Maroulis and National Disability Insurance Agency (NDIS) - [2025] ARTA 1132

Maroulis and National Disability Insurance Agency (NDIS) [2025] ARTA 1132 (27 June 2025)
Applicant:John Maroulis
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/3089

Tribunal:General Member I Selley
Place:Adelaide
Date:27 June 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 27 June 2025 at 3:20pm

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s21 of the Act met - disability requirements under s 24 of the Act –- physical, sensory, cognitive and psychosocial impairments – whether impairments are, or likely to be permanent - decision under review affirmed
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)
Cases
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 634
Beezley v Repatriation Commission [2015] FCAFC 165
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes) Review Tribunal, Practice Direction (Expert Evidence) 2024, Administrative-Review-Tribunal--Expert-and-Opinion-Evidence--Practice-Direction-2024--Publication-Version-.pdf
Administrative Review Tribunal, Common Procedures Practice Direction 2024, Common Procedures Practice Direction 2024_0.pdf
Statement of Reasons
INTRODUCTION

The issue for my determination is whether Mr Maroulis meets either the disability or early intervention requirements to access the NDIS in the National Disability Insurance Scheme Act 2013 (the Act). The Tribunal is satisfied on the evidence that Mr Maroulis meets the age and residence requirements.
Mr Maroulis is a 67-year-old divorced man. He resides as a lodger in a friend’s house in Adelaide. He is unemployed and receives the Age Pension.
Mr Maroulis lives with medical conditions which impair his functioning. This decision is about whether those impairments are of such nature and extent he should be granted access as a participant to the National Disability Insurance Scheme (NDIS).
For the reasons below, I have determined Mr Maroulis does not meet either requirement because his impairments are not permanent or likely to be permanent.
THE APPLICATION
In August 2022, just before his 65^th birthday, Mr Maroulis made a request to the National Disability Insurance Agency (the Agency) to access the NDIS (the access request). In November 2022, the Agency refused the access request[1] (the access decision). Mr Maroulis then applied to the Agency for an internal review of that decision, and in February 2023, the Agency again determined not to grant him access (the internal review decision).
[1] Joint Tender Bundle (JTB), page 38
In May 2023, Mr Maroulis applied to the Administrative Appeals Tribunal (AAT) for a review of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maroulis and National Disability Insurance Agency (NDIS)

Details

AGLC: Maroulis and National Disability Insurance Agency (NDIS) [2025] ARTA 1132
Case: [2025] ARTA 1132
Decision Date: 27 June 2025

CaseChat Overview and Summary

The case between Maroulis and the National Disability Insurance Agency (NDIS) was heard in the Australian Administrative Appeals Tribunal. The central dispute in this matter revolves around Mr Maroulis' eligibility for access to the NDIS, particularly whether he satisfies the access criteria outlined in section 21 of the NDIS Act, including the specific disability requirements detailed in section 24. The crux of the issue is whether Mr Maroulis' impairments are, or are likely to be, permanent, which is a prerequisite for eligibility under the scheme.

The legal issues that the Tribunal was required to decide included the sufficiency and reliability of the evidence provided by Mr Maroulis to substantiate his claims of disability and the determination of whether his impairments meet the criteria for being considered permanent or likely to be permanent as per the NDIS Act. The Tribunal had to assess the medical diagnoses presented by Mr Maroulis, including those self-diagnosed, and determine their impact on his functional capacity. Furthermore, the Tribunal needed to evaluate whether Mr Maroulis had provided enough reliable evidence to satisfy the criteria set out by the NDIS Act.

In its reasoning, the Tribunal noted the extensive nature of the evidence provided by Mr Maroulis, which included numerous medical diagnoses and reports from various professionals. However, the Tribunal found that Mr Maroulis' evidence was often broad-brush and lacked specificity regarding the impact of his impairments on his daily life. The Tribunal was particularly critical of Mr Maroulis' tendency to embellish or avoid scrutiny, as well as his changeable position on which medical conditions caused his impairments. The Tribunal concluded that Mr Maroulis had not provided sufficient and reliable information to meet the criteria under the NDIS Act. Consequently, the Tribunal affirmed the decision under review, upholding the Agency's determination that Mr Maroulis did not meet the eligibility requirements for access to the NDIS.

The final orders of the Tribunal confirmed the decision to deny Mr Maroulis access to the NDIS, finding that he had not satisfied the disability or permanency criteria as required by the NDIS Act. The Tribunal's decision was based on the insufficient and unreliable nature of the evidence provided by Mr Maroulis, as well as the conclusion that his impairments were not, or were not likely to be, permanent.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There are two key issues in this case. The first is whether Mr Maroulis meets the disability or early intervention requirements of the access criteria. The second is whether he has given the Tribunal sufficient and reliable information so that it can be satisfied that he does. Sufficiency and reliability of Mr Maroulis’ evidence: overview The Agency submits, in general terms, there are too many gaps and uncertainties in the evidence before the Tribunal for any safe conclusions to be drawn. In the alternative, it submits there is not enough evidence for the Tribunal to be positively satisfied that certain criteria have been met. It is an extensive exercise for the Tribunal to analyse and consider the information before it and determine its reliability and the weight I should give it. Mr Maroulis centres his claims around a substantial number of medical diagnoses in the records and reports of Dr Zuvela and Dr Giardini as well as self-diagnoses that are not independently corroborated. Although evidence of Mr Maroulis’ medical conditions is certainly relevant to the proceedings, that he has this focus to the detriment of detailing his impairments makes the Tribunal’s task more difficult. It also detracts from him satisfying the Tribunal that he has met the components and thresholds he is required to under the Act. Furthermore, Mr Maroulis’ position about which medical conditions cause him impairments is changeable. By way of one example, having claimed impairments arising from Bells Palsy in his access request, Mr Maroulis did not make these claims in his January 2025 statement submitted in response to the Tribunal’s directions to state the conditions and impairments on which he relies, but then reasserted impairments arising from Bells Palsy in the hearing. This changeability repeats across his evidence and submissions, and I detail it further below in considering his claims. Mr Maroulis argues that he suffers some 28 medical conditions that have in turn caused him loss or damage to his functional capacity, many of which he describes as “health impairments”. These are:chronic persistent major depression, anxiety, obsessive compulsive disorder, agoraphobia, claustrophobia, sociophobia, post-traumatic stress disorder, hoarding disorder, failing eyesight, glaucoma, bilateral cataract extractions, bilateral shoulder bursitis, bulging cervical spine disc, osteoarthritis of the left hip and lower back, osteoarthritis generally, sciatica, bilateral knee problems, morbid obesity, mini strokes, bells palsy, acquired brain injury (ABI), transient ischemic attack (TIA), concussion syndrome, hypercholesterolaemia, chronic asthma, vitamin D insufficiency, hypertension and vertigo. I find Mr Maroulis’ approach to his submissions and evidence to be often broad-brush and indiscriminate with a tendency to embellish or avoid scrutiny, as to the conditions and impairments he suffers and the impact of his impairments on his daily life. The Agency submits, and I accept, that Mr Maroulis at times constructed his evidence for it to appear more favourable to the Tribunal. The Agency submits, and I accept, that Mr Maroulis is prone to engage in self-diagnosis.

Decision

Reasons for decision

Mr Maroulis put forward other medical conditions as relevant to the proceedings. Whilst I accept these diagnoses have been made, Mr Maroulis did not identify an impairment arising from them, either his own evidence or through the reports of his treating and diagnostic professionals. Accordingly, I am not satisfied he has impairments attributable to the following medical conditions: Vitamin D deficiency, hypertension, hypercholesterolemia, and chronic asthma.Conclusions on disability I am satisfied Mr Maroulis has a disability attributable to the psychosocial, cognitive, sensory and physical impairments I have accepted above. Accordingly, Mr Maroulis satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the NDIS Act. The next question is whether these impairments are permanent.Section 24(1)(b): Are Mr Maroulis’ impairments permanent or likely to be permanent?When will an impairment be considered permanent? Access Rules 5.4 to 5.7 set out the mandatory criteria for determining permanency of an impairment. Of particular relevance are rules 5.4, 5.6 and 5.7:·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.·5.6 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. 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[76]. [76] Davis, at [73]-[75] As to the adjectives in rule 5.4:(a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[77](b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[78](c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[79](d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[80].[77] Davis, at [136][78] Davis, at [137][79] Davis, at [137][80] Davis, at [138] List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. I note that none of the conditions I have accepted are on List B.

Ratio Decidendi

Legal Principle Established

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