Richardson and National Disability Insurance Agency
[2024] AATA 3505
•2 October 2024
Richardson and National Disability Insurance Agency [2024] AATA 3505 (2 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/7096
Re:Mark Richardson
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member K Bean
Date:2 October 2024
Place:Sydney
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
.............[SGD]..................................
Member K Bean
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – access criteria – chronic back pain related to lumber spondylosis – whether the Applicant’s impairments are permanent – where the Applicant’s current treatment is likely to improve his degenerative back condition – whether the Applicant meets the disability requirements or the early intervention requirements – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Beezley v Repatriation Commission (2015) FCAFC 165
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
XMFS and National Disability Insurance Agency [2022] AATA 568SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS, 1 February 2024
REASONS FOR DECISION
Member K Bean
2 October 2024
INTRODUCTION
The issue before the Tribunal is whether the Applicant, Mr Richardson, meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
Mr Richardson is currently 60 years old and suffers from significant back pain which has a big impact on his daily life. In March 2022, he applied for access to the NDIS on the basis of three disabilities, identified by his General Practitioner, Dr Campbell, as “bulging disc and compressed nerve”, “soft tissue injury” and “arthritis”[1].
[1] T7, p 86.
On or about 25 March 2022, a delegate on behalf of the National Disability Insurance Agency decided that although Mr Richardson satisfied the age and residency access criteria, he did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act[2].
[2] T1B, p 8 and T11, p 87.
Mr Richardson sought internal review of the original decision pursuant to section 100 of the NDIS Act. On 8 August 2022[3], the Respondent affirmed the original decision. Mr Richardson then sought review of the internal review decision by this Tribunal pursuant to section 103 of the NDIS Act on 29 September 2022.
[3] T2.
The Tribunal held a hearing by video on 20 and 21 August 2024. The Applicant was represented at the hearing by Mr William Robin. The Agency was represented by counsel, Mr Bird.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing tender bundle which was accepted into evidence.
LEGISLATIVE FRAMEWORK
The access criteria
To become a participant of the NDIS, Mr Richardson must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
There is no dispute that Mr Richardson satisfies the age and the residence requirements. What the Tribunal must decide is whether he satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If Mr Richardson does not meet the disability requirements, the Tribunal must consider whether he meets the early intervention requirements set out in section 25 of the Act which relevantly states:
(1). A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in this case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
Access Rules
In respect of subsection 24(1)(b) of the Act, concerning permanency of an impairment, the Access Rules provide:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Part 6 of the Access Rules describe the early intervention requirements under s 25 of the NDIS Act and relevantly provide that:
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
…
6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity may improve.
6.6 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).
6.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[4] The relevant Operational Guideline at time of this decision is Our Guidelines – Becoming a participant – Applying to the NDIS (1 February 2024)(‘the Access Guidelines’)[5].
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[5] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024)
The Tribunal also notes that in Mulligan[6], Mortimer J (as she then was) held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[7] The Full Court of the Federal Court of Australia in Foster[8]also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[9]
[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[7] Mulligan at [55].
[8] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).
[9] Foster at [44].
For Mr Richardson to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. Mr Richardson carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[10]
[10] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
I will first consider whether Mr Richardson meets the disability requirements before proceeding to consider the early intervention requirements if necessary.
DOES MR RICHARDSON MEET THE DISABILITY REQUIREMENTS IN S 24?
Impairment – s 24(1)(a)
The Respondent accepts and I am also satisfied that subsection 24(1)(a) is met and Mr Richardson currently suffers from chronic back pain related to lumbar spondylosis, which is inhibiting his functional capacity including his walking and sitting tolerances.[11]
[11] Joint Hearing Bundle ,Tab 1, Respondent’s SOFIC, at [33].
Permanence – Subsection 24(1)(b)
However, to gain access to the Scheme, Mr Richardson must also establish that the impairment or impairments relied upon are permanent.
In the decision of Davis[12] Mortimer J said of the meaning of ‘permanent’ in s 24(1)(b):
[85]…In my opinion, the correct meaning of “permanent” in s 24(1)(b) is “enduring”. This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.
[86] The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
…
[130] …I explained …above my view about the correct construction of “permanent” in s 24(1)(b). 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.
[12] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85-86] and [130] (‘Davis’).
In Davis, Mortimer J observed that the rules in r 5.4 and r 5.6 were exclusionary, in the sense that they “prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in s 24(1)(b)”.[13]
[13] Davis at [75] and [131]. See also [158].
As to the adjectives in r 5.4, her Honour observed that:
(a)the word ‘remedy’ ‘should be understood to mean something approaching a removal or cure of the impairment’;[14]
(b)the word ‘known’ ‘connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment’;[15]
(c)the word ‘appropriate’ ‘connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo’; and[16]
(d)the word ‘available’ ‘should be understood as directed at what treatments an individual can, in reality, access’.[17]
[14] Davis at [136].
[15] Davis at [137].
[16] Davis at [137].
[17] Davis at [139].
In relation to whether an impairment is likely to be permanent, the Access Guidelines state:
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity (s 24(3)). Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
…
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent (Rules rr 5.6, 6.6)
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time: Rules rr 5.5, 6.5.
…
This question of permanence is in dispute between the parties with the Respondent contending there are treatments available to Mr Richardson he has not yet fully accessed. The Respondent also contends the treatments available are likely to alleviate Mr Richardson’s impairment, and that, pursuant to Rule 6.6, the impairment requires further medical treatment and review before its permanency can be assessed.
Mr Richardson submits he has been diagnosed with multilevel lumbar spondylosis, which is a permanent condition. He says his back pain has been persistent since at least 2014 and is very unlikely to improve from its current state.
Mr Richardson further contends he has undergone a variety of the treatments recommended to him, including steroid injections and attendance at the Back and Neck Pathway program at Royal North Shore Hospital. He says he was given exercises as part of this program which he has continued to do. He has also accessed massage treatments when he has been able to, which have given him some relief and helped him maintain his functional capacity[18], and takes appropriate pain medication regularly.
[18] Joint Hearing Bundle, Tab 2, pp 16-18.
Mr Richardson also submits there are no remaining treatment options available to him as he is not considered a suitable candidate for surgery[19]. He says he has already accessed and implemented the other treatment options available to him.
[19] T12, p 113.
The Medical Evidence
However, some of the medical evidence before the Tribunal suggests that there is further treatment available to Mr Richardson. In particular, there is a significant body of evidence to suggest that Mr Richardson’s current level of impairment is likely to be reduced by participation in a comprehensive pain clinic program.
In a report of 21 February 2023, Mr Richardson’s treating neurosurgeon, Dr Cook, confirmed an MRI scan had shown disc degeneration at the L4/5 and 5/1 levels, without significant neural compression or active arthritis. He also stated as follows:
“So, my assessment is that this man has a chronic pain syndrome. From the medical point of view, I think one of the pain clinics would be probably his best option….There may be some pain specialist options that have yet to be pursued and the RNSH Pain Clinic would be the clinic to review that.”[20]
[20] Joint Hearing Bundle, Tab 7, p 119.
In her answers to targeted questions provided to her, Mr Richardson’s General Practitioner, Dr Campbell, also confirmed that in accordance with this recommendation, Mr Richardson was referred to a pain management clinic in 2022, though her understanding was no appointment had yet been made[21].
[21] Joint Hearing Bundle, Tab 10, p 129.
The most detailed evidence on this topic has been provided by Dr David Gorman, a Pain Management & Rehabilitation Specialist, who has provided a report dated 31 January 2024[22] at the request of the Respondent and also gave oral evidence at the hearing.
[22] Joint Hearing Bundle, Tab 11, p 132.
In his report, Dr Gorman gave a diagnosis consistent with that of Dr Cook, namely “multilevel lumbar spondylosis resulting in chronic back pain and symptoms in the lower limbs of spinal canal stenosis”[23]. With respect to available treatment, he stated:
“The ideal treatment would be a multidisciplinary pain program. He is deconditioned and “fear avoidant”. He needs a self-directed exercise program.”[24][23] Joint Hearing Bundle, Tab 11,p 137.
[24] Joint Hearing Bundle, Tab 11, p 138.
Dr Gorman also noted Mr Richardson was reluctant to participate in a pain clinic program as it did not involve “hands on” physiotherapy, but stated “However, a program such as at RNSH is exactly what he needs”[25]. He also specified in his report that what Mr Richardson required was a pain program over 10 weeks or 3 months with input from an exercise physiologist[26].
[25] Joint Hearing Bundle, Tab 11, p 138.
[26] Joint Hearing Bundle, Tab 11,p 142.
During his oral evidence, it was explained to Dr Gorman that Mr Richardson had now been referred to the Royal North Shore Hospital Pain Clinic (RNSH Pain Clinic) and had indicated in his oral evidence he had recently attended a first an appointment at the clinic. Dr Richardson confirmed this was precisely the form of treatment he considered Mr Richardson required and Mr Richardson was fortunate to have access to “the best pain unit in Australia”.
Dr Gorman also outlined in general terms the nature of the treatment he expected would be provided by the RNSH Pain Clinic, which he anticipated would involve a relatively intensive program over about 10 weeks with the involvement of a medical pain specialist, a physiotherapist specialist in pain, a psychologist specialist in pain and possibly an exercise physiologist. He further indicated he would expect this program to assist Mr Richardson to become less avoidant and more active and begin to reverse the deconditioning which had resulted from being inactive due to his fear of pain. In due course, he said this was likely to reduce Mr Richardson’s experience of pain and improve his functional capacity.
Although it was impossible to accurately predict the precise improvement Mr Richardson would get from the program, if he participated fully in the program, Dr Gorman estimated Mr Richardson’s level of pain would reduce by about 50%, his walking tolerance would be likely to at least double, his sitting and standing tolerances would be likely to substantially improve and he would need significantly less medication. He acknowledged Mr Richardson’s back pain may not completely disappear and he would not be able to return to heavy, physical work, but he did expect a substantial reduction in his pain and increase in his functional capacity.
Dr Campbell’s oral evidence on this topic was consistent with Dr Gorman’s. She said she did not expect the RNSH Pain Clinic program to eliminate Mr Richardson’s pain and he would still be left with the underlying problem. However, she was hopeful it would result in him needing less medication, and that with an exercise program as well as input from a psychologist, his back could be rehabilitated, and function restored to some extent. She consistently indicated during her evidence that until Mr Richardson completed the program, it was very difficult to know how much it would improve his pain, or how much it would improve his functional capacity. She essentially agreed with Dr Gorman that although Mr Richardson may be left with some discomfort following the program, his degree of impairment may reduce significantly.
Analysis
What are Mr Richardson’s impairments?
I note the term “impairment” in this context refers to the loss of, or damage to a physical, sensory or mental function[27]. As I have indicated above, it is clear on the medical evidence that Mr Richardson’s current relevant conditions are lumbar spondylosis, which is a physical impairment, and related chronic back pain which has other components and is partly a mental and/or sensory impairment. In my view his impairments can appropriately be separated into a degenerative back impairment, and associated chronic back pain.
[27] Mulligan at [51].
Accordingly, I am required to consider whether either of these conditions are permanent in the relevant sense. I will first address the physical back impairment.
Is Mr Richardson’s degenerative back impairment permanent?
In considering this issue, I must have regard to the relevant Rules, including Rule 5.7 which provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
Having considered the evidence relevant to this issue, in particular that of Dr Gorman, I consider that attendance at and adherence with a chronic pain program such as that available to Mr Richardson at the RNSH Pain Clinic is likely to improve the physical impairment caused by Mr Richardson’s degenerative back condition. Dr Gorman clearly explained in his oral evidence that the interventions offered by a pain clinic, including exercises directed at improving strength and mobility, would be expected to substantially reduce the impact of the condition on Mr Richardson, including his existing physical limitations and pain experience. Dr Campbell’s evidence was not inconsistent with this evidence, although as he is a pain specialist, I place greater weight on Dr Gorman’s evidence on this issue.
Accordingly, as I consider medical treatment, namely participation in the RNSH Pain Clinic program is likely to improve Mr Richardson’s degenerative back condition, I do not consider this condition to be permanent in the relevant sense[28].
Is Mr Richardson’s chronic back pain impairment permanent?
[28] I note the similar conclusion reached by Member Bygrave in XMFS and National Disability Insurance Agency [2022] AATA 568.
With respect to this issue, I note Rules 5.4 and 5.6 are especially relevant. As noted above, Rule 5.4 provides that an impairment is permanent only if “there are no available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment”.
Having regard to the meaning of ‘remedy’ as explained by Justice Mortimer (as she then was) in Davis, I acknowledge the submissions made on Mr Richardson’s behalf by Mr Robin. I accept it is doubtful whether, properly construed, Rule 5.4 operates to preclude Mr Richardson’s chronic pain impairment from being considered permanent, given the medical evidence to the effect this is unlikely to be “cured” by the recommended pain program.
However, Rule 5.6 is also relevant. As set out above, this provides that an impairment may require medical treatment and review before a determination can be made as to permanence, and:
“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”.As already canvassed above, I consider there is further treatment available to Mr Richardson, namely participation in the RNSH Pain Clinic program, which is likely to substantially relieve the impairment attributable to his chronic back pain. I accept it is unlikely the program will completely cure or eliminate Mr Richardson’s pain. However, as explained by Dr Gorman, there is a good prospect the program will substantially reduce the pain experienced by Mr Richardson, and the limitations resulting from that pain. Dr Gorman’s opinion was that participation was likely to reduce Mr Richardson’s pain by 50%, double his walking tolerance and substantially improve his standing and sitting tolerances. Although Dr Campbell gave a more guarded assessment and was less willing to predict the degree of improvement Mr Richardson would experience, her evidence was not inconsistent with Dr Gorman’s opinion. The evidence also leaves open the possibility Mr Richardson may experience an even greater improvement than that predicted by Dr Gorman, though both doctors agreed he was likely to be left with some level of “discomfort”.
Having regard to this evidence, I have concluded Mr Richardson’s chronic pain impairment does require further treatment and review before an accurate determination can be made as to its permanence or likely permanence. On the evidence, participation in the RNSH Pain Clinic program is likely to have a dramatic impact on this impairment and reduce it substantially. Given the degenerative changes in Mr Richardson’s back are not particularly unusual for his age, it is even possible the program may result in something approaching a cure. In these circumstances, in my view it is premature to attempt to assess the permanency or likely permanency of the impairment. Accordingly, I am also not satisfied this impairment is permanent within the meaning of the Act and the Access Rules.
For completeness, I should add that even if Rule 5.6 had not operated to exclude permanency, I would not have been satisfied that Mr Richardson’s chronic back pain had the “enduring” quality necessary to establish permanency within the meaning of the Act. While the physical degenerative changes in Mr Richardson’s back will not change, it is clear on the evidence the same cannot be said for the chronic back pain he is currently experiencing. Both doctors agreed that in circumstances such as this, pain is a complex and multifaceted phenomenon, moderated and affected by many factors. It can also be influenced and ameliorated by many of the modalities deployed by chronic pain programs.
While an impairment can be permanent notwithstanding fluctuations or positive changes in its impact on a person’s functional capacity, it is not tenable in my view to regard an impairment as permanent in circumstances where treatment offers the possibility of a dramatic and lasting improvement which will substantially increase a person’s functional capacity. Where this is the case, in my view it is simply not accurate to say that the person’s current impairment is permanent. The concept of ‘impairment’ has both a qualitative and a quantitative dimension. Even where it is likely a person’s impairment will persist but at a much lower level, it would not be accurate, or consistent with the aims and objectives of the Act, to regard their current impairment as permanent.
DOES MR RICHARDSON MEET THE EARLY INTERVENTION REQUIREMENTS IN S 25?
Having concluded that Mr Richardson does not satisfy the disability requirements in s 24, the only remaining issue is whether he satisfies the criteria for early intervention pursuant to s 25.
As set out above, s 25(1)(a) relevantly specifies that to meet the early intervention requirements a person must have “one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent”. Further, Rules 6.4 – 6.7 of the Access Rules with respect to s 25 mirror Rules 5.4 – 5.7 of the Access Rules relating to s 24.
It necessarily follows therefore that, as Mr Richardson’s impairments are not permanent within the meaning of the Act and the Access Rules, he also does not meet the early intervention requirements contained in s 25.
CONCLUSION
As I have concluded Mr Richardson does not meet either the disability requirements contained in s 24 of the Act, or the early intervention requirements specified by s 25, I have also concluded he does not currently qualify for access to the NDIS and the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member K Bean.
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Associate
Dated: 2 October 2024
Date(s) of hearing: 20 – 21 August 2024 Date final submissions received: 20 August 2024 Advocate for the Applicant: Mr W Robin Counsel for the Respondent: Mr J Bird Solicitors for the Respondent: Ms I Heath, Maddocks Lawyer
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