MVBP and National Disability Insurance Agency (NDIS)
[2025] ARTA 2294
•30 October 2025
MVBP and National Disability Insurance Agency (NDIS) [2025] ARTA 2294 (30 October 2025)
Applicant:MVBP
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9697
Tribunal:General Member I Selley
Place:Adelaide
Date:30 October 2025
Decision:The Tribunal affirms the decision under review
Statement made on 30 October 2025 at 2:50pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – becoming a participant - access request – whether access criteria under s 21 of the NDIS Act met – whether disability requirements under s 24 of the NDIS Act met – neurological impairment – whether impairment is, or is likely to be permanent – 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 (the Transitional Act) (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes)
Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024
Administrative Review Tribunal, Common Procedures Practice Direction, April 2025
Administrative Appeals Tribunal, Guidelines - Persons Giving Expert and Opinion Evidence, 30 June 2015
Modernized ICF Online Browser, available at International Classification of Functioning, Disability and Health (ICF)T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Beezley v Repatriation Commission [2015] FCAFC 165
Foster v National Disability Insurance Agency [2025] ARTA 718
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Garcia Albiol and NDIA [2024] AATA 496G v Minister for Immigration and Border Protection [2018] FCA 1229
Lampard and National Disability Insurance Agency [2024] AATA 3150
National Disability Insurance Agency v Lampard [2025] FCAFC 139
National Disability Insurance Agency v Jones [2025] FCA 877Statement of Reasons
INTRODUCTION
The issue to be determined in this case is whether the Applicant should be granted access to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports.
In November 2023, the Chief Executive Officer of the National Disability Insurance Agency (the Agency) refused the Applicant’s request to access the NDIS, and the Applicant applied to the former Administrative Appeals Tribunal (AAT) to independently review the merits of the Agency’s decision. In 2024, the Administrative Review Tribunal (ART) was established to replace the AAT, the AAT was abolished, and the application was transferred automatically to the ART[1].
[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
The Applicant is 66 years of age. He lives in Brisbane with his wife.
The Applicant lives with medical conditions including chronic anorectal neuropathy[2] and bipolar disorder[3]. His treatment and devices are partially funded by Medicare, the Continence Aids Payment Scheme (CAPS), and his private health insurance. He receives no government-funded in person supports.
[2] Joint Tender Bundle (JTB), page 20
[3] JTB, page 138
This decision is, in essence, about whether the Applicant’s medical conditions give rise to one or more impairments, being the loss or damage to a physical, sensory or mental function, that are permanent and of such severity that he meets the disability requirements in section 24 of the National Disability Insurance Scheme Act 2013 (the Act). The Applicant does not pursue early intervention access under section 25 of the Act.
Whilst the Tribunal has found the Applicant has a neurological impairment arising from his chronic anorectal neuropathy, it has not found that impairment to be permanent. The Tribunal has not found the Applicant to have an impairment arising from his bipolar disorder.
How the Tribunal has reached this decision, including its procedure, the evidence it has considered, the facts it accepts and the law it has applied, are set out below.
LEGISLATION AND POLICY
The Access Criteria
To become a participant in and access the NDIS, the Applicant must meet the access criteria in section 21 of the Act. This requires him to meet both the age and residence requirements in sections 22 and 23, and then either of the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the Act.
It is accepted the Applicant meets the age requirement. Although the Applicant is now 66 years of age, the age requirement turns on the person’s age at the date they made the access request: section 22 of the Act. The Applicant was 63 at that time. The Applicant submitted a letter from the Acting Assistant Secretary of the Home Support Operations Branch within the Department of Health and Aged Care dated 14 March 2025[4]. This letter is a response to the Applicant’s correspondence to the Ministers for Health and Aged Care and Social Services inquiring about a person’s eligibility for the CAPS, the NDIS and Medicare if they are living overseas. The Applicant did not provide the Tribunal with a copy of his correspondences to the Ministers. In the absence of evidence and submissions from the Agency to the contrary[5], the Tribunal finds the Applicant is both an Australian citizen and resident in Australia at the time of this decision and meets the residency requirements in section 23 of the Act.
[4] JTB, page 132
[5] JTB page 6
The parties have agreed that early intervention requirements cannot be met in this case[6]. The Tribunal accepts that joint position. There is no expert evidence that identifies supports that were or could be early intervention supports[7]. The expert evidence before the Tribunal indicates the impairments are longstanding[8]. The parties have expressly disavowed that early intervention supports are being sought.
[6] Applicant Closing Submissions (ACS) dated 16 May 2025
[7] National Disability Insurance Agency v Jones [2025] FCA 877 (Jones), at [24]
[8] Jones, at [24]
The Disability Requirements
Section 24 of the Act was amended after the Applicant made the AAT application. However, those changes apply only to access requests made on or after 3 October 2024[9]. The Tribunal accordingly applies the disability requirements as they were immediately prior to those amendments and as quoted below.
[9] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1
In summary, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent, or likely to be permanent, and that results in substantially reduced functional capacity requiring lifetime NDIS supports[10]. Section 24 of the Act states:
[10] NDIS Access Rules, paragraph 2.5(a)
(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 NDIS supports 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).
NDIS Access Rules
The Tribunal must apply the mandatory instructions for interpreting section 24 in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing[11] whether:
·impairments are or are likely to be permanent
·any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities.
[11] Section 27 of the Act
Judicial Interpretation and Tribunal Application of the Disability Requirements
The Tribunal must apply the relevant jurisprudence of the courts in access matters. The key principles are set out below.
Before turning to those, the Tribunal notes that at the hearing in this proceeding, the Agency raised the Full Federal Court decision in Foster and NDIA[12] and the AAT decisions of Lampard and NDIA[13] and Madeline and NDIA[14] as being particularly relevant because of their similar legal issues. As the Agency observed, in broad terms, the Full Federal Court judgment in Foster and the AAT decision on the merits in Madeline support the Agency’s position and the AAT decision on the merits in Lampard, supports the Applicant’s position. At the closure of evidence and submissions in this matter, on 16 May 2025, the matter of Foster had been remitted to the ART for reconsideration on the merits but was not yet finalised and the matter of Lampard was before the Full Federal Court and not yet heard or determined. The ART published its decision in Foster on 6 June 2025 affirming the decision on review, and the Full Federal Court its judgment in National Disability Insurance Agency v Lampard on 10 October 2025, allowing the appeal of the Agency[15]. For the purposes of this decision, the Tribunal observes that the Full Federal Court in Lampard amplified but did not change the reasoning of Mortimer J (as she then was) in the decisions of Mulligan[16] and Davis[17] on the concepts of impairment, permanency and functional capacity.
[12] [2023]FCAFC 11
[13] Lampard and National Disability Insurance Agency [2024] AATA 3150
[14] [2020] AATA 4025
[15] [2025] FCAFC 139
[16] Mulligan v NDIA [2015] FCA 544, at [18] (Mulligan)
[17] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis)
As to the general principles to be applied, the courts have said that the purpose of the access criteria and section 24(1) is to impose a series of “components and thresholds” [18] to gaining access to the NDIS. Given the Applicant must satisfy every component in section 24(1), the Tribunal’s approach is to consider whether each is in turn is satisfied before progressing to the next. If the Applicant fails to satisfy one, then he cannot meet the disability requirements, and the Tribunal need not continue its assessment of his claims.
[18] Mulligan, at [18] ; Lampard, at [19]
The courts emphasise that the central concept in an access matter is “impairment”[19]. It is not the name of a person’s disability or their medical diagnoses or conditions[20]. Impairment has been defined to generally involve the loss of or damage to a physical, sensory or mental function[21]. The distinction between a disability and an impairment is “important and indeed fundamental” to the access criteria[22]. A person’s disability must arise from or be caused by the impairments they experience[23] and “maintaining a conceptual distinction between a disability or a condition on the one hand, and an impairment on the other, is crucial to enable a higher degree of specificity to be achieved in assessing a person’s level of function”[24].
[19] Davis at [69]
[20] Davis, at [69]
[21] Mulligan, at [51]
[22] Lampard, at [20]
[23] Lampard, at [23]
[24] Lampard, at [27]
The Tribunal must determine the permanency and severity of the applicant’s impairments[25], and the impact of those impairments on the applicant’s ability to undertake multi-faceted life activities[26].
[25] Davis, at [82], Lampard, at [21]
[26] Davis, at [82]
As to the requirement of permanency, the courts have said “permanent” means “enduring”[27]. Further, an impairment may be enduring even if it fluctuates, or it may fluctuate, during the person’s lifetime, in its intensity and its impact[28].
[27] Davis, at [85]
[28] Davis, at [82]
When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a relatively high degree of precision, a detailed, functional and practical assessment of what the applicant can and cannot do[29]. The Tribunal must assess the degree to which the applicant can participate in the life activity[30]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[31]. It would be incorrect to undertake this assessment in relation to only one or a few of such tasks[32]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[33].
[29] Mulligan, at [55]-[56].
[30] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), Foster, at [88]
[31] Foster, at [64].
[32] Foster, at [64]-[66]
[33] Mulligan, at [55]-[56]
The term ‘substantially’ in this context carriers a “high threshold”[34]. Whether this high threshold is met should be considered with reference to the purposes of the NDIS, including that it was not intended to provide support to every person with disability, and ensuring the scheme is financially sustainable[35]. The NDIS has as its target group limited sub-categories of the total population of people with disability in Australia[36].
[34] Garcia Albiol and NDIA [2024] AATA 496A
[35] Foster, at [76]
[36] Foster and the NDIA [2025] ARTA 718
Regarding the Tribunal’s approach to the evidence, it is required to engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, the applicant and their supports[37]. It is for an applicant to provide the Tribunal with sufficient evidence and information or point to such information, to persuade the Tribunal that they meet the access criteria[38]. It is for the Agency to assist the Tribunal in its consideration of the evidence before it in making the correct or preferable decision[39].
[37] Davis, at [62]
[38] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]
[39] Section 56(1), ART Act
Relevant jurisprudence concerning the Access Rules is discussed below.
NDIS Guidelines
The Tribunal must take into consideration[40], but is not bound by[41], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guideline (the Access Guideline). The Agency’s Operational Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[42].
[40] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[41] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]
[42] Applying to the NDIS (Pre-legislation changes) 14 October 2024
THE APPLICATION AND THE DECISION UNDER REVIEW
On an unknown date, using an access request form dated 19 June 2023[43], the Applicant made a request to the Agency to access the NDIS (the access request).
[43] JTB, page 18
On about 7 July 2023, the Agency refused the access request[44] (the access decision).
[44] JTB, page 79
The Applicant then applied to the Agency for an internal review of that decision, on about 4 September 2023[45], and on 18 November 2023, the Agency again determined not to grant him access (the internal review decision)[46]. The internal review decision is the decision that is under review by the Tribunal.
[45] JTB, page 62
[46] JTB, page 63
In the internal review decision, the Agency accepted the Applicant has a permanent physical impairment arising from anorectal neuropathy or neurogenic bowel[47]. It did not define the impairment. Relying on evidence from Dr Devadason dated 13 June 2023, the Applicant’s psychiatrist, that the Applicant’s Bipolar Affective Disorder is in full remission, the Agency did not accept that disorder gave rise to an impairment[48]. It also did not accept that the Applicant’s functional capacity is reduced by his permanent physical impairment.
[47] JTB, page 67
[48] JTB, page 68
On 14 December 2023, the Applicant applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision[49]. His application had been progressing unsuccessfully through alternative dispute resolution until March 2025, when it was constituted for hearing and final determination. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[50].
[49] JTB, page 1
[50] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access
EVIDENCE, SUBMISSIONS AND PROCEDURE
On 1 and 2 May 2025, the Tribunal conducted a two-day hearing by Ms Teams video conferencing. The Applicant represented himself and his sister attended with him as a support person. The Agency was represented by Mr Philip Nolan as counsel and instructed by Maddocks Lawyers.
The Applicant and the Agency agree on the documents the Tribunal should consider in making its decision. A Joint Tender Bundle (JTB) of documents was given to the Tribunal in accordance with the Tribunal’s directions and admitted into evidence at the hearing. It includes the documents held by the Agency at the date of the Tribunal Application (T-Docs), including the documents the Agency relied on in making the internal review decision, and evidence later obtained by the parties for this proceeding as well as policy and judicial and tribunal authorities. At hearing, a letter from the Applicant to Ms Amy Kelly was admitted into evidence. The Tribunal has considered all the materials before it.
In accordance with the Tribunal’s directions, the parties conferred and gave the Tribunal a schedule of the witnesses they were calling to give evidence at hearing. In conducting the proceedings, the Tribunal has relied on the representations by the parties to the Tribunal contained therein.
The Tribunal heard evidence from the Applicant and Ms Catherine Cummins, the occupational therapist who conducted an independent functional assessment of the Applicant at the Agency’s instruction[51]. Ms Cummins prepared a report dated 14 November 2024 following her assessment on 15 October 2024[52]. Ms Cummins is the expert witness who has most closely and recently assessed the Applicant’s functional capacity. The Tribunal notes and accepts the report was prepared in accordance with the AAT Guideline for Expert Opinion and Evidence[53].
[51] JTB, page 221
[52] JTB, page 182
[53] JTB, page 196
The Applicant relies on documents including:
·statement from him, dated 4 November 2023, provided in support of his internal review request and which contains evidence and submissions (November 2023 statement)
·an undated statement of lived experience. Tribunal records indicate this was filed with the Tribunal on 17 April 2024 (April 2024 statement)
The Tribunal notes the Applicant did not present carer impact evidence from his wife despite his reliance on claims of reduced functional capacity to maintain this relationship because of his impairments.
The medical and clinical reports and records the Applicant relies upon include but are not limited to:
·reports and a letter from Dr Peter Devadason, Consultant Psychiatrist, June 2023 (prepared in support of the access request), May 2024 and August 2024 (both prepared in response to questions from the Agency)
·undated report from Julie Newton, Occupational Therapist[54]
·letters from Amy Kelly, Clinical Nurse Advisor, Coloplast, dated June 2023 and April 2024.
[54] In the JTB, the report is noted as being dated 21 July 2023. The Tribunal can find no date on the face of the report.
In summary, expert reports were created for this proceeding only by Dr Devadason, for the Applicant, and Ms Cummins, for the Agency and as an independent expert to assist the Tribunal.
In attributing weight to the documentary evidence of Dr Devadason and Dr Gregg, the Applicant’s GP, the Tribunal has positive regard to the longstanding nature of the Applicant’s relationship with these professionals, of approximately 10[55] and 16[56] years respectively. It has also considered, however, that they were not called by the Applicant to give evidence and their evidence could not be explored and tested by the Tribunal. The Applicant did not call any of the authors of the reports upon which he relies. The Tribunal also notes that no contemporaneously made clinical notes or records from any treating doctor have been given by the Applicant to the Tribunal. The Tribunal has also not been provided with contemporaneous hospital records despite the Applicant’s claims to have had numerous hospital admissions in relation to his bowel dysfunction and mental health concerns. In summary, an amount of information that would be relevant and of assistance to the Tribunal’s determination of the issues before it has not been put forward by the Applicant.
[55] JTB, page 147.
[56] JTB, pages and 80
The Tribunal understands from the Applicant’s evidence at hearing that Coloplast is the supplier of the Applicant’s Peristeen irrigation device, and that Ms Kelly has a management position providing clinical nursing advice to the Applicant to support his use of the device and associated continence care[57]. It gives weight to her evidence in so far as the Tribunal is satisfied Ms Kelly is objectively outlining features and outcomes of the Applicant’s treatment using Peristeen. However, it also considers her letters to be advocacy and to cover a range of matters outside of her experience. It gives no weight to her evidence that goes beyond her role in providing and supervising the use of the Peristeen device other than in so far as accepting it corroborates other self-reports of the Applicant. The Applicant told the Tribunal Ms Kelly’s reports are derivative of his self-reports and that she had condensed what he had told her.
[57] JTB, page 111 and Applicant’s evidence at hearing
No letter or similar document containing the Applicant’s instructions to Ms Julie Newton has been provided to the Tribunal. Ms Newton does not outline her instructions, briefing material, methodology or expertise. It appears from the WHODAS assessment results that she met with the Applicant on 19 July 2023. There is no mention in the report as to whether Ms Newton included observation of tasks or task simulation in her assessment. Her report appears to be a report based on documents provided to her and additional self- reports by the Applicant. Ms Newton concludes the Applicant “would benefit from access to the NDIS for ongoing psychological intervention to work with him on long-term adjustment to his bowel condition”. The basis for this conclusion and her qualifications for reaching it are unknown. For these reasons, the Tribunal places no weight on the opinions of Ms Newton as stated in her undated report.
The Tribunal notes that a discussion as to Dr Devadason not participating in the hearing arose in an unexpected fashion at hearing. In response to a question from the Tribunal about the Applicant’s mental health diagnoses, counsel for the Agency stated they had hoped Dr Devadason would have been present. The Tribunal offered to the parties to accommodate him into the hearing schedule, however both parties confirmed they did not require him. Neither party requested additional witnesses as part of the Tribunal’s extensive preliminaries at the commencement of hearing.
In summary, the Tribunal observes that given the complexity of the factual claims and legal requirements of which it must be positively satisfied, the medical and clinical evidence the Applicant has provided is thin.
The Respondent provided the Tribunal and the Applicant with pre-hearing Statement of Facts, Issues and Contentions (SOFIC)[58] outlining the key arguments in support of their case. The Applicant also provided a SOFIC, which the Tribunal notes also contains evidence by way of further self-reports.
[58] Agency 13 February 2025, JTB 4; Applicant undated, JTB 26
At the close of Day 1 of the hearing, the Tribunal noted with the parties that regardless of what is agreed between them, the Tribunal must work though all the elements of the access criteria in reaching its decision. It noted that it would be assisted by closing submissions on how the Tribunal should reach its findings on each of the elements, particularly from the Agency.
The parties made oral closing submissions on Day 2 of the hearing. In accordance with the Tribunal’s directions, the Agency provided further closing submissions in writing on 24 April 2025. The Applicant provided further written closing submissions dated 16 May 2025.
The Tribunal has had regard to all the evidence and submissions before it and to the judicial and Tribunal decisions it has been asked to consider.
As the Applicant did not have legal representation, the Tribunal ensured hearing time was dedicated to his testimony. The Tribunal was flexible and as informal as the proceeding allowed and encouraged the Applicant to request breaks above those scheduled as needed.
THE PARTIES’ POSITIONS
It is not in contention between the parties that the Applicant meets the requirements of section 24(1)(a), (b) and (d) of the Act in relation to impairments arising from bowel dysfunction and bipolar disorder. In its SOFIC, the Agency had accepted the Applicant’s claim that he met the requirements in sections 24(1)(a) and (b) also by virtue of depression. The Agency clarified at hearing that it did not accept depression was a disorder separate from and in addition to a depressive episode that might occur within bipolar disorder. The Applicant during the hearing told the Tribunal he agreed with this, but in his closing submissions, reverted to his additional claim of “major depression”. The Tribunal therefore considers he also makes this claim.
The Applicant contends the combined impact of his permanent impairments substantially reduces his functional capacity in the activity areas of social interaction and self-care. This in turn, he contends, substantially reduces his functional capacity in the remaining activity areas of communication, learning, mobility and self-management[59]. He argues further that he is likely to require support under the NDIS his lifetime because eligibility for the CAPS does not exclude participation in the NDIS, he has exhausted his Medicare supports for Repetitive Transcranial Magnetic Stimulation (rTMS) and his eligibility for supports under Aged Care legislation is untested and unknown. At the date of the closure of evidence and submissions he had not yet applied for Aged Care support.
[59] Applicant Closing Submissions (ACS), pages 2- 3
The Agency contends the Applicant meets the criteria in section 24(1)(a), (b) and (d) but not (1)(c) and (e) [60]. It more detailed relevant arguments are noted and discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
[60] JTB, page 5, Respondent Closing Submissions (RCS), page 1
Section 24(1)(a): Does the Applicant have a disability that is attributable to an impairment?
As is noted above, it is necessary to define the Applicant’s impairments with some precision.
The Applicant claims to have a physical impairment of faecal incontinence arising from the medical condition of Chronic Anorectal Neuropathy, and a psychosocial impairment attributable to Bipolar Disorder (BPD) and Depression[61]. The Agency in its SOFIC accepted these claims.
[61] SOFIC, JTB page 27
Impairment arising from bowel dysfunction
In the access request, Dr Gregg identifies chronic anorectal neuropathy as the Applicant’s main disability and chronic constipation as his third disability[62]. Dr Gregg refers to historical specialist treatments by named gastroenterologists and colorectal surgeons[63].
[62] JTB, page 80
[63] JTB, page 90
The Tribunal accepts as stated by Dr Gregg that the Applicant has undergone gastroenterological treatment and colorectal surgery to address bowel dysfunction and that such dysfunction persists[64]. The Tribunal notes there is inconsistency between the evidence given at length by the Applicant in his documents and at hearing about his reliance on the Peristeen Irrigation Device or System (Peristeen) to manage faecal incontinence, and that of Dr Gregg, who states that the Applicant relies upon Peristeen to address chronic constipation and that his condition is neuropathic, that is, it is a neurological pain condition[65]. Despite best efforts, the Tribunal has not noted material claims of experiencing pain by the Applicant in his evidence.
[64] JTB, page 90
[65] JTB, page 90
No diagnostic evidence from a relevant specialist such as a gastroenterologist or neurologist has been provided to the Tribunal, a concern which the Tribunal also noted with the Applicant at hearing. The Tribunal notes in this context Dr Gregg’s statement in the access request that the Applicant has, or has had, treatment from five gastroenterologists and four colorectal surgeons. The Tribunal further notes the Applicant’s evidence that he has been under the treatment and supervision of Colorectal Surgeon, Dr Andrew Stevenson, for at least seven years, since 2018[66].
[66] JTB, page 30 and oral evdience
The medical expert whose evidence is before the Tribunal who references faecal incontinence is Dr Devadason, the Applicant’ psychiatrist. He states the Applicant has “severe bowel dysfunction due to multiple factors, requiring major bowel operations and multiple invasive procedures to improve bowel functioning”[67] and “recurrent faecal incontinence”[68]. He states in June 2023 that the Applicant had bile acid malabsorption causing “sudden, unpredictable, faecal urgency”[69]. As Dr Devadason is not the relevant treating specialist, the Tribunal is unclear from where he has sourced this information from, particularly whether from physician reports, the Applicant’s self-reports, or both.
[67] JTB, page 98, 138, 146
[68] JTB, page 138, 146
[69] JTB, page 98
Despite the limitations of the expert evidence, the Tribunal is on balance sufficiently persuaded by the treatment history, diagnosis and summary provided by Dr Gregg as reiterated by the Applicant that the Applicant has a longstanding history of unspecified bowel conditions and unsuccessful surgical and other treatments of those medical conditions. It accepts based on all the evidence before it that in May 2023, the Applicant commenced using the Peristeen treatment upon the recommendation in April 2023 by Dr Andrew Stevenson as an alternative to a stoma and that the Peristeen treatment has been successful in treating the symptoms of the bowel dysfunction and is medically recommended as a sustainable long-term solution for the foreseeable future.
The Tribunal accepts the Agency’s submission that the World Health Organisation’s International Classification of Functioning, International Disability and Health, also known as “the ICF”[70] provides interpretive assistance with section 24, particularly in the Tribunal’s task of defining the impairment[71]. However, the Agency has directed the Tribunal to documentary version of the ICF the Tribunal has been unable to locate online despite best efforts[72]. The Tribunal understands nonetheless that the classifications and content of those classification in that documentary version are the same as those in the ICF Online Browser. The ICF Online Browser, WHO Disability Assessment Schedule (WHODAS 2.0) and the 2002 ICF Beginners Guide are all publicly available on the ICF webpage[73]. The Tribunal has referenced the publicly available sources.
[70] RCS, page 1
[71] RCS, page 1
[72] For example, footnotes 4, 5, 26
[73] International Classification of Functioning, Disability and Health (ICF)
The Tribunal accepts the Applicant lives with one or more medical conditions that have given rise to a neurological impairment of damage to the Applicant’s bodily function of ability to voluntarily control the elimination function[74]. That impairment has symptoms of constipation and faecal incontinence. The Tribunal does not go so far as to find that the Applicant has lost voluntary control over the elimination function as on all the evidence before it, the Applicant retains some control. The Tribunal does not accept the Applicant’s and the Agency’s characterisation of the impairment as being a physical impairment of incontinence. Incontinence is a product or symptom of the impairment, rather than a physical, sensory or mental function, which the courts require the Tribunal to find an impairment relates to.
[74] ICF, Faecal Continence, b 5253
The Tribunal has considered whether an impairment of the Applicant’s physical ability to eliminate waste from the rectum should also be found as the ICF includes here the symptom of constipation[75]. The difficulty for the Tribunal is that as logical as it might seem to make such a finding, its findings must accord with the medical evidence before it. The Tribunal has concluded that it is limited in its findings as to the impairment or impairments by the evidence of Dr Gregg that the impairment is neurological.
[75] ICF, Elimination of Faeces, b5250
Impairment arising from BPD and other psychological issues
The question of whether the Applicant has one or more impairments to which a psychosocial disability is attributable, or which arise from psychiatric or psychological conditions, is not straightforward. The Tribunal has undertaken a thorough examination of the evidence in considering this issue. Dr Devadason is the expert upon whose evidence the Applicant principally relies in this regard.
The Tribunal accepts the Applicant was diagnosed in 2016 with a medical condition of BPD[76]. It accepts Dr Devadason reached this diagnosis through the application of the Structured Clinical Interview for DSM-5 Disorder (SCID-5-CV) test[77]. That test asks questions of a person about their past to reach conclusions as to whether they have had a past major depressive episode and a past hypomanic episode[78]. A copy of the testing tool is attached to Dr Devadason’s August 2024 report[79]. As noted above, the Applicant did not provide clinical records of Dr Devadason. The Tribunal also accepts Dr Devadason diagnosed the Applicant with additional “various underlying psychological issues” in 2016[80]. As the Tribunal has no further information about what these issues are, it finds the Applicant has two mental health diagnosis, the BPD and the bundle of various psychological issues that underlie the BPD. Given the paucity of evidence about them, the Tribunal cannot be positively satisfied these various other psychological issues give rise to any impairment. The evidence from Dr Devadason about them is nonetheless pertinent to the Tribunal’s inquiries, as explained below.
[76] JTB, page 138
[77] JTB, page 139
[78] A copy to the test templates is included in the JTB however the page numbers are not legible
[79] JTB, as above
[80] JTB, page 139
Dr Devadason’s evidence, detailed further below, is that the Applicant’s BPD and “moderately severe depressive episode 2020-2021” are in full remission, and the “various underlying psychological issues that almost certainly predisposed him” to this depressive episode[81] “have been reprocessed and appear to be in full remission”. He made the latter statement in May 2024, and it remains unchanged[82].
[81] JTB, page 139
[82] JTB, page 147
The reference to major depression appears only in the access request, from Dr Gregg, whose role is to support the management of the various specialist treatments being undertaken by the Applicant. The Tribunal finds the terminology used by Dr Gregg to be an innocent error and his intention is to refer to the depressive episode from 2020-2021, not a separate condition.
The language of section 24(1)(a) is “has impairments”. That is a present tense concept, and the Tribunal must be positively satisfied of the existence of one or more impairments to which a psychosocial disability is attributable as at the date of its decision.
The Tribunal is satisfied on the evidence in Dr Devadason that the Applicant certainly had impairments, for a period of over a year, in 2020 to 2021, and a short period in 2022, arising from a moderately severe depressive episode. It has defined those impairments below. The issue of concern is whether, as a matter of law, he (still) has them.
In addressing the issue, it is helpful to first set out the development of submissions from the parties.
In his SOFIC, the Applicant submits that he “he has BPD and major depression, which are lifelong conditions attributable to cognitive impairments and psychosocial disability”[83].
[83] JTB, page 40
In his April 2024 statement, the Applicant states that his impairments relating to his BPD and depression include irrational thinking, reduced concentration, cognitive processing and memory[84].
[84] JTB, pages 163-164
In his oral closing submissions, the Applicant stated he would not be making submissions about the issues that were agreed between the parties. He takes the same position in his written closing submission acknowledging nonetheless the Tribunal’s “de novo” role[85].
[85] JTB, page
In its SOFIC, the Agency submits that “when the Applicant is having an episode, this results in cognitive impairments”[86]. The Agency does not distinguish between depressive and manic episodes and the impairment to cognition is not further detailed in the SOFIC. The Agency does not refer the Tribunal to any evidence that detail what those cognitive impairments are.
[86] JTB, page 6
The Agency further submit that “notwithstanding the impairment is fluctuating”[87], by which the Tribunal understands it to mean the impairment to cognition, it “accepts the Applicant has a psychosocial impairment attributable to this disability”. The Agency identifies “the disability” as “bipolar disorder and depression”[88].
[87] JTB, page 6
[88] JTB, page 6
The Tribunal agrees with the Agency that in approaching its assessment under section 24(1)(a) it should be open to the possibility that an impairment is one that fluctuates. That is recognised in section 24(2) of the Act and Rule 5.5 of the Access Rules as regards the concept of permanency. That would be consistent with the general principle of statutory interpretation that meaning should be given to a statutory provision having regard to the provisions around it. However, the Agency do not point the Tribunal to any evidence on which their conclusion that the Applicant has a fluctuating cognitive impairment, is based.
The Agency next made submissions on section 24(1)(a) in their opening statement at hearing. They made a general submission that the impairments are arising from the Applicant’s bipolar disorder and are as stated in Dr Devadason’s reports. In closing oral submissions, the Agency addressed the legal issues relating to section 25(1)(a) but did not direct the Tribunal to the evidence on which to base its relevant findings of fact. In closing written submissions, the Agency contends that during depressive episodes, the Applicant experiences lethargy, poor motivation, concentration and memory impairments[89]. It does not specifically reference cognitive impairments.
[89] RCS, page 2
Dr Devadason identifies in his May and August 2024 reports that he treats the Applicant for a cognitive impairment that is secondary to the BPD and diagnosed in 2016[90]. This impairment is noted in his May 2024 Report as “not currently an issue”. From this, the Tribunal understands the Applicant, at least in 2016, presented to Dr Devadason with some impairments to his cognition. Dr Devadason does not specify whether such impairments might be present when the Applicant is not in, or is in remission from, a depressive episode or hypomanic relapse.
[90] JTB, page 138
The Tribunal notes that the earliest document relied upon is Dr Devadason’s June 2023 letter supporting the access request, which he states was written at the Applicant’s request to support his “application for NDIS funding, particularly with regards to being reimbursed for the consumables required for the treatment of his bowel dysfunction”[91]. The Tribunal therefore notes the letter is not purported to be an objective expert report as to the nature and extent of Applicant’s psychiatric conditions and any associated impairments. The Tribunal regards it as an advocacy letter and adopts a cautious approach to relying on its contents to the extent those are not affirmed in his later reports, particularly in so far as it purports to draw diagnostic connections between the Applicant’s mental health and his bowel conditions.
[91] JTB, page 98
Dr Devadason states in his June 2023 letter that the Applicant has a diagnosis of BPD. He states[92]:
[The Applicant] had a moderately severe depressive episode with onset in March 2020. This eventually went into full remission in March 2022. However, there was a hypomanic relapse in June and July 2022, followed by a depressive episode. In the last few months, the Applicant’s Bipolar Disorder has been in full remission.
[92] JTB, page 98
He identifies that during those depressive episodes, the Applicant experienced impairments of poor motivation, lethargy, inattention and poor memory. He does not identify impairments related to the hypomanic relapse[93], in this or in his subsequent reports.
[93] JTB, page 98
The next reports from Dr Devadason are dated May and August 2024 and were produced in response to questions from the Agency during the ADR stage of the proceedings. Although there is no attestation the reports were prepared in accordance with the then AAT’s Guideline for Expert Evidence, the Tribunal gives them some weight as expert opinion. However, it observes that aspects are advocacy rather than clinical opinion. It also observes that the questions answered by Dr Devadason in his August 2024 report do not precisely correlate with those asked of him in the Respondent’s Targeted Questions document dated 2 August 2024 and filed with the Tribunal. This is particularly so as to Question 4, about the Applicant’s impairments, in response to which Dr Devadason has added detailed questions not asked of him and relating to provisions in the Access Guidelines that concern the operation of section 24(1)(c). The Tribunal further notes that the assessment of functional capacity is not the central expertise of a psychiatrist and no information as to how he has reached his opinions is stated.
In his May 2024 Report, Dr Devadason states he has been treating the Applicant for psychiatric disorders since July 2015[94].
[94] JTB page 147
In response to the question asking him to “confirm the applicant’s diagnosis of the conditions you are treating him for and how long you have been treating the applicant”, Dr Devadason responds that bipolar disorder is the primary diagnosis he treats[95]. He adds that he treats a secondary cognitive impairment that is “not currently an issue”[96]. Dr Devadason then adds that he also treats:
Various underlying psychological issues that almost certainly predispose him [the Applicant] to developing the moderately severe depressive episode that lasted for more than a year from 2020 to 2021. The past psychological issues have been reprocessed and appear to be in full remission.
[95] JTB, page 146.
[96] JTB, page 146
The Tribunal observes that Dr Devadason does not attribute the single, moderately severe depressive episode experienced by the Applicant to his bowel dysfunction.
Also, on this issue of the duration of the Applicant’s depressive episode, the Tribunal notes that later in the same May 2024 report, Dr Devadason reiterates the Applicant was “acutely unwell for about a year”. Dr Devadason reiterates that it occurred between 2020 and 2021 in his August 2024 report. He repeats in that most recent report much of the information summarised in the paragraph above[97]. In his August 2024 report, Dr Devadason does go on to say the Applicant continues to experience impairment despite the remissions, however he confines those to not returning to his peak performance in the workplace “managing people and achieving successful outcomes in a demanding role”[98]. In the Tribunal’s opinion, this is advocacy and not objective clinical opinion as to the presentation of a psychiatric condition. It is also internally contradicted by his statement that the Applicant’s cognitive impairments are not currently an issue and the Applicant’s report to Ms Cummings in October 2024 that “he has completed cognitive testing with his psychiatrist without any concerns identified”[99]. The Applicant’s self-report that he had previously accumulated PTSD and anxiety from his work in social services that he has now worked through is also noted by Ms Cummings.
[97] JTB, pages 138-139
[98] JTB, 142.
[99] JTB, page 193
The Tribunal notes the Applicant recounted some experiences at hearing as occurring after Dr Devadason states the Applicant was in full remission. The Applicant variously described these were “a bit of a manic episode”, a “sort of a crash” and two more depressive events” that he claimed not to have told Dr Devadason about for fear of hospitalisation. In the context of other evidence from the Applicant about the frequency of treatment sessions being weekly, the rapport between physician and client and the Applicant’s thorough adherence to treatment, the Tribunal does not find these claims, and the Applicant’s statement to have “shielded Dr Devadason from the extent of his mania and crash”, compelling.
The Tribunal accepts Dr Devadason’s evidence that BDP is a lifelong medical condition that can at best be only managed[100] and that he diagnosed the Applicant with it in 2016. The Tribunal accepts that since this diagnosis, the Applicant had one moderately severe depressive episode lasting more than a year, from 2020 to 2021, which included a six-week hospitalisation in early 2021[101] and a brief relapse in 2022. It accepts that during that episode the Applicant’s level of functioning was severely globally impaired[102]. It accepts the Applicant has been in full remission of his moderately severe depressive episode and underlying psychological issues since late 2021, and of his bipolar disorder since approximately March or April 2023. The Tribunal accepts that remission has only been achieved through the effective application of pharmaceutical, psychological and repetitive Transcranial Magnetic Stimulation (rTMS) treatment[103]. It notes that remission, being a 6-month period of little to no symptoms, was achieved prior to the Applicant becoming aware of Peristeen and that the underlying psychological issues that almost certainly predisposed him to the most significant depressive episode, have resolved. There is no information before the Tribunal there would be a change in the Applicant’s treatment for his BPD that he has maintained since mid to late 2021. Indeed, the evidence of the Applicant and Dr Devadason is that they are steadfastly committed to maintaining it, and the Applicant’s self-discipline and adherence to treatment, exemplary.
[100] JTB, page 142
[101] JTB, page 142
[102] JTB, page 142
[103] JTB, page 147, page 149
When considering Dr Devadason’s evidence in its entirety, the Tribunal is despite its best efforts, left with the ambiguities identified and reasoned above coupled with the absence of compelling evidence that the Applicant is at risk of relapse. These collective ambiguities and deficiencies are not remedied by what the Tribunal acknowledges to be extensive accounts from the Applicant that he was hospitalised for his BPD because of his bowel dysfunction and that the latter is substantially the cause of symptoms of the former, given the fundamental importance of reliable and objective expert evidence to the Tribunal’s considerations under section 24(1)(a) of the Act. The state of the evidence is not such that the Tribunal can reach the positive state of satisfaction the Applicant has an impairment to which his condition of bipolar disorder or various underlying psychosocial issues is attributable.
Conclusions on disability
The Tribunal is satisfied the Applicant has a disability attributable to a neurological impairment being damage to his ability to voluntarily control the elimination function[104]. That impairment has symptoms of constipation and faecal incontinence. Accordingly, the Applicant satisfies the disability criteria in section 24(1)(a) of the Act.
[104] ICF, Faecal Continence, b 5253
The next question is whether the impairment is permanent.
Section 24(1)(b): Are the Applicant’s impairments permanent or likely to be permanent?
Overview and preliminary considerations
Access Rules 5.4 to 5.7 set out the mandatory criteria the Tribunal must consider in determining whether an impairment is, or is likely to be, permanent.
·5.4 An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
·5.5 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 courts have said that rules 5.4 and 5.6 prescribe circumstances which, if met, compel the Tribunal to find that the impairment under consideration is not permanent[105]. That is, for an impairment to be permanent, the Tribunal must be positively satisfied that neither of the exclusionary circumstances in these two Rules apply. Even if rules 5.4 and 5.6 are satisfied, the Tribunal must still make a finding as to the permanence of the impairment[106]. Rules 5.5. and 5.7 may not apply in all cases. Their relevance depends on the facts of the matter.
[105] Davis, at [73]-[75]; Kelly v National Disability Insurance Agency(Kelly), [2024] FCA 1462 at [48]
[106] Lampard, at [37]
As to the meaning of the adjectives in rule 5.4, Mortimer J in Davis observed[107]:
(a)‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[108]
(b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[109]
(c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[110]
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”
[107] Davis, at [138]
[108] Davis, at [136]
[109] Davis, at [137]
[110] Davis, at [137]
In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence of the courts and relevantly state:
·We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
·We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
·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, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
·Generally, we’ll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
·Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy it.
·Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
o known – the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
o available to you – we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
o appropriate for you and your impairment – we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
o evidence-based – there’s proof the treatment is likely to be effective.
·When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
·If you’re still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
·In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you are likely to have a permanent impairment.
The Tribunal notes that the focus of Rules 5.4 and 5.6 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and if so, the likely outcomes of the Applicant undertaking it. These rules indicate that consideration of any treatment Applicant has had to date for his impairments is integral to these considerations. This is further emphasised by the references to the importance of information from treating professionals in the above extracts from the Access Guideline.
Assessment of permanency
As noted above, the Tribunal accepts the medical evidence put forward by Dr Gregg as corroborated by the Applicant that he has a longstanding history of bowel dysfunction and has received a number of unsuccessful surgical and other treatments, particularly during the period 2012 to 2023[111].
[111] JTB, page 90
The Tribunal also accepts on all the evidence before it that in May 2023, the Applicant commenced using Peristeen upon the recommendation in April 2023 by colorectal surgeon, Dr Andrew Stevenson as an alternative to a stoma and that Peristeen is medically recommended as a sustainable long-term medical treatment for the foreseeable future. Dr Gregg states that Peristeen has turned the Applicant’s life around and recommends its ongoing indefinite use[112].
[112] JTB, page 90.
The Tribunal notes that these are also agreed facts between the parties. There is no dispute between the parties and the Tribunal also accepts, that the Applicant uses the Peristeen irrigation device to empty his colon every morning as part of managing the symptoms of his bowel dysfunction. The parties agree the device “enables the Applicant increased choice, control and confidence with managing his bowel movements…. In a controlled way at a time and place of his choosing”[113] This is similarly the case as to how the device works and that it is prescribed by the Applicant’s colorectal surgeon. These are accepted and not in dispute.
[113] RCS page 3 in agreement with JTB page 33
The Applicant states:
On May 2023, I started using Peristeen and have continued to use it every day since. It has given me a way to have bowel control and enabled me to regain functional capabilities and in turn, social and economic participation.
The Applicant submits the Tribunal should place weight on the statement of clinical nurse, Amy Kelly, that “Peristeen will allow him [the applicant] the freedom and independence to empty his bowel how and when he chooses”[114].
[114] JTB, page 34
At hearing, how the Applicant uses Peristeen and its effectiveness was explored. The Applicant explained how the device functions. He explained that he uses it every morning, performs on average eight evacuations of his colon and that the process takes approximately 45 minutes. He stated that it is medical equipment approved through the Australian therapeutic goods process. He confirmed that once used in this way in the morning, it completes his bowel evacuation for the day and obviates the need for further use of the device until the next morning 90 percent of the time if not more. He stated that if he had eaten something particularly triggering for the bowel, he might need to make a very quick trip in the late afternoon. The Applicant added that part of his treatment is his diet, he is very careful about what he eats, how much and when and does not drink alcohol. He does pelvic floor exercises every morning and maintains his fitness. He stated that stress is also a factor and to this end he diligently takes medication in the amount prescribed at the times prescribed, commits to a sleep regime and has his regular sessions with Dr Devadason.
The Tribunal notes this account is supported by his statements to Ms Cummings, as recorded in her report:
Due to his diagnosis of anorectal neuropathy, [the Applicant] reported that he used to be prone to periods of chronic constipation or strong urges to use his bowels immediately… [The Applicant] explained that since using the Peristeen Plus bowel care program he does not get bowel symptoms throughout the day and can now work and go out into the community with confidence he will not have an accident. [The applicant] reported he will use the bowel care program every morning which will usually last 24 hours. On occasion he may use the system again in the evenings if he has eaten something that has upset his system. [The applicant] performs all tasks required to use the Peristeen Plus bowel care program independently. The irritation takes him up to 50 minutes each morning.
The Agency submits, having regard to Ms Kelly’s reports[115]:
As Ms Kelly puts it, it has “eliminated” his faecal incontinence impairment”.
[115] RCS, page 3, citing pages 153 and 194 of JTB
In light of all the above evidence and submissions, which the Tribunal accepts, a significant question arises as to whether the Tribunal can be positively satisfied the Applicant establishes the negative proposition in Rule 5.4.
The Tribunal notes the Agency in its SOFIC accepted the Applicant’s impairment arising from his bowel conditions as permanent. In its SOFIC, the Agency defines the impairment to be incontinence. The Agency contends that notwithstanding the Peristeen device “is relieving the impairment, the evidence available confirms that the impairment itself, which is the incontinence, is permanent”[116]. The Agency does not point the Tribunal, however, to the available evidence to which it refers. As noted above, the Tribunal has found incontinence to be a symptom of the impairment, and not the impairment.
[116] JTB, page 7
The Agency made no closing submissions, orally or in writing, as to how the Tribunal should approach its task under section 24(1)(b). It did, however, make submissions as to the Tribunal’s task under section 24(1)(c) including Rule 5.8 of the Access Rules. Although the Agency so framed them through this lens, the Tribunal finds them instructive to its task under section 24(1)(b).
In reliance of the Full Federal Court’s acceptance of Ground 2 of the Agency’s case in Foster, the Agency contended at the hearing that the Peristeen device is equipment or technology directed to managing the impairment. In its written submissions, it contends:
“equipment to address the impairment to bodily function lies in the realm of general medical services, while equipment to assist with the person’s consequential capacity to undertake the activities of daily living lies with the NDIS.
Equipment may serve two purposes. This, perhaps, such a case [citing Foster at paragraph 76], in that the Peristeen device, whilst addressing his incontinence issues, also allows him to leave the home and access the community, free of incontinence concerns. However, that does not change the principal purpose of the Peristeen device, which is to manage his health needs, namely his incontinence.
The Tribunal agrees that for the purposes of this case, the function of the Peristeen device is directed to the Applicant’s impairment. It does not need to turn its mind to whether it serves a dual purpose in also addressing tasks in the activity areas in section 24(1)(c) and Rule 5.8 as “assistive technology”. The Tribunal observes that issue was recently explored by SM French in Foster and NDIA[117], a matter with similar but distinguishable facts as the Applicant in that matter experienced ongoing incontinence even with assistive technology[118].
[117] [2025] ARTA 718, especially at [98] to [102] (Foster [ART])
[118] Foster [ART] at 95
It is the Tribunal’s view on all the evidence that the function of Peristeen in the Applicant’s case is to treat his impairment. The Tribunal accepts the Applicant’s contention that Peristeen cannot treat the underlying medical condition. It also accepts that from a medical perspective the device may be directed to manage the medical condition. However, as the courts have so clearly emphasised, the concern of the Tribunal in section 24 of the Act is the impairment, not the medical condition and not the disability. As the Agency’s own Guidelines recognise, that a medical condition is permanent does not necessarily mean its associated impairments are. Further, the questions the Tribunal must direct its mind to under Rule 5.4 are whether there is treatment for the impairment and what are the likely outcomes of such treatment. Rule 5.4 does not ask the Tribunal to consider the concept of management of an impairment [Tribunal emphasis].
In the Tribunal’s view, characterising Peristeen as treatment of the Applicant’s impairment is consistent with the obiter opinion of the Full Federal Court in Foster. In that case, as it then stood, Mr Foster could not voluntarily control his ability to urinate. In upholding Ground Two of the Agency’s arguments, the Court concluded[119]:
Mr Foster’s inability to urinate is his impairment; the assistive technology required is directed at remedying that impairment. The assistive technology is not required to assist him with the elements of self-care such as taking himself to the toilet when he is required to empty his blader or bowels”
[119] Foster, at [77]
The language of “assistive technology directed at remedying the impairment” is precisely the consideration before the Tribunal in Rule 5.4 in a situation as exists here where the device is indisputably a medical treatment prescribed by a physician with the objective of remedying the impairment, that is, giving the Applicant back the voluntary control over his elimination function. That the device also meets the WHO universal definition of assistive technology as adopted by the Agency in the NDIS Assistive Technology guideline[120], as the Applicant submits and the Tribunal accepts, does not detract from this reasoning.
[120] Our Guidelines | NDIS, at page 2
In the Tribunal’s opinion, there is no information before it that would cause it to conclude that for the Applicant, the Peristeen system is not evidence-based, clinical or medical treatment. The is no information before it that it is not a known or appropriate treatment, or that it is a treatment unavailable to the Applicant. The information before the Tribunal indicates unambiguously those criteria in Rule 5.4 are satisfied. The remaining question is whether the Tribunal can be positively satisfied that Peristeen and the Applicant’s supporting treatments are not likely to remedy the impairment.
As the Tribunal has noted above, remedy must be something approaching a cure. The Tribunal’s view, on the evidence set out and accepted above from the Applicant, Dr Gregg, Ms Cummings and Ms Kelly, is that Peristeen, supported by diet, exercise and mental health care for the Applicant meets this definition. Having formed this view, and having before it no medical or clinical evidence from the Applicant’s colorectal surgeons or gastroenterologist to contradict this view, the Tribunal finds that it cannot be positively satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant’s impairment. Accordingly, the threshold requirements of Rule 5.4 are not met. It follows from there that the Tribunal cannot find that the Applicant’s impairment is permanent.
Conclusion on permanency and the disability requirements
The Tribunal is not satisfied the Applicant’s neurological impairment is permanent.
Accordingly, the Applicant does not satisfy the element of permanency in the disability requirements in section 24(1)(b) of the Act.
It follows that the Applicant does not meet the disability requirements in section 24.
Noting the finding above the Applicant also does not meet the early intervention requirements, the Tribunal finds the Applicant does not meet the cumulative requirements for access to the NDIS.
As the Tribunal has concluded the Applicant does not meet the requirements for access to the NDIS, it must affirm the decision under review.
DECISION
The decision under review is affirmed.
Dates of hearing: 1 and 2 May 2025 Applicant: MVBP Solicitors for the Respondent:
Counsel for the Respondent:
Mr A Clemans-Dal and Ms A Barac, Maddocks Lawyers
Mr P Nolan
0
11
0