NSGL and National Disability Insurance Agency

NSGL and National Disability Insurance Agency [2023] AATA 1572 (8 June 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/0649
Re:NSGL
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:8 June 2023
Place:Adelaide

The decision under review is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), and in substitution it is decided that the Applicant meets the access criteria for early intervention under s 25 of the National Disability Insurance Act 2013 (Cth) in relation to her developmental language disorder.
............[sgnd]................................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – early intervention requirements – consideration of language and learning disorders – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Cases
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Secondary Materials
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme – Operational Guideline – Applying to the NDIS Operational Guideline – Applying to the NDIS
REASONS FOR DECISION
Member I Thompson
8 June 2023
INTRODUCTION

This application concerns a request for the Applicant, NSGL, by her mother, to the National Disability Insurance Agency (“the Agency”) to become a participant in the National Disability Insurance Scheme (“NDIS”). NSGL is now 15 years old. NSGL’s request for access to the NDIS listed her primary impairment as developmental language disorder. Other impairments were specified, such as a specific learning disorder and adjustment disorder.[1]
[1] Exhibit R1, p 42.
The Agency determined that NSGL did not meet the disability requirements or the early intervention requirements for access to the NDIS and declined the request.[2] NSGL requested an internal review of that decision, which was subsequently affirmed by a delegate of the Agency.[3] The Agency was satisfied that NSGL meets the age and residency criteria outlined in ss 22 and 23 of the National Disability Insurance Scheme Act 2013 (Cth) (“the NDIS Act”), however it affirmed the initial decision that it was not satisfied that she meets the disability or early intervention requirements in ss 24 and 25 of the NDIS Act. NSGL applied to the Tribunal for a review of that decision.
[2] Exhibit R1, p 47.
[3] Exhibit R1, p 10.
The hearing was held on 12 January 2023 by Microsoft Teams. NSGL was represented by her mother. The Agency was represented by counsel, Mr Kornhauser. As this matter concerns a child, the Tribunal made an order at an early stage of the proceedings under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth), prohibiting the disclosure of information that might identify her.
NSGL’s mother gave audio-visual evidence from home. She called one witness, Mr PF, who is a case manager acquainted with NSGL. The Agency had arranged for a psychology assessment by Dr Michael Wood, whose report was received into evidence. Dr Wood gave audio visual evidence at the hearing.
The Tribunal received in evidence a quantity of documents, which included allied health reports, notes, school reports and correspondence regarding NSGL.
ISSUE
The question for the Tribunal to determine is whether NSGL meets the disability requirements under s 24 of the NDIS Act, or the early intervention requirements under s 25 of the NDIS Act in relation to certain impairments, namely developmental language disorder, specific learning disorder in reading (dyslexia) and in mathematics (dyscalculia), adjustment disorder and autism spectrum disorder.
LEGISLATION AND GUIDELINES
The question whether an applicant satisfies the access criteria to become a participant in the NDIS involves a consideration of these questions:
(i)Does the applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments, or one or more impairments to which a psychosocial disability is attributable, within the meaning of s 24(1)(a) of the NDIS Act?;
(ii)Are the impairment or impairments likely to be permanent within the meaning of s 24(1)(b) of the NDIS Act?;
(iii)Have the impairment or impairments resulted in substantially reduced functional capacity to undertake relevant activities within the meaning of s 24(1)(c) of the NDIS Act?;
(iv)Do the impairment or impairments, affect the applicant’s capacity for social or economic participation within the meaning of s 24(1)(d) of the NDIS Act?;
(v)Is the applicant likely to require support under the NDIS for their lifetime within the meaning of s 24(1)(e) of the NDIS Act?; and
(vi)Does the applicant meet the early intervention requirements within the meaning of s 25 of the NDIS Act?
The criteria in each of the ss 24(1) and 25(1) of the NDIS Act are cumulative. Accordingly, all of the requirements in either of those sections of the NDIS Act must be satisfied to enable a person to become a NDIS participant. Under s 209 of the NDIS Act, the Minister has made rules about becoming a participant in the scheme. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (“the NDIS Rules”) are relevant to this case. The NDIS Rules form part of the legislation. Under r 5.8 of the NDIS Rules, the decision maker must assess the effect of a person’s impairment on the performance of each of the NDIS activities. This is set out in s 24(1)(c) of the NDIS Act. If the result is any of the outcomes which are specified in r 5.8(a), (b) or (c), then the deeming effect of r 5.8 will apply.
The CEO of the NDIA has made Operational Guidelines for staff in exercising their functions under the NDIS Act. The Operational Guideline – Applying to the NDIS provides information and guidance regarding the disability requirements and the early intervention requirements and will be referred to later in this decision.
CONTENTIONS
In its pre-hearing statement of facts, issues and contentions, the Agency submitted that NSGL does not meet the disability requirements under s 24 of the NDIS Act because the Tribunal cannot be satisfied that:
(i)her impairments are, or are likely to be permanent, specified in s 24(1)(b) of the NDIS Act;
(ii)her impairments result in substantially reduced functional capacity to undertake one or more of the activities specified in s 24(1)(c) of the NDIS Act; and
(iii)she is likely to require support under the NDIS for her lifetime, specified in s 24(1)(e) of the NDIS Act.
The essence of this submission was that the Tribunal cannot be satisfied that the impairments are permanent or likely to be permanent. The Agency contended that, pursuant to the NDIS Rules and Operational Guidelines, the evidence does not establish that there are no known, any available and appropriate treatments which would be likely to remedy the impairment.
Similarly, the Agency’s contention about the early intervention requirements under s 25 of the NDIS Act was based on the proposition that the Tribunal should not find that the impairments are, or are likely to be, permanent for the purposes of s 25(1)(a) of the NDIS Act. Alternatively, if the permanency criterion is satisfied, early intervention support is not appropriately funded or provided through the NDIS for the purposes of s 25(3) of the NDIS Act because:
(i)the NDIS will not be responsible for early intervention supports related to mental health that are clinical in nature for child and adolescent developmental need
(ii)the NDIS is not the most appropriate support system to fund psychology therapy to address NSGL’s impairments
(iii)the NDIS is not responsible for supports that primarily relate to educational attainment
At the hearing, Counsel for the Respondent indicated in his opening address that the Agency continues to rely on its statement of facts, issues and contentions.
In NSGL’s written application to the Tribunal, it was claimed that the Agency’s decision to decline access to the NDIS was wrong because:
(i)NSGL’s additional needs are severe and their impact on her daily functioning had not been properly considered;
(ii)NSGL has required support for speech and language difficulties which are permanent and within the “severe range”;
(iii)the NDIS is concerned with a person’s functioning and she is currently struggling to function in all areas of day-to-day activities; and
(iv)all avenues through the health system and school system had been exhausted to the point that intervention and help through the NDIS is required because - “if she doesn’t get help now she will no doubt be accessing the scheme further down the track when her capacity declines further along with her mental health and well-being.”[4]
[4] Exhibit R1, p 5.
EVIDENCE
NSGL’s mother provided a written statement,[5] which was prepared in conjunction with her partner and gave oral evidence at the hearing. In the written statement, she referred to her daughter having diagnoses of dyslexia, dyscalculia, developmental language disorder, specific learning disorder and post-traumatic stress disorder. She described the functional impact on her daughter’s well-being and functioning as ‘significant’. Apart from the postal traumatic stress disorder, her daughter’s other issues were evident from an early age. Efforts were made to assist her through enhanced primary health care plans, privately funded assessments and interventions.
[5] Exhibit A7.
A current concern relates to NSGL’s problems in the education system as her enrolment in a secondary college was terminated at the end of 2022 and the expulsion from that school has had a negative impact on her mental health. It is apparent from a letter written by the school on 30 September 2022 that the decision to discontinue her enrolment arose out of a series of problems in challenging behaviours which included a history of non-cooperation with staff, conflict with peers, absence from classes, and refusal to comply with the school’s uniform policy. In evidence, NSGL’s mother told the Tribunal that her daughter has been enrolled in another school from the beginning of this year. The new school, which is aware of her education history, has capacity to provide extra learning opportunities for students with specialised needs and NSGL’s mother is hopeful that the transition will be successful.
In the written statement, NSGL’s mother referred to her daughter as having post-traumatic stress disorder arising out of abuse which occurred several years ago. In 2022, on three occasions, NSGL was taken to hospital, by ambulance due to mental health issues. Those issues were summarised in a report by Ms KW, a clinical psychologist. KW. Ms KW described NSGL as suffering from significant trauma, which arose from abuse and violence and in turn, required child protection authorities and police to conduct investigations. The residential and family situation in place at the time of the abuse came to an end in 2017, which removed the opportunity for the abuse to continue.
Within the documentary evidence, notes by a nurse consultant from the Emergency Mental Health Service,[6] summarised details of the emergency risk assessment by a Psychiatric Registrar in May 2022. Those notes referred to NSGL’s presentation and problems dealing with a background of complex trauma and the severe emotional effects it was having. It appears that the mental health service plan on those occasions included discharge of her care to her parents with recommendations that included referral to a psychologist because she is “at a chronic risk of mood dysregulation, best addressed by fostering consistent emotional and psychological supports.”[7]
[6] This is a division of the SA Child & Adolescent Mental Health Service.
[7] Exhibit A5.
NSGL’s developmental issues and challenging behaviours are concerning for her mother and other members of the family, particularly with regard to absconding from home which is a continuing problem and has progressively worsened. Notably, NSGL’s absconding from school, particularly last year, was a cause of concern. NSGL’s mother told the Tribunal about other problems at school, which involved abuse and bullying of her daughter on social media.
In evidence, NSGL’s mother discussed the therapeutic supports which are planned for her NSGL this year. Those supports include fortnightly speech therapy to be conducted in each school term by a speech pathologist, Ms FM, to address developmental language issues and social issues. It is anticipated that NSGL will receive psychology assistance from a psychologist, Ms KM, with three scheduled appointments having a focus on emotional regulation. Due to financial constraints and also the question of how much therapy can be usefully implemented concurrently, NSGL’s mother tries to prioritise the particular therapeutic supports for her daughter to access. For example, recommendations from an occupational therapy assessment cannot be implemented presently because of the cost. Although her daughter has problems with eating, which include refusal to eat in the presence of other people, those difficulties are addressed at home and not, at this stage, with external support.
A support worker, Mr PF, gave oral evidence about his support to NSGL, which seems to consist of having regular meetings to discuss issues that she wants to discuss confidentially. Those meetings have taken place over the past three years. Mr PF summarised the issues as social skills, difficulties with schooling, interactions with family and making and maintaining friendships. He noticed a decline in her mental state last year.
On 6 October 2020, prior to the NDIS access request, the speech pathologist, Ms FM conducted a communication assessment of NSGL, when she was 12 ½ years old. A second assessment took place on 19 May 2022 when NSGL was 14 years old.
In her report of the first assessment,[8] Ms FM determined that NSGL had a moderate to severe developmental language disorder. NSGL’s core language capacities were within a moderately impaired range; her receptive language skills were assessed in the moderate to severe range, while her expressive language skills were assessed as moderately impaired. These deficits meant that she is likely to struggle with comprehension and expression of both spoken and written information. Ms FM wrote that developmental language disorder is regarded as a disability that may affect literacy, learning, friendships and emotional well-being. It was reported to her that NSGL had a history of problems at home and at school with literacy, learning, and social and emotional issues. Ms FM referred to the results of a psychological assessment conducted by Ms KW in June 2020. It was in that psychological assessment that NSGL was found to have a specific learning disorder involving dyslexia and dyscalculia. Ms FM referred to research which indicates that close links exist between developmental language disorder and dyslexia.
[8] Exhibit R1, p 15.
In her second report,[9] Ms FM assessed that the “gap” had not closed in NSGL’s language abilities in comparing the test results in 2020 with the test results in 2022. She commented that “specific and specialised intervention” is required to reduce the gap. She considered that this type of intervention is “outside the scope of what a traditional education setting can provide”. Instead, she recommended specialised speech pathology as soon as possible to focus on NSGL’s auditory processing, vocabulary development, formulation of spoken language and language organisation.
[9] Exhibit A5.
A report[10] written by a speech pathologist, Ms CN indicated that NSGL was receiving speech therapy towards the end of 2020 for a moderate – severe developmental language disorder. That disorder was characterised by social communication difficulties with impacts in “perspective taking, reading non-verbal language, making inferences and engaging in interpersonal negotiation…[NSGL] experiences ongoing challenges with comprehension and expression of both spoken and written information.” In the first school term of 2021, NSGL was accessing weekly school sessions at the school that she was attending at that time. Ms CN confirmed that NSGL had moderate-severe receptive language difficulties and moderate expressive language difficulties for which she recommended weekly speech pathology to address social and communication capacity, language and literacy skills. Without that support NSGL’s wellbeing and mental health would be at risk.
[10] Exhibit A3.
A psychological assessment was completed by a clinical psychologist, Ms KW when NSGL was aged 12 years and 1 month and in year 7 at school. It was a psychoeducational assessment which was conducted on one occasion at school without subsequent provision of treatment.[11] Ms KW wrote a detailed report[12] on 26 June 2020, which provided an extensive background history and details of the psychological assessment. The report included results of tests of NSGL’s intellectual functioning and academic functioning. Within the subtests for academic functioning, measurements and assessments were conducted in oral language, reading, mathematics and written expression. The data from the assessments led Ms KW to conclude that NSGL’s cognitive profile is consistent with specific learning disorder in reading and in mathematics. She made numerous recommendations which provided guidance for NSGL’s teachers, school administrators and parents pursuant to the Australian Disability Standards for Education (2005), concerning students with learning disabilities. In her interpretation of NSGL’s psychology assessment results, Ms KW noted both strengths and problem areas. NSGL’s cognitive functioning was in the average range compared with similarly aged peers and she has the intellectual ability to succeed in class. Her unique challenges arise in working memory skills which, in turn, underpin learning and consolidation of academic skills. Working memory is also co-related with capability in literacy and numeracy. Ms KW added:
all students with a weakness in the working memory experience difficulties in the classroom because they have great difficulty with attention, concentration, remembering instructions, retaining letter to sound blends, calculating mental arithmetic, memorising tables, and recalling numbers for mathematical calculations. This too was consistent with information contained in her school reports and how [NSGL] currently presented within her learning environment. [13]
[11] Exhibit R2, p 211.
[12] Exhibit R1, p 21.
[13] As above, p 27.
Consistent with the psychological profile which Ms KW described, a “school individual learning plan”[14] written on 17 August 2020, noted that NSGL has:
…demonstrated a strength in her ability to detect underlying conceptual relationships among visual objects and to use reasoning to identify and apply rules, while she has demonstrated significant weaknesses in her ability to actively attend to primarily auditory information, and maintain the information in her conscious awareness (short-term memory). Due to the weakness in her working memory [NSGL] will experience difficulties with attention, concentration, remembering instructions, relating letter to sound blends, calculating mental arithmetic, memorising tables and recalling numbers for mathematic calculations.
[14] Exhibit A2.
In the meantime, NSGL’s general medical practitioner, Dr JD, authorised a mental health care plan[15] which commenced in May 2020. Dr JD recorded NSGL’s problem/diagnosis as “adjustment disorder with concern about underlying ASD.” Dr JD referred NSGL for an initial six sessions of psychology to her clinical psychologist, Ms KM. At that time, NSGL was in year 7 at school and the patient assessment in the mental health care plan stated that she showed signs of social withdrawal, poor social skills and emotional dysregulation. An assessment for autism spectrum disorder was to be arranged with another doctor.
[15] Ibid.

On 24 March 2021, an occupational therapy assessment conducted by Ms OZ[16] found NSGL to be in the below average range in manual control and manual coordination, body coordination, strength and agility. However, within the fine manual component, NSGL was noted to have performed quite well and that may reflect her interest and skill in drawing and art. Recommendations from Ms OZ’s report included sensory integration therapy, paired with physical activities at home and liaising with the school to coordinate and assist her development at school.
[16] Ibid.
NSGL’s school individual learning plan[17] dated 6 May 2021 was similar to her previous plan in August 2020. In addition, NSGL’s plan dated 6 May 2021, noted her diagnosis of developmental language disorder and her struggle to understand spoken and written instructions along with motor and sensory challenges. This affects NSGL’s daily living skills.
[17] Exhibit A4.
Dr Wood is a consultant neuropsychologist with considerable experience in clinical practice, executive management in mental health services, academic appointments and author in peer reviewed journals. At the request of the Agency’s solicitors, he examined the medical and allied health reports, school documents and associated material regarding NSGL. Based on his assessment of the papers provided to him, he provided a neuropsychological report dated 14 September 2021.[18]
[18] Exhibit R3.
In his report, Dr Wood commented on NSGL’s current diagnosis and symptoms. Based on the material with which he was provided, he noted them as specific difficulties with regard to mathematical processes, social perception and social interactions, emotional problems from early trauma in her home, and a provisional diagnosis by her general medical practitioner of ASD. Dr Wood referred to NSGL’s inability to interpret social situations appropriately, a lack of insight into her own interactive behaviour, and her working memory which is very limited. He wrote that her cognitive deficits are consistent with a diagnosis of ASD, although the effects of the emotional trauma cannot be discounted.
In his report, Dr Wood considered that some of the findings by the psychologist, Ms KW are not consistent with a view that NSGL has dyslexia or that she has a significant reading impairment. He considered that she has a combination of significant cognitive difficulties in mathematics which can be described as dyscalculia. He noted the problem/diagnosis which Dr JD recorded in NSGL’s mental health care plan as an “adjustment disorder with concern about underlying ASD.”[19] She was referred to a psychologist, Ms KM with regard to a history of physical and psychological abuse. The symptoms of ASD included heightened anxiety and difficulty in social situations, limited social skills with peers, and an inability to self-monitor her own interactive behaviour. In relation to neuropsychological functioning, Dr Wood commented that children with ASD often have difficulty with “limited working memory, attenuated executive functioning, poor social cognition characterised by poor social communication and poor social interaction.”[20] Dr Wood’s impression from a literature review together with the results from the psychological assessment, led him to conclude that NSGL’s cognitive deficits are consistent with a diagnosis of ASD. Dr Wood noted that the speech pathologist, Ms CN assessed that NSGL has a moderate to severe developmental language impairment which was not entirely consistent with the psychologist’s test results. In his view the difficulties which NSGL has in social communication, non-verbal language and interpersonal issues may have explanations other than a developmental language disorder.
[19] Exhibit A2.
[20] Exhibit R3.
In oral evidence, NSGL’s mother told the Tribunal that her daughter had undertaken a screening test with a psychologist which was negative for autism spectrum disorder.[21]
[21] Transcript p 22-23; p 40.
CONSIDERATION
The concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24 of the NDIS Act. In Mulligan v National Disability Insurance Agency,[22] the Federal Court stated:
No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments 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.[23]
[22] [2015] FCA 544.
[23] As above, at [56] (Mortimer J).
In NSGL’s written application form to become a NDIS participant, speech pathologist, Ms FM described NSGL’s primary impairment as a developmental language disorder which was permanent since birth and moderate to severe in its impact. Two other impairments were noted. One of them was NSGL’s specific learning disorder with impairments in reading (dyslexia) and in mathematics (dyscalculia). Ms FM described these impairments as permanent and in a severe range. The other impairment was an adjustment disorder, and it was noted that the mental health care plan was in place.[24]
[24] Exhibit R1, p 40
S 24(1)(a) of the NDIS Act specifies that a person meets the disability requirements for a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or that the person has one or more impairments to which a psychosocial disability is attributable. The Agency was satisfied on internal review that NSGL’s impairments attributable to developmental language disorder and specific learning disorder met the criteria in s 24(1)(a) of the NDIS Act.
The speech pathology assessments by Ms FM resulted in a finding that NSGL has a moderate – severe developmental language disorder. According to Ms FM, there is no single, definitive cause which can be identified. She wrote that the likelihood is “a constellation of genetic, biological and cognitive weaknesses that are influenced by environmental experiences.”[25] This was also confirmed in a report written by speech pathologist, Ms CN on 16 April 2021.[26]
[25] Exhibit A5
[26] Exhibit A3.
The Tribunal was provided with an informative document published by Auspeld - Understanding Learning Difficulties,[27] which defined developmental language disorder as follows:
…difficulties with language development that endure into middle childhood and beyond, with a significant impact on everyday social interactions, emotional well-being, behavioural regulation and educational progress. It is characterised by difficulties understanding and using words and sentences to express meanings, which are unlikely to resolve without specialist support.
[27] Exhibit A5.
Following psychological assessment, Ms KW concluded that NSGL has a specific learning disorder with impairments in reading (dyslexia) and impairments in mathematics (dyscalculia). According to Ms KW, the cause of the impairments was believed to be associated with neurological differences in the brain and there was evidence of it being familial because of a maternal family history of dyslexia.
In her first report, Ms FM wrote that there are close links between developmental language disorder and dyslexia. She cited literature in support of that proposition. Specifically, she noted that the language results on her testing of NSGL combined with the results of her psychological testing by Ms KW tended to confirm the presence of those links affecting her in her school and in her communications and social interactions with peers, both at school and in the community. Dr Wood’s interpretation of the results of the psychology assessment indicated to him that NSGL’s oral language and total reading were both at an average level. The testing included listening comprehension, reading comprehension, sentence comprehension, word reading, oral expression and oral reading fluency. He concluded that those results did not indicate that she has dyslexia or that she has a significant reading impairment. He expressed that view in his written report and he confirmed it in his oral evidence. Both in his report and in his evidence in relation to dyscalculia, he noted the test results and agreed that NSGL has a deficit in mathematical skills which are significant and satisfied him that she has dyscalculia.
In a letter dated 16 June 2021, Ms KW confirmed that her role was for the purpose of a psychoeducational assessment and she met with NSGL at school on one occasion only to undertake the assessment. She has not been involved in providing treatment.[28] While her assessment report written on 26 June 2020 included a summary of the trauma and abuse which NSGL had suffered poor to mid-2017, it did not include any findings which Ms KW made about an adjustment disorder. The report noted that NSGL had been diagnosed with an adjustment disorder in May 2020. That would be a reference to the GP mental health care plan prepared by Dr JD.[29] it was noted that NSGL was seeing a psychologist under the mental health care plan at that time. That would be a reference to the psychologist, Ms KM. In his assessment on the papers, Dr Wood accepted the diagnosis of adjustment disorder
[28] Exhibit R2, p 211.
[29] Exhibit A2.
The Tribunal is not satisfied that there is sufficient evidence about autism spectrum disorder to determine that it is an impairment for the purposes of s 24(1) (a) of the NDIS Act. The evidence about it has been summarised above and it is sparse. The evidence comprises a note by the general medical practitioner, Dr JD, expressing concern in May 2020 about “underlying ASD”. It was understood by the clinical neuropsychologist, Dr Wood, in his review on the papers in September 2021, as a provisional diagnosis. In addition, the evidence from NSGL’s mother is that a psychology screening test for ASD was arranged and it was negative. The totality of that evidence is not enough to find that NSGL has autism spectrum disorder.
On consideration of the evidence about her learning difficulties, the Tribunal is satisfied that NSGL has a specific learning disorder from the impairment of dyscalculia. However, Dr Woods’ evidence is persuasive in casting significant doubt about the presence of dyslexia.
The Tribunal is satisfied on the evidence NSGL has a disability and meets the requirements under s 24(1) a) of the NDIS Act. Specifically, NSGL has impairments which are a developmental language disorder, a specific learning disorder in dyscalculia and an adjustment disorder.
The next step is to decide whether NSGL meets the requirements regarding permanency.
PERMANENCE – S 24(1)(b) NDIS Act
S 24 (1) b) of the NDIS Act requires that a persona meets the disability requirements if the “impairment or impairments are, or are likely to be permanent”.
The provisions in s 24(2) of the NDIS Act address the permanency of impairments that vary in intensity while ss 24(3) and (4) of the NDIS Act deal with episodic or fluctuating impairments.
In deciding whether an impairment is permanent or likely to be permanent for the purposes of the disability requirements of s 24(1)(b), the Tribunal must address the requirements of the NDIS’s Rules, in particular Rule 5.4 and Rule 5.6, which are recited below in paragraphs 54 and 60.
In National Disability Insurance Agency v Davis (“Davis”),[30] the Federal Court explained the meaning of “permanent” in s 24(1)(b) of the NDIS Act as follows:
“The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. “[31]
[30] [2022] FCA 1002 (Mortimer J).
[31] As above at [130] (Mortimer J).
Developmental language disorder
In the access request form, the speech pathologist, Ms FM, wrote that NSGL’s primary impairment is a developmental language disorder which has been permanent since birth. As an impairment that is likely to be life long, Ms FM wrote that NSGL will require supports in literacy, learning, friendships, emotional well-being and employment.
The speech pathology report[32] written by Ms CN in April 2021, confirmed the developmental language disorder without addressing the question of permanency. In the report written in May 2022, Ms FM[33]confirmed that that NSGL’s developmental language disorder is a lifelong permanent disability that has been present since birth. She commented that NSGL has struggled with receptive and expressive language since the time she could speak.
[32] Exhibit A3.
[33] Exhibit A5.
The Tribunal is satisfied that NSGL’s impairment of developmental language disorder is a permanent in accordance with s 24(1) of the NDIS Act.
Specific learning disorder
The clinical psychologist, Ms KW, has not provided treatment for NSGL’s specific learning disorder with impairments in dyslexia and dyscalculia. Ms KW’s report[34] was written on 26 June 2020. It included a series of detailed recommendations to address NSGL’s difficulties with working memory, reading, spelling and mathematics. Those recommendations were directed to her teachers to provide them with guidance about the learning disorders and the practical strategies which teachers could implement to support NSGL. Ms KW concluded that NSGL has positive attributes with potential to “do well in a learning environment where her teachers understand and can accommodate her needs.” [35]
[34] Exhibit A1, p 21.
[35] As above, p 31.
NDIS Rule 5.6 states that:
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).
The Federal Court in Davis[36] proceeded on the basis that NDIS Rule 5:6:
…prescribes circumstances where, if the repository of the power is satisfied on the evidence of the applicability of that rule, a person’s impairment will be excluded from meeting s 24(1)(b) Like r 5.4, r 5.6 directs attention to a negative state of fact – whether an impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. To be clear, although these rules are expressed in objective terms, their purpose is to guide the repository’s formation of a state of satisfaction for the purposes of s 21 (1) (c) of the NDIS Act; namely that the repository (here the Tribunal):
is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24)…[37]
[36] [2022] FCA 1002.
[37] As above at [158].
Ms KW’s report does not address the question of permanence of the specific learning disorder. It addresses the question of the cause of the disorder, the type of learning disorder, the nature of the impairments and the need to create an informed learning environment in which NSGL receives professional support to improve her working memory, reading, spelling and mathematics. The speech therapist, Ms FM, referred to the specific learning disorder in two written reports. In the access request form, Ms FM wrote that the specific learning disorder is permanent while also referring to the psychology assessment by Ms KW regarding treatment. Clearly, Ms FM drew upon the psychological assessment conducted by Ms KW and its findings about the specific learning disorder. However, those findings by the psychologist did not incorporate any detail about the permanency or likely permanency of the impairment. Moreover, the psychology assessment was clearly the first step in in the process of assessment and possible intervention. It was requested by the school which NSGL was attending at that time to assist the school to support her concerning her learning difficulties.
The specific learning disorder in dyscalculia requires further review before deciding whether it is permanent or likely to be permanent. In accordance with NDIS Rule 5.6, the specific learning disorder in dyscalculia can be assessed as permanent or likely to be permanent only if it does not require further medical treatment or review. Further review by a psychologist or other, appropriate expert would be required to enable the Tribunal to be satisfied about the permanency or likely permanency of NSGL’s dyscalculia.
Adjustment disorder
Pursuant to the mental health care plan that Dr JD created in May 2020, NSGL was referred to a clinical psychologist, Ms KM. The only evidence about those consultations is contained in a one-page email dated 3 December 2020, which was sent by Ms KM to NSGL’s mother. It was a brief summary of the latest consultation. Subsequent to those sessions, NSGL received psychological intervention from another practitioner. This comprised of fortnightly sessions, which included a focus on socialisation. NSGL has discontinued therapy with that psychologist and recently recommenced consultations with Ms KM. NSGL’s mother gave evidence of her impressions about the psychology interventions. She supported her daughter to attend and to engage with the psychologists. It is evident that NSGL’s mother has a positive approach to ensuring NSGL has access to appropriate, professional support.
Correspondence from the Emergency Mental Health Service of the Women’s & Children’s Health Network in February 2022 and May 2022 included details of a risk assessment completed by a Psychiatry Registrar.[38] The assessment included information about the background of complex trauma and disrupted attachment with the impression that NSGL is at chronic risk of mood dysregulation, which requires consistent emotional and psychological support. At that time, the discharge plan included a recommendation that NSGL link with a new psychologist.
[38] Exhibit A5.
NDIS Rule 5.4 states that:
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.
In Davis, the Federal Court discussed “remedy” and explained it as follows: [39]
In this context, “remedy” 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, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.
[39] [2022] FCA 1002 at [136].
Dr Wood considered that NSGL’s adjustment disorder could be treated with cognitive behaviour therapy, in accordance with research to that effect. In view of the availability of treatment, he considered that the disorder cannot be regarded as permanent. His expert evidence is the only evidence before the Tribunal in relation to treatment for the adjustment disorder. The Tribunal accepts the evidence of Dr Wood. The Tribunal accepts that there are known, available and appropriate evidence-based clinical, medical treatments available to NSGL for her adjustment disorder.
Permanence - summary
The Tribunal finds that NSGL does not have an impairment or impairments that are or are likely to be permanent within the meaning of s 24 (1)(b) of the NDIS Act and the NDIS Rules arising out of her specific learning disorder and adjustment disorder.

The Tribunal finds that NSGL has an impairment that is or is likely to be permanent within the meaning of s 24(1)(b) of the NDIS Act and the NDIS Rules arising out of her developmental language disorder.
REDUCED FUNCTIONAL CAPACITY
The next step is to decide whether NSGL meets the requirements which are set out in s 24 (1) (c), (d) and (e) of the NDIS Act in relation to developmental language disorder.
Section 24(1)(c) of the NDIS Act - Whether the impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management
Each of the activities specified in s 24(1)(c) NDIS Act and their impact on functional capacity will be examined in relation to NSGL’s impairment.
The legislation requires:
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.[40]
[40] Mulligan v NDIA [2015] FCA 544 at [55].
It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity ‘if the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates’.[41]
[41] Ibid, at [67].
In considering when an impairment results in substantially reduced functional capacity to undertake relevant activities, r 5.8 of the NDIS Rules provides that:
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 NDIS 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 NDIS 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.
In considering when an impairment results in substantially reduced functional capacity, the Agency’s Operational Guideline states that an impairment substantially reduces functional capacity if the person usually needs disability-specific supports to participate in or complete tasks of daily living. Those disability-specific supports include:
·a high level of support from other people, such as physical assistance, guidance, supervision or prompting
·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional. “[42]
[42] At p 9.
Section 24(1)(c)(i) of the NDIS Act – Communication
The Agency’s Operational Guideline refers to communication such as: “how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.”
In the access request form, Ms FM referred to the communication assessments in support of the formulaic response that NSGL needs assistive technology and assistance from other persons with regard to communication. Ms FM confirmed that NSGL has struggled with comprehension and expression of both spoken and written information. In struggling with sentence formulation, NSGL will have difficulty expressing thoughts orally and on paper.
In her second report,[43] Ms FM addressed the functional impact of the developmental language disorder in relation to NSGL’s communication. She acknowledged that the problem affects NSGL’s social capacities and confidence levels; she will remain non-verbal and use body language at times when she is not able to formulate or sustain a spoken conversation; she may have difficulty fully comprehending conversation others and retreat into herself in those situations; impacts on written work may include difficulty with formulating sentences and using appropriate, expressive vocabulary. Ms CN noted in her report that NSGL is faced with challenges in comprehension and expression of spoken and written information.[44]
[43] Exhibit A5.
[44] Exhibit A3.
The Tribunal accepts that NSGL has difficulties with communication which arises out of her developmental language disorder. Those problems affect the ways in which she expresses herself in speech, in writing and in gestures. Those problems are evident at school and social situations outside school. While those difficulties are significant, the Tribunal is not satisfied that there is sufficient evidence to conclude that she has a substantially reduced functional capacity to communicate within the meaning of s 24(1)(c)(i) of the NDIS Act.
Section 24 (1)(c)(ii) of the NDIS Act – Social Interaction
The Agency’s Operational Guideline refers to socialising as
how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In her second report,[45] Ms FM wrote that NSGL’s difficulty with communication has an impact on her confidence, mental health and social interactions. She has a tendency to disengage from social situations because of a reduced capacity to use appropriately framed language. Similarly, Ms CN reported that NSGL has little awareness of the deficits in her social-communication skills. A focus in the speech therapy between late 2020 and early 2021 was the development of “social thinking capacities and emotional regulation.”[46] Ms CN reported that NSGL was making slow but steady gains and progress as a result of the speech therapy.
[45] Exhibit A5.
[46] Exhibit A3.
The Tribunal is satisfied on the evidence that NSGL’s developmental language disorder has had an adverse impact on her capacity for social interaction. However, the Tribunal is not satisfied that it is to the extent of causing a substantially reduced functional capacity for social interaction within the meaning of s 24(1)(c)(ii) of the NDIS Act.
Section 24(1)(c)(iii) of the NDIS Act – Learning
The Agency’s Operational Guideline refers to learning as “how you learn, understand and remember new things, and practise and use new skills.”
In her second report,[47] Ms FM commented that NSGL is disengaged from the learning process, and is frequently upset by challenges at school with the risk that she might withdraw from school prematurely. Similarly, in her report dated 16 April 2021, Ms CN considered that NSGL’s difficulties with receptive language and expressive language impact her academic performance.[48]
[47] Exhibit A5.
[48] Exhibit A3.
The Tribunal accepts that NSGL has problems with learning that are attributable to her developmental language disorder. However, the Tribunal is not satisfied that there is satisfactory evidence of a substantially reduced functional capacity in learning as required by s 24(1)(c)(iii) of the NDIS Act.
Section 24 (1)(c)(iv) of the NDIS Act – Mobility
The Agency’s Operational Guideline refers to mobility as:
how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
Ms FM suggested that NSGL has limitations in developing motor skills and participating in sports because of problems comprehending language and instructions associated with participating in the activity.
The evidence about impact on mobility is limited. The Tribunal is not satisfied that there is sufficient evidence to determine that there has been a reduction in mobility, and certainly not a deficit that amounts to a substantial reduction. The Tribunal finds that the criterion in s 24(1)(c)(iv) of the NDIS Act is not met.
Section 24(1)(c)(v) of the NDIS Act – Self Care
The Agency’s Operational Guideline refers to self-care as meaning:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Ms FM wrote that NSGL “is still highly dependent on her mum for self-care, particularly pertaining to organisational issues. [NSGL] struggles to sequence her thoughts and organise herself using internal “self-talk”, requiring her to need an “orchestrator” to oversee and conduct the business of her day-to-day self-care (dressing, personal hygiene, preparation for school).”[49] While the Tribunal accepts that observation, in the absence of any other cogent evidence on this point, the Tribunal is not satisfied that NSGL’s impairment has resulted in a substantially reduced functional capacity in self-care within the meaning of s 24(1)(c)(v) of the NDIS Act.
[49] Exhibit A5.
Section 24(1)(c)(vi) of the NDIS Act – Self-management
The Agency’s Operational Guideline refers to self-management as:
how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
The Tribunal notes that Ms FM commented in the access request form that NSGL will need ongoing support with money and time management. However, there is insufficient evidence to conclude that NSGL’s developmental language disorder has an impact on her ability to self-manage to the degree that it is a significantly reduced functional capacity. The Tribunal is not satisfied that the requirement in s 24(1)(vi) of the NDIS Act is met.
Section 24 (1)(c) of the NDIS Act Summary
The Tribunal has considered the factors set out in NDIS Rule 5.8 and is satisfied that NSGL does not fall within any of the sub paragraphs demonstrating substantially reduced functional capacity. The Tribunal is not persuaded that she has an inability to participate effectively or completely in the relevant activity without assistive technology, equipment or home modifications. The evidence does not support a conclusion that she usually requires assistance from other people to participate in the relevant activity. She participates in relevant activities and performs tasks or actions without assistive technology, equipment, home modifications or assistance from others. In Kilgallin and National Disability Insurance Agency,[50] the Tribunal pointed out that:
a failure to fall within the provisions of Rule 5.8 of the Becoming a Participant Rules 2016 does not define all the circumstances in which a person might have a substantially reduced functional or psychosocial lack of capacity: per Mortimer J in Mulligan v NDIA [2015] FCA 544 at [77]. But it certainly guides the Tribunal to the kinds of factors which need to be considered in deciding whether a person has reduced capacity.[51]
[50] [2017] AATA 186.
[51] As above at [26].
Section 24(1)(c) of the NDIS Act specifies that a person’s impairment must result in a substantially reduced functional capacity, or psychosocial functioning in undertaking one or more of the specified activities. In this case, in reference to each of the legislative criteria set out in s 24(1)(c) of the NDIS Act and in reference to each of the deeming provisions in Rule 5.8 of the NDIS Rules, the Tribunal is satisfied that NSGL does not meet the criteria in any of them. Accordingly, the Tribunal concludes that she does not meet the requirements under s 24(1)(c) of the NDIS Act.
As NSGL does not meet the requirements of s 24(1)(c) of the NDIS Act to become a participant in the NDIS, it is not necessary for the Tribunal to decide whether she meets the criteria in s 24(1)(d) & (e) of the NDIS Act.
DISABILITY REQUIREMENTS - CONCLUSION
NSGL meets the age requirements under s 22 of the NDIS Act and the residence requirements under s 23 of the NDIS Act. NSGL meets the requirements under s24(1)(a) & (b) of the NDIS Act, however she does not satisfy the requirements under s 24(1)(c) the NDIS Act. NSGL must satisfy all the requirements in s 24(1) of the NDIS Act in order to meet the disability requirements. Accordingly, she does not fulfil the disability access criteria to become a NDIS participant.
EARLY INTERVENTION REQUIREMENTS
S 2.5(b) of the NDIS Rules includes the following passage about the rationale for the early intervention requirements as an alternative to accessing the scheme through the disability requirements:
A person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person’s impairment over time and the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity.
Section 25 of the NDIS Act sets out the requirements for access to the NDIS under the early intervention criteria.
The Tribunal has already determined that NSGL has an impairment that is or is likely to be permanent within the meaning of s 24(1)(b) of the NDIS Act and the NDIS Rules arising out of her developmental language disorder. It follows that she meets the early intervention requirement under s 25(1)(a) of the NDIS Act for an impairment that is or is likely to be permanent.
The Operational Guideline explains that early intervention can be for both children and adults. An NDIS participant under the early intervention requirements is likely to have support needs that will change with the likelihood of reduced need for disability supports in the future. Accordingly, the Agency will regularly check eligibility during the reassessment of the NDIS plan and, according to the Operational Guideline, at other times as well.
In deciding whether early intervention supports for NSGL are likely to benefit her, the Tribunal should consider matters set out in NDIS Rule 6.9 which are:
(a) the likely trajectory and impact of the impairment over time
(b) the potential benefits of early intervention on the impact of the impairment on functional capacity and reducing future needs for supports
(c) evidence from a range of sources including family members, carers and expert opinion
Section 25(1)(b) of the NDIS Act - Whether the provision of early intervention supports for NSGL is likely to benefit her by reducing her future needs for supports in relation to her disability
The Auspeld document which was referred to in paragraph 38 of these reasons, noted that the trajectory for developmental language disorder may be into middle childhood and beyond. An article “How We Fail Children with Developmental Language Disorder”,[52] included extensive review of research and literature of neurodevelopmental conditions, commenting that the disorder is a condition that emerges in early childhood and frequently persists into adulthood. The author commented that viewing developmental language disorder as:
a delay that a child will eventually grow out of it is wrong. Although some children do catch up to peers during their preschool years, those who present with DLD upon school entry are likely to manifest symptoms as adults… Like ADHD and ASD, DLD can be a lifelong disorder. Moreover, viewing DLD or any other developmental disorders of learning and communication as solely an educational problem does not reflect advances in our understanding of the neural basis of these disorders.[53]
[52] Exhibit A5.
[53] At p 988.
Ms FM’s assessment of NSGL’s language involved the use of a clinical tool, the Clinical Evaluation of Language Fundamentals 5 - Australian and New Zealand Addition (“CELF – 5”). There was a gap between the results of the testing in 2020 and the results in 2022. The gap had not closed. Ms FM recommended “specific and specialised intervention” and without it, the gap is likely to widen further. She recommended “specialised assistance from a speech language pathologist to assist in the areas of auditory processing, vocabulary development, formulation of spoken language and language organisation…” [54] Ms CN reported that NSGL requires continuing speech pathology for 45 minutes weekly to address issues with social interaction, communication, language and literacy skills.[55]
[54] Exhibit A5.
[55] Exhibit A3.
Based on the assessment and recommendations by the speech pathologists, Ms FM and Ms CN, the Tribunal is satisfied that early intervention supports which they recommend are appropriate because they are likely to benefit NSGL and reduce her future need for supports regarding the developmental language disorder.
Section 25(c)(i) of the NDIS Act – whether the provision of early intervention supports is likely to benefit NSGL by:
(i)mitigating or alleviating the impact of the impairment upon the functional capacity 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’s, including through building the capacity of the person’s carer
The four criteria in s 25(1)(c) of the NDIS Act are expressed as alternatives so that the level of satisfaction about the provision of early intervention supports must meet only one, but at least one, of the four criteria.
Earlier in these reasons the Tribunal discussed the impact on NSGL’s functional capacity in activities specified in s 24(1)(c) of the NDIS Act.[56] As explained in that part of the reasons, the evidence is sufficient to conclude that NSGL has a reduced functional capacity in communication, social interaction, learning, self-care and self-management. The evidence is insufficient to meet the required criteria for the disability requirements in s 24(1) of the NDIS Act for a reduction in functional capacity that is substantial in any of those activities. The evidence is slight and insufficient to determine any reduction in functional capacity in mobility.
[56] See above at [74]-[91].
Under the early intervention requirements, the Tribunal must consider evidence about the likely benefit of early intervention. The speech pathology reports have already been considered and discussed in detail above. The Tribunal notes that in her second report,[57] Ms FM commented upon the functional impact of NSGL’s developmental language disorder. She summarised the issues as “pervasive” and affecting NSGL in her daily activities. Similarly, Ms CN considered the developmental language disorder had a breadth in its impact on social interactions and communication, well-being, emotional regulation and mental health. Ms CN had already noticed some improvement through speech therapy at that time, in late 2020 and early 2021. Ms FM considered that there would be benefits from specialised, speech therapy to be implemented as soon as possible.
[57] Exhibit A5.
The documentary evidence included school reports and material dating back to 2013. There was a focus over several years at her schools to assess the nature and extent of NSGL’s developmental difficulties and to try to alleviate them in the school setting, particularly through curriculum participation, planning and types of teaching support. Individual learning plans have been in place more recently. The psychology and speech therapy assessments in the last two to three years have provided clarity through diagnosis and direction through recommended interventions.

Predictions are difficult, however the theme of the speech pathology evidence satisfies the Tribunal that the appropriate early intervention will be likely to benefit NSGL by mitigating the impact of her impairment on her functional capacities in her communication, social interaction, learning, self-care and self-management and by improving her functional capacity in those areas. Based on the written reports from Ms FM and Ms CN, the Tribunal accepts that there will be benefits for NSGL through early intervention which would include speech pathology services to address her developmental language disorder.
The evidence before the Tribunal suggests that early intervention services may be most beneficial if they have a primary focus on her difficulties in communication and learning. In turn, the improvement of functional capacity in those two areas may have a positive impact on her capabilities in self-care and self-management. It is of considerable significance in her particular circumstances, that improvements in functional capacity may lead to more constructive and rewarding social interactions, through progress and improvements in her expressive and receptive language.
NSGL’s mother gave evidence at the hearing. Clearly, she is actively involved in the support and care of her daughter. She has conscientiously explored the need for assessment and additional assistance to identify the nature and cause of her daughter’s learning and developmental issues. She has been determined to seek professional assistance for her daughter and to provide support in implementing the recommendations of allied health professionals. She has continued to try to find pathways and solutions while demonstrating considerable flexibility by adapting her thinking and strategies in the ways in which she demonstrates her parental support, by altering the domestic environment and by exploring secondary school options for NSGL. It has been challenging and emotionally draining. The Tribunal is satisfied that the provision of early intervention supports for NSGL will have an important component of strengthening the sustainability of the informal supports which meets the provision of s 25(1)(c)(iv) of the NDIS Act.
The Tribunal is satisfied that the provision of early intervention supports for NSGL’s developmental language disorder meets the requirement of s 25 (1)(c)(i) of the NDIS Act as likely to benefit her by mitigating or alleviating the impact of the impairment on functional capacity to undertake communication, social interaction, learning, mobility, and self-care. The Tribunal is also satisfied that the provision of the early intervention supports is likely to benefit NSGL by improving her functional capacity in those activities of daily living, in accordance with s 25 (1)(c)(iii) of the NDIS Act.
Section 25(3) of the NDIS Act whether the early intervention support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services
Section 25(3) of the NDIS Act applies even if the criteria in s 25(1) and (2) of the NDIS Act are met. That is, NSGL may not meet the early intervention requirements because the supports are not most appropriately funded or provided through the NDIS and are more appropriately funded or provided through other systems or support services.
In its Statement of Facts Issues and Contentions, the Agency asserted that the NDIS is not responsible for early intervention supports related to mental health that are clinical in nature for child and adolescent developmental need. Further, it was contended that the NDIS is not responsible for supports for students that primarily relate to educational attainment.
Ms FM considered that the specialised speech pathology intervention which NSGL requires is not sufficiently provided for in the educational setting. The requirement is for speech pathology, which is evidence-based and should be delivered “in a highly specific and tailored manner.”[58] The Tribunal is satisfied that the speech pathology services which NSGL requires are not confined to services provided within the educational setting for the primary purpose of learning within the school curriculum environment. The required services extend well beyond the school classroom. They are required in relation to addressing the impact of the developmental language disorder in activities of daily living, as described above and as specified in the NDIS legislation. The speech therapy services will hopefully have a positive effect on NSGL’s learning which will assist her at school. However, as the needs arising out of the impairment extend beyond the school environment, the early intervention services which are required will be those that come within the responsibility of the NDIS.
[58] Exhibit R1, p 19.
Summary
In this matter the Tribunal’s finding is that NSGL has a permanent impairment arising from her developmental language disorder. The finding is not that she has a permanent impairment arising out of a specific learning disorder. The finding is not that she has a permanent impairment arising out of an adjustment disorder and autism spectrum disorder.
With regard to her impairment from developmental language disorder, the Tribunal is satisfied that NSGL meets the early intervention requirements under s 25(1)(a)(i), s 25 (b), s 25 (c)(i)(iii) (iv), and s 25(3) of the NDIS Act.
DECISION
The reviewable decision is set aside and substituted by a decision that NSGL meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme in relation to her developmental language disorder.

I certify that the preceding one hundred and thirteen [113] paragraphs are a true copy of the reasons for the decision herein of Member Thompson.

.............[sgnd]...........................
Legal Associate
Dated: 8 June 2023
Date of Hearing: 12 January 2023

Advocate for the Applicant: Self-represented

Advocate for the Respondent:
Mr Ryan Kornhauser

Castan Chambers

[2023] AATA 1572

8 June 2023

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