PRALJAK and NATIONAL DISABILITY INSURANCE AGENCY

[2024] AATA 2685

PRALJAK and NATIONAL DISABILITY INSURANCE AGENCY [2024] AATA 2685 (31 July 2024)

Division:NATIONAL DISABILITY INSURANCE AGENCY DIVISION

File Number:          2021/1929

Re:ADRIAN PRALJAK  

APPLICANT

NATIONAL DISABILITY INSURANCE AGENCYAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:31 July 2024

Place:Brisbane

The decision of the Respondent dated 3 March 2021 is set aside and it is decided in substitution that the Applicant meets the access criteria in s 21(1)(a), (b) and (c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).

...........................[SGD]......................

CATCHWORDS

NATIONAL DISABILITY INSURANCE AGENCY – access criteria – multiple impairments –permanent impairment – whether impairment results in substantially reduced functional capacity – decision under review set aside – decision substituted that applicant meets the access criteria

LEGISLATION

Administrative Appeals Tribunals Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

REASONS FOR DECISION

1.There is an “NDIS access request form” as to the Applicant which has the date on it of 23 September 2020[1].  At part F of that form, below the heading “your disability, or need for intervention supports”, the following is stated:[2] 

Primary disability:  (This is the disability that has the most impact on your daily life) (1) Vertigo (2) Acrophobia (3) Claustrophobia
Please list other disabilities (if any): 
Did you acquire your disability because of an injury? … yes …
We need supporting information about your disability and the impact it has on your mobility, communication, social interaction, learning, self-care and/or ability to self-manage.

[1]           T13, page 49.

[2]           T13, pages 45-46.

You can do this by:  … asking a professional to complete the section below: 

Full name of professional (health or education)

RUPA SEHGAL

Professional qualification

MBBS FRACGP …

Length of time you have known or treated the person making request?

Since 15/8/2016

Primary disability and any secondary disabilities:

Acrophobia + Claustrophobia causing Vertigo

Current treatment (if any): 

Tab Sertraline + prapaneled

Specialist (Psychiatrist) + Psychology consults

Is there any other treatment that is likely to remedy the impairment?

No

2.In that form[3], as to whether the Applicant ‘required assistance’ as to mobility, communication, social interaction, learning, self-care and/or self-management, Doctor Sehgal crossed “No” for each.[4]

[3]           T13, page 49.

[4]           T13, pages 46-48.

3.There is a document described as an “NDIS access decision” dated 4 January 2021 as to the Applicant.[5]  That document, dated 4 January 2021 refers to ‘information considered’:[6]

[5]           T19, page 63.

[6]           T19, page 64.

“NDIS Supporting Evidence Form from Adrian Ashton, Clinical Psychologist dated 24 December 2020
Certificate from Dr Shirlina Das Daniel, General Practitioner dated 3 November 2020
Report from Dr Rupa Sehgal, General Practitioner dated 4 November 2020
Letter from Adrian Ashton, Clinical Psychologist dated 16 September 2020
Letter from Adrian Ashton, Clinical Psychologist dated 9 January 2020
Letter from Adrian Ashton, Clinical Psychologist dated 19 November 2019
NDIS Application Form from Rupa Sehgal, General Practitioner dated 23 September 2020
Letter from Adrian Ashton, Clinical Psychologist dated 30 September 2020
Letter from Dr Mark Whittington, Consultant Psychiatrist dated 15 November 2020
Report from Dr Rupa Sehgal, General Practitioner dated 23 July 2019
Report Dr Rupa Sehgal (General Practitioner) dated 6 August 2019
Letter from Dr Mark Whittington, Consultant Psychiatrist dated 7 August 2019
Report from Dr Mark Whittington, Psychiatrist dated 23 September 2019
Letter from Dr Mark Whittington, Consultant Psychiatrist dated 15 November 2019
Letter from Dr Mark Whittington, Consultant Psychiatrist dated 23 November 2019
Letter from Dr Mark Whittington, Consultant Psychiatrist dated 19 November 2019
Letter from Dr Rupa Sehgal, General Practitioner dated 31 October 2020.”

4.That “NDIS access decision” document dated 4 January 2021 states:[7] 

“ … meets the age and residence requirements. …
do not meet the disability requirements as set out in Section 24 of the NDIS Act …
The information provided confirms that you have Specific Phobia Situational Type, resulting in generalised anxiety and panic disorder.  However, your information does not indicate that you usually need disability-specific supports to effectively move around, communicate, socialise, learn, or undertake self-care or self-management tasks.
Disability-specific supports include specialised equipment, home modifications, assistive technology or a high level of support from another person.  While you may complete tasks more slowly or in a different way to other people, the information does not indicate that you cannot do so without these types of support. … Early Intervention Requirements
Based on the information provided, you do not meet the early intervention requirements as set out in Section 25 of the NDIS Act …

The information provided does not include specific support recommendations and their expected outcomes.  Early interventions must be likely to reduce your future support needs for this requirement to be met.”

[7]           T19, pages 64-65.

5.There is an “interaction record” dated 5 January 2021 which refers to a ‘section 100 form’ being submitted as to a request for review of the decision of 4 January 2021.[8]

[8]           T20, page 69.

6.There is a letter dated 3 March 2021 headed “Outcome of your internal review request”, stating:[9]

“I am writing in response to your request received on 5 January 2021 that we review our earlier decision (under section 100 of the NDIS Act 2013) made on 4 January 2021 that you did not meet the access criteria required to become a participant of the National Disability Insurance Scheme … (section 20 of the NDIS Act 2013). …
After careful consideration of the evidence available, I have decided to confirm the earlier decision.  This means that you will not be able to access the NDIS at this time.  As discussed over the phone with you on 3 March 2021, the main issues in considering your access to NDIS are the criteria for substantially reduced functional capacity and whether the supports you require are most appropriately funded by the NDIS.  My full reasons are set out in the below report which also suggests other community and government programs that may support your needs.”

[9]           T1A, page 6.

7.The report[10] with that correspondence[11] states: 

[10]          T1A, pages 9-10.

[11]          T1A, page 6.

“Age … Satisfied …
Residence … Satisfied …
Section 24 Disability … Not Satisfied …
impairments … I am satisfied that this criteria has been met.  I have considered, based on the evidence provided, you have an impairment attributable to a psychiatric condition (Specific Phobia Situational Type – Acrophobia, Claustrophobia, Generalised Anxiety and Panic Attacks). 
permanence – the impairments are, or are likely to be, permanent.  I am satisfied that this criteria has been met.
functional impact – I am not satisfied that this criteria has been met based on the evidence provided.  In making this decision, I have had consideration towards the National Disability Insurance Scheme (Becoming a Participant) Rules 2016. … Information provided indicates that your impairment has resulted in significant difficulties and a reduction in your functional capacity in certain situations.  It is evident that you experience challenges which prevent you from fully participating in these tasks.  However, in assessing the information provided, I have had to consider your capacity to undertake your life activities, for example social interaction as a whole.  It is evidenced that your impairment has affected your capacity for some social interaction tasks.  For example, information indicates that you experience difficulty with leaving your home and completing or participating in activities above the ground floor.  However, in making this decision I have had reference to all the evidence provided, including information provided by Dr Mark Whittington (Psychiatrist) in his letter dated 23 February 2021 which indicates you are able to complete activities within the activity of social interaction as a whole.  He indicated that your impairment is not absolute and there are occasions where you are able to make a trip to Kingscliff.  I note much of your information provided related to your capacity for employment and not activities of daily living. 
In relation to your functional capacity, your General Practitioner, Dr Rupa Sehgal during  a phone conversation on 10 November 2020 advised that you have the capacity to live independently without the support of another person.  Further, Dr Sehgal indicated that you do not experience functional limitations with mobility, communication, social interactions, self-care or self-management.
The NDIA is required to have consideration towards both what you can and cannot do when assessing this criteria.  The evidence provided demonstrates that you are currently able to participate effectively or completely in activities without assistive technology, equipment (other than commonly used items such as glasses) or home modifications.  The evidence also indicates that you do not usually require assistance from another person to participate, perform or undertake activities of daily living.
As such, whilst it is acknowledged that your impairment impacts upon multiple area’s of your life, it has been considered that your impairment does not result in substantially reduced functional capacity, consistent with Section 5.7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016. …
participation – affects capacity for social or economic participation.  I am satisfied that this criteria has been met based on the evidence provided. …
lifetime NDIS support – … I am not satisfied that this criteria has been met. 
Without meeting all of the preceding criteria and based on the evidence you have provided, including evidence from Dr Adrian Ashton (Psychologist) in your Evidence of Psychosocial Disability Form dates 24 December 2020 which notes that Dr Mark Whittington (Psychiatrist) indicates [“]intensive treatment may assist in maintaining, and improving coping and quality of life to some degree” noting “this would require treatment to occur with prolonged exposure and support (2 hours or more) a number of times per week, across 12-24 months, with further support and treatment following.”  I am therefore unable to determine that you will require the support of the NDIS for your lifetime.  At this time, treatment and supports are more appropriately provided by community and mainstream systems of support such as the Mental Health System.”

8.An Application for Review of Decision was filed in the Tribunal by the Applicant on 30 March 2021. [12] In that Application for Review, the Applicant states ‘3 March 2021’ as the date the Applicant received the decision.[13]

[12]          T1, page 1.

[13]          T1, page 4.

9.The Applicant made a request[14], an access request, to the Agency to become a participant in the National Disability Insurance Scheme on 23 September 2020.[15]  The “access request”[16] was in an approved form and included information.[17]  The “CEO” decided[18] whether or not the prospective participant, the Applicant, meets the access criteria on 4 January 2021.[19]  The Applicant requested[20] a review of the decision on 5 January 2021.[21] The reviewer made a decision to “confirm the earlier decision”,[22]as referred to above.[23] 

[14]          T13, pages 41-49.

[15] Section 18 of the National Disability InsuranceScheme Act 2013 (Cth) (the “Act”).

[16]          T13, pages 41-49.

[17] Section 19 of the Act.

[18]          T19, pages 63-68.

[19] Section 20 of the Act.

[20]          T20, page 69.

[21] Section 100(2) of the Act.

[22]          T1A, page 6.

[23] Section 100(6) of the Act.

10.There were no submissions[24] by the parties at hearing as to the Applicant not ‘meeting’ the age and residence requirements in sections 22 and 23 of the Act.[25]

[24]          Transcript 12 June 2023, p-9 line 45 and p-11 line 14.

[25] Section 21(1)(a) and (b) of the Act.

11.The Respondent submitted that the issue was whether the Applicant meets the disability requirements in section 24 of the Act.[26] The Respondent submitted that the Applicant does not meet the early intervention requirements in section 25 of the Act.[27] The Applicant submitted that the requirements in both sections 24 and 25 of the Act are in issue and that he ‘qualifies for both’.[28] There can be ‘satisfaction’ in section 21(1)(c) of the Act, if at the time of considering the request, either the Applicant meets the disability requirements (section 24) or the Applicant meets the early intervention requirements (section 25). As the disability requirements in section 24 of the Act are referred to as the first alternative in section 21(1)(c)(i) of the Act, those requirements are considered first.

[26] Section 21(1)(c)(i) of the Act.

[27]          Transcript, 28 March 2024, p-110 line 11.

[28]          Transcript, 28 March 2024, p-112 line 5.

12.The Applicant referred at the hearing in submissions to having “medical conditions”: “severe anxiety”, “acrophobia” and “claustrophobia”.[29]  The Applicant also stated at the hearing that he had been “diagnosed with a psychosocial disability”.[30]  Dr Whittington, a Consultant Psychiatrist, stated that the Applicant has “a severe crippling anxiety disorder, panic attacks and a ahobia”.[31]  As referred to above, Dr Sehgal stated that the Applicant has a ‘primary disability and a secondary disability’ of “acrophobia”, “claustrophobia causing vertigo”.[32] 

[29]          Transcript 12 June 2023, p-8 line 24.

[30]          Transcript, 28 March 2024, p-113 line 38.

[31]          A15, page 266.

[32]          T13, pages 45-46.

13.The Respondent submitted that the impairment of the Applicant was ‘based on’ Dr Varghese’s report.[33]  The Applicant stated during the hearing: “I’m simply saying that yes, Dr … Varghese does, I believe favour my application for access.  I do suffer from everything that he mentioned, but a lot of it needs to be put in context … ”.[34]  Dr Varghese is a consultant psychiatrist.[35]  Dr Varghese in the Respondent’s submission refers to a “delusional disorder”.[36]  Dr Varghese examined the Applicant on 2 December 2021[37] and provided a written report dated 12 January 2022.[38]  Dr Varghese then provided a supplementary written report dated 26 April 2023.[39]  Dr Varghese led oral evidence at the hearing and had been provided with summonsed records of the Applicant from the Gold Coast Medical Precinct[40] and a document from Dr Adrian Ashton[41].  Dr Varghese was also provided with a report of Ms Marlene Bouvankirk dated 28 November 2023.[42]  As to the impairment of the Applicant, Dr Varghese stated: 

“Delusional disorder refers to a serious psychiatric condition in which a person has fixed unshakable beliefs usually of a persecuted type, but often of a grandiose type and the delusions do not have the bizarre quality of schizophrenia.  They’re often systemised so that they involve multiple ideas of persecution and multiple ideas of grandiosity.  Unlike schizophrenia there is no deterioration in personality and functioning except so far as expression of the delusions can get the person into social difficulties.  So in [the Applicant’s] case he has systemised delusions … and the belief that these two entities and persons in them have infiltrated all levels of government including the court, and this is a major part of his thinking.  And in addition attached to that idea are other systemised ideas that he has been deprived of his being the prime minister of Australia … .  Again attached to the delusional system of belief that he had been deprived of his intellectual property which would have made him an extremely rich person.  …
With respect to the phobia, he does seem to have a phobia according to the data from his treating practitioners, but the phobia is elective in that he describes being able to not – being frightened of being in [indistinct] to the extent that he could not get himself to the appointment with me without a taxi.  He couldn’t drive himself.  On the other hand he drove himself to Maryborough, which doesn’t fit with the phobia.  He has also been able to get himself to Melbourne and whether he did that by driving or by plane it would mean that the phobia has been overcome.  And that is the case with most phobias.  They are elective and they’re quite easy to treat by exposure.  If you encourage the avoidance, then it reinforces the phobia.  So he does have a phobia, but that’s the least of his concerns in a sense.  The major illness is the delusional disorder.”

[33]          Transcript 12 June 2023, p-11 line 26.

[34]          Transcript 28 March 2024, p-141 lines 24-25. 

[35]          Transcript 28 March 2024, p-116 line 44.

[36]          Transcript 12 June 2023, p-11 line 34.

[37]          Transcript 28 March 2024, p-117 lines 1-2.

[38]          Transcript 28 March 2024, p-117 line 4.

[39]          Transcript 28 March 2024, p-117 line 13.

[40]          Transcript 28 March 2024, p-117 lines 28-29.

[41]          Transcript 28 March 2024, p-117 line 31.

[42]          Transcript 28 March 2024, p-117 lines 40-41.

14.Both parties therefore submit, and it is found on the evidence referred to above, that the Applicant does have ‘a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the Applicant has one or more impairments to which a psychosocial disability is attributable’:[43]  “severe crippling anxiety aisorder”[44], “panic attacks”[45],  “phobia”[46], “acrophobia”[47], “claustrophobia causing vertigo”[48] and “delusional disorder”.[49]

[43] Section 24(1)(a) of the Act.

[44]          A15, page 266.

[45]          A15, page 266.

[46]          A15, page 266.

[47]          T13, pages 45-46.

[48]          T13, pages 45-46.

[49]          Transcript 12 June 2023, p-11 line 34.

15.The Respondent submitted that the impairment or impairments are not, or are not likely to be, permanent.[50]  The Applicant submitted particularly that the “acrophobia” was permanent, referring to ‘consultations with a psychologist, Dr Adrian Ashton’.[51]

[50]          Transcript, 12 June 2023, p-12 lines 22-23.

[51]          Transcript, 12 June 2023, p-17 lines 26-27.

16.Section 27 of the Act states that the National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b). The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) state:

“When is an impairment permanent or likely to be permanent for the disability requirements?

5.4An 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.

5.5An 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).

5.7If 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.”

17.Dr Sehgal stated, as referred to above, that there was no other treatment likely to remedy the acrophobia and claustrophobia causing vertigo.[52]  Dr Whittington stated that: “ … anxiety aisorder was pervasive, permanent and disabling, and I supported his claim for a total and permanent impairment … ”.[53]

[52]          T13, pages 45-46.

[53]          A15, page 266.

18.Dr Varghese stated: 

“My understanding, from your reports, doctor, is that your opinion is that the delusional disorder is, presently, and has been to date, untreated; is that correct?---As far as I know, it’s been untreated.
And in respect of what treatment would be required, what would you suggest if you were the treating practice?---Yes.  What – it – delusional disorder is a very difficult disorder to treat, and the prognosis is not, generally, good.  The first thing I would do if Mr Praljak was my patient was have his practitioner or physician do a thorough medical examination, including a neurological examination and CT scan/MRI of the brain, because sometimes the delusional disorder can be a result of a neurological condition.  Once – if I’ve eliminated that, I would then commence antipsychotics one could use.  And, it would mean – he would have to be willing to take it, of course.  And, once there is amelioration – some amelioration of the delusion – I wouldn’t expect the delusions to go away – then, psychotherapeutic support may be useful, such as reality-testing mildly challenging ideas within a therapeutic framework.  So that would be the treatment.  It’s basically medical, but psychological treatment may be an adjunct of some use.  And, in terms of the medication that Mr Praljak currently takes, the most regular medication, that he’s given evidence that he has, is Sertraline, 100 miligrams.  Does that particular medication have any impact on - - -?---No.  No.  Sertraline is an antidepressant and will not have any affect on the delusional disorder.  Arguably, in the absence of an antipsychotic, it could worsen the delusion disorder.  I think the other medication he’s on – he’s on – is prop – well, at the time I saw him – was Propranolol, which, again, is not of any use in the treatment of psychosis.  But neither is – neither is Diazepam or Valium.”  

19.Dr Varghese therefore states that there are known, available and appropriate evidence-based clinical, medical or other treatments, but stated that:[54] 

“[The Applicant is] likely to hold these delusions indefinitely.  What antipsychotic medication might do – hopefully do – is remove some of the affect – and – that is attached to the delusion.  Feelings that are attached to the delusion.  And I think the best we can hope for, in a sense, is that, while he doesn’t give up the delusions, he may develop a degree of insight”. [55] 

[54]          Rule 5.4.

[55]          Transcript 28 March 2024, p-121 lines 10-18.

1. That is, that the impairment does not require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent.[56] Dr Varghese indicated that the impairment is, or is likely to be, permanent as 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.[57] The delusional disorder may be permanent notwithstanding that the severity of its impact on the functional capacity of the Applicant may fluctuate or there are prospects that the severity of the impact on the Applicant’s functional capacity including the Applicant’s psychosocial functioning, may improve.[58].

   [56]          Rule 5.6.

   [57]          Rule 5.6.

   [58]          Rule 5.5.

   21.The impairment or impairments of the Applicant are, or are likely to be, permanent, attributable to[59]: “anxiety disorder”[60], “acrophobia”[61], “claustrophobia causing vertigo”[62] and “delusional disorder”.[63]

   [59] Section 24(1)(b) of the Act.

   [60]          A15, page 266.

   [61]          T13, pages 45-46.

   [62]          T13, pages 45-46.

   [63]          Transcript 12 June 2023, p-11 line 34.

   22.The Respondent submitted that the impairment or impairments of the Applicant did not result in substantially reduced functional capacity to undertake one or more of the activities in s 24(1)(c)(i)-(vi) of the Act: communication, social interaction, learning, mobility, self-care and self-management. The Applicant stated that the impairment or impairments of the Applicant do result in substantially reduced functional capacity to undertake communication and social interaction because of vertigo acrophobia, learning because of “severe anxiety” and mobility because of the “vertigo acrophobia”.[64]

   [64]          Transcript 12 June 2023, p-18 lines 45-47 and p-19 lines 1-3.

   23.Dr Sehgal stated that the impairment or impairments do not result in substantially reduced functional capacity to undertake one or more of the activities of communication, social interaction, learning, mobility, self-care, and self-management. 

   24.Dr Whittington stated that the Applicant’s mobility is ‘extremely limited’.[65] As to self-management, Dr Whittington stated that the Applicant has difficulties with shopping and social interaction, and there are times when he struggles to manage his cleaning and cooking.[66]  As to communication, Dr Whittington stated that ‘social interaction for the Applicant can be very difficult, and again restricted, because of his panic, anxiety and paralysis, more so if it is a conflictual situation or it is in circumstances in which the Applicant feels trapped or overwhelmed, for example if there are stairs, he effectively shuts down’.[67] Dr Whittington also stated that socially, the Applicant is ‘quite avoidant and is emotionally dependent on his parents, where having to interact with new people is extremely difficult and stressful for him’.[68] 

   [65]          T1B, page 16.

   [66]          T1B, page 16.

   [67]          T1B, page 16.

   [68]          T1B, page 16.

   25.Dr Varghese stated:[69]

   “Now that is a delusional disorder, and it is of a pre-occupied type, and it has significantly affected his functioning in that he is no longer functioning as a lawyer.  He’s an educated man with a couple of degrees, I think, and you can see the deterioration in his functioning from being a qualified lawyer to working in a much lesser role. …
   So you can see a significant decline in work function.  Which I would attribute to the delusional ideation, rather than deterioration in personality of the type you see in schizophrenia. …
   

   [69]          Transcript 28 March 2024, p-118 lines 25-30 and p-120 lines 19-35.

   The … functioning is affected by … the level at which he holds his delusional ideas, such that it gets in the way of his functioning in the … workplace.” 

   26.As to social interaction, the impairment or impairments that are permanent, or are likely to be permanent, have resulted, having regard to the evidence of Dr Whittington and Dr Varghese, in substantially reduced functional capacity as to the interaction of the Applicant with the community, the Applicant’s behaviour in society and how the Applicant copes with feelings and emotions.[70]  The impairment or impairments have resulted in substantially reduced functional capacity of the Applicant as to how the Applicant organises life, how the Applicant plans and makes decisions, having regard to the mental or cognitive ability of the Applicant to manage life.[71]  The impairment or impairments result in substantially reduced functional capacity for the Applicant to undertake one or more of the activities of social interaction and/or self-management.[72]    

   [70]See the Operational Guidelines, as referred to by the Respondent:  Transcript 28 March 2024, p-159 line 13.   

   [71]See the Operational Guidelines, as referred to by the Respondent:  Transcript 28 March 2024, p-159 line 13.   

   [72] Section 24(1)(c)(ii) and (vi) of the Act.

   27.The Respondent submitted that the impairment or impairments do affect the Applicant’s capacity for social and economic participation.[73]  The impairment or impairments that are permanent, or are likely to be permanent, affect the Applicant’s capacity for social or economic participation in the circumstances stated by Dr Whittington and Dr Varghese.[74] 

   [73]          Transcript 12 June 2023, p-15 line 5.

   [74] Section 24(1)(d) of the Act.

   28.As to whether the delusional disorder varies in intensity for the Applicant, Dr Varghese stated that he did think the delusions varied in intensity. Section 24(2) of the Act states that for the purposes of sub-section (1) an impairment that varies in intensity may be permanent and the Applicant is likely to require support under the National Disability Insurance Scheme for the Applicant’s lifetime, despite the variation. Section 24(3) of the Act states that for the purposes of sub-section (1), an impairment that is episodic or fluctuating may be taken to be permanent and the Applicant may be taken to be likely to require support under the National Disability Insurance Scheme for the Applicant’s lifetime, despite the episodic or fluctuating nature of the impairment. Section 24(4) of the Act states that sub-section 24(3) “does not limit” sub-section 24(2). As to whether the Applicant is likely to require support for the Applicant’s lifetime, as referred to above, Dr Whittington stated that the ‘disorder was pervasive, permanent and disabling’.[75]   Dr Varghese stated, as referred to above, that ‘psychotherapeutic support may be useful, such as reality-testing mildly challenging ideas within a therapeutic framework.  So that would be the treatment.  It’s basically medical, but psychological treatment may be an adjunct of some use’.[76]”

   [75]          A15, page 266.

   [76]          Transcript 28 March 2024, p-119 lines 42-46. 

   29.The Applicant is likely to require support under the National Disability Insurance Scheme for the Applicant’s lifetime.[77] 

   [77] Section 24(1)(e) of the Act.

   30.The Applicant therefore does ‘meet’ the “disability requirements” in s 24(1)(a)-(e) of the Act. The Applicant therefore “meets the access criteria” in s 21(1)(a), (b) and (c)(i) of the Act.

   DECISION

   31.The decision of the Respondent dated 3 March 2021[78] is set aside and it is decided in substitution that the Applicant meets the access criteria in s 21(1)(a), (b) and (c)(i) of the National Disability Insurance Scheme Act 2013 (Cth).[79] 

   [78]          T1A, page 6.

   [79]          Administrative Appeals Tribunal Act1975 (Cth), s 43(1)(c)(i).

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision

..........................[SGD].........................

Associate

Dated:  31 July 2024

Dates of hearing:  12 June 2023 and 28 March 2024

Applicant:  Appeared by video

Respondent:  Mr B. Dube