without assistive technology or equipment, or that he usually requires assistance from another person to engage in social interactions.

26. The thresholds in s 5.8 of the Participant Rules are not met.

27. It follows, Mr Lozanov does not have a substantially reduced functional capacity to undertake social interaction.

    Learning

28. Mr Lozanov’s evidence suggests he experiences some difficulty learning new tasks in employment. This is consistent with the evidence of Ms Kim and Dr Sturrock that he experiences difficulty with concentration and memory. Ms Kim reported Mr Lozanov has difficulty absorbing and acquiring new information, and he needs regular reminding or prompting.[85] As Dr Sturrock observed, Mr Lozanov has not had a neuropsychological assessment.[86]

    [85] Exhibit 1, 274.

    [86] Ibid, 283.

29. Mr Miszczuk reported Mr Lozanov is independent in the domain of learning, although he noted the adverse effects of fatigue and psychological and cognitive factors on learning function.[87]

    [87] Ibid, 337, 346.

30. The relevant material is not sufficient to support a positive finding Mr Lozanov is unable to participate effectively or fully in learning activity without assistive technology or equipment, or that he usually requires assistance from other people to participate in such activity.

31. I accept Mr Lozanov experiences some difficulty with learning activity and his functional capacity to undertake such activity is reduced somewhat by his neuromusculoskeletal and mental impairments, and by his chronic pain, separately and in combination. I am not persuaded the reduction in his functional capacity to undertake the activity of learning is substantial for the purposes of s 24(1)(c)(iii).

    Mobility

32. Mr Lozanov asserts his impairments substantially impact his functional capacity in respect of walking, exercising, shopping, doing housework and use of his limbs.[88] He gave evidence he uses a 4 wheeled walker and a walking stick to assist mobility. He explained he has a driver’s licence and is able to drive but he does not do so for fear of having another motor vehicle accident. Instead, he uses taxis, Uber or a friend or family member for transport.[89]

    [88] Ibid, 258.

    [89] Ibid, 277-280.

33. In an undated report, Claire Tinker, an occupational therapist, referred to Mr Lozanov’s report pain limits his functional transfers and mobility and reported his mobility has been significantly affected since his MVA in 2021.[90] Ms Tinker reported:

    Current function:

    -    Independent mobility with 4ww

    -    Independent STS from high back chair

    -    Independent with functional transfers such as toilet – seat raiser and OTA and shower – stool and rails.

    -    Independent with bed mobility with bed mechanics and monkey bar.

    -    Mainly housebound

    -    Steps: 1 x assistance with 4ww[91]

    [90] Ibid, 145.

    [91] Ibid, 146; 288-289 refers.

34. On 31 July 2025, Dr Anand reported Mr Lozanov is Independent with ADLs but needing increased time and effort: he Struggles with dressing/showers and Daily household activity participation was significantly reduced.[92]

    [92] Ibid, 324.

35. Mr Miszczuk reported Mr Lozanov has multifactorial impairments to his mobility[93] and he requires the use of a four wheeled walker to reduce his risk of falls[94]. It was Mr Miszczuk’s opinion:

    Based on my observations of Mr Lozanov’s transfers, owing to leg weakness, instability, deconditioning and risk of falls, the available aids are necessary to support him with bed and shower transfers. Mr Lozanov denied any falls in the bathroom. However, given his mobility and risk of falls, it would not be unreasonable for him to receive supervision or physical assistance with shower transfers.

    …

    … He otherwise requires assistance for lifting and carrying heavier items.[95]

    [93] Ibid, 348.

    [94] Ibid, 347

    [95] Ibid.

36. The preponderant weight of the relevant evidence establishes Mr Lozanov’s neuromusculoskeletal impairments reduce his functional capacity to undertake the activity of mobility, and they significantly reduced his participation in household activities. In all likelihood, on the evidence of Mr Miszczuk, Ms Kim and Dr Sturrock,[96] these impairments combined with his mental impairments reduce his functional capacity to drive longer distances.

    [96] Ibid, 274and 283.

37. Mr Lozanov requires assistive technology, equipment and home modifications to participate effectively or completely in mobility activities. These include the items Ms Tinker and Mr Miszczuk reported, including a four wheeled walker, a walking stick, dressing and pick-up sticks, a toilet seat raiser, a shower stool, bathroom rails, and a bed monkey bar.[97]

    [97] Ibid, 146 and 343.

38. I am satisfied these are commonly used items. It is unclear if the items were prescribed for Mr Lozanov by his treating medical or allied health therapists, although that is likely in the circumstances.

39. I understand some household modifications, including bathroom rails, have been installed for Mr Lozanov’s mother with whom he resides with his sister. While these benefit Mr Lozanov, it is not clear he would be unable to participate effectively or completely in mobility activity without them.

40. I am not persuaded the threshold in s 5.8(a) of the Participant Supports is engaged.

41. I understand Mr Lozanov relies on informal supports and delivery services to assist with shopping and he relies on his sister to assist with linen, laundry and other household tasks. In addition, Mr Lozanov self-funds a care agency to provide assistance with self-care (three times per week) and house cleaning (twice per week). He also engages the services of a gardener and a handyman.

42. It is probable and I accept Mr Lozanov has difficulty or struggles with some mobility activities, and undertaking some activities requires more time and effort. The risk of Mr Lozanov falling in the bathroom may well increase the desirability or reasonableness of his shower transfers being supervised as Mr Miszczuk suggested, but the relevant materials do not establish this is usually required in order for Mr Lozanov to undertake the activity. Mr Lozanov is functionally capable of undertaking shower transfers without the assistance of another person, albeit doing so is associated with some risk of falling. On Mr Lozanov’s evidence, he has not fallen in the bathroom.

43. I accept Mr Lozanov had lifting restrictions following the motor vehicle accident in 2021. These were reported by Ms Tinker and Mr Miszczuk.[98] The present extent of Mr Lozanov’s functional capacity to lift items is not clear on the available materials.

    [98] Ibid, 145 and 344.

44. The evidence of Mr Lozanov’s functional capacity to drive a motor vehicle is unclear. By his own account, Mr Lozanov is functionally capable of driving. In all likelihood, his functional performance driving a motor vehicle is reduced by pain and restricted joint mobility, as well as by his fear of having another accident. There are likely to be many variables which might affect his functional performance, including his preference of the particular day (perhaps due to his mood or pain symptomatology at the particular time), the particular characteristics of the vehicle (including whether it has manual or automatic gears) and the availability of a family member, friend or delivery service. While some such considerations might be attributable to Mr Lozanov’s neuromusculoskeletal or mental impairments (in respect of mood or pain for example), others are unrelated and do not illuminate his functional capacity to undertake the activity. On the available materials, it is not possible to determine the extent to which his functional capacity to drive is reduced by his neuromusculoskeletal or mental impairments, or chronic pain, separately and in combination.

45. I am not persuaded Mr Lozanov usually requires assistance from another person to undertake the activity of mobility. Consequently, the thresholds and related deeming effects of s 5.8 of the Participant Rules are not engaged.

46. Considering Mr Lozanov’s neuromusculoskeletal and mental impairments, and his chronic pain, separately and in combination, I am satisfied Mr Lozanov has reduced functional capacity to undertake mobility but the reduction is not substantial for the purposes of s 24(1)(c)(iv) of the NDIS Act.

    Self-care

47. Mr Lozanov alleges he relies on carers for basic hygiene tasks, including dressing, grooming and toileting due to physical limitations, and he often neglects his appearance and grooming due to pain and low motivation. He states he is unable to cook or prepare meals independently.[99]

    [99] Ibid, 279-280; 313.

48. On 17 March 2023, Dr Karimi reported Mr Lozanov has difficulty with his self-care and needs assistance specially personal care and hygiene.[100]

    [100] Ibid, 133.

49. On 17 July 2023, Ms Kim reported:

    [Mr Lozanov] is struggling to attend to his basic self-care and personal hygiene. He neglects his personal appearance and grooming. He often misses meals and relies on instant food and takeaway. He is unable to attend to his domestic duties.[101]

    [101] Ibid, 255.

50. On 15 July 2024, Ms Kim made a similar report and stated he is receiving external support on a temporary basis, which is inadequate for his needs. He needs to have long term support.[102]

    [102] Ibid, 274.

51. Ms Tinker reported Mr Lozanov requires significant assistance with self-care tasks due to his limited range of motion in his back/neck/wrist and his reduced balance in his lower limbs.[103] She reported:

    Current function is as follows:

    -    1 x moderate assistance for showering in seated with shower chair.

    -    1 x moderate assistance for lower limb dressing required for dressing due to his reduced range of motion in his right wrist and fingers.

    -    Independent toileting with rails – continent x 2

    -    Extra time required for grooming including shaving his face, brushing his teeth and putting deodorant on.

    -    Mr Lozanov requires ongoing support for domestic tasks since his accident and reduction in mobility. He requires full assistance with meal preparation, grocery shopping, domestic work, laundry.[104]

    [103] Ibid, 147.

    [104] Ibid.

1. Dr Sturrock reported Mr Lozanov is somewhat neglectful of his personal care, personal hygiene and cooking for himself.[105] Dr Anand reported Mr Lozanov is independent with activities of daily living, although he struggles with dressing and showering, and he needs help with wiping his back/dressing.[106]

   [105] Ibid, 283,

   [106] Ibid, 307.

2. Mr Miszczuk discussed performative, therapeutic and support considerations, including considerations of reasonableness, which do not squarely address Mr Lozanov’s functional capacity to undertake self-care activity. Despite clarifications offered in oral evidence, elements of Mr Miszczuk’s reasoning were difficult to comprehend. Mr Miszczuk reported Mr Lozanov has a need for assistance with showering and dressing and he stated physical assistance for self care and domestic assistance for Mr Lozanov is justified.[107] Mr Miszczuk also reported Mr Lozanov’s capacity to manage aspects of self care (such as grooming) in the long term would require prudent planning, pacing and energy conservation strategies.[108]

   [107] Ibid, 349.

   [108] Ibid, 364.

3. From a functional capacity perspective, it is probable Mr Lozanov can undertake practical personal hygiene and self-care, including toileting, showering, dressing and grooming, albeit that these activities may be undertaken slowly and with increased time and effort.[109] The reduction in his functional capacity is probably due to chronic pain and the reduced range of back, neck and wrist motion Ms Tinker identified.[110] Mr Lozanov explained, and I accept, variations in his pain and his mood affect what he can do day by day: he has bad days and less bad days. It is probable Mr Lozanov is somewhat neglectful[111] due to the low motivation he referred to. Dr Anand reported Mr Lozanov struggles with dressing and showering, and he needs help wiping his back and dressing. The doctor did not give a detailed explanation of his reasoning for this opinion or the extent and frequency of Mr Lozanov’s difficulties showering and dressing. Mr Lozanov uses equipment such as sock aids and a dressing stick. It is probable this is related to restricted joint motion and pain attributable to Mr Lozanov’s neuromusculoskeletal impairments in his spine, neck and right upper limb.

   [109] Ibid, 324.

   [110] Ibid, 147.

   [111] Ibid, 283.

4. I am satisfied Mr Lozanov can feed himself and eat. He does not prepare meals or cook, and he relies on delivery of pre-prepared meals, as well as his sister, friends and privately funded support workers to prepare meals. By his own account, he is able to make a sandwich for himself, but does not often do so.

5. With regard to the planning and arrangement of domestic tasks such as house cleaning, maintenance and gardening, consistent with the NDIA operational guidelines, these are best addressed under the self-management domain (below).

6. Mr Lozanov is probably unable to participate effectively or completely in self-care activities, particularly dressing, without assistive equipment of the kinds Mr Miszczuk reported.[112] Equipment of these kinds, including a pick-up stick, sock aids, a dressing stick, slip on shoes, a shower chair and a raised toilet surround are commonly used items which are not within the terms of s 5.8(a) of the Participant Rules.

   [112] Ibid, 343.

7. There is a question whether Mr Lozanov ‘usually requires assistance’ from another person to participate in self-care activities. Dr Anand’s evidence Mr Lozanov needs some help wiping his back and dressing is not detailed or clearly explained. On Mr Lozanov’s evidence, sometimes he can dress himself and at other times it is very difficult due to variations in his pain. He was not able to estimate how often he experiences difficulty and requires assistance. He explained he obtains assistance from home care workers he has engaged 3 days per week and, on other days if the pain is bad, he might not shower or change his clothes. Considering the relevant materials addressing this point, there is insufficient evidence to support a finding that Mr Lozanov ‘usually requires assistance’ from another person to undertake these activities.

8. The assertion Mr Lozanov’s need is met by others, including his mother’s support workers, his sister, or the home care services he has arranged is not to the point. The question is whether Mr Lozanov’s permanent impairments result in him usually requiring assistance from another person to participate in or to undertake the self-care activity. If the requirement is met, the threshold is surpassed regardless of whether the assistance is actually provided or who provides it. I am not persuaded Mr Lozanov usually requires assistance from another person to undertake self-care activity.

9. Once again, the distinction between functional capacity to undertake activity and functional performance of the activity must be kept squarely in mind. Reduced functional capacity to participate in or to undertake an activity as a result of permanent impairment should not be conflated with performance of the activity, which might be influenced by a variety of extraneous or incidental factors not related to permanent impairment.

10. Mr Lozanov explained he cannot undertake physical chores around the house, including vacuuming, cleaning, laundry and washing dishes. These tasks are covered by others, including his mother’s support workers, his sister and the home carer service he has engaged privately.

11. It is not clear on the relevant materials if Mr Lozanov has substantially reduced functional capacity to engage in domestic tasks or whether his functional performance of such tasks is effectively reduced or avoided and covered by others as a matter of convenience, coincidence or choice regardless of any reduction of his functional capacity.

12. Considering the relevant evidence, I am not persuaded the ‘usually requires assistance’ from another person threshold in s 5.8(b) of the Participant Rules is met in respect of self-care activities. The threshold in s 5.8(c) is also not surpassed.

13. Consequently, the deeming effect of these rules is not engaged.

14. I am satisfied Mr Lozanov has reduced functional capacity to undertake the activity of self-care, particularly in relation to showering, dressing, preparing meals and household chores. The reduction is probably due to his chronic pain and neuromusculoskeletal impairments, particularly reduced joint motion and weakness. It is also likely attributable to his mental impairments, particularly disturbed sleep, variable motivation and mood. Considering Mr Lozanov’s permanent impairments separately and together, I am not persuaded the reduction in his functional capacity for self-care activity is considerable. On the available materials, I am not positively satisfied Mr Lozanov has a substantially reduced functional capacity to undertake self-care activity.

15. The threshold in s 24(1)(c)(v) is not met.

    Self-management

16. The sixth activity domain which must be considered is self-management.

17. Mr Lozanov gave evidence he requires assistance managing daily affairs and arranging medical appointments, medications, finances, household responsibilities and other daily planning tasks as a result of impairment of his executive functioning.[113]

    [113] Ibid, 314.

18. By his own account, Mr Lozanov is a qualified civil and structural engineer. He explained, for his well-being, he has returned to employment on a part-time basis. He has increased his hours to 2 hours per day, 3 days per week, but his work is at a much lower level than prior to the motor vehicle accident in 2021.

19. On 17 March 2023, Dr Karimi reported Mr Lozanov has issues with his self-management on occasions due to his anxiety and depression.[114]

    [114] Ibid, 133.

20. On 15 July 2024, Ms Kim reported Mr Lozanov is having difficulties managing his daily affairs on his own and needs guidance such as prompting and planning support in relation to his day to day activities.[115]

    [115] Ibid, 275.

21. On 31 July 2025, Dr Anand reported Mr Lozanov has Moderate to severe degree of pain related functional disability affecting all domains mainly social, recreational and sleep.[116]

    [116] Ibid 323.

22. Dr Sturrock report Mr Lozanov said he needs help managing his financial affairs.[117]

    [117] Ibid, 283.

23. Mr Miszczuk gave evidence Mr Lozanov has intermittent difficulties with planning, problem-solving and making decisions and he otherwise demonstrates functional independence in the domain of self-management.[118]

    [118] Ibid, 351.

24. It is probable Mr Lozanov experiences difficulties with concentration, absorbing or acquiring new information and interrupted sleep which bear upon his functional capacity to undertake self-management activities.

25. This notwithstanding, Mr Lozanov explained he has occasional deficits managing bills and appointments, and his sister assists with bill payments and paperwork when he is not feeling well. He explained he organises and attends all of his medical appointments with some help and he managed this application to the NDIA and this Tribunal himself, albeit with some assistance.

26. I am satisfied Mr Lozanov’s functional capacity to undertake self-management is somewhat reduced by his mental impairments and pain stemming from his neuromusculoskeletal impairments. I am not persuaded, however, that the reduction is substantial.

27. The evidence does not establish that Mr Lozanov requires assistive technology to effectively or completely participate in or undertake self-management, or that he usually requires assistance from another person to do so. Mr Lozanov’s assertion he requires assistance to plan and undertake household duties is not supported by reliable independent evidence that it amounts to a substantially reduced functional capacity to undertake self-management activity.

28. It follows that the threshold in s 24(1)(c)(vi) of the NDIS Act is not met.

    Functional capacity conclusion

29. I am satisfied Mr Lozanov does not meet the thresholds in any of the six activity domains in s 24(1)(c) of the NDIS Act. This means he does not meet the ‘disability requirements’ in s 24.

30. Even though, strictly, it is not necessary to proceed further to determine if he meets the thresholds in s 24(1)(d) and (e), I will make some brief observations to address the submissions of the parties.

    Social or economic participation

31. There is no dispute, correctly in my opinion, that Mr Lozanov’s permanent impairments adversely affect his capacity for social and economic participation. It is in this context the adverse effects of his permanent impairments on his functional performance of social and economic participation is relevant.

32. This means s 24(1)(d) of the NDIS is met.

    Lifetime support under the NDIS

33. The remaining criterion is set out in s 24(1)(e) of the NDIS Act. This requires determination whether Mr Lozanov is likely to require support under the NDIS for his lifetime.

34. With effect from 3 October 2024, s 24(1)(e) was amended to read ‘the person is likely to require NDIS supports’ under the NDIS for their lifetime. The term ‘NDIS support’ is given meaning in s 10. This amendment does not apply as Mr Lozanov applied to become a participant in the NDIS prior to 3 October 2024.

35. The Participant Rules do not address the likelihood of the person requiring support under the NDIS for life. The Access Guidelines provide the following relevant information:

    You must be likely to need support under the NDIS for your whole life.

    NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.

    Even if your needs go up and down over time, or happen episodically, we may still consider it’s likely you’ll need lifetime support under the NDIS.

    We consider your overall situation to answer this question.

    When we decide if you’ll likely need support under the NDIS for your whole life, we consider:

    • your life circumstances

    • the nature of your long-term support needs

    • whether your needs could be best met by the NDIS, or by other government and community services.

    For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.[119]

    [119] Exhibit 1, 144.

36. Paragraph 24(1)(e) was considered in National Disability Insurance Agency v Foster.[120] The Court highlighted what Mortimer J (as she then was) said in Mulligan:

    [52] Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.[121]

    [Original emphasis]

    and said:

    The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.[122] 

    [120] [2023] FCAFC 11.

    [121] Foster, [46].

    [122] Ibid, [93].

37. The matter was raised in the fourth ground of appeal which the Court briefly addressed without hearing extensive argument addressing the construction of the paragraph.

38. Section 24 is a gateway provision which turns on disability attributable to impairment. The ‘disability requirements’ in s 24 are squarely directed to the permanence and effect of impairment on the person’s functional capacity in six activity domains and their capacity for social or economic participation. Satisfaction of the ‘disability requirements’ requires findings to be made about these matters at the gateway to justify supports to which the person may be entitled after assessment in Part 2, Chapter 3 of the NDIS Act. In this context, the focus of the enquiry in s 24(1)(e) is the likelihood of the person requiring support ‘under the NDIS’ for life. This does not require or invite speculation about particular supports the person might need and whether such hypothetical supports are most appropriately funded under the NDIS. There are two relevant considerations for the purposes of s 24(1)(e):

    (a)the person’s need for support under the NDIS as a result of impairments within the frame of s 24(1)(a) to which their disability is attributable; and

    (b)whether the need for support under the NDIS is likely to be life-long.

39. With regard to the former, the person’s need for support under the NDIS requires consideration of relevant factual circumstances, such as where the person’s need for support is being met under a different system or service or their need for support is outside the scope of the NDIS. With regard to the latter, the question is whether the person’s need for support is likely to change over the course of their life to the extent that support under the NDIS is not likely to be required.

40. Unlike the early intervention requirements in s 25, which requires findings in respect of ‘early intervention supports’, the ‘disability requirements’ in s 24 do not require findings about the supports the person might require, and they do not invite or authorise speculation about such matters.

41. It is germane to note what was said in National Disability Insurance Agency v Jones[123]:

    Plainly, as a matter of logic and statutory construction, if the early intervention supports required were not identified by the Tribunal, then the various considerations referred to in s 25(3) could not be properly assessed. In particular:

    -    The Tribunal could not form a view as to whether those early intervention supports would be (or would not be) most appropriately funded or provided through the NDIS.

    -    It was not open to the Tribunal to speculate as to possible supports that Ms Jones could receive, and reach a view of the funding of those hypothetical supports under s 25(3) of the NDIS Act.

    -    It was not open to the Tribunal to form a view as to the manner in which unidentified early intervention supports could assist a person with a psychosocial disability to access appropriate services.[124]

    [123] [2025] FCA 877.

    [124] Ibid, [27].

42. Just as it is not open to the Tribunal to speculate about possible supports for the purposes of s 25, it is not open to the Tribunal to speculate about possible supports Mr Lozanov could receive for the purposes of s 24. It is not open to the Tribunal to reach a view about the funding of such hypothetical supports under the NDIS and to speculate about whether it might be more appropriate for them to be obtained under another system during his lifetime.

43. Nevertheless, Mr Lozanov obtains supports privately and he may well be eligible for supports under the My Aged Care system. Without speculating about any particular supports or kinds of supports, these are matters which would probably be relevant to the likelihood he would require support under the NDIS for his lifetime had he met the other ‘disability requirements’.

    Early intervention requirements

44. The final consideration is whether Mr Lozanov meets the ‘early intervention requirements’ in s 25 of the NDIS Act:

    (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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or

    (iii) is a child who has 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.

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

    (2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

    (3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

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

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

45. There is no dispute that Mr Lozanov’s impairments are of long standing. I have found he has permanent neuromusculoskeletal and mental impairments. Consequently, Mr Lozanov satisfies s 25(1)(a).

46. The available materials do not raise any early intervention supports which would be likely to benefit Mr Lozanov by reducing his future need for supports in relation to his disability.

1. I have found the treatments referred to by Dr Anand and Dr Sturrock are not likely to remedy Mr Lozanov’s impairments, and these are for the purposes of managing his symptoms and impeding further degeneration. The relevant materials are not sufficient basis on which to be satisfied the provision of early intervention supports would be likely to benefit Mr Lozanov by mitigating the impact of his impairments of his functional capacity in the six activity domains, or by preventing deterioration or improving his functional capacity in those domains.

2. I am also unable to be satisfied on the available materials that the provision of early intervention supports would be likely to strengthen the sustainability of Mr Lozanov’s informal supports.

3. From this it follows that Mr Lozanov does not meet the early intervention requirements in s 25 of the NDIS Act.

   CONCLUSION

4. Mr Lozanov has disability attributable to permanent neuromusculoskeletal and mental impairments. I am unable to reach a state of satisfaction on the available materials that Mr Lozanov’s permanent impairments result in substantially reduced functional capacity to undertake any of the six activities in s 24(1)(c) of the NDIS Act. Consequently, I am positively satisfied the ‘disability requirements’ in s 24 are not met.

5. I am also positively satisfied the ‘early intervention requirements’ in s 25(1)(b) and (c) of the NDIS Act are not met. I am unable to reach a state of satisfaction that provision of early intervention supports would be likely to reduce his future needs for supports or mitigate the adverse effects of his permanent impairments on his functional capacity in the six activity domains.

6. For these reasons, for the purposes of s 20 of the NDIS Act, Mr Lozanov does not meet the ‘access criteria’ in s 21.

   DECISION

7. The decision under review is affirmed.

Dates of hearing:  1-2 September 2025

Applicant’s Representative:  Self-represented

Counsel for the Respondent:  Erin Hourigan 

Solicitors for the Respondent:  Maddocks Lawyers