Nicholson and National Disability Insurance Agency (NDIS)
[2025] ARTA 710
•6 June 2025
Nicholson and National Disability Insurance Agency (NDIS) [2025] ARTA 710 (6 June 2025)
Applicant/s: Glenn Nicholson
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/7675
Tribunal:Deputy President K Dordevic
Place:Perth
Date:6 June 2025
Decision:The decision under review is affirmed.
........................[SGD]..........................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme - reviewable decision of Chief Executive Officer – becoming a participant – ankle arthropathy – degenerative – anxiety – depression – age and residence requirements met – permanence – substantially reduced functional capacity – weight attributable to medical evidence – disability and early intervention requirements not met - decision under review 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 (Becoming a Participant) Rules 2016 (Cth)Cases
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 544National Disability Insurance Agency v Davis [2022] FCA 1002
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Applying to the NDIS
Statement of Reasons
This issue requiring determination by this Tribunal is whether Mr Nicholson (the Applicant) may become a participant in the National Disability Insurance Scheme (the NDIS or the scheme).
The Applicant sought access to the scheme on 28 June 2023 for impairments arising from physical and psychosocial conditions.
On 19 July 2023 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 4 October 2023 by a different delegate of the CEO.
[1] T6, folios 34 to 38.
On 12 October 2023 the Applicant made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 10 December 2024 the Tribunal set the matter down for a hearing on 21, 27 and 28 February 2025.
On 4 February 2025 the Applicant wrote to the Tribunal requesting an adjournment. His request was refused on 6 February 2025. The Applicant reiterated his request to have the matter adjourned on 18 February 2025, providing evidence of a knee arthroscopy scheduled to take place on 19 February 2025.[3] The request for adjournment was rejected on the basis that there was no medical evidence that the Applicant would be prevented from attending the scheduled hearing.
[3] C15.
The hearing commenced on 21 February 2025. Opening submissions were made and the Applicant gave his evidence in chief. The next hearing date was scheduled to take place on 27 February 2025.
On 26 February 2025 at 5:18 PM the Applicant requested that the matter be determined on the papers. The hearing resumed on 27 February 2025 and the Applicant failed to attend. The Respondent raised no objection to the matter being determined on the basis of the evidence and submissions provided on or before 21 February 2025, provided it was given an opportunity to provide final submissions.
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 further hearing pursuant to section 106 of the Administrative Review Tribunal Act 2024 (Cth). The Tribunal ordered that the Respondent must provide all additional evidence or submissions it intended to rely on by 13 March 2025 and the Applicant do the same by 27 March 2025.
The hearing on the papers took place on 22 April 2025.
The Tribunal accepted into evidence documents contained in the joint hearing tender bundle (JTB), the addendum to the joint hearing tender bundle (AJTB) and final submissions provided by the Applicant (marked folio C20) and by the Respondent (marked folio C21).
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 25 and 26 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 Access 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 Access 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 assessing the Applicant’s claim the relevant operational guideline is Applying to the NDIS[5] (the Access Guideline).
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[5] Dated 14 October 2024.
The case law developed in this jurisdiction is also of assistance. In the matter of Mulligan[6] Mortimer J (as she then was) stated that the legislative regime:
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.
…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…[7]
[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).
[7] Mulligan, at [55]-[56].
This approach was endorsed by the Full Court in Foster.[8]
CONSIDERATION
[8] 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
The medical evidence before the Tribunal
On 22 May 2023 Mr Andrej Nikoloski, orthopaedic surgeon, wrote to the Applicant’s general practitioner advising that there was a diagnosis of right tibialis posterior tendon dysfunction, secondary to trauma. The Applicant sustained tendon laceration at 8 years of age which was surgically repaired, however he subsequently sustained a further right foot injury. The Applicant described a history of pain for 50 years and that this was his first orthopaedic review, which coincided with his application to the scheme. He tried of course a physiotherapy and corticosteroid injections which provided no relief. On examination the Applicant’s ankle range of movement was restricted he has a stiff hind foot and his foot progression angle is externally rotated. He has reduced sensation across his foot in a non-dermatomal distribution. He has moderate hind foot valgus at 20 degrees. Potential surgical options including fusion and total ankle replacement were discussed, however in the first instance it was decided to trial non-operative management. The plan following the review was to provide custom orthotics and footwear, physiotherapy and strengthening, with a review in six months.[9]
[9] JTB, T4.
Dr Gino Caravella, general practitioner, completed the health professional section of the Applicant’s access application, advising that the Applicant’s degenerative right ankle arthropathy was lifelong and required physiotherapy and an orthopaedic assessment. Dr Caravella also reported that the Applicant suffers from anxiety and depression, that this condition too was lifelong and he was prescribed antidepressants. He also suffered from hypertension and reflux. Dr Caravella was of the view that the Applicant would benefit from early intervention supports and noted the referral for an orthopaedic review of the ankle osteoarthritis. Dr Caravella when on to note that the Applicant did not require assistance in the domains of mobility, communication, social interaction, learning, self-care or self-management. [10]
[10] JTB, T13 and T13A.
The health professional declaration was amended on 28 June 2023, whereby Dr Caravella noted that the Applicant did require special equipment and assistance from others in the mobility domain, noting that right foot pain causes the Applicant difficulties walking any distances greater than a few metres and affects his driving and ability to shop.[11] Dr Caravella stated that the Applicant’s mobility would be improved by orthotics and physiotherapy.
[11] JTB, T13B.
On 14 July 2023 Dr Caravella, general practitioner, certified that the Applicant is medically well known to him, has a severe impairment in his right ankle and, as a result, sustained a fall on 13 July 2023. Dr Caravella was of the opinion that the Applicant warranted semi-urgent appraisal of his access claim and thereafter either a foot or boot prosthesis and physiotherapy for his impairment.[12]
[12] JTB, T5.
In a letter dated 12 October 2023 Mr Andrej Nikoloski, orthopaedic surgeon, stated that the Applicant has chronic pain in his right ankle as a result of previous trauma. This resulted in arthritis in his ankle and a posterior tibial tendon dysfunction. Mr Nikoloski stated that the Applicant required long term care including custom made orthotics, bracing and physiotherapy.[13]
[13] JTB, T1A.
Radiology reports dated 16 May 2023 and 6 and 11 November 2023 as well as ultrasound guided corticosteroid injection in the right ankle joint performed on 16 August 2023 are also in evidence.[14]
[14] C1, folios 165 to 168.
On 6 November 2023 Mr Nikoloski reviewed the Applicant’s weight-bearing x-ray, explaining that an ankle fusion could treat his arthritis, but that it would not eliminate the pain completely and he would be likely to continue to need analgesics and orthoses. Mr Nikoloski concluded that his opinion was that the ankle condition was permanent and surgery would not be curative. [15]
[15] C1, folios 169 to 170.
Mr Nikoloski authored a further statement on 29 January 2024, following a telephone consultation. He noted that the Applicant’s ankle is painful and he uses opiates to manage the pain. He suggested conservative treatment of painkillers, ankle bracing and orthotics or an ankle and hindfoot fusion. It was noted that the Applicant preferred not to proceed with surgery, noting that most patients with hindfoot fusion are left with some remaining problems with their gait and degeneration of adjacent joints in the future. Mr Nikoloski agreed with the Applicant’s choice not to have a fusion at this stage.[16]
[16] C1, folio 173.
On 23 February 2024 the Applicant authored a statement.[17] He declared that his ankle condition is worsening and the pain is excruciating. He is concerned that he will require amputation if he is unable to get support. The side-effect from his pain-management and anti-inflammatory treatment is kidney failure. He can only hobble around his home and leaves his home only once a fortnight to shop. He is unable to drive and so must use a taxi when shopping. He must use a trolley to mobilise around the shopping centre. He has a limited diet due to his mobility issues and is at risk of a nutrient deficiency. He also has difficulties undertaking laundry tasks and showering, often drops things and is at risk of falls and has no assistive technology to assist him to mobilise. He has difficulties in preparing meals, again because of risk of falls because of his poor balance. He is socially isolated and is unable to socialise in the community. He has few visitors and can only speak to friends by telephone. He suffers from anxiety and depression as his daily of life is extremely poor and he desperately requires orthotics and physiotherapy. He has no family supports and feels isolated and is frustrated that he cannot receive assistance for his disability. His orthopaedic surgeon says that his disability is permanent. He has opted not to have surgery due to the risk of having remaining problems with his walking together with degeneration in his joints. He had surgery on his tendon that was unsuccessful. NDIS support will improve his mobility and ability to undertake daily living tasks.
[17] C1 folio 174.
On 24 June 2024 Mr Nikoloski again reviewed the Applicant by telephone. [18] A repeat x-ray showed no deterioration since November 2023. The Applicant reported more pain than previously, using oxycontin for pain relief and is awaiting review with a physiotherapist and podiatrist. A referral to a pain management clinic was recommended to maximise conservative treatment options.
[18] C1, folio 175.
On 26 June 2024 Ms Zee Yong Lee, podiatrist, assessed the Applicant. She noted severe posterior leg muscle atrophy and sciatica symptoms as well as gait abnormality. [19] Non-custom orthoses, brace, biomechanical assessment and casting and one follow up appointment was recommended, at a cost of $890.[20]
[19] C5.
[20] Noting that two further sessions would be required, but that the Applicant had one visit left under his Enhanced Primary Care Plan.
On 28 June 2024 Ms Stephanie Cox, physiotherapist, assessed the Applicant following referral for three sessions of physiotherapy under an GP Care plan.[21] The Applicant reported that he had never received physiotherapy treatment for his ankle. Ms Cox noted very limited range of motion and calf muscle wasting and extremely poor gait. He reported sometimes using a walking stick (though he did not attend the session with one) but has never been fitted for one or taught how to use it correctly. A home exercise program was recommended to work towards increased motor control of available range of motion in the right foot and improving his gait through assessment of his own walking stick and education in order to reduce foot pain, increase walking tolerance and maintain function in his hip and knee and independent ambulation long term. Ms Cox was of the view that if treatment was extended beyond three sessions physiotherapy would offer functional training, pain management, strengthening and preservation of surrounding joints and possibly improve the Applicant’s useful range of motion in the left foot.
[21] C6.
On 29 June 2024 Dr Caravella reported that the Applicant will require potent opiate analgesia into the foreseeable future as well as ongoing physiotherapy, podiatry and orthotic treatment, which a GP care plan cannot adequately cover.[22]
[22] C7.
The Applicant authored a further statement dated 1 July 2024.[23] He stated that most days he cannot turn in bed due to back pain. He is bedridden for much of the day due to sciatic pain and this impacts on his personal hygiene. He must use a walking stick which has resulted in several falls. He cannot completely mobilise around his home as he cannot weight bear. Undertaking household tasks is painful, exhausting and frustrating. He has a friend who helps him shop, where he must use the trolley to support himself. He is overwhelmed when he does not have support in the community to meet his commitments like paying his bills and shopping. He is paranoid about have a fall in the shower. He has a right arm injury that impacts on his ability to use a walking stick and so he fatigues easily. He believes this is why he has so many falls. He has provided evidence of his tricep injury. He finds it hard to communicate and trust people following abuse as a child. He has learnt to manage his anger, anxiety and depression. He can become frustrated and at times completely switch off. He described himself as very isolated and referred again to his friend that takes him shopping. He does not venture into the community and gets very anxious and withdraws, which can trigger daily panic attacks. He is of the view that the occupational functional assessment performed by Mr Brenton Fielke, occupational therapist, was inadequate and does not agree with the report’s findings. He stressed that Mr Fielke had not read his medical records before undertaking the assessment.
[23] C8.
On 1 October 2024 the Applicant provided a hand-written statement.[24] He reported that his lived experience is much worse since tearing his left knee; his left knee finally snapped. He now has no use of his legs. He cannot walk, get his bin in, shower and even making a cup of tea is a nightmare. He now uses a wheelchair. He has been referred to an orthopaedic surgeon. He also has a bone fracture bone in his hand, his middle finger has “gone again” and he has no feeling in his hand. His wrist bone is also sticking out. He reiterated that Mr Fielke had not read his medical records before undertaking the functional capacity assessment.
[24] C9.
In evidence is a CT of the right wrist performed on 25 September 2024 which identified a small avulsion fracture to the dorsal aspect of the triquetrum. A ganglion may also be present; an ultrasound or MRI was recommended.[25] A CT arthrogram of the left knee was performed on the same day, suggesting partial or full thickness tear to the posterior root of the medial meniscus and mild arthropathy of the patellofemoral and medial tibiofemoral joints.[26]
[25] C9, folio 188.
[26] C9, folio 189.
At hearing the Applicant stressed that he experiences chronic pain in his right foot, that he was a “cripple” and that he was reduced to “crawling”. He stated that physiotherapy would be “great” but is not affordable. Anyway, he is not convinced that it would improve his impairments. It is apparent that he thinks that any further treatment would be futile because his “muscles are gone” and he does not have a “functioning foot”.
At hearing the Applicant stressed that medical evidence about his psychosocial impairments did exist, but he does not have access to this evidence and so had not provided it.
Functional Capacity Assessment
Ms Brenton Fielke, occupational therapist, undertook a functional capacity assessment on 13 March 2024 at the Applicant’s home.[27]
[27] C10.
The Applicant reported that he has not had a follow up physiotherapy appointment or trialled orthotics recommended by his physiotherapist due to his limited income. He also reported that he received only temporary relief for approximately two to three days following a corticosteroid injection. He reported not attend hospital outpatient allied health services for his physical condition. He has never been reviewed by a psychiatrist or sought therapy for his depression or anxiety but does continue to be medicated with antidepressants.
It was reported that the Applicant can mobilise around his home independently, including three internal steps, using a walking stick. He generally avoids stairs where possible. He was observed to walk outside his home for short distances on level surfaces with his walking aid. He reported a walking tolerance of 50m in the community before requiring rest. The Applicant was observed to display sufficient general whole body range of movement to undertake personal and domestic activities of daily living and has reduced range of movement in his right swollen ankle. Mr Fielke assessed the Applicant to display functional standing balance when mobilising around the home with the walking aid and that the Applicant reported reduced balance when mobilising over wet or uneven surfaces. He was able to transfer independently between sitting and standing, from his bed, toilet and shower. He reported not being able to kneel.
Mr Fielke reported that the Applicant has sufficient upper limb range of movement to complete all personal and domestic activities. As to his lower limb, whilst the limited range of movement in his ankle was noted, he was assessed to have sufficient functional range of movement in his other lower limb joints and endurance to undertake all personal and domestic tasks of daily living. The Applicant reported falling approximately five or six times in the last decade but daily near misses. Mr Fielke was of the view that the Applicant does not present as a significant falls risk when mobilising. He is independent in showering, dressing, toileting and grooming. He is independent in managing his finances, in meal preparation, feeding and utilises a community bus to attend his local shops. He undertakes household cleaning tasks by pacing himself. He cannot drive as his car is unroadworthy.
Mr Fielke concluded that the Applicant did not have substantial reduction in functional abilities for communication, social interaction, learning, self-care or self-management. However, he does have reduced mobility that is attributable to his right ankle condition. It was noted that he may benefit from conservative treatment by a physiotherapist and provision of orthotics. It was noted that he is eligible for five sessions of rebated treatment through Medicare with a physiotherapist and podiatrist or access such services as an outpatient (noting extended waiting times).
It was recommended that the Applicant would benefit from a manual wheelchair or electric scooter when undertaking extensive mobility tasks in the community to reduce aggravation of his leg pain. Mr Fielke was uncertain whether physiotherapy or orthotics would significantly improve the Applicant’s left lower limb condition and ability to mobilise given the chronic nature of the condition. He would need to trial these supports to obtain a more accurate assessment.
Does the Applicant have a disability attributable to an impairment?
I am satisfied on the basis of the medical evidence before me that the Applicant has disabilities arising from physical 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 17.
As Mortimer J explained in Davis[28] the correct meaning of the term ‘permanent’ is that it is “enduring”[29] 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.[30]
[28] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis).
[29] Davis, [85].
[30] 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. [31]
[31] 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 and psychosocial impairments.
I first considered the Applicant’s psychosocial impairments.
It is apparent that Dr Caravella diagnosed the Applicant with depression and anxiety and prescribed anti-depressants. The Applicant advised Mr Fielke that he has not sought review by a psychiatrist nor has he engaged in any therapy to address these symptoms. There is limited medical evidence before me regarding the impact that this condition has upon the Applicant, apart from his self-report of symptoms which apparently are mainly caused by his application for access to the scheme.
It is my view that before a determination could be made about whether the impairments arising from the Applicant’s mental health conditions are permanent or likely to be permanent at the very least a psychiatric assessment and the trialling of therapeutic interventions would be required.
It follows that I cannot be satisfied given the paucity of evidence before me that the impairments arising from the Applicant’s diagnoses of anxiety and depression are permanent or likely to be permanent within the meaning set down in paragraph 24(1)(b) of the Act.
I next considered the Applicant’s physical impairments.
There is no dispute that the Applicant’s ankle condition is permanent. I find accordingly.
However, this is not the relevant question. The case law is clear; the question is whether the physical impairments arising from the Applicant’s right foot and ankle condition are permanent, or likely to be permanent. This question will be answered positively if there are no known, available and appropriate evidence-based treatments that would be likely to remedy the impairment.
I accept the specialist advice that conservative treatment is warranted as the Applicant has elected not to proceed with surgery. The prognosis as to his likely impairments following surgery were not described by Mr Nikoloski, though surgical intervention will not guarantee an eradication of all the Applicant’s pain symptoms associated with his left ankle condition.
Recommended conservative treatment includes physiotherapy and podiatry, including non-custom orthotics and bracing, as well as a referral to a pain management clinic. The medical evidence before me indicates that the Applicant has had only one consultation with both a physiotherapist and podiatrist and he has not attended a pain management clinic.
Mr Fielke, correctly in my view, states that the Applicant would benefit from a referral to a physiotherapist and podiatrist through a GP care plan which entitles a person to five sessions of rebated treatment per calendar year.[32] Mr Fielke also states that the Applicant is entitled to access these services in the public health system, recommending a referral to an outpatient service given the Applicant’s straitened financial circumstances.
[32] JTB, C10.
The Applicant did not explain in his written submissions or at hearing why he had not at least attended further sessions with Ms Lee given that he was apparently entitled to such sessions (however limited) under a GP care plan. At hearing the Applicant explained that he was not willing to meet the out-of-pocket cost associated with a further session with Ms Cox simply to learn how to use his walking stick when he could learn this by searching Google for free.
Given the statements made by Ms Lee and Ms Cox I am not persuaded that the impairments arising from the Applicant’s physical condition may not be remedied by way of further treatment or provision of assistive technology. Their statements indicate that the provision of known, available and evidence-based treatment and assistive technology may lead to improvement in his level of impairment.
Furthermore, it is apparent that the Applicant’s impairments may be remedied by treatment at a pain clinic. Certainly, his treating specialist supports such treatment. At hearing the Applicant stated that he had not attended a pain clinic because of the long wait times in the public health system. He did not provide any evidence to suggest that he had been referred to a pain clinic or was on a wait list for an appointment.
I conclude that the Applicant’s physical impairments require further allied health treatment and review before a determination can be made about whether the impairments arising from this condition are permanent or are likely to be permanent.
After consideration of the medical evidence, I am not satisfied that the impairments arising from the Applicant’s physical disability are permanent or likely to be permanent within the meaning set down in paragraph 24(1)(b) of the Act.
Conclusion
Having concluded that the Applicant does not satisfy paragraph 24(1)(b) of the Act, I am not required to consider whether the Applicant’s impairments result in substantially reduced functional capacity, 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)(c), (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 next considered whether The Applicant satisfies the criteria for early intervention set down in section 25 of the Act.
Are the Applicant’s impairments permanent?
As already set out at paragraph 14 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 his physical and psychosocial disabilities are not permanent. Therefore, subparagraphs 25(1)(a)(i) and (ii) of the Act is not satisfied.
Having concluded that the Applicant does not meet the requirements of paragraph 25(1)(a) of the Act, I am therefore not required to consider paragraphs 25(1)(b), (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.
DECISION
The decision under review is affirmed.
Dates of hearing: 21 and 27 February 2025, 22 April 2025 The Applicant: Self-represented Counsel for the Respondent: Ms J Nicholson Solicitors for the Respondent: Ms A Georgiou, Maddocks
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