NARAIN and National Disability Insurance Agency (NDIS)
[2025] ARTA 679
•3 June 2025
NARAIN and National Disability Insurance Agency (NDIS) [2025] ARTA 679 (3 June 2025)
Applicant:Mr Adrian NARAIN
Respondent: National Disability Insurance Agency
Tribunal Number: 2022/10314
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:3 June 2025
Decision:The Tribunal affirms the decision under review.
..................[SGD]................................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME - access to scheme - reviewable decision of Chief Executive Officer - becoming a participant psychosocial impairments – major depressive disorder - physical impairments - hernia - diabetes - chronic tendinosis - treatment and management of conditions - age and residence requirements met - permanence - substantially reduced functional capacity - disability and early intervention requirements - decision affirmed
Legislation
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
G v MIBP [2018] FCA 1229
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (14 October 2024) (Web Page), < align="center">Statement of Reasons
BACKGROUND
This issue requiring determination by this Tribunal is whether Mr Narain (the Applicant) meets the legislative requirements to gain access to the National Disability Insurance Scheme (the NDIS or the scheme).
The Applicant sought access to the scheme on 10 November 2022 for impairments arising from various conditions.
On 25 October 2022 a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the NDIA) determined that the Applicant did not meet the access criteria.[1] The Applicant lodged a timely review to that decision, which was confirmed on 12 December 2022 by a different delegate of the CEO.[2]
[1] T25.
[2] T1A.
On 16 December 2022 the Applicant made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[3]
[3] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)(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.
A telephone directions hearing was convened on 27 February 2025. Being satisfied that the parties consent to the proceeding being determined without a hearing and the issues for determination in the proceeding can be adequately determined in the absence of the parties the Tribunal directed that the matter be determined without holding a hearing pursuant to section 106 of the Administrative Review Tribunal Act 2024 (Cth).
The Tribunal accepted into evidence documents contained in the T-Documents, joint hearing tender bundle (JTB) and documents provided by the Applicant (A1 to A2).
LEGISLATIVE FRAMEWORK
To become a participant of the scheme, the Applicant must satisfy the access criteria as prescribed in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), which provides:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
If at the time of his application the Applicant met the age and resident requirements set down in sections 22 and 23 of the Act, the Tribunal must then determine whether the Applicant meets the access criteria as set down in section 24 (the disability requirements) or section 25 (the early intervention requirements).
Section 24 of the Act states:
(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.
If the Applicant does not satisfy the disability requirements, the Tribunal must then consider whether he meets the early intervention requirements set down in section 25 of the Act:
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
…
Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may make provision for determining any matter for the purposes of sections 24 and 25 of the Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules), which form part of the legislation.
Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b) of the Act, the Rules relevantly state:
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.
As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c) of the Act, the Rules state:
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 NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[4] In the case of G v MIBP,[5] the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[5] [2018] FCA 1229.
In assessing the Applicant’s claim the relevant operational guideline is Applying to the NDIS[6] (the Access Guideline).
[6] Dated 14 October 2024.
The case law developed in this jurisdiction provides guidance. In the matter of Mulligan[7] Mortimer J (as she then was) stated that the legislative regime:
55. …contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
56. That being the case, no arbitrary limits are placed on access to the NDIS. No decision maker need be satisfied a person’s impairment is “serious”, or more serious than another person's. No qualitative judgements in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do…[8]
[7] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).
[8] Mulligan, at [55]-[56].
This approach was endorsed by the Full Court in Foster.[9]
CONSIDERATION
[9] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
Age and residency requirements
I find that the Applicant was under 65 years of age when he requested access to the scheme. I am also satisfied that the Applicant resides in Australia and is an Australian citizen.
Paragraphs 21(1)(a) and (b) of the Act are satisfied.
I next considered whether the Applicant meets the disability requirements to gain access to the scheme as set down in section 24 of the Act.
Disability requirements
Does the Applicant have a disability attributable to an impairment?
In a medical certificate dated 18 June 2020 Dr Sanjeevan Nagulendran, general practitioner, stated that the Applicant has had Type 2 diabetes for 26 years and requires insulin. His diabetes has caused various complications, including chronic kidney disease, circulation difficulties and chronic tendinosis. He also has been diagnosed with arthritis and depression.[10] An imaging report dated 5 May 2020 detected degenerative changes at the left shoulder join, osteoarthritis of both hips, mild knee joint effusions and degenerative changes at the right knee.[11] On 7 September 2020 a bone scan detected mild to moderate degenerative arthritis in the 5th, 6th and 7th costovertebral joints and multilevel mild to moderate discovertebral degenerative arthritic change throughout the thoracic and lumbar spine.[12] A CT of the cervical spine dated 7 September 2020 identified multiple levels of cervical spondylosis, more prominent at C6/7.[13]
[10] T3.
[11] JTB, folios 386 to 387.
[12] JTB, folio 388.
[13] JTB, folio 392.
In a letter dated 31 July 2020[14] Dr Kiran Sindhu, ophthalmologist, reported that he had first reviewed the Applicant on 24 May 2018.[15] Following review on 7 February 2019 it was apparent that there was progression of the Applicant’s diabetic maculopathy and so he underwent laser treatment later that month. He had not returned for scheduled review.[16]
[14] JTB, folio 442.
[15] JTB, folio 444.
[16] T4.
On 5 November 2020 Dr Sindhu reported that he had reviewed the Applicant on the same day and noted that his interocular pressure was significantly elevated and so required treatment. In correspondence dated 21 December 2020 Dr Sindhu reported that the laser treatment went well and the Applicant’s interocular pressure was under control.[17]
[17] T5 and T6.
On 26 November 2021 Dr Sindhu reported that there was no deterioration, however he was concerned that the maculopathy will progress if the Applicant’s diabetic control was not tightened further.[18]
[18] T14.
On 25 November 2022 Dr Sindhu reported the Applicant’s condition remains stable.[19] On 17 October 2023 Dr Sindhu noted that the natural history of diabetic retinopathy is that there will be continual progression, even if the underlying diabetes is under control.[20] He noted that the Applicant has excellent, unaided visual acuities, with no visual impairment and that early cataracts did not require any treatment as they are not causing any visual impairment. Ongoing monitoring of his ocular hypertension, cataracts and retinopathy was recommended.
[19] JTB, folio 438.
[20] JTB, folios 6 to 7.
On 15 December 2020 the Applicant consulted with Dr Ruhaida Daud, neurologist, who confirmed the diagnosis of diabetic peripheral neuropathy[21] and symptoms of peripheral vascular disease in his lower limbs.[22] Dr Daud prescribed pain control medications and advised exercise for optimal control for vascular risk factors. On 5 February 2021 small wastage of the Applicant’s hand muscles and calf muscles, mild sensory neuropathy in the lower limbs and mild bilateral carpal tunnel were noted.[23] A further review took place on 11 June 2021, where further worsening of his neuropathy was noted, with wasting of small hand muscle and symmetrical sensory neuropathy in upper and lower limbs noted.[24]
[21] T7.
[22] T8.
[23] JTB, folio 489.
[24] T11.
On 9 March 2023 Dr Daud noted no major changes in the Applicant’s symptoms, noting that the sensory neuropathy was permanent and recommended regular physical therapy.[25]
[25] JTB, folios 501 to 502.
The Applicant first consulted Dr Jaspreet Singh, consultant psychiatrist, on 3 June 2021.[26] It was noted that the Applicant presented with numerous depressive and anxiety symptoms and had been seeing a psychologist for about 1.5 years and another person at Anglicare for about eight or nine months. Changes to his medications were recommended and implemented.
[26] T9.
The Applicant has been under the care of Dr Ash Gargya, endocrinologist, since 15 April 2011.[27] Dr Gargya assessed the Applicant on 4 June 2021 relevantly reporting:[28]
…He is seeing his neurologist next week. He is unable to afford to see a pain specialist at the moment to address his severe painful peripheral neuropathy (currently on pregabalin 150mg BD and Endep) that interferes with his sleep.
In relation to work: I have been looking after Adrian for ten years. He has severe sensorimotor neuropathy, maculopathy, peripheral vascular disease and depression with psychiatric manifestations. In view of his multiple comorbidities, an extension of leave from work for at least a further three months would be recommended while he addresses a number of these medical issues.
[27] JTB, folios 8 to 16.
[28] T10.
Dr Gargya reviewed the Applicant again on 24 September 2021, 14 January 2022, 13 May 2022, 7 June 2022, 11 November 2022.[29] It was noted that his neuropathy significantly affected his mobility and strength, that he has Type 1 diabetes and significant neuropathic pain.
[29] JTB, folios 19 to 20, 23 to 25.
On 15 June 2021 Dr Nagulendran completed a medical report in support of the Applicant’s access application.[30] Dr Nagulendran outlined the Applicant’s impairments as diabetes with complications with retinopathy and neuropathy with feelings of weakness, poor vision and that the Applicant cannot lift or walk. He also noted other impairments of bi-polar 2/psychotic depression. He went on to state that in the domain of mobility the Applicant cannot undertake activities of daily living due to weakness and so requires special equipment, assistive technology, home modifications and assistance from others. Further, due to psychotic depression, he struggles with communication and so needs assistance from others. As to social interaction, the Applicant requires assistance from others, being cognitive behavioural therapy from a psychologist. The Applicant’s learning is compromised due to his poor memory with onset of cognitive impairments due to his long-standing diabetes. Dr Nagulendran went on to state that the Applicant required assistance from others to shower, eat and drink and in toileting and that due to muscle weakness he cannot complete other activities of daily living, including dressing, cleaning and food preparation. The Applicant also requires assistance in managing his medications.
[30] T13.
On 8 September 2021 the Applicant was reviewed by Dr Brindha Shivalingam, neurosurgeon, for his long-standing lower back pain.[31] Dr Shivalingam noted the findings of the CT scan of the brain, cervical and lumbar spine dated 1 September 2020.[32] Some degenerative changes were noted in the lumbar spine with no radiculopathy. No nerve compression was noted and so Dr Shivalingam determined there was no requirement for any neurosurgical involvement. It was assessed that the Applicant’s pain is related to deconditioning and musculoskeletal back pain. He recommended that the Applicant be reviewed by an exercise physiologist or physiotherapist and a referral to a pain management specialist.
[31]T13.
[32] T27.
Dr Shivalingam reviewed the Applicant again on 1 April 2022 and recommended pain management and hydrotherapy when possible, but not cortisone injections.[33]
[33] T18.
On 28 March 2022 the Applicant was referred to an exercise physiologist.[34] On 26 June 2022 Mr Glenn Maglaland, physiotherapist and exercise physiologist, recommended that the Applicant engage in hydrotherapy two to three times per week for pain management and physical capacity building.[35]
[34] T17.
[35] T22.
Associate Professor Lukas Kairaitis, nephrologist, reviewed the Applicant on 19 May 2022 and ordered a CT scan of the kidneys.[36]
[36] T21.
A CT of the abdomen and pelvis and a renal/urinary tract ultrasound occurred on 3 February 2023.[37] Small post-void residual was noted and the right kidney was normal and the left kidney surgically absent. Possible congenital hypoplasia of part of the left lobe of the liver, moderate enlargement of the prostate gland and moderate diverticulosis of the ascending colon were noted.
[37] JTB, folios 3 to 4.
On 16 February 2023 Associate Professor Kairaitis noted a symptomatic incisional hernia and atypical urinary cytology consistent with urothelial tumour of the urinary tract. The Applicant was referred to a urologist.[38]
[38] JTB, folios 5, 405.
Dr David Gorman, pain management and rehabilitation specialist, undertook an independent review of the Applicant on 17 October 2023.[39] Dr Gorman reported that the Applicant has chronic kidney disease stage 3 (moderate renal dysfunction), a bladder tumour that was removed some four months prior to the assessment and an abdominal hernia that requires surgery, associated with marked constipation.[40] The Applicant reported that on a good day he can slowly walk for about 15 to 20 minutes, at the most he can stand for half an hour to one hour on a good day, but on a bad day only for five minutes. He cannot kneel because of his hernia nor bend because of his lumbar pain. He continues to have a burning pain in his feet and hands. He mainly eats microwave or frozen meals that are delivered to him. His sister cleans his house for him twice a month and a friend mows his lawn. He reported some benefit from hydrotherapy and requires support to attend.[41] Dr Gorman was of the view that the Applicant suffers neurological and physical impairments. In respect to the former, he has limited standing and walking tolerances and in respect to the latter, the hernia puts excess strain on his degenerative lumbar spine. He opined that the Applicant’s conditions were being appropriately treated, noting that the hernia repair will reduce some of his impairments,[42] noting:[43]
[39] JTB, folios 49 to 61.
[40] JTB, folio 51.
[41] JTB, folio 53.
[42] JTB, folio 56.
[43] JTB, folios 57 to 58.
However, he will continue to have visual problems due to the diabetic retinopathy, sensory problems due to the peripheral neuropathy, problems with energy and fatigue due to the renal disease and problems with bending, lifting and twisting due to his degenerative lumbar spinal disease.
…
As outlined above, I believe that the medical treatment he is having is appropriate for his multiple significant diagnoses. I do not believe that there are interventions in terms of changes in his medical treatment which will affect the outcome.
From the point of view of supports which would help, access to better nutrition through helping him in food purchase and preparation would be helpful medically.
Assisting with his home care will assist and reduce his energy expenditure.
Getting to therapies such as hydrotherapy will assist him in terms of maintaining his weight loss and also in assisting his lumbar spine.
As well, access to psychological therapy will help his depression.
…
As outlined above, there is no doubt that certain supports will help him. Currently, he would benefit from these supports. They will not remedy his impairments but benefit him as outlined above.
…
I believe that the intervention supports, including support from the dietary point of view, hydrotherapy and other physical therapies and psychological support will “prevent the deterioration of their functional capacity.” I do not believe that it will necessarily improve the functional capacity.
Associate Professor Chanaka Wijeratne, consultant psychiatrist, undertook an independent psychiatric assessment on 2 April 2024.[44] He diagnosed major depressive disorder, with anxiety symptoms secondary to the Applicant’s depressive disorder.[45] He was of the view that the Applicant required a review of his current psychiatric treatment plan as his current antidepressant is likely to be sub-optimal[46] and the Applicant would benefit from a combination of pharmacological and psychological therapy, including counselling, cognitive behavioural therapy, physical exercise program and dietary changes for the management of his depressive disorder, as well as an assessment to exclude obstructive sleep apnoea.[47] He recommended a MRI and neuropsychological assessment to confirm a provisional diagnosis of mild neurocognitive disorder associated with cerebrovascular disease and depressive disorder in a context where the Applicant exhibited significant difficulties in delayed recall and executive function (associated with impaired judgement and decision making).[48]
[44] JTB, folios 127 to 137.
[45] JTB, folio 132.
[46] JTB, folio 135.
[47] JTB, folio 134.
[48] JTB, folio 132.
The Applicant provided a discharge summary from Blacktown Hospital dated 12 January 2025 where he had presented with injuries following a fall, reporting that he had not taken his medications and so experienced a nightmare and fell when sleeping.[49]
[49] A1.
On 19 February 2025 the Applicant advised the Tribunal and Respondent that he had recently been discharged from Hawkesbury Hospital after experiencing a stroke. The Applicant provided a discharge summary dated 14 February 2025 which indicates that he was admitted on 12 February 2025 following acute left pontine lacunar stroke, but had left the hospital stating that he was going to be on holiday and would return on 16 February 2025 for admission.[50] No further medical evidence is before the Tribunal regarding this cardiovascular event.
[50] A2.
The Respondent contends that the Applicant has disabilities arising from psychosocial and physical impairments but not in relation to impairments arising from his hernia, chronic kidney disease, enlarged prostate gland, congenital hypoplasia of left lobe liver, incisional hernia and constipation.[51]
[51] JTB, folio 139 to 140.
I accept without hesitation Dr Sindhu’s evidence regarding the Applicant’s maculopathy and retinopathy, noting that the most recent evidence indicates that the Applicant has excellent, unaided visual acuities, with no visual impairment noted. Therefore, I conclude that there are no impairments arising from the Applicant’s maculopathy and retinopathy conditions.
Further, I note that the Applicant underwent a left nephrectomy in 2016 for transitional cell carcinoma.[52] The medical evidence provided by Associate Professor Kairaitis indicates that the Applicant had an abnormal urinary cytology consistent with urothelial tumour of the urinary tract[53] requiring referral to a urologist.[54] Dr Gorman reported that the Applicant underwent surgical removal of the tumour in about June 2023. The outcome and any impairments arising from this surgery has not been provided to the Tribunal by any of the Applicant’s treating practitioners. It follows that I cannot be satisfied that there is any impairment arising from the Applicant’s renal or urological conditions.
[52] JTB, folio 410.
[53] JTB, folio 406.
[54] JTB, folios 5, 405.
I am satisfied on the basis of the extensive medical evidence before me that the Applicant has disabilities arising from physical, cognitive, neurological and psychosocial impairments, so satisfying paragraph 24(1)(a) of the Act.
Are the Applicant’s impairments permanent or likely to be permanent?
I have already set down the relevant Rules at paragraph 13.
The Access Guideline in place prior to the legislative changes in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) relevantly states:
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.[55]
[55]National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (14 October 2024) (Web Page), <>
I accept that the Guideline provides assistance to NDIS staff when applying the legislation. I have already outlined above the well-established principle that the Tribunal is not bound to follow this policy but should do so providing that it is not inconsistent with the legislation: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and G v MIBP [2018] FCA 1229.
As Mortimer J explained in Davis[56] the correct meaning of the term ‘permanent’ is that it is “enduring”[57] and:
… The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by the individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[58]
[56] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis)
[57] Davis, [85].
[58] Davis, [86].
Mortimer J went on to explain that the term ‘remedy’ as outlined in Rule 5.4:
… should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, whilst its impact on a person from time to time might fluctuate, it is not an impairment which is likely to be removed or cured. [59]
[59] Davis, [136].
The Respondent contends that the permanency criteria set down in paragraph 24(1)(b) of the Act is not met in respect to the Applicant’s physical, cognitive, neurological and psychosocial impairments.
I accept that the impairments arising from the Applicant’s hernia are not permanent. The Applicant is awaiting hernia surgery and the medical evidence indicates that this will reduce some of his physical limitations. Therefore, as the impairments arising from this condition are not permanent, I did not proceed to consider the impairments arising from the hernia conditions any further.
Similarly, I am not persuaded that the cognitive impairments arising from the provisional diagnosis of mild neurocognitive disorder associated with cerebrovascular disease and possibly the cardiovascular event of February 2025 are permanent for the purposes of paragraph 24(1)(b) of the Act. Associate Professor Wijeratne stated that the Applicant exhibited significant difficulties in delayed recall and executive function (associated with impaired judgement and decision making) and recommended a brain MRI scan and neuropsychological assessment.[60] There is no evidence before me regarding such a scan and assessment taking place.
[60] JTB, folio 132.
Therefore, I am not satisfied that this condition has been fully diagnosed, treated and stabilised and so it is not permanent for the purposes of paragraph 24(1)(b) of the Act and so I did not proceed to consider the impairments arising from this condition any further.
The Respondent submits that the Applicant’s psychosocial impairment is also not permanent for the purposes of paragraph 24(1)(b) of the Act, as Associate Professor Wijeratne has recommended an alternate medication regime and psychological therapy, dietary changes, physical exercise program and a sleep study in his assessment dated 2 April 2024.
If Associate Professor Wijeratne has simply recommended a change to the Applicant’s pharmacological regime, I may have been persuaded that the Applicant’s psychosocial condition was permanent. Whilst I accept that changing antidepressants and introducing an anti-psychotic may result in some relief to the Applicant’s symptoms there is no clinical evidence before me to suggest that the changes to his medications will do more than “relieve or improve” the Applicant’s symptomology.
However, Associate Professor Wijeratne recommends a sleep study and a physical exercise program, introduction of a Mediterranean-type diet and physical education program. The medical evidence suggests that the Applicant has undergone some therapeutic intervention. However, there is no evidence before me regarding the duration and type of therapy engaged in. Similarly, a referral was made to an exercise physiologist and physiotherapy but again no evidence was provided regarding the treatment and benefits (if any) from this exercise regime. I also accept that the Applicant has reported poor sleep and that if diagnosed with sleep apnoea and provided with appropriate treatment any improvement in his sleep may lead to improvements in his psychological health and wellbeing.
It is for all these reasons that I am not satisfied that the Applicant’s psychosocial impairments arising from his major depressive disorder may not improve despite the known, available and appropriate evidence-based clinically recommended treatments outlined by Associate Professor Wijeratne. I conclude that the proposed assessments and treatments may relieve or improve the Applicant’s impairments arising from his mental health disorder.
The Respondent contends that the impairments arising from the Applicant’s neuropathic pain and spinal conditions are not permanent or likely to be permanent. They base this on the recommendation that the Applicant be reviewed by a pain specialist and exercise physiologist or physiotherapist and take part in hydrotherapy. It is apparent engaging with a physiotherapist or exercise physiologist and attending hydrotherapy and review by a pain management specialist may alleviate some of his pain symptoms. However, there is no suggestion by any of the Applicant’s treating practitioners that there are known and available treatments that may alleviate the Applicant’s impairments arising from these conditions.
In fact, the medical evidence is unequivocal in that the conditions associated with these impairments are degenerative in nature and no treatment options have been recommended that are likely to remedy all or some of the impairments caused by these conditions. In my view the recommended reviews by a pain specialist and engagement in exercise programs will not remove or cure the impairments arising from Applicant’s neuropathic pain and spinal conditions.
After consideration of the medical evidence, I am satisfied that the impairments arising from the Applicant’s neuropathic pain and spinal conditions are permanent or likely to be permanent within the meaning set down in paragraph 24(1)(b) of the Act.
Do the Applicant’s impairments result in substantially reduced functional capacity?
The Tribunal must next determine whether the Applicant’s impairments result in substantially reduced functional capacity in at least one of the six domains of communication, learning, self-care, self-management, social interaction and mobility.
In his written statement of lived experience the Applicant states that he is unable to perform any cooking due to his impairments. He therefore must rely on takeaway meals or canned foods. His sister and friends occasionally assist him with cleaning, laundry, garden maintenance, shopping and food preparation. He cannot drive because of his cannabis usage to manage his pain symptoms.[61] He also reports difficulty in walking or lifting objects due to muscle wastage in his arms and legs.[62] In an undated statement the Applicant declared that he cannot walk or lift things or stand for a long time. He struggles with his daily work routine at home. He is in constant pain and is unable to sleep.[63]
[61] JTB, folio 1.
[62] JTB, folio 1.
[63] JTB, folios 480 to 481.
The Respondent contends that the Applicant does not have substantially reduced functional capacity in one or more of the domains listed in subsection 24(1)(c) of the Act.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[64] A person will not necessarily be found to have a substantially reduced functional capacity simply because one task cannot be completed without assistive technology. Instead, the degree to which the person can participate in the activity must be assessed.[65] The test is one of objectivity and not a subjective comparison.[66] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[67]
[64] Mulligan, [55].
[65] Davis, [88].
[66] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine), [109].
[67] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, [96].
Access Rule 5.8 (already been set down at paragraph 14 above) provides guidance as to when an impairment results in substantially reduced functional capacity.
In Mulligan, Mortimer J confirmed that Rule 5.8 defines the circumstances in which a person must be taken to have ‘substantially reduced functional capacity’ for the purposes of paragraph 24(1)(c).[68] Her Honour further confirmed that Rule 5.8 is a deeming provision which has the effect of mandatorily including some people in the category of person with substantially reduced functional capacity if the criteria in the rule are met.[69] Her Honour also noted that the concept of ‘substantially reduced functional capacity’ is not exhaustively defined by Rule 5.8 and so, while a decision maker must turn their mind to whether an applicant falls within the deeming effect of this rule, that is not necessarily the end of the exercise.[70] The decision maker must then proceed to consider whether, regardless of Rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[71]
Functional Capacity Assessment
[68] Mulligan, [66].
[69] Ibid, [77].
[70] Ibid.
[71] Ibid.
Ms Karol Petrovska, occupational therapist, undertook a functional capacity assessment on 25 September 2023.[72] Ms Petrovska determined that the Applicant experiences difficulties in tasks involving:[73]
[72] JTB, folios 74 to 118.
[73] JTB, folio 78.
·strenuous activity requiring exertion;
·moderate, heavy or forceful manual handling including lifting, carrying, pushing and pulling;
·repetitive or sustained use of the upper limbs above shoulder height in an outstretched or
overhead manner due to increased load on the lumbar spine;
·frequent bending, twisting, jarring or jolting of the lumbar spine;
·prolonged sitting, standing or walking;
·frequently traversing rough / uneven ground, inclines or steps;
·bending, squatting or kneeling below thigh height due to low back pain;
·prolonged periods of driving beyond 30 minutes;
·sustaining activity participation despite experiencing chronic pain;
·planning and organisation, due to low mood, anxiety and poor motivation; and
·engagement with others in a social setting.
Ms Petrovska determined that the Applicant was independent in the domains of communication, learning or self-management.
As to social interaction it was recommended that the Applicant be supported by an experienced mental health support worker to build up his tolerances for accessing the community.
In the domain of mobility, occupational therapy intervention for prescription of assistive equipment and minor home modifications were recommended.
And finally, in relation to self-care, Mr Petrovska recommended that the Applicant be supported with commercial assistance for garden maintenance, heavy house cleaning, support worker assistance for advice around nutrition, maintaining a healthy diet and developing skills to re-engage with cooking and occupational therapy for prescription of assistive equipment and minor home modifications.[74]
Assessment of the evidence
[74] JTB, folio 79
The Tribunal’s first task is to determine if the Applicant’s circumstances are captured by the deeming provision. If the deeming provision does not apply, I must then consider the evidence regarding his functional capacity in each domain and determine whether he meets the statutory threshold.
In Foster[75] the Full Court emphasised that the task is to assess the degree to which the person can participate in the activity,[76] focusing not on specific tasks[77] but rather to a more general assessment of the persons’ capacity to undertake an activity with the benefit of assistive technology.[78] Further, it was decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of self-care (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. The Full Court relevantly observed: [79]
64.In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
65.Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
66.The question to which the Tribunal should have directed itself was whether Mr Foster’s impairment, about which there was no dispute, resulted in Mr Foster’s having substantially reduced functional capacity (s 27(b)) to undertake the activity of self-care (s 24(1)(c)). For the purposes of the NDIS, the activity is not “toileting”; the activity is “self-care”. In considering that question, the Access Rules directed the Tribunal to consider whether Mr Foster was unable to participate “effectively or completely” in self-care “without assistive technology”. The “assessment tools” set out in the Guidelines cannot dictate the answer to that question.
67.Self-evidently Mr Foster is able to toilet himself. His impairment inhibits his ability to urinate; he is able to void his bowels. He remains capable of voiding his bladder independently as and when required, albeit with the use of a catheter. This was an agreed fact. As the Guidelines explain, consistently with a multi-faceted, functional assessment, “[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity”.
[75] [2023] FCAFC 11.
[76] Foster, [88].
[77] Ibid, [97].
[78] Ibid, [66].
[79] Foster, [64]-[67].
In undertaking the assessment of the Applicant’s functional capacity I adopt the Tribunal’s reasoning in Rooney[80] where it was held that the word ‘substantially’ in paragraph 24(1)(c) of the Act takes its ordinary meaning and so establishes a “significant threshold” that a prospective participant must meet.[81]
[80] Rooney and National Disability Insurance Agency [2021] AATA 3523.
[81] Ibid, [22].
Communication
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake communication activities.
As outlined above, Dr Nagulendran stated that the Applicant requires assistance from others to communicate based on his mental health disorder.[82] He did not elaborate any further nor provide any assessments or examples that would support his assessment.
[82] T12.
Dr Gorman and Ms Petrovska opine that the Applicant is independent in this domain.
Associate Professor Wijeratne stated that the Applicant was independent in this domain and so did not require any assistance.[83]
[83] JTB, folio 136.
The medical evidence and independent assessments lead to the conclusion that the Applicant’s neuropathic and spinal conditions do not impact on the Applicant’s ability to participate effectively and completely in communication activities.
I conclude that the Applicant’s impairments arising from his neuropathic and spinal conditions do not result in a substantially reduced functional capacity in activities requiring communication.
Social interaction
The Respondent contends that the Applicant can access the community and interact socially with others, albeit that he has low motivation for doing so. Therefore, he does not demonstrate a substantially reduced functional capacity in this domain.
I accept Dr Gorman’s view that the Applicant would benefit psychologically from increased social interactions. I also accept Ms Petrovska’s opinion that the Applicant experiences low motivation to engage socially and he has few friends and his depression and anxiety impact on his limited community engagement.[84] As outlined above, Ms Petrovska recommended that the Applicant be supported by an experienced mental health support worker to build up his tolerances for accessing the community.
[84] JTB, folio 90.
The Applicant reported difficulties to Associate Professor Wijeratne with social isolation, reporting that friends withdrew when he became unwell, they no longer answer his calls as they assume he will ask for money. He does not trust anyone and believes that people mock him when he is not around.[85] Associate Professor Wijeratne stated that the Applicant requires moderate level of assistance by way of prompting in this domain.[86]
[85] JTB, folio 129.
[86] JTB, folio 136.
I accept without hesitation the Applicant’s written statements and oral testimony regarding the difficulties he experiences in this domain.
However, the evidence before me does not support a broader finding that the Applicant has a substantially reduced functional impairment with respect to social interaction. In any event, I am not satisfied that the Applicant’s neuropathic pain and spinal conditions impact on his capacity to engage in social interaction.
I am not persuaded that the independent evidence before me gives rise to a finding that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring social interaction.
I conclude that the Applicant’s impairments arising from his neuropathic and spinal conditions do not result in a substantially reduced functional capacity to undertake social interaction activities.
Learning
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake learning activities.
The assessments undertaken by Dr Gorman and Ms Petrovska and the medical evidence provided by the Applicant’s treating practitioners do not refer to any apparent deficits in this domain.
I have already referred to Associate Professor Wijeratne’s provisional diagnosis of mild neurocognitive disorder,[87] suggesting that the Applicant requires moderate level of assistance by way of guidance in this domain.[88] I have already determined that this condition is not permanent and therefore cannot be taken into account when considering the functional impact that it has upon the Applicant’s cognitive ability.
[87] JTB, folio 132.
[88] JTB, folio 136.
I conclude that the Applicant’s impairments arising from his neuropathic and spinal conditions do not result in substantially reduced functional capacity in activities involving learning.
Mobility
The Respondent submits that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities involving mobility.
The medical evidence from Dr Nagulendran is that the Applicant cannot walk or lift. [89] This is in contradiction to the assessments by Dr Gorman and Ms Petrovska.
[89] T12.
I prefer Ms Petrovska’s observations, which indicates that due to peripheral neuropathy and muscle wastage the Applicant can mobilise only for about 20 to 30 minutes on a good day before requiring rest, and was observed to walk for about 10-15 minutes. He can navigate a single step, though slowly and carefully. He did not require any walking aids during the assessment by Ms Petrovska and also reported that he does not use any walking aids for any periods of mobilising inside or outside the home. It is noted that this statement directly contradicts the Applicant’s statements made to Dr Shivalingam.[90]
[90] JTB, folio 353.
I accept that the Applicant avoids stooping or bending and can reach to high cupboards to retrieve items. The Applicant was observed to be able to complete chair, toilet, shower, car and bed transfers, though did not with difficulty by pulling heavily on adjacent items.[91] During the occupational therapy assessment the Applicant declared he can use his motor vehicle to access the local community, though will only drive within a 5km radius due to anxiety and lack of motivation as well as exacerbating his back pain if he sits for too long.
[91] JTB, folios 92 to 93.
Dr Gorman declared that the Applicant has limited standing, walking and bending tolerances, noting that the hernia operation will give him some increased mobility. He noted that on the Applicant’s bad days he can hardly stand or walk for more than five minutes.[92]
[92] JTB, folio 60.
The Applicant reports difficulties to Associate Professor Wijeratne in this domain, including 15 to 20 falls in the last 12 months and occasional use of a walking stick.[93] There is evidence before the Tribunal that at least one fall required emergency treatment. Associate Professor Wijeratne declared that the Applicant requires minimal level of assistance by way of assistive technology in this domain.[94]
[93] JTB, folio 129.
[94] JTB, folio 136.
The medical evidence before me suggests that the Applicant can independently drive, mobilise around his home and in the community and complete all transfers (albeit with difficulty). I accept that the Applicant would benefit from some assistance equipment and minor home modifications to maximise his safety and independence in this domain.
It follows that the Applicant’s impairments arising from his neuropathic and spinal conditions do not result in substantially reduced functional capacity in activities involving mobility as required by subparagraph 24(1)(c)(iv) of the Act.
Self-care
The Respondent contends that the impairments for which the Applicant seeks access to the scheme do not result in a substantially reduced functional capacity to undertake self-care.
Dr Gorman opined that the Applicant can perform household tasks independently.[95]
[95] JTB, folio 60.
Ms Petrovska stated that the Applicant did not report any difficulties with oral hygiene tasks, shaving, dressing or cleaning after toileting. He reported not showering most days, but sometimes struggles with motivation. On days that he has taken his medicinal cannabis he avoids showering on the basis of medical advice. He used modified techniques when showering as he cannot wash the lower half of his body due to back pain. He used an easy- reacher to put on his shoes and socks. His sister usually cuts his toenails. It was recommended given his diabetic status that he receive professional podiatry services.[96] He can only prepare simple, microwave meals and relies on takeaway. He shops online and has it delivered. He can only undertake light, incidental shopping due to his back pain.[97] He requires physical assistance to complete household cleaning. The height of his washing machine and dryer impact on his capacity to undertake laundry tasks. He cannot strip or fit bed linen or undertake gardening tasks due to his physical limitations.
[96] JTB, folio 96.
[97] JTB, folio 96.
Ms Petrovska was of the view that the Applicant required commercial assistance with heavy household cleaning but could benefit from assistance equipment and structure support to engage with lighter cleaning tasks within his functional abilities.[98] It is apparent that he is prohibited from completing heavier cleaning tasks due to his physical limitations, whereas his psychological conditions impact on his motivation to complete tasks that he has the physical capability of completing.
[98] JTB, folio 96.
Associate Professor Wijeratne confirmed that the Applicant has a loss of motivation for self-care as a result of his depressive disorder.[99] In his view the Applicant requires minimal level of assistance by way of prompting in this domain.[100] He went on to state that the Applicant would benefit from receiving regular assistance for his grooming, hygiene, shopping, cooking and cleaning his home. He considered that the state of untidiness apparent in the functional capacity assessment undertaken by Ms Petrovska was likely to be examples of executive dysfunction; a neuropsychological assessment would provide further insights into his cognition and capacity for self-management.[101]
[99] JTB, folio 136.
[100] JTB, folio 136.
[101] JTB, folio 137.
I accept that the Applicant cannot consistently meet some self-care tasks. Having said that, he can independently undertake grooming tasks, prepare simply meals, wash and dry light dishes and access light shopping. It is apparent that whilst his spinal and neuropathic pain contribute to impairments in this domain, so does his depressive disorder and putative neurocognitive disorder.
I am not persuaded that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring self-care.
On balance, I conclude that the Applicant’s impairments arising from his neuropathic and spinal conditions do not result in substantially reduced functional capacity in activities involving self-care as required by subparagraph 24(1)(c)(v) of the Act.
Self-management
The Respondent contends that the Applicant’s impairments in this domain do not result in a substantially reduced functional capacity.
Dr Gorman and Ms Petrovska assessed the Applicant as being independent in this domain.
Associate Professor Wijeratne stated that the Applicant has difficulties in this domain due to his cognitive capacity. The Applicant reporting that he occasionally forgets to lock the front door, attend appointments or order items when undertaking online shopping. In his view the Applicant requires a moderate level of assistance in this domain by way of guidance.[102] As outlined above, Associate Professor Wijeratne recommends a neuropsychological assessment to assess the Applicant’s cognitive deficits and capacity for self-management.[103]
[102] JTB, folios 136 to 137.
[103] JTB, folio 137.
I conclude that the Applicant’s impairments arising from his neuropathic and spinal conditions do not give rise to a finding that he has a substantially reduced functional capacity in activities requiring self-management.
Conclusion
Having concluded that the Applicant does not satisfy paragraph 24(1)(c) of the Act, I am not required to consider whether the Applicant’s impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e) of the Act.
I conclude that the Applicant does not meet the disability requirements in accordance with section 24 of the Act.
EARLY INTERVENTION REQUIREMENTS
I will now consider whether the Applicant satisfies the early intervention requirements for access to the scheme as set down in section 25 of the Act.
Are the Applicant’s impairments permanent?
As already set out at paragraph 10 above, a person meets the early intervention requirements if the person has impairments that are, or are likely to be, permanent or the person is a child who has developmental delay. Access Rules 6.4 to 6.7 with respect to section 25 of the Act mirror Rules 5.4 to 5.7 relating to section 24.
Self-evidently, the Applicant is not a child who has developmental delay. Therefore, subparagraph 25(1)(a)(iii) of the Act is not made out.
I have already concluded that the Applicant’s impairments arising from neuropathic and spinal conditions are permanent. Therefore, paragraph 25(1)(a) of the Act is satisfied.
Will provision of early intervention supports reduce the Applicant’s future needs for support?
The Applicant has received long-term medical treatment and review from a neurologist, endocrinologist and other specialists. This has not led to a significant change in his level of impairments arising from his neuropathic and spinal conditions. His treating specialists and a pain specialist undertaking an independent assessment have stressed that these conditions are degenerative in nature and will not improve.
There is no evidence before me that early intervention supports would build the Applicant’s capacity in any domain to such an extent that it would reduce the functional impact of the his impairments. The requirements of paragraph 25(1)(b) of the Act are therefore not met.
Having concluded that the Applicant does not meet the requirements of paragraph 25(1)(b) of the Act, I am therefore not required to consider paragraphs 25(1)(c) and (d) of the Act.
As section 25 of the Act is not met, the Applicant does not meet the early intervention requirements that would enable him to become a NDIS participant under this provision.
CONCLUSION
The Applicant does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act.
Therefore, the decision under review is correct and so is affirmed pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
DECISION
The Tribunal affirms the decision under review.
0
8
0