Miatke and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 1358

Miatke and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1358 (14 August 2025)

Applicant:Mr Leslie Miatke
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/3357
Tribunal:General Member A Shelley
Place:Canberra
Date:14 August 2025
Decision:The decision under review is affirmed

………..…[SGD]……………

General Member A Shelley

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – becoming a participant - access criteria – whether applicant meets disability criteria – major depressive disorder – whether impairment results in substantially reduced functional capacity – decision under review affirmed

Legislation

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024

Administrative Appeals Tribunal Act 1975

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

Cases

Mulligan v National Disability Insurance Agency [2015] FCA 544
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Statement of Reasons

INTRODUCTION

The issue in this application is whether Mr Miatke (the applicant) may become a participant in the National Disability Insurance Scheme (NDIS).
The applicant sought access to the NDIS on 27 June 2022. In the application form, his doctor identified that the applicant’s main disability was diabetes, and he was also disabled by depression, osteoarthritis of the right shoulder and spine, hypertension and sleep apnoea.
On 13 January 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency, determined that the applicant did not meet the access criteria. The applicant sought review, but on 19 April 2023 the decision was affirmed by a different delegate of the CEO.
On 17 May 2023, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision.
On 14 October 2024, all matters on-hand with the AAT transferred to the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The matter proceeded to a hearing on 16 June 2025. I had before me, and took into evidence:
· Exhibit 1: a joint hearing tender bundle (JTB) comprising the documents produced to the AAT under section 23 of the Administrative Appeals Tribunal Act 1975 (the T‑documents, numbered T1 to T38), documents filed by the applicant (numbered A1 to A6) and documents filed by the agency (numbered R1 to R4), and
· Exhibit 2: an email from the applicant’s representative, forwarding an email from Lister House Medical Clinic dated 23 May 2025, setting out a list of dates of appointments with Ms Lara Infeld.
At the commencement of the hearing, the applicant’s representative, Ms Duane, indicated that the applicant’s case for access to the NDIS was confined to his psychosocial disorder (which has been diagnosed as a major depressive disorder). That had, the applicant said, been communicated to the Tribunal and the respondent in about November 2024 but the respondent’s case had been prepared on the basis that other impairments were also in issue.
The Agency accepts that the applicant has a permanent psychosocial impairment, but it does not qualify him for access to the NDIS.
As will appear, I agree.

LEGISLATIVE FRAMEWORK

The criteria that a person must satisfy to become a participant of the NDIS are set out in section 21 of the National Disability Insurance Scheme Act 2013, which provides:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
Accordingly, if the person meets both age requirements and residence requirements (and as will appear, there is no dispute that the applicant meets both), it is necessary for the Tribunal to determine whether the applicant meets either the disability requirements in section 24 of the Act or the early intervention requirements in section 25 of the Act.
Sections 24 and 25 of the Act were amended with effect from 3 October 2024. Section 126 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 has the effect that the legislation in force before 3 October 2024 applies in matters like this, where a person requested access to the NDIS before 3 October 2024.
Section 24 of the Act provided (before 3 October 2024):
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and

(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).

Section 25 of the Act provided:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 209 of the Act empowers the responsible Minister to make rules, called the National Disability Insurance Scheme rules. Section 27 of the Act provides that the rules may prescribe methods or criteria to be applied, or matters that may, must, or must not be taken into account, or circumstances in which a matter is taken to exist or not exist in relation to a person, for the purposes of determining whether the disability requirements and early intervention requirements are met.
The rules that have been made for that purpose are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
The Agency has published operational guidelines, for the purposes of interpreting and applying the law. The Tribunal is not bound to apply government guidelines but will usually do so unless there are cogent reasons not to.[1] The JTB includes a guideline headed ‘Applying to the NDIS’, which is relevant to this application.[2]
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
[2] JTB, T38.
I return to specific provisions in the Rules and guidelines in my consideration of particular issues below.
Referring to the criteria in section 21 (above), I have considered whether the applicant meets age and residence requirements, then whether he meets each of the disability requirements, then whether he meets the early intervention requirements.

CONSIDERATION

Does the applicant meet age and residence requirements?

Section 22 of the Act provides that a person meets the age requirements if the person was aged under 65 when the access request was made. The applicant is now 65 years of age, but was under 65 at the time the access request was made in 2022.
Section 23 of the Act requires that a person resides in Australia and is an Australian citizen or holder of a particular type of visa. The applicant is an Australian citizen living permanently in Australia.[3]
[3] JTB, T22.
The applicant therefore meets age and residence requirements.

Does the applicant meet the disability requirements?

As above, section 24 requires (in summary) that
·      the applicant has a disability attributable to an impairment,
·      the impairment or impairments are permanent or likely to be permanent,
·      the impairment or impairments result in substantially reduced functional capacity,
·      the impairment or impairments affect the person’s capacity for social or economic participation, and
·      the applicant is likely to require NDIS supports for his lifetime.
The applicant submits that he should be granted access to the NDIS by reference to his major depressive disorder (however diagnosed).

Does the applicant have a disability attributable to an impairment?

The first requirement is that:
(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
The first requirement is not in dispute. The medical evidence, including reports of psychiatrists Dr Santhusa Wijekoon,[4] Dr Ronald Gill[5] and Dr Debra Chong,[6] establishes that the applicant experiences long-term recurrent major depressive episodes, impacting on his social and other functioning. I am satisfied that he has impairments to which a psychosocial disability is attributable.
[4] JTB, T26.
[5] JTB, A1.
[6] JTB, A5.

Are the impairments permanent or likely to be permanent?

The second requirement is that:
(b) the impairment or impairments are, or are likely to be, permanent;
In relation to whether an impairment is permanent or likely to be permanent, the 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 the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The second requirement is not in dispute. The applicant told the Tribunal that he had first experienced an episode of depression in the 1990s and a second episode in about 2001. He has been prescribed a number of antidepressant medications but has found that they worsen his symptoms. He has seen a number of psychologists and psychiatrists over time. His current treatment is limited to regular appointments with a counsellor, Ms Lara Infeld. Dr Chong, the most recent psychiatrist to have reviewed the applicant, considered the impairment would be lifelong.[7] Dr Waruna Dissanayake, general practitioner, referred to the applicant’s psychological condition resulting in permanent impairments.[8] I am satisfied that the applicant’s major depressive disorder and resulting psychosocial impairment is permanent.
[7] Ibid.
[8] JTB, A4.

Do the impairments result in substantially reduced functional capacity?

The third requirement is that:
(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
On this issue, the Rules provide:
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.
As noted above, the power to make the Rules in section 27 of the Act is a power to either prescribe criteria to be applied or to prescribe matters that must or must not be taken into account.
It is not quite clear from the Rules themselves whether rule 5.8 contains criteria to be applied, or to prescribe matters that must be taken into account. The distinction may not be insignificant, where that gives rise to some question about the proper approach to applying section 24.
Fortunately, the question has been answered by the Federal Court: rule 5.8 does not in any way supplant the application of paragraph 24(1)(c) but operates as a deeming provision.[9] That is, if any of rule 5.8(a), (b) or (c) are made out, the person is taken have substantially reduced functional capacity. If not, it remains to be determined whether the person has substantially reduced functional capacity on the ordinary meaning of those words.
[9] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [67] and [77].
Here, the legislation calls for a functional, practical based assessment of what a person can and cannot do. It is sufficient, in order to make out the requirement in paragraph 24(1)(c), that a person has substantially reduced functional capacity in just one of the 6 identified activities, and so it is necessary to address each in turn.[10]
[10] Mulligan at [56].
For about 20 years, and until about 2003, the applicant worked in a library.
In 2006, the applicant moved to regional Victoria. A friend suggested that because he was good at gardening he might try to make a business out of it. He ran a gardening business until 2025, just a couple of months before the hearing, always part-time.
The applicant described his main duties as mowing, weeding and pruning. He issued his own invoices (though it was much the same every cycle) but used a tax accountant for filings.
Up to the point of ceasing work, the applicant had been working 2 or 3 days per week. He gave it up because of a combination of mental and physical reasons. While he had always had to ‘psych himself up’ to get out and work, he had found it increasingly difficult to get himself mentally ready to go out and do a job. Some weeks, he did not do any work if he had nothing urgent to attend to. He was also experiencing musculoskeletal problems, including shoulder problems which made it difficult to raise his arms above shoulder height.
The volume of work had decreased over about 5 years. At the point of cessation, he had 2 clients. On Wednesdays, he would attend to the garden of a private client. On the weekend, he would spend 2 nights doing some cleaning work for another client, with some flexibility as to which nights he went.
The applicant described some caring responsibilities in respect of his mother (though the support works in both directions). She lived by herself in her own home in the same town as the applicant (although at the time of the hearing was in hospital). He would visit every night, check on her and cook her evening meals. The applicant did some of his mother’s shopping and would take her to medical appointments and to social engagements, including the theatre. His mother also had a cleaner, gardener and social worker.
The applicant has 3 sisters, but none of them live in the local area. Matters concerning his mother, like liaising with health professionals, tend to fall to him.
The applicant said of his impairment that he rarely sees friends because he does not want to be a burden. He rarely socialises and only goes out when he has to. When he has to go out, he has to ‘psych’ himself up for it, which can take a week or more. If he has to do something urgently, he can do it, but will be “flat” (lacking in energy) for 2 or 3 days afterwards. The applicant attributes that to his depression, rather than his other conditions (which include sleep apnoea).
The applicant was asked what he would want, by way of participant supports, if accepted into the NDIS. He told the Tribunal that he would want someone to talk through things on a regular basis. As to whether that would be different to what he gets from Ms Infeld, the applicant said that there was a lack of psychologists (or the like) in his local area, and it might be that he would merely keep seeing Ms Infeld (but with NDIS funding). He said in re-examination that he was interested in counsellors, psychologists or psychiatrists, or someone that could regularly visit him to talk things through. He was otherwise unsure what might be available, or what he needed or what he should ask for.

He attends the supermarket only when he knows it will be quiet, generally at night.
Similarly, he said that he only cleans when he absolutely has to, particularly if someone is coming around to his home. It will take him a week to get his house clean.
As to his emotional state and cognition, the applicant said that he had trouble remembering things. Quite often if talking to friends he could get ‘snappy’ or agitated, partly because of anxiousness or an inability to cope. He loses friends because they find him too high maintenance.
The applicant described being a slow reader, having had trouble keeping up during a responsible service of alcohol course some years ago. It took him weeks to get across the T-documents filed in the application.
The applicant signed an ‘impact statement’ on 6 April 2023.[11] He said that he felt tired and of low energy all the time, regardless of sleep. He experienced anxiousness and low motivation – he only went out when he had to, and had to force himself to do things. The applicant said he sometimes had difficulty communicating and getting people to understand him. He had difficulty maintaining interpersonal relationships.
[11] JTB, T31.
In an undated statement of lived experience (from about July 2024),[12] the applicant commented on how his medical conditions (not only his major depressive disorder) affected his mobility, communication, social interaction, learning, self-care and self-‑management. Relevant, or potentially relevant, to psychosocial impairment, the applicant said:
·      People quite often misunderstand what I am saying and it is quite frustrating an upsetting trying to explain what I mean.
·      “[I speak to friends or family members by telephone] very Infrequently as I do not want to be a burden on people with my problems and issues, especially family and friends.”
·      [I interact with friends or family members via social media “sometimes when I see their posts on Social media, I will like or comment. I tend to limit myself due to triggering depression as they are enjoying themselves and I do not want to off burden to them.”
·      “I clean a Mechanics workshop twice a week when staff has gone home. The works hours are flexible to help my condition. It also depends on how much sleep I have had due to sleep apnoea, and my breathing or major depressive disorder and anxiety disorder.”
·      “I only leave home when I have to get food, medical needs or to do a job for someone or to take my mother to the Theatre.”
·      [As to whether there are days when I cannot complete all or any self-care tasks], “regularly due to major depressive disorder and lack of energy levels affecting my balance to provide self-care.”
·      [There are days I cannot complete all or any self-care tasks] “regularly due to major depressive disorder and lack of energy levels affecting my balance to provide self-care.”
[12] JTB, A6.
The applicant’s current treatment is, primarily, seeing Ms Infeld. He had had appointments more than monthly up to November 2023,[13] and those were continuing.
[13] Exhibit 2.
In a medical condition details form provided to the Agency in connection with the application for access, Dr Wijekoon diagnosed major depressive disorder. The severity of the condition fluctuated between episodes. The applicant, at that point, was not taking antidepressant medication and previous psychotropic treatment had not resulted in a significant improvement in his condition. The applicant saw a therapist. Further improvement in the condition was not expected.[14]
[14] JTB, T26.
On 11 March 2023, Dr Dissanayake completed an NDIS ‘evidence of psychosocial disability form’. Dr Dissanayake said that the applicant was unable to maintain interpersonal relationships, could be overwhelmed by having multiple tasks to complete in a day and had problems with memory retention (as well as problems with mobility for other reasons).
Dr Dissanayake also completed a medical condition details form specifically referring to problems with social interaction. He said the applicant had poor community engagement as a symptom of depression, leading to poor quality of life.[15]
[15] JTB, T35.
In a report dated 9 May 2023,[16] Dr Ronald Gill, psychiatrist, said that the applicant presented with symptoms of major depressive disorder of severe intensity, with comorbid anxiety symptoms. He had a pervasive sense of low self-esteem and self‑worth. Dr Gill recommended antidepressant fluvoxamine, and assessment for autism spectrum disorder.
[16] JTB, A1.
On 12 February 2024, Mr Elliott Mate, occupational therapist, performed an assessment of the applicant’s functional capacity, at the request of the Agency’s then‑lawyers.
In his report dated 12 March 2024,[17] Mr Mate set out his methodology, including that he observed the applicant’s functional capacity, reviewed the available medical evidence, considered the applicant’s home environment and available supports, and made some recommendations.
[17] JTB, R2.
Mr Mate noted the applicant’s diagnoses, including major depressive disorder, and symptoms including low mood, high anxiety, diminished concentration and memory, reduction in motivation, self-esteem and energy levels and social withdrawal.
Mr Mate’s recommendations indicate that Mr Mate did not require assistance in the areas of communication and self-management, but required assistance in the areas of social interaction, mobility and self-care. As to social interaction, Mr Mate recommended that the applicant remain engaged with his current psychologist (which must be Ms Infeld, though it seems she is not a psychologist) and that he engage in local groups relevant to his interests, such as a gardening group or men’s shed. In Mr Mate’s view, his level of functional capacity in the domain of social interaction was ‘modified’, which means the ‘applicant utilises a modified technique to complete tasks and maintain independence’.
As to mobility and self-care, it is apparent that Mr Mate’s observations relate to conditions other than the applicant’s psychosocial impairment.
Mr Mate was called to give evidence. He said that the applicant had capacity for functional relationships with his gardening clients. There was functional capacity for social interaction but the applicant did not have a lot of social connections. His recommendations were aimed at boosting those social connections. Noting the applicant’s view that he would benefit from having someone to talk to and help him with community engagement, Mr Mate did not think the applicant needed a support worker.
In a report of 24 June 2024,[18] Dr Dissanayake said the applicant experienced persistent sadness, a lack of interest in activities, low energy and suicidal thoughts.
[18] JTB, A4.
In a report dated 9 December 2024,[19] Dr Chong said the applicant had difficulty expressing himself due to anxiety, and psychological strategies could improve his confidence with communication. He had difficulty with learning, due to low energy, fatigue, poor concentration and impaired memory.
[19] JTB, A5.
Dr Chong also noted the applicant had difficulty getting in and out of chairs and cars, which was attributable to physical health issues despite that no physical cause had ever been identified. She did not think the applicant required assistance with self-care activities.
Mr Ternes, who appeared for the agency, submitted that the substantiality criterion was not met. As to the 6 ‘activities’:
·      There is no suggestion that the applicant’s psychosocial impairment affects mobility.
·      Social interaction is the area with the greatest functional impact, but having regard to what the applicant can and cannot do, there is not a substantial reduction in functional capacity.
·      As to communication, learning, self-care and self-management, if there is a deficit, it does not amount to a substantially reduced functional capacity in the activity.
Ms Duane, on the other hand, described the applicant’s impairment in social interaction as ‘enduring and significant’ and as ‘major’. The impairment, she said, was not episodic but had been persistent since his diagnosis. She noted that the evidence established that the applicant had engaged with treatment recommendations but nonetheless found social interaction and making friends difficult. The applicant had pursued work where he did not tend to have to engage with other people. He would benefit from having access to social workers, to help him participate in the community.
With the benefit of that evidence and those submissions, I come to examine each of the 6 activities in turn. As identified, that requires testing both the potential application of rule 5.8 and then whether the psychosocial impairment (that is, the impairment referrable to the applicant’s diagnosed mental health disorder) results in a substantially reduced functional capacity to undertake the activity.
The first activity is communication, which the operational guidelines refer to as including how one speaks, writes, uses sign language and gestures in order to express oneself, and how well one understands others and is understood.[20] The applicant has a clear perception that he is poorly understood. However, his perception is not met by the objective evidence. He exhibited no difficulty in understanding questions while giving evidence to the Tribunal. His answers were straightforward and responsive to questions asked of him. He spoke clearly and he was readily understood. In addition, he ran his own gardening business for many years. He is required to liaise with health professionals.
[20] JTB, T38, p 209.
I am readily satisfied that there is no need for assistance in communication, and if there is any reduction in functional capacity it is very minor, and certainly not substantial.
Social interaction, as both representatives observed, is the area where there appears to be the greatest deficit. The operational guidelines refer to the activity as ‘socialising’, which is said to include how one makes and keeps friends, interacts with the community, and copes with feelings and emotions in social situations.[21] On the applicant’s own evidence, he has difficulty making and keeping friends. He resists social contact because he feels like a burden on others. He must ‘psych himself up’ to go out and do things, and then lacks energy afterwards. Much of the time, when he goes out, it is because he has to (often because of obligations to his mother). Dr Chong pointed to a lack of confidence with communication, Dr Dissanayake to an inability to maintain interpersonal relationships and Dr Gill to persist low self-esteem.
[21] JTB, T38, p 210.
The applicant told the Tribunal that he liaises with doctors and nurses. He visits the theatre with his mother. He sometimes sees friends, though at someone’s house, rather than out in public. Until recently, he ran a gardening business. Mr Mate’s observation was that the applicant did not lack the capacity for social interaction but rather would benefit from boosting social connectivity. There is little to suggest that the applicant has great difficulty coping with his emotions in social situations, save that he can get snappy or agitated on occasion.
The applicant does not usually require assistance from other people to participate in any particular activity (and there could be no suggestion that any assistive technology would help him participate). Rule 5.8 does not apply.
As to whether paragraph 24(1)(c) is made out on its face, I accept what the applicant says about his experience in trying to maintain friendships. In my view, though, what the evidence describes is less than a substantial reduction in functional capacity.
It is significant that there is nothing, particularly, that the applicant cannot do, as opposed to things he cannot easily do or does not want to do. He has, as Mr Mate suggests, a capacity for social interaction even if he feels barriers to participation. As the applicant put it, he does things because he feels he has to. There is certainly a reduction in functional capacity in the activity area of social interaction. There are motivation, energy and capability barriers to the applicant’s participation. But where the applicant is able to go out, has some contact with the community, sometimes socialises, and is largely able to manage his emotions, that is a moderate, not substantial, reduction.
The next activity is learning, which the guidelines say includes how one learns, understands and remembers new things, and practises and uses new skills. The applicant described being a slow reader. Dr Chong also reported that he had difficulty with learning. It is not immediately clear that that difficulty is attributable to the applicant’s psychosocial impairment but based on Dr Chong’s attribution of the issue to low energy, fatigue, poor concentration and impaired memory (all of which, it is uncontroversial to observe, are known symptoms of depression), I accept that it is.
There is little evidence of any significant learning difficulty. While I accept the applicant’s evidence about his experience with reading and keeping up with information, he ran an apparently successful business until relatively recently, including managing financial affairs (other than tax filings). He liaises with health professionals about his mother.
Rule 5.8 does not apply. There is no evidence that the applicant requires assistance to participate in learning activities. As to the ordinary meaning of the words in paragraph 24(1)(c), whatever reduction in functional capacity to learn that results from the applicant’s depression, the applicant’s achievements indicate that it is less than substantial.
As to mobility, the only suggestion in the evidence that the applicant has any reduction in functional capacity by reference to his psychosocial impairment (as opposed to musculoskeletal problems) is the indication by Dr Chong that no physical cause for some of the applicant’s difficulties has been found. I do not take Dr Chong to be expressing a positive opinion that the applicant has mobility difficulties because of his psychosocial impairment, but in any case, there is evidence from other practitioners that the applicant’s mobility difficulties are, indeed, musculoskeletal. In an undated medical condition details form, for example, Dr Dissanayake said the applicant had lower cervical scoliosis with degenerative vertebral disease which was treated by medication and physiotherapy, and a possibility of future surgery.[22] In his report of 24 June 2024,[23] Dr Dissanayake said that the applicant experienced chronic pain and stiffness, restricting his mobility and physical function.
[22] JTB, T33.
[23] JTB, A4.
I am satisfied that there is no reduction in mobility resulting from the applicant’s psychosocial impairment.
The next activity is self-care, which the guidelines indicate includes personal care, hygiene, grooming, eating and drinking, and health. In the applicant’s statement of lived experience, he reported there were days on which he could not complete self‑care tasks due to depression. Dr Chong did not think he required assistance with self-care activities, though that is not the same thing as having no functional deficit. Mr Mate thought the applicant was independent in self-care activities (though might benefit from some equipment for non-psychological reasons). I observe, again, that the applicant was – until quite recently – working some 3 days a week (with a degree of flexibility), and apparently able to prepare himself for each working day.
Based on the applicant’s evidence, I am satisfied that there is reduced functional capacity, which appears to be related to decreased motivation and low energy, in turn resulting from his psychosocial impairment. The evidence, though, is that he does not require assistance to complete self-care activities, and so rule 5.8 does not apply. The applicant has been able to perform all self-care activities but there are sometimes motivation and energy barriers to doing so quickly and regularly. That is consistent with a moderate, but not substantial, reduction in functional capacity.
The final activity is self-management, which the guidelines indicate include planning, making decisions and looking after oneself. The applicant did not raise any explicit difficulties with self-management in his statement of lived experience, though I would accept that he might have some reduction in functional capacity due to impaired motivation and energy, as with self-care. He has, though, run his own business for a long time and is able to engage with health professionals including for his mother. There is no suggestion that he requires assistance with self-management – and so rule 5.8 does not apply – and the evidence does not suggest any more than a mild reduction in functional capacity.
Conclusion as to disability requirements
The result is that paragraph 24(1)(c) is not met. The criteria in section 24 of the Act are cumulative, which means each must be made out, and so the applicant does not meet the disability requirements.
It is unnecessary to consider whether paragraphs (d) and (e) are made out.

Does the applicant meet the early intervention requirements?

The last issue for determination is whether the early intervention requirements are met.
As I have found, the applicant has an identified impairment to which a psychosocial disability is attributable. The impairment is permanent.
However, it is readily apparently that the applicant would not be likely to benefit from early intervention supports, within the meaning of section 25 of the Act. His major depressive disorder is longstanding, and he has tried all conventional treatment for major depression, including seeing psychologists and psychiatrists, and a number of antidepressant medications. On the applicant’s own account, his symptoms have been treatment resistant. If any supports could be characterised as ‘early intervention’ in the circumstances, they would not be likely to reduce the applicant’s future needs for supports, in relation to his mental health condition.
It follows that the applicant does not meet the early intervention requirements. As he meets neither the disability requirements nor the early intervention requirements, the decision under review will be affirmed.

I certify that the preceding 88 paragraphs are a true copy of the reasons for the decision herein of General Member Shelley.

.........[SGD].......
Tribunal Officer

Date of Hearing:

16 June 2025

Applicant’s Representative:

Ms B Duane, Grampians disAbility Advocacy

Counsel for the Respondent:

Solicitors for the Respondent:

Mr R Ternes

Sparke Helmore Lawyers