MHRQ and National Disability Insurance Agency (NDIS)
[2025] ARTA 1970
•2 October 2025
MHRQ and National Disability Insurance Agency (NDIS) [2025] ARTA 1970 (2 October 2025)
Applicant/s: MHRQ
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/3033
Tribunal: General Member A. Williams
Place:Hobart
Date:2 October 2025
Decision:The Tribunal sets aside the decision under review pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
...............[SGD]................................................
General Member A Williams
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” under s 24 – Applicant has disability arising from various physical and psychosocial impairments – issues – whether impairments have resulted in substantially reduced functional capacity in the area of social interaction – whether applicant requires lifetime NDIS support – decision under review set aside and substituted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
G v Minister for Immigration and Border Protection [2018] FCA 1229
HPSC and NDIA [2021] AATA 727
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Williams and NDIA [2021] AATA 3383Secondary Materials
Becoming a Participant - Applying to the NDIS Guidelines (‘the Access Guidelines’)
Statement of Reasons
Introduction
This application is about whether the Applicant, MHRQ should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). MHRQ seeks review of a decision made on 24 November 2024 by the NDIA under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision Under Review’).[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (‘NDIA’), dated not to grant access to MHRQ as a participant in the NDIS.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
I will refer to MHRQ as either the Applicant or MHRQ. I will refer to the Agency as either the Respondent or the Agency.
The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under section 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with
s 103 of the NDIS Act.
For the reasons set out below, the Decision under Review is that it was (not) satisfied that MHRQ meets the access requirements under s 21 of the NDIS Act.
Background
MHRQ is a 47-year-old man who lives in a suburb in South-East Melbourne. He lives in his parent’s home.
MHRQ has the following diagnosed medical conditions:
• Permanent Lumbar Spine Injury – L4/L5 disc prolapse compressing L5 nerve
·Major Depressive Disorder (MDD)
·Post-Traumatic Stress Disorder (PTSD)
·Anxiety
REQUEST FOR ACCESS TO THE NDIS
In 2023 MHRQ applied to the NDIA seeking to be granted access to the NDIS.
The Respondent provided its decision on 8 April 2024 after assessing MHRQ’s eligibility to access the scheme. It advised that MHRQ had not met the eligibility criteria to be granted access to the scheme (the initial decision).
Upon receiving the Agency’s decision, on 8 April 2024 MHRQ requested the Respondent conduct an internal review of the initial decision.
The Respondent conducted its internal review and on 24 November 2024 advised that it had confirmed the initial decision to find MHRQ was not eligible to gain access to the scheme. (the reviewable decision).
Decision under review and application for review to this Tribunal
As noted in paragraph 10 above, the reviewable decision is the decision by the Respondent on 24 November 2024 that MHRQ had not established that he met the eligibility criteria to be granted access to the scheme.
On 14 May 2024 MHRQ applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.
In his application for review, MHRQ noted the following as the reason why he considered the reviewable decision was wrong:
I feel that the decision was wrong, and I have a permanent injury which will require ongoing treatment for the rest of my life
APPLICANT’S EVIDENCE
14.As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports and other documents:
·Letter, Boon MHRQ Tee (Psychiatry Registrar) on behalf of Dan Mihaesi (Psychiatrist) dated 17 May 2024
·Internal Review Decision (Respondent Copy) dated 10 May 2024
·Letter, Bonnie Law (Psychiatrist) 28.09.2023 32
·Letter, Se-jin An (Physiotherapist) 05.10.2023 33
·Access Request Form, Theekshana Dissanayake (General Practitioner) dated 15 November 2023
·Evidence of Psychosocial Disability Form (pages 1,3,5) from Kaz Macdonell (Social Worker) dated 25 January 2024
·Access Not Met Letter dated 8 April 2024
·Letter, Nikki Ioannidis (Workers Compensation Case Manager) dated 23 April 2023.
·Letter, Boon MHRQ Tee (Psychiatry Registrar) on Behalf of Dan Mihaesi (Psychiatrist) 30.04.2024
·Letter, Sumedh Sangamnerkar (General Practitioner) 17 April 2024
·Letters, Craig Timms (Neurosurgeon) Various
·Letters, Kaz Macdonell (Social Worker) Various
·Letters, Theekshana Dissanayake (General Practitioner) Various
Documents filed with the Tribunal.
The following additional documents were lodged with the Tribunal on MHRQ’s behalf:
·Letter of treatment with transcranial magnetic stimulation (TMS) from Dr Dan Mihaesi dated 17 May 2024.
·Occupational Therapy Functional Capacity Assessment from Ms Emma Maharaj dated 4 February 2025
·Dr Theekshana Dissanayake’s response to the Agency’s targeted questions dated 16 October 2024.
Response to targeted questions
As part of its regular practice in access applications before the Tribunal, the Agency forwarded to MHRQ’s General Practitioner Dr Theekshana Dissanayake a series of targeted questions addressing his medical conditions, resulting impairments, past and current treatment and his functional capacity.
Dr Theekshana Dissanayake (General Practitioner)
Dr Dissanayake’s response is dated 16 October 2024. He provided the following information:
·He has been seeing MHRQ for the past 25 months and last saw him on 5 October 2024.
·He advised that MHRQ is suffering from back pain, with leg pain L R. Lower back pain 6/10 radiating to the left leg and he gets spasms and numbness with pins and needles in the left leg. He is struggling to walk more than 15 minutes and unable to sit for more than 30 minutes, he has to reposition himself every few minutes to be comfortable. Pain is aggravated by walking, standing and moving his back too much. He has to rest his back and take pain medication to relieve his pain.
·Responding to the question as to the cause of the pain Dr Dissanayake advised it is an L4/L5 disc prolapse compressing on the L5 nerve.
·Responding to what his past treatment has been the doctor advised that he has had 2 micro-discectomies and a spinal steroid injection in the past 5 years with little benefit. He has been on pain medication and received physiotherapy. He is doing gym and hydrotherapy once a week in a private hospital and then planning to see a physiotherapist.
·Responding to the observed outcome of that treatment the doctor advised MHRQ is still experiencing pain, and the doctor has another MRI lumbar spine scan for that reason.
·Asked about any other known interventions that may be undertaken to improve his functional capacity, the doctor responded negatively but would refer him to his neurosurgeon after the MRI to look into any other treatment options.
·He said he did not believe MHRQ had attended a multidisciplinary pain management program, but he would benefit from such a program by helping him to manage pain both psychologically and physiologically. He suggested that his mental state should be assessed by his psychiatrist before commencing such a program.
·Asked to respond to MHRQ’s current trajectory under his current treatment plan, Dr Dissanayake advised that he could not comment as the past treatment has not improved his pain. He will need to see his neurosurgeon for further assessment and treatment.
·Responding to other factors contributing to his presentation, the doctor advised these are comorbid conditions such as alcohol addiction and stressors such as financial pressures and family separation contributed to his major depression and alcohol abuse to deteriorate. He has also put on weight and had an umbilical hernia which has made his rehabilitation more difficult.
·Responding to the efficacy of the coordination of his treatment the doctor advised that his insurance has been very cooperative with his treatment and fully funded his mental health treatment. He will require more assistance with his hernia repair and pain management, and ongoing mental health care.
·Responding to whether MHRQ exhibits any self-limiting behaviour, the doctor advised that he is very realistic about goals and is trying to reach them.
·While his insurance is supportive so far, he will need ongoing mental health treatment and neurological input to his care.
·In terms of referrals for treatment, these have been to assist with his hernia and a dental issue. He is seeing a psychologist and psychiatrist and receives TMS regularly. He is also seeing a drug and alcohol counsellor.
·In terms of his observations of MHRQ’s functional capacity, Dr Dissanayake stated that he was impacted in the following domains:
Communication: He has reduced communication capacity; he is not thinking clearly and lost his confidence over recent years which has impacted his communication.
Social Interaction: He has withdrawn from social interaction almost completely due to his depression and anxiety. He has lost his confidence in interacting in the community.
Learning: he has memory loss due to past alcohol dependence and anxiety and depression and is unable to learn new things at the moment. His pain relief and psychiatric drugs are also affecting his capacity to learn.
Self-care: He is struggling with his self-care however has improved it over the past few months. He is not alcohol dependent anymore and is receiving regular counselling.
Self-management: His cognitive capacity to organise his life, plan and make decisions has diminished a lot. He needs ongoing support and motivation from his dad to complete daily tasks, make decisions, problem solving and managing his finances.
·Responding to MHRQ’s need for support, the doctor stated that due to his major depression, GAD, and lack of confidence he needs ongoing support and motivation to organise, plan his activities and regularly motivate him to ensure he attends due to his poor memory, and lack of concentration.
·He is struggling with attending rehab due to his ongoing back pain. He is drinking 1-2 times per week but managing his cravings with help from his drug and alcohol counsellor.
·He needs ongoing mental health support and pain management to recover from his condition. He is struggling financially as he is unable to work.
Agency’s Evidence
The Agency provided a report prepared by Mr Elliot Mate (Occupational Therapist) acting as an Independent Medical Expert dated 28 December 2024.
Mr Mate’s report is quite lengthy, so I do not propose to provide a summary here. Much of his findings will be addressed when I record his oral evidence to the Tribunal.
The Parties submissions
During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal Statements of Issues (SOI) and Statements of Facts, Issues and Contentions (SFIC).
The purpose of both an SOI and a SFIC is to provide an outline of that party’s case, what they consider to be the relevant facts, what may be the relevant parts of the Act and related Rules the Tribunal should consider and to identify where the parties disagree on these points.
These are updated on a regular basis to take account of new evidence and other material provided by the parties.
The most recent or relevant of these documents will be referred to throughout this decision.
During the application’s progress to a final hearing, both parties lodged submissions outlining their case. Immediately prior to the hearing both parties filed a Statement of Facts Issues and Contentions (SFIC).
MHRQ’s position
MHRQ outlined his position in a SFIC dated 21 August 2025.
Paragraphs 1 to 11 of the SFIC addresses the history of the matter before the Tribunal and the various medical and other documents before the Tribunal.
In paragraph 13 of the SFIC, MHRQ outlines his understanding of what the Agency’s position is concerning his eligibility for the NDIS.
Based on the Respondent’s internal review decision, it is understood that the Respondent’s position is that:
(a) MHRQ’s impairments are not, or not likely to be, permanent to the satisfaction of s 24(1)(b);
(b) MHRQ’s impairments do not result in a substantially reduced functional capacity in any the activities under s 24(1)(c);
(c) MHRQ’s impairments do not affect his capacity for social or economic participation under s 24(1)(d);
(d) MHRQ is not likely to require support under the NDIS for his lifetime under s 24(1)(e).
In paragraphs 16 to 28, the Applicant outlines the relevant legislation rules, guidelines and case law
In paragraphs 29 to 92 MHRQ outlines his position and why he meets the s 24 eligibility criteria.
Is MHRQ’s condition(s) Permanent– Section 24(1)(b)
The SFIC provided separate submissions addressing these criteria as they related to his psychosocial conditions and those relating to his physical and sensory impairments.
Psychosocial impairments
Regarding the permanence of MHRQ’s psychosocial impairments the following evidence was cited:
·MHRQ’s treating Psychiatrist, Dr Mihaesi, confirms that MHRQ has been diagnosed with major depressive disorder, post-traumatic stress disorder (‘PTSD’) chronic pain and alcohol misuse.
·Dr Mihaesi notes that ‘both Major Depressive Disorder (MDD) and PTSD in the way that are experienced by MHRQ are permanent conditions, causing substantial and persistent impairments in his psychosocial functioning.
·To the extent that MHRQ has sought and continues to receive treatment for his major depressive disorder and PTSD, such treatment is not likely to ‘remedy’ the underlying impairments.
·MHRQ’s, Mental Health Social Worker, Ms Kaz McDonnell also confirmed the numerous treatment options trialled by MHRQ at that point:
Multiple medical [and] therapeutic interventions have been trialled with minimal results. Therefore, most proven therapeutic treatments have been exhausted even though he has had access to and actively participated in all options available at the hospital and the community at this time.
·Regarding his treatment with TMS and ECT Dr Mihaesi noted that both cannot guarantee a sustained remission of the illness, and they are important only when the mental state has severely deteriorated. It is almost certain that MHRQ will continue to suffer relapses during his lifetime. Both, TMS and ECT are not a cure for his illness, they are only helping with temporary symptom control. His condition will remain permanent.
·Dr Mihaesi goes on to note that ‘MDD and PTSD are lifelong conditions, a change in medication or treatment will not cure his condition. His MDD and PTSD are permanent conditions.
·The Applicant noted that Section 24(2) of the Act allows that an impairment may be permanent, even though its intensity may vary. Rule 5.5 of the Access Rules recognises that impairments can be permanent notwithstanding that their severity can fluctuate. Rule 5.6 acknowledges that an impairment “may continue to be treated and reviewed after [permanency] has been demonstrated”.
For the reasons outlined above, MHRQ submitted that the Tribunal can be satisfied that the psychosocial impairments derived from his major depressive disorder and PTSD are permanent.
Physical and sensory impairments
Regarding the permanence of MHRQ’s physical and sensory impairments the SFIC noted that MHRQ primarily relies on the report of his treating neurosurgeon, Dr Craig Timms, dated 22 July 2025. The following evidence was cited in support of a finding these conditions are permanent:
·He was first diagnosed in 2019 with lower back pain with radiculopathy.
·Since 2020 MHRQ has been a patient of neurosurgeon Dr Timms for a lumbar L4/5-disc injury and disc bulge. Dr Timms has performed three back surgeries on MHRQ, with Dr Timms confirming that that these surgeries have included ‘a lumbar microdiscectomy at L4/5 and, more recently, a posterior lumbar interbody fusion for a disc recurrence, which took place on 6 April 2025, namely a posterior lumbar interbody fusion at the level of L4/5.
·In terms of the impacts of MHRQ’s spinal injury, Dr Timms’ report confirms that MHRQ experiences substantial pain impacting his mobility:
MHRQ suffers from chronic back pain and the decreased range of movement that results in, along with reduced endurance. He also has back pain and bilateral sciatica with pain and numbness down his legs, and some weakness. This has led to his reduced ability to sit, stand and mobilise.
·Dr Timms also confirms that his spinal injury is unlikely to be improved: ‘MHRQ's condition has stabilised and remains incapacitated.
·Dr Timms confirms that any such physiotherapy, hydrotherapy or multidisciplinary pain management programs are ‘aimed at maintaining his current level of symptom control’.
·Dr Timms has consistently conveyed throughout the application process that MHRQ’s spinal injury has stabilised, and further therapeutic interventions are aimed at maintaining his capacity:
I am writing to confirm that MHRQ has exhausted available treatments for his spinal condition and his current condition is permanent. He will require support for his lifetime as a result of his disability. Any therapies MHRQ does at present are done with the aim of maintaining(sic) the little capacity he has and cannot cure his condition.
·Such treatment will not ‘remedy’ his impairment in the way required to find that s 24(1)(b) is not satisfied. Again, r 5.5 of the Rules allows that an impairment may be permanent notwithstanding that the severity of its impact on a person’s capacity may fluctuate and r 5.6 acknowledges that an impairment “may continue to be treated and reviewed after [permanency] has been demonstrated”.
In conclusion it submitted that the Tribunal ought to be satisfied that MHRQ’s physical and sensory impairments attributable to his spinal injury are permanent and therefore satisfy s 24(1)(b) of the Act.
Do MHRQ’s impairments result in a substantially reduced functional capacity? – Section 24(1)(c)
The Applicant submitted that the Tribunal can be satisfied that his impairments result in a substantially reduced functional capacity The evidence before the Tribunal indicates this is most clearly demonstrated in the domains of social interaction, mobility, self-care and self-management.
Social interaction
In support of this domain of functional capacity MHRQ cited the following evidence:
·MHRQ’s treating psychiatrist, Dr Mihaesi notes that MHRQ ‘is socially isolated and cannot leave the house’ and that he is ‘only interacting/communicating with friends through social media.
·Dr Mihaesi further notes that ‘As [MHRQ] is socially withdrawn and isolated at home he would benefit from support to help him leaving the house, meeting people, socialising and participating in community’ and confirms that in his opinion MHRQ’s impairments result in a substantially reduced functional capacity for social interaction.
·Ms Maharaj’s report reaches the same conclusion. Ms Maharaj notes that MHRQ’s score for ‘getting along with people’ was 95% disability on the World Health Organisation Disability Assessment Schedule (‘WHODAS’), which places him in the extreme category. Ms Maharaj concluded that MHRQ’s functional capacity in social interaction is substantially reduced.
·Ms Maharaj outlines several limitations that also demonstrate MHRQ has a substantially reduced functional capacity for social interaction:
Reduced Exposure to Social Environments – Limited mobility and chronic pain restrict MHRQ’s participation in workplace, educational, or community settings, reducing opportunities for social learning.
Difficulty Processing Social Cues – MDD often causes cognitive slowing, reduced attention, and emotional dysregulation, making it harder for MHRQ to interpret and respond to verbal and non-verbal social cues.
Limited Problem-Solving in Social Situations – Pain, fatigue, and depressive symptoms can impair decision-making, adaptability, and conflict resolution skills, affecting his ability to navigate social interactions.
Social Withdrawal & Isolation – A lack of regular peer interactions and real-world social practice limits his ability to learn and refine new social skills.
Reduced Confidence & Self-Efficacy in Social Situations – MDD can lead to low self-esteem, fear of judgment, and avoidance of new learning opportunities, further hindering social learning development.
·Ms Maharaj concludes that ‘these factors limit MHRQ’s ability to develop, practice, and retain social skills, affecting his ability to engage in meaningful relationships, workplace environments, and community participation.
·Similarly, Ms Maharaj also notes the following substantial limitations related to MHRQ’s capacity to interact socially:
His reduced capacity for social interaction – Chronic pain and fatigue from his spinal injury, combined with MDD, contribute to social withdrawal and avoidance of conversations.
Difficulty expressing his needs – Depression can cause low motivation and cognitive slowing, making it harder for MHRQ to articulate his needs effectively.
Slower cognitive processing – MDD is linked to reduced concentration and mental fatigue, affecting MHRQ’s ability to process and respond in conversations.
Limited engagement in verbal tasks – Pain-related discomfort may lead to short, minimal responses, reducing meaningful engagement in discussions.
Increased emotional distress during communication – Feelings of hopelessness, frustration, or anxiety may cause MHRQ to avoid or struggle with emotional expression.
Reduced ability to participate in complex conversations – Cognitive impairments associated with MDD may impact his ability to comprehend and engage in lengthy or detailed discussions.
·These factors significantly reduce MHRQ’s ability to effectively communicate, engage in social interactions, and advocate for his needs, impacting his overall quality of life.
·Mr Elliott Mate’s report outlines MHRQ’s social isolation:
·His mental health symptoms and low self-esteem have resulted in him becoming socially isolated. Currently, he does not often leave his home except to go shopping with his father or to attend health appointments.
·Mr Mate recommends that MHRQ engage with an occupational therapist, with the treatment focusing on MHRQ's identification, and then gradually engage in activities of interest and social groups within his area.’
·In conclusion the Applicant submitted that the psychiatric and allied health evidence uniformly confirms MHRQ’s significant social isolation. His psychiatrist attests to the need for disability supports to enable MHRQ to interact with the community. Ms Maharaj’s evidence affirms MHRQ’s significant difficulties coping with emotions in social situations and interacting with others, as explicitly contemplated in the Access Guidelines. Having regard to the totality of the evidence, the Tribunal can be satisfied of the substantial reduction in MHRQ’s functional capacity for social interaction.
Mobility
The SFIC submitted that MHRQ has a substantially reduced functional capacity in the domain of mobility.
In this regard the following evidence was referenced:
·Dr Timms in his report noted that MHRQ has restrictions in his ability to sit, stand and mobilise and, significantly reduced endurance to perform these functions, which has left him incapacitated.
·Dr Dissanayake referring to MHRQ’s back pain noted that it is ongoing and that it affects sitting and walking:
He is suffering from back pain with leg pain L>R. Lower back pain around 6/10, is radiating to the L/leg and he gets spasms and numbness with pins and needles in the L/leg. He is struggling to walk more than 15 minutes and unable to sit for more than 30 minutes, he has to reposition himself every few minutes to be comfortable.
Pain is aggravated from walking, standing and moving his back too much. He has to rest his back and take pain medication to relieve his pain.
·Ms Maharaj conducted a functional capacity assessment in February 2025. When applying a WHODAS test assessed MHRQ’s disability score as being 75% in the domain of mobility, which is within the ‘extreme’ band on that measure.
·His score utilising the Lower Extremity Functional Index (‘LEFI’) was found to have scored 22/80 with 0 being the lowest functional status. She further noted that MHRQ has extreme difficulty or is unable to perform a range of tasks, including walking two blocks, standing for one hour, and going up or down 10 stairs.
Reporting on MHRQ’s overall mobility at home in the community Ms Maharaj observed:
·He has reduced mobility indoors and is independently mobile in his home, walking slowly and using furniture for support. He spends most of his time in bed or sitting in a chair outdoors with dogs.
In terms of his capacity to mobilise in the community, Ms Maharaj stated:
‘MHRQ does not have functional community mobility, as he does not have adequate energy or endurance to walk outdoors for more than 10 minutes.
His capacity to effectively mobilise has been further complicated by his first documented adult-onset seizure which occurred on or around 20-21 May 2025. Ms Maharaj has completed a supplementary assessment and report following this seizure as well as further back surgery MHRQ underwent on 31 March 2025. Ms Maharaj notes his reduced functional capacity to mobilise remains, noting that he has ‘reduced physical endurance and prolonged recovery times, reduced tolerance for high-exertion tasks and risk of orthostatic symptoms when changing positions.
In her supplementary report, Ms Maharaj completed a fall assessment for MHRQ which indicated he was at high risk of falls.
Mr Mate’s report also indicates that MHRQ has restricted mobility and is limited to flat, surfaces and contingent on the availability for rest breaks every five to seven minutes, with limited capacity to use stairs.
Self-care
MHRQ’s counsel submitted that he has a substantial reduction in functional capacity in this domain deriving from his physical, sensory and psychosocial impairments.
In support of that contention the SFIC referred to evidence provided by Ms Maharaj, Dr Mihaesi, Dr Timms and Mr Mate.
Ms Maharaj’s reports indicate:
·Ms Maharaj noted the debilitating effect his psychosocial impairments have on his capacity for self-care: ‘depression can lead to fluctuations in motivation, causing inconsistency in other areas like clothing changes or hygiene routines’ and noting that his major depressive disorder contributes to fatigue and low motivation to consistently attend to grooming and self-hygiene tasks.
·She noted that MHRQ has difficulty with lower body dressing, due to his limited mobility and the pain he experiences.
·She noted that MHRQ requires assistance for housework, laundry and meal preparation and that he cannot participate in gardening or yard maintenance.
·She recommends the provision of assistive technology to assist MHRQ with self-care. She suggests that MHRQ would benefit from assistive technology such as long handled dressing aids, a shower chair and also recommends home modifications such as grab bars for showering.
·She recommends occupational therapy interventions to assist MHRQ with self-care and suggesting that MHRQ might benefit from support worker assistance.
Mr Mate’s report indicates:
·MHRQ requires modified techniques to complete self-care tasks, such as showering and dressing.
·MHRQ requires physical assistance for heavy cleaning tasks such as changing the bed and noted that he currently relies on his parents to do so. He further noted that MHRQ requires the assistance of his parents for grocery shopping.
·that he cannot participate in gardening or yard maintenance.
·He would recommend assistive technology for MHRQ with self-care. Mr Mate recommends he would benefit from long handled shower implements and a shower chair.
·That he recommends the provision of occupational therapy from MHRQ.
Dr Timms’ report states:
·“I believe Mr MHRQ is able to self-care, however, he would be severely restricted due to his impairments of reduced ability to sit, stand and mobilise, along with his severely reduced endurance. As he suffers chronic pain, this would also severely restrict his ability in these areas.
Dr Mihaesi noted that:
·MHRQ relies on his father’s help for self-management, and that his impairments are substantially reducing his functional capacity in self-management.
Self-management
MHRQ’s counsel submitted that he has a substantial reduction in functional capacity in this domain deriving from his physical, sensory and psychosocial impairments.
·Dr Mihaesi states that MHRQ relies on his father’s help for self-management, and that his impairments are substantially reducing his functional capacity in self-management.
·MHRQ’s general practitioner Dr Dissanayake has also expressed concerns about his functional capacity for self-management:
His cognitive capacity to organise his life, plan and make decisions has diminished a lot. He needs ongoing support, motivation from dad completing daily tasks, making decisions, problem solving and managing finances.
·Ms Maharaj notes that MHRQ scored 93.75% in both life activities and participation in society in the WHODAS, which are directly linked to self-management. She concludes that he experiences substantially reduced functional capacity in motivation for daily activities, impaired executive functioning and decision-making, challenges maintaining household responsibilities, difficulties managing finances and bills, reduced ability to problem solve and to adapt to challenges and limited engagement in personal growth and community activities.
Given the evidence before it, the Tribunal ought to be satisfied that MHRQ has a substantially reduced functional capacity in self-management to the satisfaction of s 24(1)(c).
Do MHRQ’s impairments affect his capacity for social or economic participation? – Section 24(1)(d)
Given the evidence outlined above in relation to MHRQ’s reduced functional capacity, he submitted that the Tribunal can be satisfied that his impairments affect his capacity for social and economic participation.
Is MHRQ likely to require support under the NDIS for his lifetime – Section 24(1)(e)?
Both Dr Mihaesi, and Dr Timms are of the opinion that MHRQ impairments are permanent and enduring. As outlined above, while treatment may help MHRQ to retain the limited functional capacity, both medical experts are of the view that it will not remedy the impairments.
Both Mr Mate and Ms Maharaj both recommend a range of supports that would be of benefit to MHRQ.
If the Tribunal accepts that MHRQ’s disabilities are permanent or likely to be permanent and that the impairment results in substantially reduced functional capacity in any of the five domains of social interaction, mobility, self-care, self-management or learning, it follows that he will require support under the NDIS for his lifetime, thereby satisfying s 24(1)(e) of the Act.
Does MHRQ satisfy the early intervention requirements under section 25?
The Applicant submitted that in the event it is not satisfied that MHRQ has a substantially reduced functional capacity in one of the domains in s 24(c) or that he is not likely to require support from the NDIS for his lifetime then the Tribunal ought to consider whether he otherwise meets the early intervention requirements under s 25.
The Agency’s position.
In its SFIC dated 9 September 2025 the Agency outlined its position with respect to MHRQ’s application for access to the scheme and what section 34 criteria remained in issue.
The Agency conceded that MHRQ satisfies the age and residency requirements under sections 22 and 23 of the NDIS Act.
In reference to section 24(1)(a) of the NDIS Act, the Agency also conceded that MHRQ has psychosocial impairments attributable to his major depressive disorder (MDD) and Post-Traumatic Stress Disorder (PTSD) and physical impairments attributable to his initial L4/5-disc injury and disc bulge with subsequent lumbar microdiscectomy at L4/5 and a posterior lumbar interbody fusion at L4/5 (spinal condition) to chronic pain and sensory impairments attributable to chronic pain.
Finally, the Agency conceded that MHRQ’s impairments affect his capacity for social or economic participation.
By way of an overview, the Agency contended that:
(a) MHRQ’s impairments are not, or not likely to be, permanent to the satisfaction of s 24(1)(b);
(b) MHRQ’s impairments do not result in a substantially reduced functional capacity in any of the activities under s 24(1)(c).
(c) MHRQ is not likely to require NDIS support for his lifetime under s 24(1)(e).
(d) MHRQ’s circumstances do not render him eligible for access to the NDIS under the early intervention criteria under section 25.
Permanence
In National Disability Insurance Agency and Davis, Mortimer J defined the word permanence as meaning:
'Whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphases of the scheme'
Rule 5.4 provides that an impairment is, or is likely to be, permanent only if there is no known, available and appropriate evidence-based clinical, medical or other treatment that would be likely to remedy the impairment.
Rule 5.6 provides that an 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).
Psychosocial impairments
The Agency submitted that on the evidence, the Tribunal could not be satisfied that MHRQ’s psychosocial impairments are permanent.
The Agency referred to the report dated 30 July 2025 from Dr Mihaesi that indicated that MHRQ’s MDD and PTSD are permanent, “careful and sustained treatment and support” is required to maintain remission. Dr Mihaesi goes on to identify that a combination of psychotherapy, medications, specific psychosocial interventions, ongoing psychiatric and psychologist review and group therapy as all being indicated.
The Agency submitted that Dr Mihaesi comments suggest that the impairments are capable of remission and therefore do not have an enduring quality that would establish they are permanent.
Again, citing Dr Mihaesi’s observation that MHRQ in between hospital admissions, had enjoyed a more stable mental state and the risks were deemed as moderate-low, the Agency submitted this indicated a degree of remission in his impairments.
The Agency referred to the recent stressors in MHRQ’ life and submitted that if those stressors were resolved, then it was likely his impairments would also resolve.
Physical/sensory impairments
The Agency submitted that it appears that most of the Applicant’s functional limitations arising from his spinal condition, are related to his experience of chronic pain. It noted that the Applicant does not appear to have engaged in a multidisciplinary chronic pain management program. Because of this, the Respondent contends that the Applicant’s chronic pain related impairments ought not be considered permanent.
Seizures
The Agency submitted that there is simply no evidence as to the nature or aetiology of his “adult-onset seizure” and because of this, it submitted that the Tribunal cannot be satisfied that s 24(1)(b) is met.
Functional capacity
The Agency submitted that the evidence indicates that MHRQ does not have a substantially reduced functional capacity in any of the six domains listed in section 24(1)(c).
In this regard it relied upon the Occupational Therapy Assessment report prepared by Mr Elliott Mate. It further stated that where there may be a difference in opinion on the degree of MHRQ’s functional capacity between Mr Mate and MHRQ’s treating practitioners, Mr Mate’s opinion should carry more weight.
Referring to Rule 5.8 the Agency stated that in order for a person to be considered to have substantially reduced capacity in the following scenarios:
·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.
·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.
·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.
Rule 5.8 of the Rules requires a decision maker to assess the effect of a person’s impairment on the performance of each of the activities that are set out in s 24(1)(c). If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c) then the deeming effect of r 5.8 will apply.11 When applying r 5.8, an assessment must be made as to ‘the bundle of tasks and actions forming the concept of [the activity].’
Fluctuation of functional capacity
The Agency noted that Rule 5.5 of the Rules provides that the severity of an impairment’s impact on a prospective participant’s functional capacity may fluctuate.
The Agency referred to the decision of the Administrative Review Tribunal (CKJW and National Disability Insurance Agency [2021] AATA 3983). In that case, the Tribunal assessed the self-care capacity of an Applicant with fluctuating symptoms of persistent depressive disorder. The Applicant had indicated in her evidence that she had 5 ‘bad’ days each month and 1-2 ‘very bad’ days per month, with the majority of the other days each month were ‘average’.
The Agency submitted that in assessing the Applicant’s eligibility, the Tribunal in that case took a holistic view of the Applicant’s functional capacity and made its determination based on the weight of evidence for the Applicant’s capacity to organise her life, to plan and make decisions and take responsibility for herself. Although acknowledging periods of great difficulty with self-care, the Tribunal found that the Applicant did not have substantially reduced functional capacity.
The Agency submitted that it would be appropriate to take a similar holistic approach in this application.
In this respect, the SFIC noted that Mr Mate stated in his report that MHRQ reported that his symptoms varied. On a bad day, the Applicant reported his pain is 10/10 and on an average day it is 5/10. Mr Mate’s assessment was conducted on a day the Applicant reported “severe pain” although the Applicant reported that his movements and functional capacity were typical for him.
Communication
Mr Mate recorded that the Applicant was fully independent with communication. This was based on Mr Mate’s direct observations of the Applicant in combination with the Applicant’s reporting. Accordingly, it is contended that the Applicant does not have a substantial reduction in functional capacity in this activity.
Social interaction
The Respondent in addressing this domain, referred to the following evidence:
·Mr Mate noted that, despite some self-reported social anxiety when in the community, the Applicant was independent in interacting with the community, behaving within limits accepted by others and coping with feelings/emotions in a social context.
·Mr Mate noted the Applicant’s mental health symptoms and low self-esteem have caused him to become socially isolated and that he did not often leave his home except to go shopping with his father or to go to his health appointments. Although he has fallen out with some friends who believed he was taking advantage of the Workcover system, he maintains friendships with people he met during his rehabilitation and that he was not currently focused on making new friends. Mr Mate considered the Applicant does not require formal person-to-person support to make and keep friends.
·Mr Mate considered that MHRQ should engage with an occupational therapist to build his capacity for accessing community and linking him with social groups related to his interests.
The Agency referred to the decision of the Administrative Review Tribunal of (HPSC and NDIA [2021] AATA 727 (HSPC) citing the following paragraphs:
·Given that social interaction is, by its nature, often intermittent, it is unhelpful to consider how often episodes of acute incapacity prevent her from undertaking such interaction. Rather, the pertinent question is whether she is able to make and keep friends, interact with the community and cope with feelings and emotions while doing so. It appears that the totality of the evidence does suggest a general capacity to maintain friends and to interact with the community…The evidence tends to the conclusion that her conditions sometimes require her to absent herself from real-time or online engagement with her friends, but it does not suggest that she is unable to maintain those friendships on that account.
·[in] the words of Mortimer J in Mulligan at [56]: the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Quite evidently, the Applicant can make and maintain friendships and can cope with emotions in that context. Doing so may represent a personal struggle, and may be accompanied by anxiety or self-doubt, but this does not detract from the reality that she is able to reach that goal.
In conclusion the Agency submitted that having regard to r 5.8, the Applicant does not have a substantial reduction in functional capacity in the activity of social interaction, particularly when regard is had to the bundle of tasks that make up the activity. Although aspects of social interaction may be limited, the Applicant is generally independent. The fact that his capacity may be improved through occupational therapy does not mean that his current capacity is substantially reduced.
Learning
Mr Mate noted in his report recorded that MHRQ used several strategies to assist his learning such as writing things down or relying upon electronic reminders to maintain his learning independence.
According to r 5.8(a) the use of a diary, calendar, and visual prompts would constitute commonly used items that enable a person to participate effectively or completely in an activity.
On this basis, it submitted that the Applicant does not have a substantial reduction in functional capacity in this activity.
Mobility
The Respondent in addressing this domain, referred to the following evidence:
·Dr Dissanayake recorded that the Applicant “is struggling to walk for more than 15 mins and unable to sit for more than 30 minutes”.
·In his report, Mr Mate stated that during the assessment, he was observed to mobilise for around 5-10 continuous minutes before resting. He stated that during rehabilitation at Southeastern Private Hospital, he recently walked on a treadmill for 7 minutes before his left leg went numb and needed to rest. Based on this, I am of the opinion that with regular rest breaks and avoiding prolonged walking on steep, unsealed terrain or multiple flights of steps, MHRQ is independent with mobility and would need rest breaks every 5-7 minutes.
·Mr Mate otherwise accepted that the Applicant had a falls risk arising out of his physical symptoms from his back injury, and on that basis recommended that the Applicant utilise a falls alarm to provide support in the event of a fall.
·Mr Mate assessed that MHRQ age requirement (section 22) was able to independently access his home including ascending and descending 4 steps; mobilising throughout the home without difficulty; independent in accessing cupboards storage and shelving with appropriate modification (storing the items above waist and below shoulder height), independent with difficulty in bed transfers (although a bed pole would assist with safety and independence); fully independent in chair transfers; having modified independence in toilet transfers (recommending an over-toilet frame to increase safety and independence); independent with shower and car transfers; independent in driving and using taxi/rideshare services to get to appointments; restricted in his lifting capacity to 1 - 3 kgs (which was sufficient for most household items) and independent in mobilizing in the community with the breaks outlined above.
·The Applicant does not usually require the assistance of another person to mobilise, and although he will benefit from an over-toilet frame and bed pole and needs a falls alarm,
·these are in respect of two aspects of the broader task of mobility.
The Agency submitted that MHRQ does not usually require the assistance of another person to mobilise, and although he will benefit from an over-toilet frame and bed pole and needs a falls alarm. Additionally, the items recommended are easily accessible, not complex in set-up or instruction and relatively cheap items. To the extent they are considered equipment for the purposes of r 5.8(a), they should be considered commonly used items.
In summary, in addressing this domain, when viewed holistically, the Agency submitted that the Applicant does not have a substantial reduction in capacity in mobility. The Applicant is broadly independent with mobility, although he does benefit from pacing or modification to certain tasks. It is contended that doing things differently or slowly, or struggling with tasks, does not result in substantially reduced functional capacity.
Self-care
The Respondent in addressing this domain, referred to the following evidence:
·Mr Mate considered the Applicant was independent with toileting, washing hands, cleaning teeth, washing face, shaving, brushing hair and cutting nails. He considered the Applicant was able to shower independently, although considered that the Applicant would benefit from a shower chair and long handled washer which would reduce the need for prolonged standing, reaching and twisting. The Applicant is independent with dressing although sits on his bed to reduce the need for balance and prolonged standing.
·Mr Mate did not consider the Applicant required formal assistance with meal preparation. He acknowledged that the Applicant has physical and carrying limitations impacting his capacity for grocery shopping but considered an alternative would be to use click and collect or delivered shopping which would maintain his independence. Mr Mate also considered MHRQ also has the capacity to undertake light laundry, washing up and kitchen cleaning tasks.
Taking account of the above, the Respondent acknowledged that the Applicant requires assistance in some aspects of self-care (primarily in relation to heavy cleaning, heavy laundry and garden maintenance) and may benefit from occupational therapy intervention to provide functional education regarding energy conservation techniques, fatigue management and pacing/grading activity and to increase participation in domestic activities.
The Agency submitted that apart from these areas. he is otherwise independent or able to use modification to complete tasks within the activity of self-care. Further, although the Applicant may require the assistance of another person with some tasks, this does not amount to ‘usually’ requiring assistance when regard is had to the ‘bundle of tasks’ making up the activity of self-care for the purposes of r 5.8(b).
To the extent that he may require the use a shower chair or a long-handled washer to increase his endurance while showering, it submitted that these are commonly used items (r 5.8(a))23 and in any event are only required in respect of this discrete task within the activity of self-care.
The Agency referred to the decision of the Administrative Review Tribunal of Williams and NDIA [2021] AATA 3383 (Williams) citing the following paragraphs.
·While the evidence indicates that Ms Williams has some reduced functional capacity in the activity of self-care, it does not demonstrate a substantial reduction in her functional capacity to undertake the tasks associated with this activity. As the Tribunal said in Madelaine and NDIA [2020] AATA 4025, having a substantially reduced functional capacity for self-care ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being’. The evidence before the Tribunal was that Ms Williams can independently perform all of the self-care activities listed in the Access Guideline, being personal care, hygiene, grooming and feeding herself, showering, bathing, dressing, eating, toileting. grooming and caring for her own heath care needs and there are no significant gaps in her capacity to do so, although again noting that she has assistance with three other related tasks, being making the bed, vacuuming and mopping. Having regard to all the activities of self-care, this reflects some reduced functional capacity, but not a substantial one as required for Ms Williams to satisfy subsection 24(1)(c)(v) of the NDIS Act.
Taking account of the above evidence and contentions, the Respondent submitted that while the Applicant demonstrates some functional limitations in the domain of self-care, these are not to the extent of revealing a substantially reduced functional capacity.
Self-management
The Agency noted that Mr Mate recorded that MHRQ is independent in all self-management activities. The Agency therefore submitted that the Applicant does not have a substantial reduction in functional capacity in this domain
Likely to require NDIS support for his lifetime
The Agency submitted that the Tribunal could not be satisfied that the Applicant is likely to require support under the NDIS for his lifetime and therefore does not satisfy s 24(1)(e).
In this regard it firstly noted that as its position is that MHRQ’s conditions are not permanent it cannot then be found that he will require NDIS support for his lifetime.
Further, considering the types of supports recommended by Mr Mate (being some capacity building occupational therapy and one-off purchases of equipment) it is unlikely the Applicant will require support from the NDIS for his lifetime. The Respondent notes that, in addition to the community services outlined in part 7 of Mr Mate’s report, occupational therapy sessions are provided for in the Medicare Benefits Schedule.
To the extent that the Applicant requires ongoing psychological and psychiatric review (as outlined by Dr Mihaesi) and inpatient admission, it is contended that these have been and are most appropriately funded through the health system.
Finally, it is unclear to what extent the Applicant is entitled to continue receiving therapies and support through his Work Cover claim.
Early intervention criteria
The Agency noted that MHRQ has not provided submissions as to whether he is eligible under the early intervention criteria.
However, it provided submissions on this for the sake of completeness.
Impairment/s and Permanency – s 25(1)(a)
For the reasons outlined in relation to s 24(1)(b), and having regard to 6.4 – 6.8, it is suggested that on the available evidence the Tribunal should not be satisfied that the Applicant’s impairments are permanent for the purposes of s 25(1)(a).
Most appropriately funded by the NDIS – s 25(3)
For the reasons outlined in relation to s 24(1)(e), the Respondent contends that any early intervention support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through community and other government services. As outlined in the NDIS Guidelines, ‘many chronic health conditions are most effectively managed or remedied through medical management through the health system...
LEGISLATIVE FRAMEWORK
Section 21(1) of the NDIS Act provides that a person satisfies the access criteria if they meet:
·the “age requirements” under s 22;
and, at the time of considering the access request;
·the “residence requirements” under s 23 of the NDIS Act; and the “disability requirements” under s 24 (as set out in paragraph [34] below) or the “early intervention requirements” under s 25 (as set out in paragraph [36] below).
105.The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self - care;
(vi) self - management; and
(d)the impairment or impairments affect the person's capacity for social or economic participation; and
(e)the person is likely to require NDIS 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).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met in order for access to be granted to the scheme.
The early intervention requirements are contained in section 25 of the NDIS Act and provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;
(iii)is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
108.Likewise, the requirements of s 25 of the NDIS Act are cumulative and all criteria must be met unless otherwise specified.
109.Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
Access Rules
With respect to subsection 24(1)(b) of the Act, concerning the permanency of an impairment, the Access Rules provide:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 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 this 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.
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
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.
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
111.The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines (‘the Access Guidelines’).
112.There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[2] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[3], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[4] which Mortimer J (as his Honour then was) held:
‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…’
‘Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mrs Richards meets the disability requirements or the early intervention requirements…’ [5]
[2] G v Minister for Home Affairs [2019] FCAFC 79 [18].
[3] [1979] 24 ALR 577 [590].
[4] [2018] FCA 1229.
[5] Ibid [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether MHRQ meets the disability requirements or the early intervention requirements.
Whether MHRQ meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’,[6] with a relatively high degree of precision and be positively satisfied.
[6] National Disability Insurance Agency v Davis [2022] FCA 1002 [42].
The Tribunal notes that in Mulligan[7], Mortimer J (as he then was) held that the legislation as it relates to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[8] The Full Court of the Federal Court of Australia in Foster[9]also outlined that the legislation requires a functional, practical assessment of what a person can and cannot do.[10]
[7] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[8] Mulligan at [55].
[9] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[10] Foster at [44].
In this case a functional assessment of MHRQ’s level of function was conducted by an Independent Medical Expert (IME), Mr Elliott Mate, who is an Occupational Therapist who subsequently completed a report dated 28 November 2024 on MHRQ’s functional capacities across the six domains outlined in s 34(1)(c).
Two further functional capacity assessments were prepared by Ms Emma Maharaj dated 4 February 2025 and 12 August 2025.
Both these reports will be considered in this decision.
What does the Tribunal need to decide?
Taking account of those eligibility criteria, the Respondent has acknowledged MHRQ meets, the various matters to be determined by the Tribunal are the following:
·Does MHRQ’s medical condition constitute an impairment within the meaning of s24(1)(a) of the Act.
·Are MHRQ’s impairments permanent within the meaning of s24(1)(b) of the Act?
·Does MHRQ have a substantially reduced functional capacity in any of the six domains listed in s24(1)(c) of the Act?
·Does MHRQ’s impairments affect his capacity for social and economic participation?
·Is MHRQ likely to require support under the National Disability Insurance Scheme for his lifetime?
·Does MHRQ meet the eligibility criteria for early intervention under section 25 of the Act?
The hearing
The hearing of MHRQ’s case took place over three days between 16 and 19 September 2025. MHRQ was represented by Mr James Dalrymple, Associate Public Defender, of Victorian Legal Aid instructed by Mr Sam Elkin and the Agency was represented by Mr Joshua Lessing of Counsel instructed by Sparke Helmore Solicitors
MHRQ gave evidence on his own behalf and Ms Emma Maharaj (Occupational Therapist) and Dr Craig Timms (Neurosurgeon) also gave evidence on MHRQ’s behalf.
It was intended that MHRQ’s Psychiatrist Dr Mihaesi would give evidence however he was on leave at the time of the hearing
Mr Elliott Mate gave evidence on behalf of the Respondent.
In terms of procedural matters, I entered the submitted joint tender bundle into evidence under that name and the material provided under the Respondent’s summons as Exhibit 2.
Both parties’ counsel made opening submissions however I will not record these remarks here.
MHRQ’s evidence
MHRQ provided the following evidence:
·He told the Tribunal that his doctors recommended that he apply to the NDIS and that if he was approved, he could get help with daily activities such as shopping and getting out in the community.
·He told the Tribunal that he has recently had his third round of back surgery being a spinal fusion. He told Mr Dalrymple he felt this surgery had reduced some of the cramping he previously experienced, however he still had nerve damage and still gets some severe cramps, and he is pain when he tries to walk. Prior to this he has had two previous micro-surgeries.
·He also has a psychological condition which is work-related. This started he thought about two years after he had his physical injury and became progressively worse leading to him having a psychiatric admission to hospital. This was in about November or December in 2023.
·The admission to hospital was in the context of his relationship breaking down. He was sleeping in his car at the time and was having suicidal thoughts. He was an inpatient for some weeks and participated in some group counselling and treated with medications. Since then, has needed to go to hospital a few times with the most recent being earlier this year. He sees his psychiatrist every 12 weeks or so.
·He first noticed some physical symptoms in 2019 while at work. He started seeing a chiropractor and then woke up one day and was unable to walk. When he went to see a doctor, he was told he had a ‘blown’ disc
·He told the Tribunal while he was working, he worked in civil construction mainly in railway stations and power sub-stations. He has worked in this field most of his adult life. He has not been able to work since 2019.
·He said that he has five children in all. He had two children with one partner and three with his most recent partner. He said that sadly the breakdown of his most relationship had been” terrible.”
·Asked about his physical symptoms he said that was generally cramping chronic pain, pins and needles and experiencing numbness in his legs.
·He told the Tribunal he has had physiotherapy, remedial massage and hydrotherapy.
·Asked if he has noticed any improvement since his most recent operation, he replied that he had, but not as much as he had hoped. He still has restricted movement, experienced some side effects and pain.
·In terms of his medications, he is currently taking about 4 to 5 tablets in the morning and a further 3 or 4 in the evening. They get delivered to him in a webster pack. He also smokes medicinal cannabis.
·He has also had several rounds of Transcranial Magnetic Stimulation (TMS) which he has found helpful.
·He has also been engaged in drug and alcohol counselling after being placed under a community corrections order and as a result has reduced his alcohol consumption from 6 to 10 drinks per day to 2 to 3 occasionally.
·He was asked about the seizure he experienced some months ago. It happened when he was in his bedroom, and it lasted a few minutes. He then spent some weeks in hospital. His doctors consider the seizure may indicate epilepsy however it has not shown up on scans.
·As a result, he has been advised not to drive for 6 months and he stopped doing hydrotherapy
·Asked about his current living arrangements, he said he is living with his parents While his relationship with them was somewhat strained at first, it is good now. He said both his parents are aged in their seventies. He would love to get out and live in his own home but is concerned about the high cost of rent and his ability to afford it based upon his limited income from the Disability Support Pension (DSP).
·Asked to describe a typical day, he said he usually wakes early and has a coffee and sits outside with his two dogs. On some mornings he is able to have a shower and then get dressed however he has to talk himself into it. He uses his mother’s shower chair. To get dressed he has to put his clothes on while lying on his bed. He cannot bend to put on socks and shoes.
·His sleep is relatively poor being unable to sleep for more than an hour at a time due to pain and experiencing racing thoughts.
·He pretty much stays at home and does not go out but will help his father with the grocery shopping. He will try to take his dogs for a Walk but often starts getting cramps after 15 minutes or so.
·Asked about his capacity to communicate, he said that he has a few close friends he made while in hospital and sometimes talks with them but mainly communicates with his parents. He generally does not have problems speaking with them but experiences difficulty speaking with others. He said he can send an email on his phone. He feels that the friends he made in hospital understand and “get” him. However other people don’t know what he is going through.
·In terms of his learning capacity, he said that he was quite forgetful and needs reminding about a range of things. He first noticed his poor memory when he was in hospital.
·Asked about his capacity for social interaction, he said that he now feels really anxious being in the community and talking to others “freaks me out.” When this happens, he just wants to go home. He finds it easier to talk on the phone but very much struggles with face-to-face interactions. He will either go to their homes or they would come to his or maybe have lunch together. This happens about once a month.
·Asked about his capacity to socialise, he said that he can spend a limited time out if he is with his father but felt he could not do so on his own.
·Asked about his ability to manage his time, he can’t remember medical and other appointments or pay bills, he said that he needs to put everything in a calendar.
·Asked by Mr Dalrymple about his level of mobility, he said that he is pretty slow these days. It takes him time to get moving and having cramps slows him down further. He has a walker which he will use occasionally.
·He agreed that he can only manage about 5 stairs while using a handrail.
·He said that he can help his father with the shopping but would be unable to walk to the shops which is about a kilometre away and are located up a hill from his parent’s place.
·The train station is about 500 metres away. He did once walk there but he was so fatigued after doing it he had to call an uber to take him home.
·He did not think he could ride in a train as he would be very anxious.
·Asked about his ability to transfer from his bed or from a chair he said he needs to be very careful as his legs can give way after he puts weight on them. He has had several falls the most recent after his surgery mostly at home.
·He gets pins and needles when getting off the toilet.
·He can remain standing for about 20 minutes, but cramps start to develop in his back.
·He can shower but finds getting in and out of the shower difficult.
·He doesn’t cook at home with his father mainly attending to this. He can help lay the table. He was not sure if he would be able to cook if he was living alone. He was concerned that he would forget things like leaving the gas or hotplates on.
·His mother looks after his laundry. He has tried to do it but has found it a “battle” and can’t carry a laundry basket or bend down or stretch using the washer or dryer or hanging clothes out.
·His mother does all the house cleaning, but he could wipe down a bench or outside table. He can use a vacuum in his bedroom which is quite small.
Mr Lessing also asked several questions of MHRQ.
·He provided similar responses to the answers he provided to Mr Dalrymple concerning his attempt to walk to the nearest railway station.
·He was doubtful if he could do that walk after his most recent surgery.
·He again confirmed that he was not permitted to drive for six months after his seizure but was also concerned about his use of medical cannabis and whether that might result in him being fined or losing his licence.
·He is still having physiotherapy and a small number of hydrotherapy sessions.
·He had been taking ketamine and fentanyl after his surgery but stopped them as they were damaging his teeth. He continues with the medicinal cannabis (4-5 grains a day) which he believes is helpful. He said he has trialled all the current range of pain medications.
·MHRQ also responded to several questions from Mr Lessing about his recent admissions.
·He continues to see his Psychiatrist, Dr Mihaesi usually via telehealth. He was asked if it had been recommended that he start seeing a psychologist and said he could not recall being told that, because he would have done so if his doctor recommended that.
·He said that he was reasonably happy with his medication for his mental health. While he continues to experience bad days, he hasn’t needed to go to a psych hospital this year.
Ms Maharaj’s evidence
Ms Maharaj provided the following information:
·Ms Maharaj described her formal qualifications and practical experience. She confirmed that her report was correct however indicated that she wished to amend a reference at page 18 of her February 2025 report where she had incorrectly recorded MHRQ’s UEFI score as being 22 when the correct total was 5.[11]
[11] JTB 125
·Ms Maharaj described her process of performing a functional assessment as comprising:
Interviewing the participant
Conducting a range of standardised assessments
Directly observing the participant in their home environment.
·She conducted the following assessment questionnaires:
WHODAS
Community Integration
Pain Rating
Upper and Lower extremity Index assessment
Fatigue Questionnaire
Cognition assessment.
·Her first assessment was conducted over approximately 2 hours.
·In terms of her observations of MHRQ she said this consisted of:
Mobilising around various parts of his home.
Mobilising outside on the driveway including using the external steps and going to the letter box.
Fetching a glass of water
Reaching into high and low spaces such as cupboards
Transfer from his bed and a chair.
·Asked about the role of the various assessment tools Ms Maharaj said they were frequently used by OT’s particularly in the NDIS space. For example, implementing a WHODAS assessment is regarded as clinical best practice.
·The tools assist a practitioner by complementing their observations and provide some objective data to compare the participant with those of a similar age without an impairment. She agreed that there can sometimes be a difference between the test results and the observations however she placed a high value on self-reporting and considers most participants have a good insight into their abilities/impairments.
·She conducted the second assessment in August 2025 after MHRQ had a seizure.
·Asked about what she considered MHRQ’s physical conditions and impairments she noted he has a L4/L5 disc prolapse and resulting nerve damage. This has caused MHRQ to experience chronic pain, nerve dysfunction and reduced mobility. He has weakness and numbness in his lower legs and is at a high risk of falls.
·She advised that his psychosocial condition was major depressive disorder which results in persistent low mood and motivation, persistent fatigue and brain fog. These significantly affect his cognition.
·Ms Maharaj also provided the various assessment tools she used and the information they provide an assessor and how they may compare to the comparable population.
Mobility
·MHRQ’s score on his WHODAS assessment indicates that he is 75% disabled and even though he can mobilise without aids, that does not mean he is independent. She observed him using furniture to lean on to mobilise in his home.
·He needs to be mindful when transferring from a seating position due to the weakness in his legs and high blood pressure.
·She observed him transferring from his bed and in her view, he would benefit from an electric bed and positioning devices that would assist with getting on and off the bed and improve his sleep quality. Again, she considered this would require a further AT assessment.
·He has reduced standing and walking tolerance perhaps between 5 to 10 minutes with reduced sensation and making him at risk of falls. His tolerance can vary from day to day.
·He does not have functional community mobility. He requires a further AT assessment to determine if he requires a motorised wheelchair. If found to require a motorised wheelchair it would help him to access public transport and should increase his economic and social participation.
·She disagrees with Mr Mate’s assessment that the provision of a powered wheelchair would reduce his mobility over time, stating that at present he cannot effectively interact with the community. He could use this AT in the community while still mobilising at home and can participate in physio and other therapy to maintain his strength, mobility and stamina.
·Asked about MHTQ’s report on his attempt to walk to the train station, Ms Maharaj indicated to her that he did so at great personal expense, placing him at higher risk of falls and post-exertion malaise.
·She has assessed during her August assessment his fall risk as moderate and agreed that his recent seizures had been a factor in this
·She did not notice any marked change in his presentation post-surgery when she conducted her second assessment and based upon her experience, such surgery rarely results in improved functional capacity.
·His mental health impacts his capacity to mobilise, and that there is a complex interplay between his psychosocial and physical impairments, and they need to be considered holistically. He has reduced motivation and a low baseline for physical activity.
Self-care
Addressing the domain of self-care Ms Maharaj noted:
·She noted that MHRQ tries to shower daily, and he finds having a shower soothing and feels better afterwards.
·In terms of meal preparation, he requires a high level of support other than for simple tasks such as a cup of tea or coffee, making toast or a sandwich. Making a more complex meal he would find extremely difficult due to his physical and cognitive issues.
·He would benefit from some AT including a perching stool to assist him with food preparation.
·He has limited ability to do house cleaning. He can tidy his bedroom but limited to do activities such as vacuuming and mopping.
·Noting Mr Mate’s observation that he vacuums his bedroom, she agreed that was the case, but he needed to use a light vacuum cleaner and only for a limited time.
·Responding to Mr Mate’s assessment that MHRQ could perform light laundry tasks, she noted this could not involve bending or stretching and would present a falls risk. He may require a laundry trolley and an accessible dryer.
·In terms of his capacity to perform grocery shopping her view was that he could not do this independently due to both his physical and psychosocial impairments. She agreed with Mr Mate’s assessment that ‘click and collect’ may work but also agreed he required assistance to carry grocery items to and from the car.
·In terms of what assistive technology, MHRQ may require this would include:
Toilet and shower grab rails
Occupational therapy sessions
Support workers to assist at both home and accessing the community.
·She noted that he needs to develop greater independence and less reliance on his parents who are aging and have their own issues. He will certainly require greater support if living in his own home.
Social Interaction
·Based upon his WHODAs score she considers MHRQ requires support to access the community. He is currently avoidant of many social situations and finds them difficult. She ascribed this largely to his psychosocial impairments.
·She disagreed with Mr Mate’s assessment that having the assistance of support workers in accessing the community would increase his level of dependence. She said that MHRQ would be highly unlikely he would do this without some support. He needs support to address his fear and inertia. His lack of physical function also plays a part here.
Learning
Regarding to this domain, Ms Maharaj observed:
·MHRQ has reduced confidence in his skills in this area. His MDD impacts his cognitive capacity. For example, he may have difficulty completing a Centrelink form independently.
Self-management
When referred to Mr Mate’s observation that MHRQ could with some assistance have self-management skills, Ms Maharaj said that it did not indicate the significant affect MHRQ’s MDD has on this domain of function. She considers he is highly reliant on his parents to remind him to take his medications and upcoming medical appointments and their assistance to attend those appointments.
Future supports if granted access to the NDIS
On this topic, Ms Maharaj stated:
·She conducted a care and needs scale (CANS) assessment which is the only tool which can calculate a participant’s likely care needs.
·She said such supports should be life changing and that in her view the NDIS was best placed to provide these.
·Thes would include supports for building his capacity, improve his social and economic participation and provide domestic assistance
·Asked about the role of MHRQ’s Workcover supports she understood this would include ongoing medical treatment and physiotherapy and hydrotherapy sessions.
·As to whether other support services such as HACC could address MHRQ’s needs, Ms Maharaj said it was likely they would be insufficient to meet his needs and would most likely receive only minimal support. She believed he would not be viewed as a priority client on a long waiting list and competing with those aged over 65 for such limited resources.
Response to Agency’s Counsel’s questions
She responded again to several questions from Mr Lessing about her methodology in assessing MHRQ.
She said that she had spent 30 to 45 minutes interviewing MHRQ, 30 to 45 minutes conducting the assessments with the balance of the assessment observing MHRQ perform tasks in his home.
She confirmed that she strongly disagreed with certain aspects of Mr Mate’s report particularly him not completing WHODAS and that he does not have significant experience with those with physical and psychosocial conditions. She also conceded that she had not seen him for some 5 years.
She agreed that some of the assistive items she has recommended would require further assessments.
Asked about Mr Mate’s statement that making detailed recommendations was outside of the scope as an OT, Ms Maharaj disagreed saying that she felt it is within her capacity and expertise.
When it was put to her that the wording in her report may suggest she was acting as an advocate particularly in how she framed the request for supports. Ms Maharaj conceded that was the case. She denied that she overly relied on subjective supports rather than an objective assessment of MHRQ.
She added that clinicians need to synthesis a range of evidence, and not just rely upon their observations of a participant.
Mr Mate’s Evidence
Mr Mate’s evidence was as follows:
·He described his formal qualifications and practical experience. He confirmed that his report was correct however indicated that he wished to amend the item on page 20 of his report. He had indicated in his description of MHRQ’s capacities with lawn and gardening that he was independent however he wished to change this to requiring physical assistance.
·He confirmed he had been provided with copies of Ms Maharaj’s reports.
·He described his process when he conducted the assessment of MHRQ. He said the assessment took two hours which he considered to be an average time to conduct an assessment.
·Asked whether he conducted any of the standard assessment tools, Mr Mate stated that he was not in the habit of using these tools and rather relied upon his own observations and the person’s responses to his questions.
·Asked why he did not utilise these standardised questionnaires and assessment tools, he stated that he thought they added little value to a functional assessment and are less specific indicators to the person being assessed and their home environment. He also considered in many respects they were highly subjective.
·He was asked about his views on several of the standard assessment tools.
·Regarding the World Health Organisation Disability Assessment Schedule (WHODAS), he said it may not accurately describe a person’s capacity.
·He also does not use the Community Integration Questionnaire as it does not assess a person’s capacity to perform rather what they cannot do. He said he would not use this test for a medico-legal assessment.
·He said that both the pain scale and stress scale questionnaires may be useful but did not conduct these with MHRQ
·He did not conduct the Upper Extremity Functional Index (UEFI) and the Lower Extremity Functional Index (LEFI) tests preferring to rely on his own observations.
·He did not conduct a fatigue scale. He was not familiar with it and MHRQ had not reported fatigue as a symptom
·He also was not familiar with the Cognitive Failures Questionnaire and does not use it in his practice.
·He said that each test would take about 10 to 15 minutes and could take up to 2 hours to complete them all.
·Asked to comment on Ms Maharaj’s report he noted that they had reached very different conclusions overall and particularly concerning MHRQ’s functional capacity. He further noted that Ms Maharaj had recommended a number of high-level assistive technology items which was not consistent with his observations.
·Asked about Ms Maharaj’s scores on the WHODAS assessment[12] she conducted he considered that he would score MHRQ’s level of disability as mild to moderate whereas Ms Maharaj’s findings were primarily in the severe to extreme range.
[12] Page 20 of her report JTB 119
·Referring to the findings of Ms Maharaj’s on the UEFI test[13] he said that he disagreed with her observations and that in his view MHRQ should be able to perform the tasks she listed there. He also disagreed with her finding based on MHRQ’s score that he has a severe impairment.
[13] Page 17 of her report JTB 124
·He indicated in the following responses what he considered MHRQ would be capable of.
·He saw him boil a kettle and he could access cupboards.
·He said that he should be able to do light household tasks and some food preparation. He did not see MHRQ attempt to open a jar, however there are tools available to assist with this.
·He could reheat prepared microwave meals. MHRQ’s safety concerns about leaving the gas or hotplates on could be addressed by an automatic cutoff mechanism or using an alarm or oven timer.
·He could lift a small suitcase.
·He could manage grocery shopping if he had a shopping list. He could manage light laundry but not lift a basket of wet clothes or lift a mattress.
·He can manage to shower himself and get dressed.
·When asked which domains MHRQ’s function was most reduced, he stated that it was with heavier self-care tasks and aspects of mobility. The heavier self-care tasks would include more strenuous floor cleaning such as floor cleaning and scrubbing, which could involve bending squatting and stretching.
·He recommended that MHRQ not lift any more than 3 kilograms.
·In terms of his overall mobility, he said that MHRQ:
Should be able to walk two street blocks.
Could not walk a mile of distance
Could manage climbing stairs (up to 12)
Could not stand for one hour.
Would not be able to run.
Should avoid walking over uneven terrain
He considered that MHRQ has a moderate risk of falls.
·He did not consider that MHRQ demonstrated any cognitive deficits and appeared alert and oriented while being assessed.
·Addressing his recommended supports he indicated that:
He would benefit from 3 to 5 sessions of OT to assist him to attain his goals.
He requires a arrange of assistive technology such as a shower chair, long-handled brush and grab rails
He would not recommend a powered wheelchair as it may result in reduced function
·He agreed that if MHRQ was living alone he would require a greater level of support but considered these could be provided by state-based community services.
·Addressing MHRQ’s capacity for community participation Mr Mate noted that he had not observed him in a community setting. He said that based upon MHRQ’s ability to make friends with other patients while in hospital suggests that he could interact with others he may not know in the community.
Mr Mate also responded to a series of questions concerning his methodology from Mr Dalrymple:
·Asked about the Agency’s recommendation that certain assessment tools be used, he agreed that the assessment tools could be useful, but ultimately depends on how they are used.
·He agreed that while a person may be able to perform a task, they might find the task difficult.
·He again confirmed that he preferred observing a person perform certain tasks rather than asking questions about those tasks.
Mr Mate provided the following responses concerning the functional domains:
Mobility
·He can mobilise independently at home.
·He has 5 stairs in his home and Mr Mate considers he could manage 112 stairs using a handrail.
·His walking tolerance is about 5 to 10 minutes.
·Agreed that he required a bed pole to transfer and have grab rails in the toilet and shower.
·He has limited capacity to bend and squat.
·He has a limited capacity for mobility in the community.
·Regarding using public transport, he confirmed he did not see MHRQ access the community, but considered he would need more time to access and use such transport.
·He did not conduct a driving assessment of MHRQ.
·Mr Mate agreed that MHRQ was at moderate risk of falls but also noted that his medications may play a role in this. He recommends MHRQ use a fall alert unit.
·He agreed that MHRQ’s psychosocial conditions may react with his mobility. It could cause him to lack energy and motivation to mobilise. He agreed that he did not explicitly assess how MHRQ’s motivation levels affects his mobility.
·He agreed that he did not explicitly assess MHRQ’s fatigue levels but did recommend he have OT to assist with energy management.
Self-care
·He agreed that MHRQ can shower however with some difficulty, and this was related to his difficulties with twisting and bending. He has recommended some AT to address this.
·Referring to his assessment that MHRQ can prepare meals independently[14] he noted he did not undertake an assessment of his cooking capacity. He considers MHRQ can prepare light meals which was based on observing him make a cup of tea.
·He could use ‘click and collect’ for his grocery shopping but would need assistance carrying heavy bags of groceries.
He agreed that if MHRQ lived alone he will need assistance with house cleaning.
Self-management
·He agreed that MHRQ can be independent with self-management tasks however needs a range of supports such as a calendar to ensure he remembered things.
[14] Mr Mate’s report p 19 JTB 72
Communication and community interaction
·Mr Mate agreed that MHRQ is currently socially isolated and requires assistance to do so.
·Mr Mate considers that MHRQ’s capacity to develop friendships while in hospital which suggests he could make new friendships in the community.
·He has recommended that MHRQ have some OT sessions to provide him with assistance to identify potential community connections.
·He did not observe as Ms Maharaj did, MHRQ experiencing emotional distress while communicating.
·He believed relying on a support worker to access the community could place him at risk of reduced independence.
Sources of community support.
·Mr Mate agreed that he could not be sure that eligibility for Home and Community Care (HACC) would guarantee he would be granted access to the scheme and that he may not meet the HACC priority guidelines.
·Dr Craig Timms’ evidence
Dr Timms provided the following evidence:
·He has been treating MHRQ since May 2020 for a lumbar spine injury and noted he has had three operations.
·He said the injury results in MHRQ having restricted mobility, experiencing difficulties with standing and sitting, experiencing back pain and numbness in his legs.
·His most recent surgery where cartilage was removed was designed to limit any further disc protrusion and reduce pressure on the nerve at that location.
·He considered that MHRQ’s condition had stabilised, but he remains incapacitated
·Referred to Mr Mate’s observations about MHRQ’s limited mobility and stamina he noted that while there can be variations between individual patients, it would not be unusual for the level of restriction Mr Mate described. He also agreed with Mr Mate’s observations about MHRQ’s difficulty with transfers.
·He agreed that MHRQ should continue for the foreseeable future with physiotherapy and hydrotherapy to maintain his current level of function and limit any further deterioration. He did not consider it would result in improved function.
·Asked about the possibility of MHRQ participating in a multidisciplinary pain management program, Dr Timms stressed that he was not a pain specialist and could not attest to its effectiveness. He said it may help but could not say what level of improvement it may result in. He did not consider that it could result in an improvement in his range of movement.
·When asked about whether there were any other interventions that may remedy MHRQ’s condition he said he did not.
·He agreed that due to numbness and weakness in his legs, MHRQ was at moderate risk of falls.
·He considered that in terms of what assistance MHRQ may require, he said he would struggle with cleaning gardening and driving distances.
·Asked by Mr Lessing about MHRQ’s evidence on the ability to walk for 20 minutes, Dr Timms said it sounded like an improvement but cautioned that patients’ capacities can fluctuate.
·He noted that the most recent surgery would not undo the historical nerve damage, and that pain medications would not result in an improved range of movement or endurance.
Closing submissions
Both parties provided lengthy and detailed oral submissions addressing the eligibility criteria and the evidence before the Tribunal. I do not propose to record those submissions here but may refer to them where potentially relevant to my consideration of the issues.
Consideration
Before commencing my assessment, I will set out what must be determined,
I note that the parties agree that MHRQ meets the following criteria to be eligible for access to the scheme:
·the age criteria (section 22).
·the residence requirement (section23).
·the disability criteria (section 24(1)(a).
·that the impairment or impairments affect the person's capacity for social or economic participation (section 24(1)(d)
I note that based upon the parties’ positions at the close of the hearing the following are the issues for me to determine:
·Are MHRQ’s physical or psychosocial impairments permanent?
·Does MHRQ have a substantial reduction in his functional capacity?
·Will MHRQ require or is likely to require lifetime NDIS support?
·Does MHRQ meet the early intervention requirements in section 25 of the Act?
Are MHRQ’s impairments permanent?
I shall address this issue by separately considering the evidence as it relates to MHRQ’s physical impairments and his psychosocial impairments.
Physical impairments
MHRQ has the following diagnoses:
·Spinal Injury (L4/L5 prolapse).
·Chronic pain arising from the above condition.
I note that the Agency in its final submission conceded that the impairments arising from the spinal injury (nerve damage and fusion) are permanent.
It continues to assert that the evidence before the Tribunal does not indicate that all treatment options (including attending a specialist pain clinic) have been undertaken to address MHRQ’s chronic pain impairments.
In assessing this issue, I have given weight to the following evidence from MHRQ’s neurosurgeon, Dr Craig Timms.
·I am writing to confirm that MHRQ has exhausted available treatments for his spinal condition and his current condition is permanent. He will require support for his lifetime as a result of his disability. Any therapies MHRQ does at present are done with the aim of maintaining(sic) the little capacity he has and cannot cure his condition.[15]
[15] Dr Timms undated report (T111 78.
Dr Timms responding to targeted questions concerning the permanency of MHRQ’s physical impairments and the availability of known, available and appropriate treatment options likely to remedy those impairments wrote:
·MHRQ is likely to have chronic back pain chronic sciatica with a reduced ability to sit, stand and mobilise.[16]
·MHRQ’s condition has stabilised and remains incapacitated.[17]
[16] JTB 172 paragraph 9
[17] JTB 172 para 10
Responding specifically as to whether engagement with physiotherapy, hydrotherapy, massage and/or multidisciplinary pain management programmes alters his response to the previous question, he responded:
·Those treatments are aimed at maintaining his current level of symptom control. [18]
[18] Ibid para 11
In his oral evidence, Dr Timms said:
·MHRQ’s condition has stabilised, and he remains incapacitated.
·Since the most recent operation his current presentation remains clinically similar.
·He repeated his earlier opinion that physiotherapy, hydrotherapy and massage will maintain his current level of function and was unlikely to cause an improvement.
·Addressing the potential benefits of attending a pain management clinic he cautiously observed that he could not attest to its success and while it may help, he could not say what that might look like. He noted that in any event it would not remedy his limited movement and mobility.
From my perspective the evidence clearly indicates that MHRQ is permanently incapacitated and that there is no strong evidence which indicates that both his physical and sensory impairments can be remedied.
Taking account of these factors, I am satisfied that MHRQ’s physical impairments and resulting sensory impairments are permanent.
Psychosocial impairments
MHRQ has the following psychosocial diagnoses:
·Major Depressive Disorder (MDD).
·Post-Traumatic Stress Disorder.
In his report dated 30 July 2025, MHRQ’s Psychiatrist Dr Dan Mihaesi provided the following summary of his current treatment plan and overall presentation:
·MHRQs condition is complex and requires a long-term integrated approach, combining psychotherapy, medications and specific psychosocial rehabilitation interventions. MHRQ suffers from severe mental disorders. He continues to ail with significant symptoms. His condition is only partially resolved. He requires ongoing significant psychiatric review with a psychiatrist and psychologist. All of these are very appropriate.
·Also, group therapy could be useful for MHRQ. Southeastern Private Hospital offers a range of group therapy programs, including Building Resilience, CBT or ACT.
·If all the above will still show limited response, it would be worthwhile considering further Transcranial Magnetic stimulation, ECT or other augmenting agents.
Unfortunately, due to his ongoing mental health symptoms and MDD relapses, MHRQ had numerous inpatient admissions at SEPH as described above in the body of this report. There is a possibility that he will need further inpatient admissions in the future.
Dr Mihaesi provided the following response to the Agency’s question concerning the permanency of his conditions:
·MHRQ suffers from severe mental disorders. Both MDD and PTSD are lifelong conditions characterized by relapses and remissions that this progress trajectory and requires careful and sustained treatment and support in order to maintain the remission. In this sense, both Major Depressive Disorder (MDD) and PTSD in the way that are experienced by MHRQ are permanent conditions, causing substantial and persistent impairments in his psychosocial functioning.
·MHRQ continues to ail with significant symptoms. His condition is only partially resolved. He requires ongoing significant psychiatric review and medication. MHRQ feels hopeless, he feels like a failure due to the fact that he currently cannot commit to regular work due to the severity of his psychiatric condition and also the chronic pain he is experiencing in his lower back and in his leg.
·He is socially withdrawn; he cannot leave the house and relies on his father help for self-management and self-care. His impairments are substantially reducing his functional capacity/psychosocial functioning in undertaking everyday activities, social interaction, mobility, self-care and self-management.
·I am of the opinion that his severe decline in his mental state, function at work, socially withdrawal, family tensions, subsequent increase in suicidality and misuse of alcohol in the lead up to MHRQ’s index presentation was a natural progression from the physical injury and trauma he experienced.
Responding to the question as to whether there are known, available and appropriate treatment options that are likely to remedy the impairment/s, Dr Mihaesi responded:
·As mentioned above, both, TMS and ECT are not a cure for his illness, they are only helping with temporary symptom control. His condition will remain permanent.
The Agency in its closing submissions noted that it was open to the Tribunal to what weight it may give Dr Mihaesi’s reports in the absence of him giving oral evidence to the Tribunal. I note in this regard Dr Mihaesi was not available to give evidence being on leave at the time.
I consider Dr Mihaesi’s reports ultimately carry great weight. They are thorough and detailed, and he responds clearly to the questions the Agency could have asked him at the hearing if he had been available. He is also a highly experienced psychiatrist who has been treating MHRQ for some five years and clearly knows him well.
Again, as I noted with MHRQ’s physical impairments. the evidence clearly indicates that in relation to his psychosocial impairments MHRQ is permanently incapacitated and that there is no significant evidence which indicates that both his psychosocial impairments MDD and PTSD) can be remedied.
Taking account of these factors, I am satisfied that MHRQ’s two psychosocial impairments are permanent.
Does MHRQ have a substantial reduction in functional capacity?
I note that Mr Dalrymple in his closing submissions indicated that MHRQ has a substantial reduction in functional capacity in the domains of:
·Mobility.
·Self-care.
·Self-management; and
·Social Interaction.
I will therefor limit my observations to these four categories.
Observations on the evidence
Before commencing my assessment, I consider it important to address the stark difference in opinion between the two Occupational Therapists, Mr Mate and Ms Maharaj, who provided reports and gave evidence at the hearing. In my view, the cause of those divergent conclusions has its origins in the different methodologies they used.
At its heart is the use and value of a range of assessment tools commonly used by Occupational Therapists.
Mr Mate when questioned about how he conducts his functional capacity assessments said that he does not see any great value in conducting such assessments and they are less specific indicators of the person being assessed in their home environment. He also considered in many respects they were highly subjective.
He also noted that it could take up to 2 hours to have a participant to complete these questionnaires and the other assessment tools
He indicated that he places greater emphasis on his own observations in reaching his views on a participant’s level of function.
Ms Maharaj’s approach is totally different to Mr Mate. She uses a combination of applying the assessment tools and the participant’s response to the questionnaires as well as observations of him either performing or simulating various tasks in his home.
Her evidence was that conducting tests such as the WHODAS represents clinical best practice.
In her evidence she said that the role of the tools is to assist a practitioner by complementing their observations and provide some objective data to compare the participant with those of a similar age without an impairment. She acknowledged that at times there can be a difference between the test results and her subsequent observations however she said that she placed a high value on self-reporting and considers most participants have a good insight into their abilities/impairments.
However, both counsels raised other objections about the respective therapists’ methodology and impartiality.
Mr Lessing asserted that certain aspects of Ms Maharaj’s report could give cause to a finding that she was acting as an advocate rather than an impartial assessor. In this regard he made the following observations:
·He submitted that based on her evidence, Ms Maharaj only observed him perform tasks for approximately 15 minutes.
·There were certain gaps in the tasks she had MHRQ perform.
·She had recommended a ‘staggering amount’ of supports.
·She overly relied on subjective opinion in her recommendations.
·Her report strayed from being objective into performing the role of an advocate for MHRQ.
·Because of these flaws, he submitted that her report should be afforded lesser weight than Mr Mate’s evidence.
Mr Dalrymple also criticised Mr Mate’s approach noting:
·He did not use appropriate assessment tools while conceding they can be beneficial in assessing a person’s functional capacity.
·He acknowledged that a two-hour assessment may not disclose a full picture of their level of function or every aspect of each domain.
·He conceded that observations of a person alone may not indicate their level of difficulty in performing those tasks.
·He did not seek MHRQ’s views on the degree of difficulty he may experience in performing a task again asserting his preference was to rely on his observations.
Having outlined the parties’ positions on this issue I will make the following observations.
Overall, there are elements in both Mr Mate’s and Ms Maharaja’s reports that I consider to be flawed.
I consider that Mr Mate’s overwhelming emphasis on the power of his own observations is flawed. I consider that some of the tasks he had MHRQ perform or simulate were not a reliable basis for some of his conclusions. I found his views on the minimal value of assessment tools and questionnaires somewhat dismissive, given that I consider his approach is an outlier when compared with the many Occupational Therapist assessment reports provided to the Tribunal from both Applicants and the Agency.
He certainly did not convince me of the merits of his position and overall approach.
I consider that Ms Maharaj’s approach represents the standard approach taken by most occupational therapists. I accept that the utilisation of assessment tools provides greater depth and nuance to her observations and recommendations and enables her to classify the degree of his impairments.
Having made that observation, I also consider her report has certain flaws. I agree that she could have potentially had MHRQ perform a greater range of tasks for her to observe. In this regard she appeared to me to place greater reliance on the scores obtained from the assessment tools than her observations.
In reaching a view on which of the functional capacity assessments should be given greater weight I also need to consider the relative experience of each of them.
Mr Mate gained his academic qualifications from The University of Newcastle in 2017. He worked as a support worker while conducting his studies. He began his professional career in February 2018 and has worked in several settings including those with autism. aged care, workplace injuries and providing advice on home modifications.
Ms Maharaj has significantly longer experience.
She gained her qualifications in occupational therapy in 1996. While I have not been provided with her work history, I accept that she has worked as an occupational therapist since then. She notes her areas of interest are adults with Myalgic encephalomyelitis (ME), Fibromyalgia and Chronic Pain.
According to her February 2025 report, she has experience in adult mental health, disability, community health and aged care, and supporting adults to maximize their independence. She states that she is an expert OT in adult mental health with a 10-year history in acute and community psychiatry in the UK, including experience in psychiatric intensive care units
While acknowledging the issues raised by Mr Lessing, I do not consider they should lead me to giver lesser weight to her report.
Ultimately for the reasons I have outlined, I consider that Ms Maharaj’s report should be preferred.
I shall now assess the evidence under the four domains I indicated above.
Mobility
In this domain I accept that MHRQ’s mobility is significantly restricted, and these difficulties arise out of a complex interplay between his physical, sensory and psychosocial impairments.
I accept that he has limited stamina for prolonged standing walking and sitting.
He has significant weakness in his legs placing him at risk of falls when transferring from a seat, toilet or his bed and in this regard, he has already had several falls. The risk of falls increases if he becomes fatigued from attempting to walk beyond his capacity.
The evidence before me indicates that his capacity for mobilising in the community is severely limited.
While he can mobilise in his home, he needs to use furniture as support and use the wall or shower frame for support when toileting and showering and both occupational therapists agreed this is unsafe.
He is severely limited in his ability to bend, squat or reach above his shoulders.
Based upon the evidence before me I have concluded that MHRQ has a substantial reduction in functional capacity in the mobility domain.
Self-care
Addressing this domain, I note that MHRQ is limited in his capacity to prepare meals other than ready to heat meals. He is currently highly reliant on his elderly parents to cook meals for him.
He can shower, however with great difficulty and is at risks of falls when both showering and toileting.
He can perform some light cleaning, however anything requiring a degree of strength and exertion is beyond his capacity.
The evidence from both occupational therapists indicates that based upon his impairments, MHRQ could not perform gardening or yard maintenance.
Similarly, he can only perform basic laundry tasks and only those that do not require bending squatting or reaching. At present this task is primarily attended to by his mother and if as I believe he ultimately will, live independently he will require in-home support for this.
He has difficulty in dressing himself given his inability to bend, squat or reach. A range of assistive technology options have been presented to address this however I believe a further assessment will need to take place to determine the optimal support.
He has a limited capacity to attend to grocery shopping based on both his physical and psychosocial impairments. It appears that at present he is highly reliant on his father to primarily perform this task with him providing a minimal amount of support. I do not consider, based on the evidence he could perform this task independently. While the ‘click and collect’ shopping option is a possible option, he will still need assistance with carrying bags of groceries given his limited weight bearing capacity.
Based upon the evidence before me I have concluded that MHRQ has a substantial reduction in functional capacity in the domain of self-care.
Self-management
The weight of evidence indicates that MHRQ has significant limitations with self-management. I accept that he is highly reliant on his father to assist with performing tasks, provide reminders on his appointments and taking medications.
Dr Mihaesi in his report stated:
·MHRQ is socially withdrawn; he cannot leave the house and relies on his father’s help for self-management and self-care. His impairments are substantially reducing his functional capacity/psychosocial functioning in undertaking everyday activities, social interaction, mobility, and self-care.[19]
[19] Dr Mihaesi’s report JTB 184
Ms Maharaj in her evidence indicated that MHRQ would struggle with performing administrative tasks such as completing a Centrelink form.
Again, while MHRQ is managing with such tasks with the significant support of his parents, in the absence of such support many of such day-to-day self-management tasks would be beyond his capacity.
Based upon the evidence before me I have concluded that MHRQ has a substantial reduction in functional capacity in the domain of self-management.
Social interaction
I consider the weight of evidence indicates MHRQ’s significant issues in accessing the community for social interaction. I again refer to Dr Mihaesi’s observation in paragraph 210 above.
While I accept that MHRQ has managed to develop a small group of friends who were in-patients with him. He has limited contact with them.
The combination of limited mobility, chronic pain and his MDD all conspire to make him fearful of accessing the community or meeting strangers or lacking the confidence to do so. He will go with his father to attend to grocery shopping and attend his medical appointments. However, I consider these to be largely functional activities far removed from genuine face to face interactions with others.
Ms Maharaj based upon his test scores and observations noted the following limitations that significantly impact his capacity for social interactions:
·His reduced exposure to social environments.
·Difficulty processing social cues.
·Limited capacity for problem solving in social settings.
·Social withdrawal and isolation.
·Reduced confidence in social situations.
Based upon the evidence before me I have concluded that MHRQ has a substantial reduction in functional capacity in the domain of social interaction.
Is MHRQ likely to require NDIS support for his lifetime?
As I noted above, I have already found that both MHRQ’s physical, sensory and psychosocial impairments are permanent.
I have also found that MHRQ has a substantial reduction in functional capacity in the domains of mobility, self-care, self-management and social interaction
Those findings, in themselves strongly suggests that he is likely to require support whether from the NDIS or from other service systems for his lifetime.
I note that unlike section 25 there is no requirement (as mandated by Rule 6.1 of the Access Rules) that a decision maker satisfy themselves that the support is more appropriately funded or provided through another service system rather than the NDIS.
In their SFIC and in their final submissions the Agency noted that some of MHRQ’s conditions could be treated through the mainstream health services or through the mainstream mental health services. However, that submission would only apply in the absence of a finding that MHRQ’s conditions were not permanent or that he did not have a substantial reduction in functional capacity.
I note that the Agency in its SFIC submitted that it was unclear to what extent MHRQ is entitled to continue receiving therapies and support through his Work Cover claim.
It appears from the evidence I have seen that Workcover will at least for the time being cover the costs of his treatment of his back injury and psychosocial injuries as well as the provision of physiotherapy and hydrotherapy.
However, it is also clear that MHRQ may require assessments from a physiotherapist in identifying his anticipated supports as well as the involvement and assessments from other allied health professionals.
Does MHRQ meet the early interventions criteria in section 25?
As I have already found that MHRQ meets the section 24 eligibility criteria, it is not necessary to consider his eligibility for early intervention.
Conclusion
It is not disputed that MRHQ meets the requirements of sections 22 and 23 of the NDIS Act.
For the reasons given above, the Tribunal is satisfied that MHRQ meets the disability requirements set out in section 24 of the NDIS Act.
Accordingly, the Tribunal finds that MHRQ meets the access criteria set out in section 21 of the NDIS Act.
Decision
The decision under review is set aside and, in substitution, the Tribunal decides that MHRQ meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
I certify that the preceding 228 (two hundred and twenty-eight)
paragraphs are a true copy of the reasons for the decision herein..................[SGD]....................................................
General Member A. WilliamsDated: 2 October 2025
Dates of hearing: 16-18 September 2025
Advocate for the Applicant: Mr James Dalrymple
Counsel for the Respondent: Mr Joshua Lessing
Solicitor for the Respondent: Sparke Helmore Solicitors
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