Moxham and Chief Executive Officer, of the National Disability Insurance Agency (NDIS) - [2025] ARTA 290

Moxham and Chief Executive Officer, of the National Disability Insurance Agency (NDIS) [2025] ARTA 290 (1 April 2025)
Applicant/s:  Mr Peter Thomas Anthony Moxham
Respondent:  Chief Executive Officer, of the National Disability Insurance Agency
Tribunal Number:                2023/3234

Tribunal:General Member S Smith
Place:Brisbane
Date:1 April 2025
Decision:The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act2024 (Cth).

...........................................
General Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access – spinal degeneration – bilateral shoulder arthropathy – osteoarthritis – chronic pain – depression – whether the effects of an impairment are permanent – whether there are known, available and appropriate treatments likely to remedy an impairment – available treatment – substantially reduced functional capacity criteria not met – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
FBJV and NDIA [2021] AATA 913
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Jourfian and NDIA [2020] AATA 1883
Kelly v National Disability Insurance Agency [2024] FCA 1462
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
National Disability Insurance Scheme - Operational Guidelines – Applying to the NDIS (updated 14 October 2024)
National Disability Insurance Scheme - Operational Guidelines – Becoming a participant (updated 1 February 2024)
Statement of Reasons
INTRODUCTION

Mr Moxham is a 66-year-old man who lives alone in his three-bedroom house in southern Queensland. Unfortunately, Mr Moxham’s wife passed away in early 2020.[1] Mr Moxham has received the Disability Support Pension (‘DSP’) since November 2002.[2]
[1] EB1, B26, page 75.
[2] EB 1, page 27. Mr Moxham provided an updated DSP card.
On 9 March 2023 Mr Moxham applied to the National Disability Insurance Agency (‘Agency’) to become a participant of the National Disability Insurance Scheme (‘Scheme’) on the basis of six conditions: [3]
·Spinal degeneration;
·Bilateral shoulder arthropathy;
·Osteoarthritis;
·Chronic pain;
·Sleep apnoea; and
·Depression.
[3] EB 1, B16, page 55-58.
On 20 April 2023 a delegate of the Chief Executive Officer (‘CEO’) of the Agency decided not to grant Mr Moxham access to the Scheme. A ‘reviewer’ under section 100(6) of the National Disability Insurance Scheme Act2013 (Cth) (‘NDIS Act’) confirmed the decision.[4] Mr Moxham now seeks review of this decision.[5]
[4] 10 May 2023.
[5] Mr Moxham filed an application for review on 11 May 2023.
On 14 October 2024, the Administrative Appeals Tribunal (‘AAT’) became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Tribunal has jurisdiction to decide Mr Moxham’s application under section 12 of the Administrative Review Tribunal Act2024 (Cth) (‘ART Act’) and section 103 of the NDIS Act. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (‘Amendment Act’) commenced on 3 October 2024. Mr Moxham’s request for access was made before 3 October 2024, therefore the Act, Rules and Guidelines apply as they were before the commencement of the Amendment Act.
For the reasons set out below, the Tribunal affirms the decision under review that Mr Moxham does not satisfy section 24 of the NDIS Act (the ‘disability requirements’). Mr Moxham stated he was not seeking access to the Scheme pursuant to section 25 of the NDIS Act (the ‘early intervention requirements’) and he provided no evidence regarding this section.[6] No submissions were provided by parties around the early intervention requirements and this section will not be further considered.
[6] Oral evidence of Mr Moxham.
ISSUES BEFORE THE TRIBUNAL
There was no dispute that Mr Moxham met both the age and residence requirements, and so the Tribunal finds.[7] The only issue in contention is whether Mr Moxham satisfies the disability requirements under section 24 of the NDIS Act.
[7] Sections 21, 22 and 23 of the NDIS Act. T1A, page 13. Respondent’s closing submissions at [11].
Mr Moxham was self-represented at the Microsoft Teams hearing on 11 and 12 February 2025. The Agency was represented by Ms Madeleine Murphy of Counsel, instructed by Maddocks. The Tribunal accepted Mr Moxham’s request for parties to provide written closing submissions. Mr Moxham’s closing submissions totalled 55 pages and were received by email on 14 March 2025. The Agency provided closing submissions on 21 February 2025, and was given an opportunity to reply by 28 March 2025.
THE LEGAL FRAMEWORK
The disability requirements are contained in section 24 of the NDIS Act 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 support under the National Disability Insurance Scheme for the person’s lifetime.
2.For the purposes of (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.
Under section 209 of the NDIS Act the Minister for the NDIA may make rules prescribing matters that are required to carry out and give effect to the NDIS Act. Section 27 of the NDIS Act provides for the making of rules in relation to the requirements under section 24 and 25. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the ‘access rules’).
Relevant to the issue of permanency of an impairment under section 24 of the NDIS Act, the access rules state:
When is an impairment permanent or likely to be permanent for the disability requirements?
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.
Relevant to the criteria around the disability requirements is rule 5.8 of the access rules, which states:
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.
The Agency has issued Operational guidelines and I have considered the Applying to the NDIS guideline with regard to the assessment of whether an applicant meets the disability or the early intervention requirements.[8] I note that the Tribunal should take into account relevant government policy which is ‘not inconsistent with the provisions or objects of the legislation’.[9]
[8] Ourguidelines.ndis.gov.au: Applying to the NDIS. The Applying to the NDIS guidelines or the access guideline.
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].
In respect of whether an impairment is likely to be permanent, the guidelines state:
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity (s 24(3)). Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
...
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.
The question of whether Mr Moxham satisfies the legislative requirements is a question of fact that must be determined upon consideration of the available evidence. This is the Tribunal’s ‘fact finding task’[10] and I must be positively satisfied[11] that Mr Moxham satisfies the disability requirements. This legislative scheme is based ‘on a functional, practical assessment of what a person can and cannot do.’[12]
[10] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [42].
[11] Mulligan at [55]. Also cited in Re Schwass and NDIA [2019] AATA at [29] and Davis [at 61].
[12] Mulligan at [55]–[56]. Also National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
CONTENTIONS
Mr Moxham contended he lives with six conditions listed at paragraph [2] and that these conditions are all ‘severe and permanent.’[13]
[13] Oral evidence of Mr Moxham.
The Agency is satisfied that Mr Moxham has permanent physical impairments attributable to spinal degeneration, bilateral shoulder arthropathy, osteoarthritis and chronic pain, which result in Mr Moxham experiencing:
·Reduced endurance;
·Reduced strength;
·Reduced tolerance;
·Increased falls risk; and
·Increased fatigue.
The Agency is also satisfied that Mr Moxham has a psychosocial impairment attributable to his condition of depression, but the Agency contends that this condition is not permanent.
The Agency is not satisfied that Mr Moxham’s condition of sleep apnoea results in an impairment or disability attributable to an impairment. The Agency also contends that there is not sufficient evidence to indicate that the condition of sleep apnoea is permanent.
EVIDENCE
I have considered the filed joint hearing book and closing submissions,[14] including Mr Moxham’s additional material of his disability parking permit, DSP card, statements of lived experience[15] and photographs of his limbs.[16] Mr Moxham also relied on the written evidence of Dr Anthony Pass, general practitioner (‘GP’), from Bunya Pines Family Practice.
[14] Mr Moxham’s closing submissions included: 24 pages of closing submissions; copy of wife’s funeral arrangements, letter regarding wife’s previous rental assistance; photographs of ATM deposits, photograph of wife’s gravesite, musical instruments; photographs of home, gym equipment, computer devices; credit card statements, rates notices; and employment history paperwork.
[15] 12 April 2024 two submissions- 6 pages Statement of Lived Experience.
[16] Emailed by Mr Moxham on 18 December 2024.
I summarise what I consider to be most relevant below.
Evidence of Mr Moxham
Mr Moxham produced evidence of medical records, invoices and forms that dated between 1987[17] until the February 2025 hearing.[18] Mr Moxham gave oral evidence at the hearing and stated, ‘most documents misquote me.’[19]
[17] EB1, B31, page 125. B10,
[18] EB1, pages 29-63. EB1, B22, pages 65-95. EB1, B40, pages 158-159.
[19] Oral evidence of Mr Moxham.
Mr Moxham reported that he ‘felt discriminated [against], powerless and deprived of my rights’ throughout the proceedings. Mr Moxham contended that he was ‘intentionally misrepresented’ in the Agency’s presentation of his evidence to the Tribunal,[20] and that he ‘dealt with reams of outright lies, misrepresentations and intentional errors presented by the Respondent.’ [21]
[20] Closing submissions of Mr Moxham [5].
[21] Closing submissions of Mr Moxham [8].
Mr Moxham reported the following history:[22]
·In 1985 he was injured whilst riding a motorcycle in an accident with a semi-trailer. Mr Moxham sustained a ‘broken neck, injured right shoulder and right hand’;
·In 1987 he required a cervical spinal fusion;[23]
·Around 1999 and 2001 he sustained two workplace injuries to his back;
·Around 2014 he was ‘run off the road and assaulted requiring hospital admission’;
·In July 2014, he underwent a right shoulder reconstruction;
·In February 2015 he injured his left shoulder whilst repairing his motorcycle;[24]
·Around 6 December 2017 he had an elective admission for shoulder surgery. Mr Moxham was advised to continue with occupational therapist and physiotherapist exercises. [25]
[22] Oral evidence of Mr Moxham. EB1, B23, pages 67-71. Second part statement of lived experience April 2024, page 1/13.
[23] EB1, B26, page 74.
[24] EB1, pages 36-37. Mr Moxham produced a letter from 25 February 2015 signed by Dr Jonsson-Lear, General Practitioner (GP).
[25] EB1, B10. EB1, B12, page 43. EB1, B12, pages 45-46.
I refer to Mr Moxham’s statement of lived experience in its entirety[26] and his written dispute of the Agency’s evidence in its entirety.[27]
[26] EB1,
[27] EB1, B22 -B27, pages 65 – 93. Closing submissions of Mr Moxham [8]-[12].
Mr Moxham reported that he experiences:[28]
[28] EB1, B22, page 65.
·Strong pain in ‘moving and lifting my arms, sharp pain walking in my upper legs and back,’[29] and increased fatigue which results in:
[29] Oral evidence of Mr Moxham.
oShort term memory loss;
o‘Losing his temper’ due to aggravating pain;
oNeck cramps and also cramps in other areas;[30] and
oSleep disruptions both falling and staying asleep.
·Reduced strength, endurance, and tolerance which results in:
odecreased frequency of riding his bicycle due to difficulty in transporting his bicycle to the local bicycle riding track;[31]
o‘limited contact with people’ as he goes out fortnightly to pay bills, and buy groceries and obtain pharmacy requirements;
ousing ‘trolleys to support me at the grocery store’; and
odifficulties cleaning his home. Mr Moxham reported that he no longer uses the Queensland government community services and that he ‘used them 2–3 days per week, but the government cancelled the service. I could not afford the $35 per hour.’[32]
[30] T1, page 8.
[31] EB1, B26, pages 73. EB1m B27, page 91.
[32] EB1, B27, page 92.
Mr Moxham reported his weekly activities. He is able to:
·Use his personal computer that he built and programmed himself;
·Relax by ‘watching DVD movies on my 155-inch plasma screen and I have a spare in case it breaks down, or I play my guitar;’[33]
·Drive his registered car and he has a ‘few other motor vehicles he uses for spare parts;’[34]
·Mobilise independently. Mr Moxham explained that a physiotherapist gave him a ‘walking cane to try and it caused bad pain to my shoulders and back, so I stopped using it.’[35] Mr Moxham has a ‘wheelie walker’ but stated, ‘it is too hard for me to use. I have a second-hand mobility scooter, I repaired it, but it has no batteries’;[36]
·Prepare and eat ‘prepackaged frozen food, canned beans, soup, meat pies, potato chips, and toasted sandwiches’;[37]
·Groom himself. He can shave, and he chooses to sit down to dress himself. He does ‘not use the spa bath as it is boring to sit in’;[38]
·Use a washing machine and clothes dryer once a week;
·Undertake light cleaning of his home, and bathroom;[39]
·Water his fruit trees and vines;[40]
·Budget carefully and pay his bills and mortgage. Mr Moxham calculated he will own his home in less than four years.[41]
[33] Mr Moxham reported having other musical instruments including three electric guitars, one 12 string electric acoustic guitar, two speakers, an upright organ (that belonged to his wife), and a drum set. Oral evidence of Mr Moxham.
[34] EB1, B26, page 77.
[35] EB1, B26, page 84.
[36] EB1, B26, page 86.
[37] Oral evidence of Mr Moxham.
[38] Oral evidence of Mr Moxham.
[39] B27, page 92.
[40] Oral evidence of Mr Moxham.
[41] EB1, B26, page 77.
Written evidence of Dr Anthony Pass, general practitioner (‘GP’), Bunya Pines Family Practice

Dr Pass did not give oral evidence. Mr Moxham relied on Dr Pass’ written evidence to contend that he satisfies the access criteria.
On 28 October 2022[42] Dr Pass provided an access request form to support Mr Moxham’s application.
[42] T10.
On 21 November 2022 Dr Pass wrote in support of Mr Moxham’s application to become a participant in the Scheme.[43] Dr Pass wrote that Mr Moxham lives with four ‘permanent and lifelong’ conditions: Severe spinal degeneration, severe widespread osteoarthritis, severe bilateral shoulder arthropathy, and depression.
[43] T12, page 79.
On 22 December 2022,[44] Dr Pass reported that Mr Moxham lives with five permanent conditions: ‘severe spinal degeneration, osteoarthritis in the hands, feet and knees, severe bilateral shoulder arthropathy, chronic pain and depression’. In summary, Dr Pass opined that Mr Moxham ‘has a permanent impairment that prohibits him from independently participating effectively or completely in multiple activities across the domains of mobility, communication, learning, self-management, and self-care’.[45]
[44] T15.
[45] T15, page 99.
On 9 March 2023[46] Dr Pass documented that Mr Moxham ‘requires disability specific supports for sleep apnoea due to the excessive lethargy and that he cannot afford CPAP therapy.’[47] Dr Pass also opined that Mr Moxham was trialled on antidepressant medication with ‘no significant benefit’ and has previously attended psychology appointments with ‘no significant benefit.’
[46] T18, pages 116-117.
[47] Around November 2021, Mr Moxham participated in an overnight sleep study and was prescribed a CPAP machine EB1, page 152.
On 21 August 2024 Dr Pass provided a ‘compilation of Mr Moxham’s records relating to depression. A Mental Health Care Plan from 2015 was also attached.’[48]
[48] EB1, B37, pages 131-
Dr Pass opined, regarding depression, that Mr Moxham:
·‘has been seen by a counsellor… and this did not provide any improvement to symptoms. There is no publicly available psychology accessible in QLD [sic] and [he] is unable to afford private psychology and [his] depression is largely related to the afforemention [sic] physical impairments. As a result of the above information, I consider that Mr Moxham as [sic] exhausted all treatments specifically available to him in his circumstances.’
Dr Pass prescribed the following items for Mr Moxham: an adjustable bed, a lift chair, a mobility scooter, and vehicle modifications to accommodate transporting a mobility scooter.[49]
[49] EB1, B27, pages 90-91.
Dr Pass recommended Mr Moxham requires assistance in the following activities:
·Laundry – hanging out washing;
·House cleaning and maintenance, rubbish removal;
·Mowing;
·Shopping;
·Making the bed;
·Fine motor skills;
·Learning new skills secondary to chronic pain, impaired short-term memory; and
·Impaired hygiene, toileting and bathing due to physical limitations in his arms.
Evidence of Mr Christopher O’Dowd, occupational therapist
On 29 November 2023 the Agency sent a letter of instruction to Mr O’Dowd, requesting a functional capacity assessment of Mr Moxham with respect to his review application.[50] I accept that Mr O’Dowd has seven years of clinical occupational therapy experience in hospital, community and private practice and community case management experience in physical, psychological, and vocational settings.
[50] EB1, C1, page 164.
On 13 December 2023, Mr O’Dowd reviewed Mr Moxham and provided a report dated 17 January 2024 and he also provided oral evidence at the hearing.
Mr O’Dowd confirmed his opinion at the hearing based on his evaluation of Mr Moxham’s indoor and outdoor home environment and using two standardised assessments, the World Health Organisation Disability Assessment Schedule (WHODAS 2.0) and the Lawton’s Activities of Daily Living Assessment (LADLA).
The WHODAS 2.0 score assists in understanding Mr Moxham’s difficulties across six domains, which are: cognition, mobility, self-care, getting along, life activities and participation. Mr Moxham’s score was at 51.6% indicating a moderate difficulty rating with function. Mr O’Dowd identified that while Mr Moxham has ‘difficulties and restrictions in some areas and widespread pain, he has to date remained reasonably capable.’[51]
[51] EB1, C1, page 180.
The LADLA identified Mr Moxham’s level of function across eight domains, which are: ability to use telephone, shopping, food preparation, housekeeping, laundry, mode of transportation, responsibility for own medications and ability to handle finances. Mr Moxham scored an 8/8 or a high‑functioning level that indicated he required ‘mild’ levels of support and ‘meets the criteria for independent living as defined by the assessment tool’.[52] However, Mr O’Dowd indicated the following considerations for Mr Moxham:
·‘Financial constraints limit the frequency and extent to which Mr Moxham can complete these tasks…[and] can cause difficulties with shopping and meal preparation’; and
·‘In a real-world application Mr Moxham requires assistance with housekeeping.’
[52] EB1, C1, pages 178-179.
CONSIDERATION
I am satisfied that Mr Moxham explained his lived experience and clearly articulated his contentions. I accept that Mr Moxham lives with impairments that have impacted on his quality of life and that Mr Moxham was honest, forthright, and sincere in giving his evidence.
I acknowledge Mr Moxham’s closing submissions where he stated his opinion that he felt ‘discriminated, powerless and deprived of my rights of fair representation’ and that the Agency relied on material of ‘outright lies, misrepresentations and intentional errors’ regarding his application.[53]
[53] Closing submissions of Mr Moxham [8].
I acknowledge that Mr Moxham disagreed with and questioned the account of events in Mr O’Dowd’s report, and also questioned the timeline of injuries that were reported.[54]
[54] Closing submissions of Mr Moxham [3], [55], [62]–[75], [79], [82]–[95].
I accept Mr O’Dowd’s observations (as a registered occupational therapist) of Mr Moxham in and around his home and, as to the events described where it factually differs to Mr Moxham, I am satisfied that Mr O’Dowd’s evidence:
·Was provided as a professional, registered occupational therapist;[55]
·Explained his ‘general practice of undertaking assessments’[56] even though this differed from Mr Moxham’s recollection of the timing of assessments;
·Explained his habit of using his smart watch to ‘time the duration of all of his assessments’;[57]
·Clarified that if the chronology of Mr Moxham’s injuries recounted by Mr O’Dowd in his report had errors, that the errors as to the ‘timing or mechanism of the injury would not impact his opinion contained in the balance;’[58] and
·Provided an assessment of Mr Moxham in December 2023. I note that there was no evidence provided to contend there had been any deterioration in Mr Moxham’s function since that time. In contrast, Mr Moxham described a typical day in a consistent manner to what was described in Mr O’Dowd’s written and oral evidence.
Section 24(1): the disability requirements
[55] Mr O’Dowd stated he prepares reports across different contexts such as in Tribunal applications, workplace injury and Compulsory Third-Party assessments.
[56] Oral evidence of Mr O’Dowd.
[57] Oral evidence of Mr O’Dowd. EB1, page 165.
[58] Agency’s closing submissions at [28].
Whether or not Mr Moxham has a disability attributable to an impairment?
An impairment is generally understood to mean ‘the loss of or damage to a physical, sensory or mental function.’[59] The assessment of impairments is ‘functional and multi-faceted’ and requires a relatively high degree of precision.[60]
[59] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51].
[60] Mulligan at [55].
Mr Moxham contended that the word ‘severe’ should be used to describe his diagnoses and impairments.[61] However, in National Disability Insurance Agency v Davis [2022] FCA 1002[62] (‘Davis’), the court made it clear that the focus is on impairments, not descriptors added to the diagnosis.[63]
[61] Mr Moxham closing submissions at [2], [8], [14], [28], [98]–[100].
[62] Davis at [69].
[63] Section 24(1)(a). Agency’s closing submissions at [12].
On the provided evidence[64] I accept that Mr Moxham has a disability attributable to physical impairments resulting from his spinal degeneration, bilateral shoulder arthropathy, osteoarthritis, and chronic pain (‘the accepted conditions’). I accept the evidence that Mr Moxham’s physical impairments result in reduced endurance, reduced strength, reduced tolerance, increased falls risk and increased fatigue.
[64] T5, Dr Pass 30 January 2017 NDIs Access request, page 47. B1–B40.
In addition, it was undisputed and supported by medical reports that Mr Moxham has a disability attributable to a psychosocial impairment resulting from depression. Section 24(1)(a) of the NDIS Act is satisfied with respect to Mr Moxham’s physical and psychosocial impairments.
I cannot be satisfied that the evidence provided established that Mr Moxham has a disability attributable to impairments from sleep apnoea that impact his functional capacity. I cannot be satisfied that Mr Moxham’s fatigue is attributable to sleep apnoea. It may be that Mr Moxham’s fatigue is the consequence of the pain he experiences, poor sleep hygiene or the depression he experiences.
Whether or not Mr Moxham’s impairments are permanent?
The Tribunal must be satisfied that the impairment, not the medical condition, is permanent or enduring[65] and that there are no known, available, and appropriate treatments that may ‘remedy’ the impairment, which means ‘approaching a removal or cure of the impairment’.[66] This is also considered alongside the access rules noted at [13], in particular rule 5.4.
Physical impairments – decreased endurance, strength and tolerance; increased fatigue and falls risk
[65] Mortimer J explained this in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [85]–[86].
[66] Mortimer J in Davis at [136]–[139].
Dr Pass noted that Mr Moxham’s impairments are ‘permanent with no reasonable treatment available to relieve his impairments.’[67] The Agency concedes, and I find, that Mr Moxham’s physical impairments occurring from spinal degeneration, bilateral shoulder arthropathy, osteoarthritis and chronic pain (‘the accepted impairments’) are permanent and section 24(1)(b) of the NDIS Act is satisfied.
[67] EB1, B16, page 55.
Psychosocial impairments – depression
The question I must consider is whether treatment is available and is likely to ‘remedy’ Mr Moxham’s psychosocial impairments. I refer to National Disability Insurance Agency v Davis and the relevant findings of Mortimer J (as Her Honour then was) as follows: [68]
·‘Available treatment’ contemplates ‘what treatments an individual can, in reality, access’ including their financial capacity to access a treatment.
·Remedy should be understood to mean something approaching a ‘removal’ or ‘cure’ of an impairment.
·‘Permanency’ asks if the impairments are enduring in nature and require supports provided and/or funded under the Scheme on an ongoing basis.
[68] FCA 1002 (Davis) at [130]–[138].
I also contemplate the meaning of ‘permanency’ of an impairment from the decision of Mulligan v National Disability Insurance Agency:[69]
Although an impairment may… be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled.
[69] [2015] FCA 544 (Mulligan) at [52].
(Tribunal emphasis)
I accept that even though Mr Moxham may be considered to have symptoms of his psychosocial impairment such that a diagnosis is satisfied, the degree of severity and permanency of those impairments that Mr Moxham experiences may not be such that he can satisfy the contemplated threshold of ‘permanency.
I cannot be satisfied on the evidence that Mr Moxham has participated in recommended treatment for depression:
·In July 2015, Dr Pass provided a GP ‘Mental Health Care Plan’. Such a plan forms the basis upon which a person may access certain medical sessions or treatments under the Medicare Benefits Scheme. No further evidence was provided to indicate an ongoing ‘Mental Health Care Plan’, a timeline of treatments or the frequency or duration of treatments;[70]
·From June 2020 until April 2021 Mr Moxham’s doctor prescribed medication which Mr Moxham took for a time, then ceased;[71]
·Mr Moxham attended a counsellor,[72] and it was unclear whether Mr Moxham also received a further ‘Mental Health Care Plan’ after the 2015 Plan ceased.
[70] EB1, pages 132, 141. Oral evidence of Mr Moxham.
[71] EB1, pages 132-135.
[72] EB1, page 57.
I accept the Agency submissions that Mr Moxham’s impairment attributable to depression is not permanent. In Kelly v National Disability Insurance Agency [2024] FCA 1462 (‘Kelly’), McEvoy J concurred with the Agency submission that:[73]
it cannot be accepted that it is repugnant to the Act for a decision-maker to have regard to the existence of services beyond the NDIS. The Act expressly provides that, in giving effect to its objects, regard is to be had (relevantly) to the need to ensure the financial sustainability of the NDIS (s 3(3)(b)) and the provision of services by other agencies, departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS (s 3(3)(d)).
[73] Kelly at [62].
In light of Mr Moxham not having regular psychological support, despite this being recommended,[74] I cannot be persuaded that Mr Moxham is accessing all ‘known, available and appropriate evidence-based… treatments’[75] that would be likely to remedy his depression. Further treatment is available to treat Mr Moxham’s depression through a ‘Mental Health Care Plan’; though it may not result in a ‘cure’, there is a prospect that it may relieve the impairment attributable to his depression.[76] I refer to rules 5.4 and 5.6 of the access rules and note their applicability to Mr Moxham’s circumstances. In the absence of evidence to indicate that Mr Moxham has undertaken the treatment recommended, I cannot be satisfied that Mr Moxham has a permanent psychosocial impairment arising from his depression.
[74] Mr Moxham’s 2015 Mental Health Care Plan B37, pages 141-147.
[75] Jourfian and NDIA [2020] AATA 1883 Jourfian [44].
[76] FBJV and NDIA [2021] AATA 913 (FBJV) at [117].
I accept that Mr Moxham’s depression may not be or is unlikely to be ‘cured’ by engaging with other services, such as a GP ‘Mental Health Care Plan’ or by adhering to a prescribed medication regime. However, when considering the ‘permanence’ of a particular impairment, I must also consider whether the impairment may respond to treatment.[77]
[77] Kelly [61].
Considered overall, when I apply the relevant access rules, I am not satisfied on the current evidence before me that Mr Moxham’s psychosocial impairment of depression is, or is likely to be, permanent.
Sleep apnoea
I have decided that Mr Moxham’s sleep apnoea is not an impairment pursuant to section 24(1)(a) of the NDIS Act and will therefore not determine the issue of permanency regarding this condition.
Whether or not Mr Moxham’s physical impairments result in substantially reduced functional capacity?
Mr Moxham’s permanent physical impairments are his reduced endurance, tolerance and strength and increased fatigue and increased falls risk resulting from his four accepted conditions.
I must also consider whether Mr Moxham’s circumstances come within the ‘deeming provision’ of rule 5.8[78] of the access rules for substantially reduced functional capacity. If the deeming provision is not met, I must also consider whether Mr Moxham’s functional capacity is substantially reduced across any of the six domains of activity.[79] I will consider the Operational guidelines and whether an impairment substantially reduces Mr Moxham’s functional capacity. In other words, whether or not Mr Moxham ‘usually needs disability-specific supports to participate in or complete the above tasks’. The disability-specific supports include:
·High level of support from others, including physical assistance, guidance, prompting or supervision; and
·Assistive technology, equipment or home modifications that are prescribed by your doctor, allied health or other medical professional.’
[78] Listed at paragraph [13].
[79] Mulligan at [77].
Considering Mr Moxham’s circumstances under rule 5.8 I consider that he is able to participate in tasks without assistive technology.[80] Mr Moxham stated he did not use assistive technology.[81] Mr O’Dowd did not specifically recommend any assistive technology for Mr Moxham in his report. I am not satisfied that rule 5.8(a) applies to Mr Moxham.
[80] Rooney v NDIA [2021] AATA 3523 at [22]. Also Davis and NDIA (2023) at [65].
[81] Oral evidence of Mr Moxham. EB1, C1, page 172.
Under rule 5.8(b) I have considered whether there are tasks that Mr Moxham usually requires assistance with. I am not satisfied on the evidence that Mr Moxham usually requires assistance from another person across the six domains to participate in activities.
I accept Mr O’Dowd’s report and the evidence of Mr Moxham’s current functional capacity indicates that rule 5.8(c) is not relevant.
The Tribunal must be satisfied that Mr Moxham’s accepted impairments result in a substantially reduced functional capacity in at least one of the six domains of communication, social interaction, learning, mobility, self-care and self-management.
The word ‘substantially’ within section 24(1)(c) of the NDIS Act may be considered to carry a high threshold[82] because it requires consideration of the context of ‘the need to ensure the financial sustainability of the scheme.’[83] The test requires ‘an objective functional capacity’ that considers what Mr Moxham can and cannot do.[84]
[82] Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68].
[83] Section 3(3)(b) of the NDIS Act. Mulligan at [50].
[84] Mulligan at [55].
Each of the functional domains are considered in turn. The Agency contended that Mr Moxham does not have substantially reduced functional capacity in any of the six domains.
Communication: s 24(1)(c)(i) of the NDIS Act
The Operational guidelines require consideration of ‘how you speak, write... express yourself compared to other people your age…’[85]
[85] Our guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024, page 8.
On 30 January 2017 and 28 October 2022, Dr Pass documented that Mr Moxham does not require assistance in the area of communication.[86] On 9 March 2023, Dr Pass opined that Mr Moxham ‘is unable to independently participate in communication due to fatigue, depression and chronic pain.’[87]
[86] T5, page 49. T10, page 70.
[87] T18, pages 116-117.
Mr O’Dowd wrote that Mr Moxham ‘communicates in a clear manner…and his social isolation combined with the impacts of his pain medication is likely to impact him in this area, however, he has demonstrated sufficient skill for basic interactions’.[88]
[88] EB1, C1, page 177.
I note that Mr Moxham prepared his application, he effectively communicated with the Tribunal, and he clearly expressed his disagreement with verbal and documentary evidence.[89]
[89] Oral evidence of Mr Moxham and EB1 – B22, B23, B24, B25, B26. Mr Moxham’s closing submissions.
I accept Dr Pass’ evidence. However, I prefer Mr O’Dowd’s evidence that Mr Moxham was able to communicate, clearly articulate himself and understand others. I am satisfied after observing Mr Moxham give evidence and make submissions on his own behalf that Mr Moxham does not have a substantially reduced functional capacity to take part in communication activities. Mr Moxham can participate effectively and completely in communication activities without assistance from another person, assistive technology, equipment or home modifications.
Social interaction: s 24(1)(c)(ii) of the NDIS Act

The Operational guidelines refer to social interaction as:
How you make and keep friends, or interact with the community… We also look at your behaviour, and how you cope with feelings and emotions in social situations.[90]
[90] Our guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024, page 8.
The criteria in the guidelines around the assessment of function in ‘social interaction’ are ‘directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[91]
[91] Madelaine [87]. Note Madelaine discussed an earlier though similar version of the Access guidelines.
Dr Pass documented that Mr Moxham does not require assistance in the area of social interaction.[92] On 28 October 2022 Dr Pass documented Mr Moxham requires assistance from others ‘to engage socially and access social situations.’[93] On 22 December 2022, Dr Pass documented that Mr Moxham does not require assistance in social interaction.[94] On 9 March 2023, Dr Pass opined that Mr Moxham ‘is unable to independently participate in social interaction due to lethargy and pain.’[95]
[92] T5, page 50.
[93] T10, page 71.
[94] T15, page 99.
[95] T18, pages 116-117.
Mr Moxham’s evidence indicates he elects not to be socially active due to his pain symptoms. He reports having no friends or relatives. Mr Moxham also reported he does not wish to speak to people in the local community and had not enquired about social programs available to him.[96] However, the Tribunal’s task is to consider the skills of social interaction, not Mr Moxham’s opportunity to exercise the skills.[97] There was no evidence to indicate Mr Moxham was unable to appropriately interact with others; the evidence was that Mr Moxham elects not to.[98]
[96] Oral evidence of Mr Moxham. Agency’s closing submissions at [37]-[40].
[97] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [104].
[98] Agency’s closing submissions at [42].
Mr O’Dowd reported Mr Moxham has ‘effectively nil’ in the way of reported social interactions besides ‘attending shops and his GP’.[99]
[99] Oral evidence of Mr O’Dowd.
I am satisfied that Mr Moxham experiences physical impairments attributable to the accepted conditions, and this would impact his capacity for social interaction. However, the evidence does not lead to a conclusion that Mr Moxham’s pain and fatigue levels result in him having a substantially reduced functional capacity in the area of social interaction. I prefer Mr Moxham and Mr O’Dowd’s evidence and I find that Mr Moxham does not require assistance from others, or assistive technology or equipment, to participate socially.
Learning: s 24(1)(c)(iii) of the NDIS Act
The Operational guidelines explain this domain as ‘how you learn, understand and remember new things and practise new skills.’[100]
[100] Our guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024, page 8.
Mr Moxham stated that he is able to read and watch television and he drives his motor vehicle. He also stated he uses his PlayStation games to keep ‘my mind and visual reflexes active.’[101] During the hearing Mr Moxham was able to ‘critically engage with the proceedings and respond to what was required of him during the process.’[102] Mr Moxham also demonstrated he was able to disagree and provide a different viewpoint and correct inaccuracies with Mr O’Dowd’s evidence when Mr Moxham asked Mr O’Dowd questions during the hearing.
[101] Oral evidence of Mr Moxham.
[102] EB1, page s 192-3.
On 30 January 2017, Dr Pass documented that Mr Moxham does not require assistance in the area of learning.[103] On 28 October 2022 Dr Pass documented that Mr Moxham requires support worker assistance to ‘access, prompt and physically assist in learning, practising and using new skills.’[104] On 9 March 2023, Dr Pass opined that Mr Moxham ‘has impaired learning due to pain and resulting fatigue.’[105]
[103] T5, page 50.
[104] T10, page 71.
[105] T18, pages 116-117.
Mr O’Dowd’s functional assessment concludes that Mr Moxham is ‘capable of learning basic skills,’ though his concentration may be reduced due to his impairments.[106]
[106] C1, page 186.
I prefer the evidence of Mr Moxham and Mr O’Dowd. I accept at times Mr Moxham’s capacity to learn may be impacted by his impairments, especially from fatigue. However, Mr Moxham’s residual capacity to learn, even with modifications, remains. I am not satisfied that Mr Moxham has a substantially reduced functional capacity in the domain of learning. The evidence indicated that Mr Moxham’s circumstances are not caught by the criteria in rule 5.8.
Mobility: s 24(1)(c)(iv) of the NDIS Act
The Operational guidelines describe ‘how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.’[107]
[107] Our guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024, page 8.
On 30 January 2017, Dr Pass documented that Mr Moxham requires assistance in the area of mobility, that he requires ‘assistance with home cares’ and requires a ‘neck, knee and back brace.’[108]
[108] T5, page 49.
On 28 October 2022, Dr Pass documented that Mr Moxham required assistance from others with respect to mobility.[109] Dr Pass also recommended that Mr Moxham needed equipment, such as:
·an adjustable bed;
·a lift chair;
·a mobility scooter; and
·support workers for physical and mental assistance.
[109] T10, page 70. T18, pages 116-117.
Mr Moxham reported to Mr O’Dowd the following activities that he can undertake independently, though with symptoms of pain:
·He periodically rides a bicycle on a local bicycle track, and he lifts the bicycle in and out of the storage shed;[110]
·He is able to drive to local shops and use a trolley for balance;
·He uses a toilet rail, he is able to independently mow, water his plants, clean and prepare his meals; and
·He can walk up and down stairs.
[110] EB1, page 171. Mr Moxham reported varying frequency depending on the weather.
Mr O’Dowd did not observe Mr Moxham using any assistive technology. Mr Moxham did not report currently using any assistive devices such as a walking stick.[111] Mr O’Dowd observed that Mr Moxham is able to independently: [112]
·Climb the five to six stairs into his home;[113]
·Stand and walk during the assessment for around 45 minutes;[114]
·Push or pull his ride‑on mowers from storage;[115]
·Transfer from a chair or bed;[116]
·Carry out domestic tasks;[117] and
·Move his arms. Mr O’Dowd did observe limitations in the way that Mr Moxham ‘lifts his arms above his head and projects his arms forward. However, he has developed an adjusted method to achieve the movement’.[118]
[111] Walking sticks are often referred to as ‘commonly used item’ as described in rule 5.8 and in Rooney [24-28] because it is not high cost and commercially accessible.
[112] EB1, page 173.
[113] EB1, page 168.
[114] EB1, pages 173-4.
[115] EB1, page169.
[116] EB1, page 174.
[117] EB1, page 176.
[118] EB1, page 188.
I accept Mr O’Dowd’s assessment and evidence. I note that Mr O’Dowd did not recommend any assistive devices for Mr Moxham to mobilise with.[119]
[119] EB1, page 190.
I accept Mr Moxham’s evidence that he experiences pain and fatigue when he is mobilising. I find that this would lead to some reduction in functional capacity arising from Mr Moxham’s physical impairments when mobilising. However, I am not satisfied the reduction is substantial having regard to all the evidence of what Mr Moxham can and cannot do.
I note that Dr Pass’ evidence differed from Mr O’Dowd’s. However, when considering the totality of what Mr Moxham can do, and the probative evidence available to me, I am satisfied that Mr Moxham is able to ‘participate effectively in the activity of mobility’ and I do not consider that Mr Moxham’s impairments result in a substantial reduction in his functional capacity so that his particular circumstances are not met under rule 5.8. I also accept that Mr Moxham does not have a substantially reduced functional capacity in the domain of mobility. I note that the threshold requirement to achieve functional capacity in relation to mobility has been described as ‘relatively modest’.[120] Mr Moxham has some reduction in his ability to mobilise outside due to his lethargy and pain. However, I am satisfied Mr Moxham can mobilise independently.
[120] Madelaine [104].
I am satisfied that the evidence does not require the deeming provisions of rule 5.8 regarding Mr Moxham’s mobility.
Self-care: s 24(1)(c)(v) of the NDIS Act
The Operational guidelines state self-care is ‘personal care, hygiene, grooming, eating, and drinking and health. We consider how you get dressed, shower or bath, eat or go to the toilet’.[121]
[121] Our guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024, page 8.
Dr Pass documented that Mr Moxham does not require assistance in the area of self-care.[122] On 9 March 2023, Dr Pass opined that Mr Moxham ‘has difficulty with basic self-care tasks secondary to chronic pain and impaired upper limb mobility to participate in communication due to lethargy and pain.’[123]
[122] T5, page 51. T10, page 72.
[123] T18, pages 116-117.
Mr Moxham stated he has difficulty with dressing, and he uses a modified dressing technique where he sits down to dress himself.
Mr Moxham stated he completes grocery shopping at both Aldi and Woolworths once each fortnight. He also pays bills and attends the pharmacy or a medical appointment, if necessary, and this minimises ‘fuel costs’.
Mr O’Dowd observed that Mr Moxham was ‘neatly dressed, in clean clothing with a clean‑shaven face and well-kept general personal hygiene and his home appeared tidy.’[124] Mr O’Dowd assessed that Mr Moxham did not require assistance with self-care.[125]
[124] EB1, page 165.
[125] EB1, pages 192-193. ‘Mr Moxham is able to independently use the toilet, shower, kitchen, and laundry.’
I accept that Mr Moxham does not use assistive technology or equipment (though he may use some commonly used items) in his self-care and sometimes he may adapt tasks by undertaking tasks in a way that suits his individual needs and circumstances. I note that Mr Moxham has lived alone since 2020, I accept that some self-care tasks are difficult for Mr Moxham to complete, however he does not usually require assistance from other people to perform these tasks.
I prefer the evidence of Mr Moxham and Mr O’Dowd. I am satisfied that rule 5.8 is not enlivened and that Mr Moxham does not have a substantially reduced functional capacity in the domain of self-care.
Self-management: s 24(1)(c)(vi) of the NDIS Act
The Operational guidelines describe ‘this is how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.’[126]
[126] Our guidelines, Becoming a participant – Applying to the NDIS, 1 February 2024, page 8.
In January 2017, Dr Pass documented that Mr Moxham does not require assistance in the area of self-management.[127] On 28 October 2022 Dr Pass documented that Mr Moxham requires ‘physical assistance and support to access locations and mental support for motivation and prompting.’[128]
[127] T5, page 51.
[128] T10, page 72.
Mr Moxham stated he is independent in the following activities:[129]
·his budgeting and banking, including paying bills; [130]
·using his computer and telephone;
·repairing his lawn mowers and motor vehicles;
·organising medical appointments;
·taking his medication;
·cleaning his home; and
·using the washing machine, clothesline, and tumble dryer for his laundry.
[129] Oral evidence of Mr Moxham.
[130] EB1, page 175.
I accept and prefer Mr O’Dowd’s report and verbal evidence which provides a comprehensive assessment of Mr Moxham’s functional capacity, and it does not support that Mr Moxham has a substantially reduced functional capacity in self-management.
Overall, I am satisfied that Mr Moxham’s impairments do not result in a substantially reduced functional capacity to undertake one or more of the activities in s 24(1)(c) of the NDIS Act. The disability requirements are not met. I am not required to address the remaining criteria.
Mr Moxham did not contend, nor did he provide evidence, that he satisfied the early intervention requirements. Therefore, as the disability requirements are also not satisfied, Mr Moxham does not meet the access criteria in section 21 of the NDIS Act.
DECISION
The Tribunal affirms the reviewable decision pursuant to section 105(a) of the ART Act.