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).
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
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.
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 –…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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MHRQ and National Disability Insurance Agency (NDIS) [2025] ARTA 1970
Case
[2025] ARTA 1970
Decision Date
CaseChat Overview and Summary
The case between MHRQ and the National Disability Insurance Agency (NDIS) pertains to MHRQ's eligibility for access to the NDIS. MHRQ, a 47-year-old man residing in Melbourne, applied for NDIS access due to a combination of physical and psychosocial impairments, including a permanent lumbar spine injury, Major Depressive Disorder, Post-Traumatic Stress Disorder, and anxiety. The National Disability Insurance Agency initially denied MHRQ's eligibility, a decision he sought to challenge before the Administrative Appeals Tribunal (AAT). The Tribunal was tasked with determining whether MHRQ's impairments met the eligibility criteria under Section 21 of the NDIS Act, particularly focusing on the extent of functional capacity reduction and the necessity for lifetime NDIS support.
The primary legal issues before the Tribunal were whether MHRQ's impairments were permanent, if they resulted in a substantial reduction in his functional capacity, and whether he would require or is likely to require lifetime NDIS support. The Tribunal carefully considered medical evidence from MHRQ's General Practitioner, Dr Theekshana Dissanayake, and other specialists, which highlighted the severity and permanence of MHRQ's conditions, as well as their impact on his daily functioning. The Tribunal also evaluated MHRQ's need for ongoing mental health support, pain management, and the effect of his conditions on his ability to engage in social and economic activities.
After thorough consideration of the evidence, the Tribunal found that MHRQ's impairments were indeed permanent, and his functional capacity had been substantially reduced, particularly in the domains of social interaction, communication, learning, self-care, and self-management. The Tribunal concluded that MHRQ met the criteria for lifetime NDIS support due to the severity and permanence of his conditions and their impact on his daily life. Consequently, the Tribunal set aside the Agency's decision and substituted it with a finding that MHRQ was eligible for NDIS access.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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)·AnxietyREQUEST 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 lifeAPPLICANT’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) VariousDocuments filed with the Tribunal.
Evidence
Evidence Before The Court
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 lifeAPPLICANT’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) VariousDocuments 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
Decision
Reasons for 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 lifeAPPLICANT’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) VariousDocuments 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
Ratio Decidendi
Legal Principle Established
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