RVTJ and Chief Executive Officer of the National Disability Insurance Agency (NDIS) - [2025] ARTA 683

RVTJ and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 683 (23 May 2025)
Applicant/s:  RVTJ
Respondent:  Chief Executive Officer of the National Disability Insurance Agency
Tribunal Number:                2022/3353

Tribunal:Senior Member K. Parker
Place:Melbourne
Date:23 May 2025

Decision:The Tribunal affirms the Decision Under Review.

...............................[sgd].......................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILTY INSURANCE SCHEME – access decision – adult participant –claimed impairments attributable to psychosocial disabilities as a result of major depressive disorder, post-traumatic stress disorder, autism spectrum disorder, attention deficit hyperactivity disorder and acute anxiety – history of alcohol use disorder, in remission – claimed physical impairments which the Applicant attributes to spinal cord issues – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) met – whether disability requirements under s 24 of the NDIS Act met – whether early intervention requirements under s 25 of the NDIS Act met – whether one or more impairments are, or are likely to be, permanent – whether one or more impairments have resulted in substantially reduced functional capacity in undertaking one or more of six prescribed activities under s 24(1)(c) of the NDIS Act – whether the provision of early intervention supports is likely to benefit the Applicant by reducing his future needs for supports in relation to disability – Tribunal affirms Decision Under Review
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
Cases
Kelly v National Disability Insurance Agency [2024] FCA 1462
National Disability Insurance Agency v Davis [2022] FCA 1002
Other
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS – Pre-legislation changes (last updated on 14 October 2024) Applying to the NDIS | NDIS
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, published by the American Psychiatric Association, 2022 (‘DSM-5-TR’)
Statement of Reasons
INTRODUCTION

The Applicant, RVTJ, seeks review of an internal review decision made on 1 April 2022 (‘Decision Under Review’) by a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘NDIA’), confirming an earlier decision by a different delegate of the CEO to refuse RVTJ’s request to access the National Disability Insurance Scheme (‘NDIS’).
RVTJ claims that he has:
(a)impairments attributable to psychosocial disabilities, as a result of major depressive disorder (‘MDD’), post-traumatic stress disorder (‘PTSD’), autism spectrum disorder (‘ASD’), attention deficit hyperactivity disorder (‘ADHD’) and “Acute Anxiety”; and
(b)physical impairments, which RVTJ attributes to spinal cord issues.
The NDIA considers that RVTJ does not meet the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) because he does not meet either of the “disability requirements” under s 24, or the “early intervention requirements” under s 25 of the NDIS Act.
On 27 January 2022, RVTJ lodged an application for review with the Administrative Appeals Tribunal (‘AAT’).[1] On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’) following the abolition of the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the AAT that were not finalised before 14 October 2024, are to be continued and finalised by this Tribunal. Anything done in relation to this proceeding before 14 October 2024, is taken to have been done by this Tribunal. Neither party disputed that this Tribunal has authority to deal with the present application.
[1] T-Documents, T1. The ‘T-Documents’ are a set of documents lodged by the NDIA under s 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.
In this proceeding and at the substantive hearing, RVTJ was self-represented. The NDIA was represented by Sparke Helmore Lawyers and Ms Kate Stowell of counsel.
For the reasons set out below, the Tribunal affirms the Decision Under Review.
ISSUES
The primary issue arising for consideration in this application is whether RVTJ meets the access criteria under s 21 of the NDIS Act.
The NDIA accepts that RVTJ meets the “age requirements” under s 22, and the “residence requirements” under s 23 of the NDIS Act.
Accordingly, the focus of this application is whether RVTJ meets either the “disability requirements” under s 24 of the NDIS Act, or the “early intervention requirements” under s 25 of the NDIS Act. The NDIA contends that RVTJ does not meet either of those requirements.
The Tribunal will need to decide whether RVTJ has any impairments which meet the requirements under subsection 24(1)(a) (or subsections 25(1)(a)(i) or (ii)) of the NDIS Act) and if so, to identify any such impairments.
The Tribunal also will need to decide whether any one or more of RVTJ’s impairments are, or are likely to be, permanent under subsection 24(1)(b) (or subsections 25(1)(a)(i) or (ii)) of the NDIS Act.
The NDIA contends that RVTJ’s current impairments do not meet the required threshold under subsection 24(1)(c) of the NDIS Act because they do not result in “substantially reduced functional capacity” in RVTJ undertaking any one or more of the six prescribed activities under subsections 24(1)(c)(i) to (vi) of the NDIS Act, namely, “communication”, “social interaction”, “learning”, “mobility”, “self-care” and/or “self-management” (to be referred to collectively in this Statement of Reasons as the ‘Prescribed Activities’). The Tribunal will need to consider what RVTJ can and cannot do and make findings about the degree to which RVTJ’s functional capacity to undertake any one or more of the Prescribed Activities has been reduced as a consequence of his permanent impairment/s and specifically, whether any such reduction has reached the required threshold of being “substantial”.
If the Tribunal is satisfied that each of the criteria under subsections 24(1)(a), (b) and (c) are met, the Tribunal will need to decide whether RVTJ’s impairment/s affect his capacity for social and economic participation under subsections 24(1)(d) and (e) of the NDIS Act.
Regarding the early intervention requirements under s 25 of the NDIS Act, if the Tribunal concludes that the mandatory criterion under subsection 25(1)(a) has been met (in this case, relating to whether any impairment/s are, or are likely to be, permanent), it will also need to decide:
(a)whether the remaining two mandatory criteria under subsection 25(1)(b) and (c) of the NDIS Act have been met; and if so,
(b)whether the circumstances prescribed in subsection 25(3) of the NDIS Act apply to RVTJ to otherwise exclude him from meeting the early intervention requirements.
LEGISLATIVE REGIME
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)the “disability requirements” under s 24 or the “early intervention requirements” under s 25.
The NDIS Act was amended by the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 including provisions dealing with eligibility to access the NDIS. These amendments apply to access requests under s 18 of the NDIS Act that were made after the date of effect of these legislative changes, that is, on or after 3 October 2024. RVTJ’s access request was made before 3 October 2024. Accordingly, the Tribunal must undertake its review of the Decision Under Review based on s 24 and s 25 of the NDIS Act as those provisions were worded before the legislative changes took effect on 3 October 2024.[2]
[2] NDIA’s Statement of Facts, Issues and Contentions lodged with the Tribunal on 6 March 2025, paragraphs [12] to [14] inclusive. This issue was not in dispute between the parties.
The applicable rules dealing with eligibility to be granted access as a participant in the NDIS are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Access Rules’).
The NDIA has issued guidelines relating to requests for access to the NDIS made before 3 October 2024, namely, National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024) (‘Access Guidelines’). The Tribunal will consider and apply this policy guidance, unless it is inconsistent with the NDIS Act and the Access Rules.
EVIDENCE, SUBMISSIONS AND HEARING
On 16 May 2022, the NDIA lodged a set of documents with the Tribunal pursuant to s 37 of the former AAT Act, totalling 174 pages (‘T-Documents’).[3]
[3] Exhibit R1.
On various dates, RVTJ lodged evidentiary documents and written submissions in the form of letters to the Tribunal.
Specifically, on 2 August 2022, RVTJ lodged:
(a)a set of photographs relating to an issue that arose about the date of submission of his original access request;[4] and
(b)a statement prepared by RVTJ focused on the date of submission of the original access request and other matters about his circumstances and claimed impairments.[5]
[4] Exhibit A2.
[5] Exhibit A3.
On 12 January 2023, RVTJ lodged a statement of medical conditions prepared by RVTJ.[6]
[6] Exhibit A4.
On 20 April 2023, RVTJ lodged an NDIS form entitled “Evidence of psychosocial disability form” completed by his treating psychiatrist, Dr DG,[7] on the same date.[8]
[7] Name of doctor withheld.
[8] Exhibit A5.
On 20 March 2024, RVTJ lodged a letter he had sent to the Tribunal and the NDIA dated 20 March 2024, about an issue which arose regarding the NDIA’s request for RVTJ to submit to an independent medical examination.[9]
[9] Exhibit A8.
On 7 April 2024, the NDIA lodged a set of documents, totalling 45 pages, comprising documents downloaded from links embedded in a functional capacity assessment report prepared by an independent occupational therapist, Mr EM.[10]
[10] Name of occupational therapist withheld.
On 14 August 2024, RVTJ sent a letter to the Registry of the Tribunal which has been received into evidence.[11]
[11] Exhibit A6.
On 16 August 2024, the NDIA lodged an individual hearing tender bundle with the Tribunal totalling 93 pages (‘NDIA’s HTB’).[12] The NDIA’s HTB comprised medical records and reports extracted from the sets of documents produced by third parties to the Tribunal under a number of summonses issued by the AAT and directed to RVTJ’s former and treating doctors and clinicians.
[12] Exhibit R2.
On 28 August 2024, RVTJ lodged a copy of a letter he had received from My Aged Care dated 28 August 2024.[13] On 2 September 2024, RVTJ lodged a set of “My Aged Care” documents regarding RVTJ’s My Aged Care “support plan” generated on 26 July 2024.[14]
[13] Exhibit A7.
[14] Exhibit A8.
On 30 January 2025, the NDIA lodged an expert medical report of the same date prepared by Dr JH,[15] an independent psychiatrist engaged by the NDIA to examine RVTJ.[16]
[15] Name of psychiatrist withheld.
[16] Exhibit R3.
On 25 February 2025, the NDIA lodged a functional capacity assessment report of the same date prepared by Mr EM.[17]
[17] Exhibit R.
On 6 March 2025, the NDIA lodged its Statement of Facts, Issues and Contentions (‘NDIA’s SFIC’).
On 23 March 2025 (one business day before the substantive hearing day), RVTJ sent an email to the Tribunal attaching 12 documents, including his (unsigned) Statement of Facts, Issues, and Contentions and a list of documents as referred to in his SFIC.[18]
[18] Exhibit A1.
The substantive hearing of this matter took place at the Tribunal over three days on 25 and 26 March 2025 and 14 April 2025.
On 25 March 2025, RVTJ lodged a signed Statement of Facts, Issues and Contentions dated 23 March 2025 (‘RVTJ’s SFIC’).[19]
[19] Exhibit A9.
On 26 March 2025, RVTJ lodged a set of documents totalling nine pages relating to investigations as to whether RVTJ had the condition of “peripheral neuropathy”.[20] Those investigations revealed that RVTJ does not have this condition.
[20] Exhibit A11.
On 8 April 2025, the NDIA lodged a set of documents totalling 326 pages (‘NDIA’s Third HTB’), comprising:
(a)the Australian Government Commonwealth Home Support Programme Program Manual 2024-2025 Version 2 December 2024;
(b)the Australian Government Home Care Packages (HCP) Program Operational Manual A guide for home care providers Version 1.5 November 2024; and
(c)the Australian Government Schedule of fees and changes for residential and home care from 20 March 2025.
With permission from the Tribunal, the NDIA lodged further submissions and a set of annexures with the Tribunal on 23 April 2025 (‘NDIA’s Final Submissions’). RVTJ lodged submissions and a set of annexures in reply with the Tribunal on 28 April 2025 (‘RVTJ’s Final Submissions’).
Witnesses
RVTJ did not to call any of his treating health practitioners to give evidence at the hearing of this matter. In the case of Dr RE, RVTJ’s treating clinical psychologist who had diagnosed RVTJ with ASD, RVTJ said that Dr RE had told him RVTJ was reluctant to attend the Tribunal, because he had “given everything on the papers”. In RVTJ’s SFIC he stated as follows:[21]
I also make very clear point that [Dr RE] has always been available to be contacted in relation to his diagnosis. No one from the NDIA has bothered to make contact to ask for any clarification. The same issue applies to [Dr DG], [Dr AM], [Dr MP], etc. none of my doctors have been contacted.
[21] RVTJ’s SFIC, page 4.
At earlier case management conferences before the Tribunal when this matter was being prepared for the substantive hearing, RVTJ was made aware by the Tribunal that if he wanted his treating health professionals to give evidence in support of his application at the hearing, he would need to make those arrangements. The Tribunal also explained to RVTJ that if his treating health professionals were not willing to attend the hearing, that it was open to RVTJ to request that a summons to give evidence be issued by the Tribunal directed to any of those individuals. The Tribunal did not ever receive any such request by RVTJ for such summonses to give evidence.
As this matter progressed before the Tribunal, the NDIA requested that RVTJ submit to independent medical examinations by a psychiatrist and an occupational therapist. At first, those requests were resisted by RVTJ because he had had negative experiences with independent medical examinations previously. Subsequently, RVTJ provided his consent to undergo those assessments and they took place with:
(a)Dr JH, via video link. Dr JH issued a detailed medical report dated 28 January 2025 (‘Dr JH’s Report’); and
(b)Mr EM, via a face to face functional capacity assessment at RVTJ’s home. Mr EM issued a detailed medical report dated 24 February 2025 (‘Mr EM’s Report’).
At the substantive hearing of this matter, RVTJ, Dr JH and Mr EM were called to give evidence.
BACKGROUND
Age, background and living circumstances
RVTJ is currently 68 years old. The NDIA accepts that RVTJ meets the “age requirements” under s 22 of the NDIS Act because RVTJ made his request to access the NDIS shortly before his 65^th birthday.[22] Accordingly, the Tribunal finds that RVTJ meets the “age requirements” under s 22 of the NDIS Act.
[22] T-Documents, T3/31.
The NDIA also accepts that that RVTJ meets the “residence requirements” under s 23 of the NDIS Act and the Tribunal finds accordingly.
RVJT’s speech is unimpaired. He has an Australian accent and English is his first language. He was self-represented at the hearing and was able to present his case and navigate the process in a capable manner. He was personable and able to control his emotions. He clearly articulated his position, could understand the questions being asked of him and was able to answer them. He was able to maintain his concentration during lengthy sessions. Throughout the hearing process, RVJT was respectful and polite towards to the Tribunal, its staff, and to the NDIA’s representatives.
In terms of RVTJ’s family history, his mother died about 35 years ago (when RVTJ was in his 30s), and his father died about 15 years ago. RVTJ has stated he had a good relationship with his parents.[23] At the hearing, RVTJ was asked if his parents were abusive to him. He answered, “No” and then added, “they were not supportive either”. RVTJ does not have any siblings and he was raised as an only child.
[23] Ibid, T3/58.
RVTJ has been married twice. RVTJ has four children: his three eldest children from his first marriage and his youngest son (‘S’) from his second (current) marriage. RVTJ gave evidence at the hearing that he has seven grandchildren but that he is “not close to any of them”.
RVTJ said his first marriage to his ex-wife (‘Ex-W’) ended at a time when RVTJ’s mother and grandparents all died within the same 12-month period. RVTJ recounts this as being a very difficult time for him, as reflected in the reports issued by his treating health practitioners. Specifically, after the breakdown of his first marriage, RVTJ said he was left to care for his three children who, at that time, were all aged between four and eight years. RVTJ reported to Mr EM that Ex-W had assisted him to care for their children on the weekends.[24]
[24] Ibid.
At the hearing, RVTJ confirmed that he was separated from his current wife (‘W’) for a period of time. During this period of separation, they continued to live under the same roof. RVTJ told the Tribunal that he has now reconciled with W and they are living together again as a couple. S, and his daughter from his first marriage (‘D’) aged in her 30s, also live in the family home presently with RVTJ and W. S is aged in his early 20s and is reported to have significant disabilities arising from ASD, ADHD, oppositional defiance disorder (‘ODD’), global learning disability, Klinefelter syndrome/surgery to club foot, learning disabilities, anxiety, depression, suicidal thoughts and self-harm.
RVTJ and his family live in a four bedroom, three bathroom, single level home on a large suburban block of land,[25] in an outer suburb of Melbourne. There is a pool in the backyard, which RVTJ told the Tribunal that he maintains. The photographs contained in Mr EM’s Report shows there is quite a lot of land and gardens around RVTJ’s home, including an outdoor paved staircase leading up to the entrance of the home and areas of lawn.
[25] Mr EM’s Report, page 11.
RVTJ was obese when he was younger. RVTJ reports that he was taunted, beaten up, spat on, and the subject of schoolyard bullying when he was at secondary school. RVTJ believes that this has had a grave impact upon him. He said he did not feel well supported by the school, or his parents, during this period of bullying. RVTJ believes that he has PTSD and that this is likely to have arisen from the schoolyard bullying and subsequent reported workplace bullying at the end of his working career.

RVTJ is reported by his treating doctors to be in remission from a longstanding alcohol abuse disorder. RVTJ has managed to break this habit with support from a program at Hospital D.[26] RVTJ says he no longer drinks alcohol. The Tribunal accepts this evidence.
[26] Name of this hospital omitted. Hospital D offers a range of services within both inpatient and day programs including substance use and addiction, aged, and general psychiatry.
Work history
RVTJ is reported to have left school at the end of Year 12 and began an apprenticeship as a motor mechanic.[27] Reportedly, he did well in this role. His employer also owned a helicopter company so part way through his apprenticeship, his employer offered him a position as an apprentice aircraft mechanic. He finished the apprenticeship and was made leading hand of processes involving the overhaul of helicopter engines and components.[28]
[27] T-Documents, T3/48.
[28] NDIA’s HTB, page 20.
Subsequently, over the next decade, RVTJ worked at three different companies working as a maintenance fitter. RVTJ stated that the reason he changed his employers during this time, was to increase his pay and to have varied experiences.
Then, RVTJ worked in the position of senior production manager for a milk company for about three years. Subsequently, RVTJ was employed as production manager at a company for about 21 years and held various roles over that time. RVTJ was made redundant from this company and took a year or two of leave. Then, he worked for a company in an outer suburb of Melbourne.[29] RVTJ worked at this company for two and half hours before the alleged “workplace bullying” took place which eventually led to his cessation of work at this workplace, and generally, in May 2018 for mental health reasons.[30]
[29] Ibid.
[30] Ibid, page 21 and 32.
Workers’ compensation claim
RVTJ made a workers’ compensation claim in relation to the alleged workplace bullying that occurred in about 2018. At first, this claim was contested. Subsequently, the claim was accepted. RVTJ’s workers’ compensation income payments have now ceased upon him reaching retirement age, but he continues to receive payment for some medical expenses under his WorkCover claim.[31]
[31] Ibid.
Access Request
As mentioned above, shortly before RVTJ reached the age of 65, he made a request under s 18 of the NDIS Act for access as a participant in the NDIS (‘Access Request’).[32]
[32] T-Documents, T3.
Access Decision
On 14 January 2022, a delegate of the CEO decided that RVTJ does not meet the access criteria under the NDIS Act (‘Access Decision’).[33]
[33] Ibid, T4.
RVTJ sought an internal review of this decision under s 100 of the NDIS Act.[34]
[34] Ibid, T5 & T6.
Internal Review Decision
On 1 April 2022, a different delegate of the CEO confirmed the Access Decision.[35] This is the Decision Under Review.
[35] Ibid, T2.
Application for Review by the AAT
On 27 April 2022, RVTJ sought review of the Decision Under Review by lodging an “Application for Review of Decision” form with the AAT.
MEDICAL HISTORY
Current treating health practitioners
At the hearing, RVTJ gave evidence that:
(a)he sees his treating general practitioner, Dr AM, once every two months;
(b)he is seeing Dr RE for six sessions per year because of his “communication and ASD issues”. RVTJ said those six sessions are subsided by Medicare and that he will pay the gap in fees, which is between $100 and $200 per one-hour session;
(c)he sees Dr DG once every three to four months, funded by WorkCover, and would like to increase the frequency of those sessions;
(d)he has stopped seeing the “lymphedema specialist” because it was too expensive (he said it would cost more than $300 for five minutes); and
(e)he sees a physiotherapist every three to four weeks and will travel there by car. He said he attends about half of those sessions on his own. RVTJ said he does not have any issues getting into his car which he said he is able to drive.
Current medication regime
At the hearing, RVTJ gave evidence that he takes the following medication as prescribed to him by his doctors:
(a)one tablet of Lisdexamfetamine (slow release) in the morning and then he takes Dexamphetamine between 12 noon and 1pm, for ADHD;
(b)Propranolol which is a beta-blocker, “for adrenaline spikes/meltdowns for ASD”. The Tribunal notes that in a medical report by Dr SGK (referred to in more detail below), RVTJ had told Dr SGK that the Propranolol was take to “relieve the physical symptoms of anxiety”;[36]
(c)Zyban, 150mg once in the morning, which RVTJ said was effective in helping with his depression;
(d)Finasteride, for lymphedema, to reduce the build-up of fluid in his legs which he said are due to non-reversible valves. He said he sometimes gets pain in his legs but that it is “bearable”;
(e)Terbinafine, for toe fungal control;
(f)Nexium, for reflux issues since the bariatric surgery;
(g)Valsartan, for his blood pressure;
(h)Cilicaine, as a preventative antibiotic relating to his condition of lymphedema;
(i)Cialis, for erectile dysfunction; and
(j)Atorvastatin, for his cholesterol.
[36] NDIA’s HTB, page 31.
Access Request – 2021 Supporting Evidence Form
On 2 November 2021, Dr DG completed an NDIS “Access Request – Supporting Evidence Form” (‘SEF’), in respect of RVTJ in support of his Access Request.[37]
[37] T-Documents, T3/32-44.
On the SEF, Dr DG:
(a)described RVTJ’s “primary impairment (i.e., the impairment with the most impact on daily life)” as being “autism spectrum disorder”;[38]
(b)stated that RVTJ has had this condition since birth;[39]
(c)indicated that this impairment was not time limited and/or degenerative in nature;[40]
(d)indicated that this impairment was currently being treated and the treatments include daily medication;[41]
(e)stated that RVTJ’s conditions are “stabilised and maintained”;[42]
(f)stated that RVTJ has had the following past treatments: “Medications, therapies – ACT, CBT, mindfulness”. “ACT” is a reference to acceptance and commitment therapy. “CBT” is a reference to cognitive behavioural therapy. The medications were recorded as being taken daily;[43]
(g)opined that there were no available, evidence-based treatments/interventions that were likely to substantially relieve RVTJ’s impairment;[44]
(h)opined that there were no early intervention supports likely to reduce RVTJ’s future support needs;[45] and
(i)indicated that a “DSM-5” assessment had been administered with RVTJ, and one other assessment (unspecified).[46]
[38] Ibid, T3/33.
[39] Ibid.
[40] Ibid.
[41] Ibid, T3/33 & 34.
[42] Ibid, T3/34.
[43] Ibid.
[44] Ibid.
[45] Ibid, T3/35.
[46] Ibid, T3/36.
On the SEF, Dr DG stated that RVTJ’s other impairments include “ADHD” and “Psychosocial disabilities”.
On the SEF, Dr DG stated that RVTJ’s disability had substantially impacted his functional capacity in the domains of:
(a)“mobility” because Dr DG stated that RVTJ has difficulty using public transport, going to shopping centres, and leaving the house (which she said he only does so rarely and never for recreational activities);[47]
(b)“communication” because Dr DG stated that RVTJ has difficulty interpreting communications and particularly nuances and non-verbal cues, which leads to miscommunications and frustrations. Dr DG stated that RVTJ also finds communication to be exhausting and requires a high level of concentration;[48]
(c)“socialising” because Dr DG stated that he is “severely limited” and has “difficulty initiating and responding to conversations”. Dr DG stated that RVTJ has “difficulty making and keeping friends” and has “no friends outside of the family”. Dr DG described RVTJ’s family life as “fractured and dysfunctional” and that he has little or no contact with his older children and grandchildren. She reported that RVTJ felt “lonely and awkward” and was “lacking in cinfidence [sic] socially”. She stated that RVTJ lived an “eremite, solitary life”;[49]
(d)“learning” because Dr DG stated that RVTJ has severe difficulty organising tasks, planning, remembering, learning new information, concentrating, participating in group learning (classes, tutorials), and focussing on complex tasks. She reported that he has difficulties completing education or training and finds it very difficult to follow complex instructions, or concentrating on any task for more than a few minutes;[50]
(e)“self-care” because Dr DG stated that RVTJ has issues with personal care/grooming, coping strategies, maintaining physical health, non-accidental self-injury, managing his medications, sexual health, and general well-being. She reported that RVTJ lived independently but may sometimes neglect self-care, grooming, or meals and needed some support (that is, occasional visits by or assistance from a support worker) to live independently and maintain adequate hygiene and nutrition;[51] and
(f)“self-management” because Dr DG stated that RVTJ has “extreme difficulties in coping in situations involving stress, pressure, or performance demands”. She reported that he has occasional behavioural or mood difficulties ranging from moderate to severe (such as temper outbursts, deeper depression, total withdrawal and isolation or poor judgement).[52]
[47] Ibid, T3/37.
[48] Ibid, T3/38.
[49] Ibid.
[50] Ibid.
[51] Ibid.
[52] Ibid.
WHETHER RVTJ MEETS THE DISABILITY REQUIREMENTS UNDER S 24
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)     A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self care;
(vi)      self management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
In the introduction to RVTJ’s SFIC, RVTJ contends that he has provided sufficient evidence to meet the disability (and early intervention requirements), including impairment such as spinal cord damage, cervical myelopathy, MDD, ASD and ADHD. RVTJ states “Evidence that any fair-minded individual will agree positively satisfies every fact relevant to the statutory criteria for access into the NDIS”.
Subsection 24(1)(a) – Disability
The first criterion, under subsection 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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”.
In National Disability Insurance Agency v Davis (‘Davis’), Mortimer CJ of the Federal Court of Australia made the following judicial observation (emphasis added):[53]
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[53] National Disability Insurance Agency v Davis [2022] FCA 1002, [69] (‘Davis’).
The Access Guidelines provide the following guidance to decision-makers considering this criterion under subsection 24(1)(a) of the NDIS Act (footnotes omitted):
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident, or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
Physical impairments
RVTJ was previously obese for an extended period of time, including when he was young. In January 2018, RVTJ underwent gastric bypass surgery. The operation was successful. RVTJ is no longer obese, nor does he have any physical impairment/s arising from his former bodily condition of obesity.
RVTJ gave evidence that he suffers from daily urinary leakage due to a “weakness in the urinary tract”. He uses continence products. RVTJ’s My Aged Care support plan provides a referral code to allow RVTJ to receive support when sourcing the continence products. RVTJ says he pays for them privately and buys them from Chemist Warehouse. This condition does not cause RVTJ any physical impairment.
RVTJ also experienced problems with his knees. RVTJ said he underwent a left knee replacement in 2015, and that his knee is made of titanium. He said the other knee is “not good”. This operation was successful and it remedied his knee problems. When asked whether he had any impairment arising from his knee conditions, he said that it is “not major” and will “restrict him sometimes”.
RVTJ also previously suffered from carpel tunnel syndrome (‘CTS’) in both of his hands. He underwent surgery for this condition. The surgery was successful and RVTJ confirmed at the hearing that “it’s fixed”. In RVTJ’s SFIC, he stated that the surgery had “remediated any impairments”.[54] The Tribunal finds that RVTJ does not have any physical impairment arising from CTS.
[54] RVTJ’s SFIC, page 2.
RVTJ told the Tribunal at the hearing that he suffers from lymphedema which can result in fluid retention in his lower limbs and which can cause infections. RVTJ told the Tribunal he uses compression stockings at times. RVTJ also takes regular medication to reduce fluid retention in his legs, and antibiotics to prevent infections. Given the medical management of this condition, based on RVTJ’s own evidence, RVTJ’s lymphedema does not cause him any physical impairment/s.
In 2022, RVTJ experienced a sudden onset of severe neurological symptoms affecting his limbs and caused him to suffer vertigo and nausea, which was later discovered to arise from nerve compression in his cervical spine caused by canal stenosis. He was referred for specialist treatment by Dr SN, neurologist, Dr CT, neurosurgeon, and Dr SL, neurologist and clinical neurophysiologist.
On 2 May 2022, Dr SN issued a medical report stating that an MRI of RVTJ’s spine had revealed significant spinal cord compression at the C3/4 and L2 to L5 levels. At that time, Dr SN opined that RVTJ’s current issues included “a possibility of” cervical myelopathy and lumbar radiculopathy. He stated that RVTJ’s symptoms (at that time) were disabling. He referred RVTJ to see Dr CT, who performed C-spine decompression surgery on RVTJ’s spine on 10 May 2022. RVTJ later underwent a spinal procedure on his lumbar spine.
Dr SN reviewed RVTJ after the surgery. In Dr SN’s letter dated 1 July 2022, he stated that RVTJ had regained “much of his strength and sensation” following the operation. Dr SN remarked that RVTJ’s core strength, hand dexterity, and lower limb sensation had improved. Dr SN referred to the results of the nerve and muscle biopsies, which he described as showing minor nerve damage, as well as non-inflammatory myopathy. However, Dr SN offered no specific treatment for those issues, and instead, opined that “the bulk of [RVTJ’s] problems” emanated from RVTJ’s cervical spine. Dr SN noted that RVTJ was having rehabilitation (at that time) and was “doing exercises”. He also noted, at that time, that RVTJ “required a walker to help with his balance”.[55]
[55] NDIA’s HTB, page 51.
At the hearing, RVTJ told the Tribunal that he no longer required a walker to mobilise. RVTJ agreed that the C-spine decompression surgery/laminectomy procedures were a success.
More recently, RVTJ reported the return of some of his symptoms, for which he said he intends to return to see his treating specialists. Specifically, RVTJ stated in his SFIC as follows:
The Applicant does not accept the view that my lumbar myelopathy and peripheral neuropathy do not meet the access criteria under s24(1)(a).
Over the past 4 months there has been an alarming deterioration in my lumbar Myelopathy and peripheral neuropathy conditions’ it is a recurrence of the same functional lose that lead to my near total loss of capacitance two years ago. To halt the deterioration, I am currently attending twice weekly chiropractic adjustments and physiotherapy every third week. I am waiting for written reports from both my chiropractor and my physiotherapist. I will also arrange for a referral from my GP [Dr AM] to a neurologist for follow up tests and MRI to be then sent to my neurosurgeon [Mr CT] for his comment and advice.[56]
At the hearing, RVTJ gave evidence that he is no longer seeing a chiropractor but he continues to see a physiotherapist every three to four weeks. Despite the indication above, RVTJ did not tender any clinical reports either from his physiotherapist or his chiropractor, nor call them as witnesses at the hearing of this matter.
[56] RVTJ’s SFIC, page 2.
RVTJ said that the main issues are his balance and stability. He says he still has “a little bit” of sciatica causing pain down into his legs. At a later point during the hearing, RVTJ said that his sciatica had been “reduced to virtually nothing”. When asked whether he experiences neck pain, RVTJ said this is “not an issue”. When asked whether he experiences lumbar pain, he said “this doesn’t restrict me”, except that he “can’t walk for long distances”. RVTJ gave evidence that the spinal surgery had “helped [him] enormously” and that he was “starting to progress again”.
At the time of the spinal surgery, further investigations (muscle and nerve biopsies) were undertaken by his medical specialists to explore whether he had the condition of peripheral neuropathy. The biopsies did not reveal any positive finding of “peripheral neuropathy”. There was no clear diagnosis of RVTJ having “cervical myelopathy”.

At the hearing, Ms Stowell expressly acknowledged RVTJ’s challenges in relation to his spinal problems. Specifically, Ms Stowell acknowledged that in 2021 and 2022, RVTJ had experienced a loss of bodily function in relation to his spinal cord condition causing numbing of the legs and loss of strength of his arms and legs. Ms Stowell said that the NDIA accepts that this led to a loss of function at that time including RVTJ’s capacity to undertake activities of daily living (‘ADLs’), such as getting dressed. However, Ms Stowell contends that in 2022, RVTJ underwent successful spinal decompression surgery and a series of functional rehabilitation sessions which have resolved those impairments. Ms Stowell contends that RVTJ’s loss of function is restored and referred to Dr SN’s report as referred to in paragraph [79] above. Ms Stowell also noted RVTJ’s own evidence that those spinal surgeries were successful and that he is now independent in undertaking ADLs, including dressing, cooking, shopping, doing the laundry, undertaking home duties and maintenance, and being able to use his computer and iPad.
Ms Stowell said that the NDIA does not accept that there is sufficient evidence for the Tribunal to find that RVTJ had a “permanent physical impairment” attributable to the conditions referred to above.
In relation to the “residual physical medical conditions”, Ms Stowell said that RVTJ gave evidence that he receives physiotherapy through My Aged Care. She said the NDIA accepts that this physiotherapy would be of benefit to him. Ms Stowell also acknowledged that RVTJ gave evidence that he is currently consulting with his doctors and suspects the return of his spinal cord issues. However, Ms Stowell notes that that such consultation is “ongoing”. The Tribunal asked RVTJ whether he had scheduled an appointment with his doctors in relation to the return of some of his symptoms. RVTJ answered in the negative, and that he had not made contact with his doctors, as yet, to arrange an appointment. RVTJ was asked whether the symptoms stopped him from performing daily tasks. RVTJ answered, “probably not yet” and that he “might be slower”. He said he cannot carry a load of washing but he added that he “can work around it”.
Bearing in mind RVTJ’s age, Ms Stowell contends that, on the evidence, he does not have any physical impairments. The Tribunal agrees and finds that there is no definitive medical or clinical evidence before it to conclude that RVTJ has any identifiable physical impairment/s. Fortunately, RVTJ’s capacity for physical activities has greatly improved as a result of the following:
(a)RVTJ is no longer obese;
(b)RVTH has had the benefit of several successful surgeries to this left knee, cervical and lumbar spine and to treat his CTS;
(c)RVTJ’s alcohol use disorder has been addressed, and he has remained in remission;
(d)RVTJ’s core strength has improved as a result of his evidence that he engages in some exercises. RVTJ is significantly more active since the spinal surgery which serves to increase his general core strength; and
(e)RVTJ uses compression stockings and medication to effectively control fluid retention in his legs as a consequence of his condition of lymphedema, as well as taking preventative antibiotics to prevent infections from arising.
Direct observations made of RVTJ on the first day of the hearing demonstrated that he does not have any apparent problems with his physical capacity which would be out of place for a person in their 68^th year of life. RVTJ appeared to be concerned about his future and specifically, whether his spinal cord problems would re-emerge, given the reported return of some of his symptoms. The Tribunal acknowledges RVTJ’s concerns about this. However, RVTJ has not yet returned to see his treating specialists, Dr SN and Dr CT, or made any appointments to see them. There is not positive medical or clinical evidence before the Tribunal about his re-emerging symptoms upon which the Tribunal can make any findings. In fact, the Tribunal considers that it can be reasonably inferred that the symptomatology is not as severe or problematic as it was previously or RVTJ would have by now, made an appointment to see his specialists about it.
All of RVTJ’s other physical ailments appear to have been remedied. At the moment there is insufficient medical evidence to support a finding that RVTJ has any current identifiable physical impairments. For a 68-year old, RVTJ is appropriately mobile and active. He owns and is able to drive his car. He regularly travels long distances (those trips are between 17km and 56km) to visit his sister-in-law or two close friends. Sometimes he will make those trips with W and sometimes, he will visit his two friends alone. He will also go out for meal with W on occasion, albeit infrequently.
At other times, RVTJ will drive to Bunnings to buy chemicals for his pool and place them into his pool. RVTJ gave evidence that he is able to bend down to the pool water to collect samples. RVTJ gave evidence that he can undertake the task of removing leaves from his pool. He undertakes those tasks independently, except that he said that sometimes he might ask the person at Bunnings to help him lift the pool chemicals into his car. RVTJ told the Tribunal that the maintenance around the house was not being done and things were “falling apart”. The Tribunal considers that this is a problem that many persons of RVTJ’s age may face when continuing to live on a large suburban block with all the maintenance associated with that. This is a reason why many persons of RVTJ’s age will either downsize or arrange to get some people in to assist with the ongoing maintenance.
By RVTJ’s own evidence and Mr EM’s evidence, RVTJ is able to attend to most physical ADLs and he does so independently, as set out in detail below.
The Tribunal concludes that there is insufficient evidence before it at the present time to conclude that RVTJ currently has any physical impairment/s. Even if the Tribunal is found to be wrong about this, and even if any of RVTJ’s physical impairment/s are considered to be permanent, the Tribunal is not satisfied that they have resulted in substantially reduced functional capacity in undertaking any one or more of the Prescribed Activities, for the reasons set out below under the heading, “Subsection 24(1)(c) – Substantially reduced functional capacity”.
Impairments which are attributable to psychosocial disabilities
RVTJ has had a long history of mental health problems, including depression, anxiety, and an alcohol use disorder (now in remission). RVTJ continues to receive ongoing treatment from several different health practitioners in relation to his psychosocial functioning.[57] RVTJ claims that he has impairments attributable to a number of psychosocial disabilities including MDD, ASD, ADHD, PTSD, and “Acute Anxiety”.
[57] Specifically, Dr AM, Dr DG, Dr RE, Dr MP and Ms FS as referred to below. Names of these health practitioners withheld.
At the commencement of the hearing, RVTJ was asked to describe his psychosocial impairments. He said that he has “an inability to have friends”, “cannot communicate well” and that he is “inappropriate, in the things [he] says”, specifically, that he will “over-share” or “crack jokes in the wrong company”. RVTJ said he would like to be more social but he is terrified how to do it and does not know how to go about it. He said he is open to receiving support to help him to develop his skills with social interaction. However, RVTJ said a social support group is not what he is looking for. He said he is fearful of social groups. He said he is “not social”. He said he is “fearful of failure” and of “being ridiculed, as he has been in the past”. RVTJ confirmed that his My Aged Care support plan included a referral code for support to link him to men’s groups or local community groups. RVTJ confirmed that he has not availed himself of such services for the reasons above, and also because he has “other things on [his] plate as well”, including S’s and W’s health issues.
While the NDIA accepts that RVTJ has “MDD with anxiety”, it contends that the medical evidence does not support findings that RVTJ has ASD, ADHD, or PTSD, and further contends that “Acute Anxiety” is not a recognised psychiatric condition under the Diagnostic and Statistical Manual of Mental Disorders,[58] based on the opinion of the independent psychiatrist, Dr JH, who recently examined RVTJ. The Tribunal will address below, a summary of RVTJ’s medical and clinical history in relation to his mental health conditions.
[58] The current version of this manual is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, published by the American Psychiatric Association, 2022 (‘DSM-5-TR’).
On 26 February 2017, Dr JLB, consultant psychiatrist, saw RVTJ at the request of RVTJ’s treating general practitioner, Dr AM, and issued a letter.[59] In this letter, Dr JLB stated that RVTJ had been “abstinent from alcohol” since March 2016. Dr JLB stated that RVTJ had reported a history of “bullying at school” and “the life catastrophe” in 1990 when his grandmother and mother died and his first wife left him, leaving him with three children who “went off the rails and DHS became involved”. Dr JLB concluded that RVTJ was “clearly damaged” by his “experience of ostracism at school” and “possibly more subtle factors in his family of origin”. Dr JLB stated that RVTJ had “displayed difficulty in emotional processing” and “may have a vulnerable narcissism” which left him “depleted and dysphoric”. Dr JLB added that RVTJ’s “disorder of personality had been complicated by a non-melancholic depression with emergent suicidal intent”. Dr JLB stated that this “was a worry” and “mitigates for a poor progress”. Dr JLB added that, “nevertheless [RVTJ] is managing work and is still in a relationship”. Dr JLB concluded that, at that time, he was content to give RVTJ a trial of psychotherapy.[60]
[59] NDIA’s HTB, pages 11 & 12.
[60] Ibid.
On 11 October 2018, Dr SGK, treating psychiatrist based at Hospital D’s consulting suites, issued a report addressed to the Accident Compensation Conciliation Service stating that RVTJ had attended him since June 2016 (‘Dr SGK’s Report’).[61] Dr SGK diagnosed RVTJ with “Major Depressive Disorder with anxiety” and recorded RVTJ’s symptoms as including “despondency, anhedonia, difficulties with focus and concentration”. Notably, Dr SGK did not state in this letter that her diagnosis for RVTJ also included ASD, ADHD, or PTSD. Dr SGK opined that the aggravation of RVTJ’s pre-existing injury had a “strong negative impact” on his capacity to adequately fulfil his work role. Dr SGK referred to RVTJ continuing to use medication and supportive psychotherapy, and that he attended the program at Hospital D on a regular basis. Dr SGK described this as remaining as a “work in progress” and that she was unable to provide a clear timeframe for “its needed duration”.
[61] Ibid, pages 13 & 14.
In September 2018, RVTJ was assessed at the request of a workers’ compensation insurer by Associate Professor PD (‘A/P PD’),[62] independent psychiatrist, who issued a medical report dated 12 September 2018 (‘A/P PD’s Report’).[63] In A/P PD’s Report, he stated that RVTJ did not appear to have any cognitive impairments and that his insight and judgement were not impaired by any psychiatric state. A/P PD stated that there did not appear to be “any significant features of traumatisation”. Notably, A/P PD did not diagnose RVTJ as having, or being suspected as having, ASD, ADHD, or PTSD. A/P PD stated that RVTJ had told him that he had been seeing Dr SGK for two years, on a weekly basis, that he had needed help to “give up alcohol”, and that he “had had twenty years of drinking”.[64] A/P PD stated that RVTJ had told him that he was “an alcoholic but has not drunk alcohol for two and half years”, that he is “a recovering alcoholic”, and that he had “previously regularly drank whisky up to 720mls daily and maybe some cans of other alcohol”.[65] The Tribunal notes that A/P PD stated that “there is a psychiatric condition present, which could be diagnosed as a major depressive disorder” and that “the depressive disorder is associated with some anxiety”.[66] He stated, “The disorder is occurring in a person who has significant psychological and personal vulnerabilities. He is shy, avoidant, unassertive person who is threatened by confrontation”.[67] A/P PD stated that RVTJ had improved since cessing work and that RVTJ intended to return to work. A/P PD stated there would be significant barriers to him doing so and at the time he examined RVTJ, A/P PD did not consider him to be fit for work. However, A/P PD considered that RVTJ “will progressively remit, and he will have a capacity for work within weeks to months”.[68]
[62] Name of psychiatrist withheld.
[63] NDIA’s HTB, pages 28-37.
[64] Ibid, page 31.
[65] Ibid, page 32.
[66] Ibid, page 34.
[67] Ibid.
[68] Ibid, page 36.
On 20 November 2018, Dr MP, treating clinical psychologist, issued a report addressed to the Accident Compensation Conciliation Service (‘Dr MP’s 2018 Report’).[69] Dr MP stated that he started treating RVTJ under a GP Medicare Mental Health Care Plan on 5 July 2018 and had since that date, until the date he issued his report, seen RVTJ once or twice a month. He said Dr AM referred RVTJ to Dr MP for treatment for (emphasis added) “…long standing MDD that has recently been complicated by workplace circumstances that appear to be consistent with harassment and inappropriate administration of his remuneration structure. These actions have been implemented by his supervisor”.[70] At this time, RVTJ held the position as an operations manager with responsibility for “planning, manufacturing and distribution”, maintenance, quality standards, and occupational health and safety.
[69] Ibid, pages 15-24.
[70] Ibid, page 16.
In Dr MP’s 2018 Report, he stated that:
(a)RVTJ had told him that he had been abstinent from alcohol for three years;
(b)RVTJ had told him that he had seen a psychologist for eight months, “went back to” Dr SGK, and had continued to attend the men’s group;
(c)when RVTJ was assessed by direct questioning, according to the “DSM-4” criteria, he “was found to be suffering from a major depressive disorder and panic attacks”;[71]
(d)Dr MP administered a Beck’s Depression Inventory (‘BDI-II’) test[72] and Beck Anxiety Inventory (‘BAI’)[73] tests on RVTJ. RVTJ’s scores rated his depression under the BDI-II as “severe”, and his anxiety under the BAI as “severe”;
(e)Dr MP attempted to treat RVTJ’s depression with CBT-based procedures which relied on cognitive restructuring techniques, to assist RVTJ to “identify and challenge faulty thinking”;[74] and
(f)due to the severity of RVTJ’s depression, it was clear that he required pharmacological treatment (anti-depressant medication) which, at that time, Dr MP noted was being prescribed by Dr SGK.
[71] Ibid, page 18.
[72] The BDI-II is a 21-question multiple choice self-report inventory.
[73] The BAI is a 21-question multiple choice self-report inventory.
[74] NDIA’s HTB, page 19.
In Dr MP’s 2018 Report, he referred to RVTJ experiencing panic attacks. Dr MP stated that he had attempted to treat RVTJ’s panic disorder with CBT, incorporating a variety of different components comprising cognitive restructuring, breathing techniques, and relaxation techniques. Dr MP stated RVTJ had been “encouraged to engage in regular exercise appropriate to his physical”.[75] Dr MP stated that when RVTJ was assessed by direct questioning according to “DSM IV” criteria, “he was found to be suffering from a major depressive disorder and panic attacks”. Dr MP did not make any statement/s indicating a view that he may also have ASD, ADHD, or PTSD. Dr MP opined that RVTJ’s conditions (or MDD and panic attacks), at that time, were having a significant detrimental effect upon RVTJ’s emotional, interpersonal, and social functioning and were adversely affecting his potential for occupational functioning.[76]
[75] Ibid.
[76] Ibid, page 22.
RVTJ considers that he has the condition of ASD. RVTJ relies upon the diagnosis/medical opinion of Dr RE, treating clinical psychologist, as set out in his report issued on 23 February 2023 (‘Dr RE’s 2023 Report’).[77] In Dr RE’s 2023 Report, Dr RE stated that he “formally assessed” [RVTJ] on 15 February 2013 using the Wechsler Adult Intelligence Scale – Third Edition (‘WAIS-III’) assessment tool. Dr RE also stated that “After many years [RVTJ] felt he needed to complete the diagnostic process and attended an interview on the 23^rd of December 2019 to determine whether his history was consistent with ASD”. RVTJ described Dr RE, at the hearing, as being their “family psychologist” and that he had treated S for a long period of time (since S was about four years old). Following this assessment, Dr RE diagnosed RVTJ with ASD. Specifically, Dr RE stated as follows in Dr RE’s 2023 Report:[78]
[RVTJ] has the history of impairments in social interaction and communication, and the restricted range of interests that fulfil a diagnosis of Autism Spectrum (DSM V – Level 2, requiring substantial support).
[77] Ibid, pages 1 and 2.
[78] Ibid, page 2.
In December 2019, RVTJ started seeing Dr VM, psychiatrist, who is based at D Consulting Suites,[79] as addressed in further detail in paragraphs [106] and [107] below.
[79] Name of consulting suites withheld. These consulting suites are based at Hospital D.
On 30 December 2019, Dr AM referred RVTJ to Dr DG (‘Dr AM’s Referral Letter’).[80] In Dr AM’s Referral Letter, Dr AM stated that RVTJ had long-standing issues of poor concentration, wandering thought processes (being a pervasive issue for him), impulsive behaviours, a history of substance abuse (alcohol), and that he had been abstinent for three years.[81] Dr AM stated that RVTJ thought that he had ASD. Dr AM does not express a view in this letter about whether he considers that RVTJ has ASD, except to remark that it was “certainly plausible”. Notably, Dr AM does not make any clear reference to RVTJ having ASD or that Dr AM suspect’s that RVTJ may have this condition (in addition to ADHD). Dr AM referred to RVTJ’s condition of MDD as being “long-standing”, “reasonably stable”, and “under the case and management” of Dr SGK.[82]
[80] NDIA’s HTB, pages 38 and 39.
[81] Ibid, page 38.
[82] Ibid.
On 6 February 2020, Dr VM issued a medical report (addressed to Dr SGK) (‘Dr VM’s Feb 2020 Report’),[83] describing RVTJ as being “very unsettled”, requiring the help of a “CATT team frequently”, and requiring Police involvement “because of his behavioural disturbance”.[84] Dr VM stated that, in 2010, RVTJ had an “episode of depression and anxiety” in the context of the death of RVTJ’s father. Dr VM stated that in 2017/2018, RVTJ’s symptoms of depression and anxiety increased in the context of work-related stress and as a result was seeing Dr SGK. Dr VM stated that at the time he saw RVTJ in February 2020, RVTJ reported that his symptoms had increased in the previous few months because of stress related to his relationship difficulty with his wife, and the mental illness of his son. RVTJ reported symptoms of feeling sad and being exhausted, with decreased energy, interest, motivation, and concentration. Dr VM stated RVTJ’s “anxiety symptoms” comprised of RVTJ feeling apprehensive, edgy, churning in the stomach, shortness of breath, and shakiness, which lasted the whole day but varied in intensity. Dr VM stated there was “no evidence of mania or psychosis”. Dr VM noted that, at that time, that RVTJ was seeing a psychologist once a month.[85]
[83] Ibid, pages 25-27.
[84] Ibid, page 25.
[85] Ibid, page 26.
Upon examination of RVTJ in February 2020, Dr VM diagnosed RVTJ with “Major depressive disorder with anxiety”.[86] Dr VM recommended that RVTJ should increase his dosage of Mirtazapine to 30mg.[87] In neither of Dr VM’s Feb 2020 Report or a later report by Dr VM dated 1 September 2020 (‘Dr VM’s Sept 2020 Report’) did Dr VM diagnose RVTJ as having, or being suspected as having ASD, ADHD, or PTSD.
[86] Ibid, page 27.
[87] Ibid, page 27.

In support of RVTJ’s claim that he has ASD (and impairments arising from ASD), RVTJ also relies upon the medical opinions of Dr DG as contained her following two reports:
(a)Dr DG’s report dated 21 October 2021 (‘Dr DG’s Oct 2021 Report’).[88] The subject line of this report states “RE: Letter in Support of Psychosocial Disability NDIS Access”; and
(b)Dr DG’s report dated 8 April 2023 (‘Dr DG’s Nov 2023 Report’),[89] described in the first line as being provided in support of RVTJ’s application for the NDIS.
[88] Ibid, pages 90-96.
[89] Ibid, pages 88 and 89.
As stated in the table on page 1 of Dr DG’s Oct 2021 Report, Dr DG has diagnosed RVTJ with the medical conditions of ADHD, ASD, PTSD, MDD, and “Acute Anxiety”. It would seem that RVTJ was diagnosed by Dr DG for the first time as having ADHD in about 2020/2021. Dr DG listed the earlier diagnoses made other doctors/clinicians as follows:
(a)Dr RE had diagnosed RVTJ with ASD;
(b)Dr AM, Dr SGK, Dr VM, A/P PD, Dr MP, and Dr RR, independent psychiatrist, had each diagnosed RVTJ with MDD and “Acute Anxiety”.[90]
[90] Ibid, page 90.
In Dr DG’s Oct 2021 Report, she stated that RVTJ has “severe and permanent mental illness with complex and diverse health and social needs”.[91] Dr DG stated that RVTJ required intensive support to prevent further deterioration.[92] Dr DG stated that RVTJ’s mental health conditions continued to “significantly impact his functional capacity” and his ability to function at home, in the community, and to undertake ADLs. Dr DG stated that RVTJ was an inpatient for ten days at Hospital D[93] in July 2018, where he received extensive therapy for MDD and “Acute Anxiety”. Dr DG said that RVTJ attended inpatient group therapy twice a week at Hospital D over an extended period of five years from 2014 to 2019.[94] Notably, Dr DG does not mention in her report that RVTJ had a long-standing alcohol use disorder (in remission).[95]
[91] Ibid.
[92] Ibid.
[93] Name of this hospital withheld. Hospital D is a private psychiatric hospital.
[94] NDIA’s HTB, page 91.
[95] It is apparent from Dr DG’s two reports issued in 2020 (see paragraphs [115] to [120] below), which were produced under summons, that Dr DG was aware when she issued her Oct 2021 Report that RVTJ had an alcohol use disorder (in remission), as she referred to this condition in those earlier 2020 reports.
Dr DG stated that RVTJ was taken to Hospital M in August 2020 for “attempted self-harm”, but no further details were provided in this report about this event. The Tribunal notes Dr VM’s Sept 2020 Report in which Dr VM referred to RVTJ having taken 100 tablets of dexamphetamine two weeks prior upon becoming depressed and suicidal, and that he was admitted to Hospital M’s emergency department. Dr VM stated that RVTJ was stressed about “WC[96] issues, IME[97] report, relationship difficulties with wife and son’s issues”. Dr VM stated that RVTJ agreed to increase his dosage of Mirtazapine.[98]
[96] WC would appear to be a reference to WorkCover.
[97] IME would appear to be a reference to Independent Medical Examination.
[98] NDIA’s HTB, page 40.
In Dr DG’s April 2023 Report, she stated that RVTJ was receiving ongoing treatment from herself, Dr RE, Dr MP, and Ms FS, mental health care nurse.[99] Dr DG stated that RVTJ has the conditions of ADHD, ASD, “severe and persistent” MDD, PTSD, and an “acute anxiety and panic disorder”. She stated that the impact of RVTJ’s various conditions fluctuated, although the impact remained “significant”. Dr DG stated that RVTJ’s impairments would have a life-long impact on his functional status, including (self-care), participation in the community, and ability to work. Dr DG stated that those “illnesses” have “created disability” in the domains of “learning”, “mobility”, “communication”, “social interaction”, “self-management”, and “self-care”.[100]
[99] Ibid, page 88 and 89.
[100] Ibid, page 88.
Dr DG completed an NDIS “Evidence of psychosocial disability form” on 20 April 2023 (‘Dr DG’s NDIS Form 2023’) stating that she has been treating RVTJ since 27 February 2020. Dr DG noted that in 2018, RVTJ was diagnosed with “Major Depressive Disorder, severe, persistent”, “Acute anxiety, Panic Attacks”, and “Post Traumatic Stress Disorder”.[101] Dr DG stated that RVTJ suffered from “acute and chronic social anxiety” and “agoraphobia induced isolation”.[102] Dr DG stated that RVTJ’s self-management has been affected by his impaired decision-making and management of his financial affairs.[103] She stated RVTJ is prone to “procrastination” and “occasional severe impulsivity”.[104] Dr DG stated that RVTJ has “adequate self-care skills but they are poorly implemented as a result of chronic difficulties with energy, insomnia, motivation”.[105] Dr DG stated that RVTJ has “significant difficulty with direct verbal communication”.[106] Dr DG stated the RVTJ has significant impairments which inhibits his “functional moderation” and that he can become obsessive in relation to a special subject or project to the detriment of key life domains.[107] Dr DG stated that paradoxically, RVTJ is easily distracted and struggled with concentration.[108] Finally, Dr DG stated that RVTJ struggled with “significant mobility issues associated with the deterioration of the spine, peripheral neuropathy and associated pain, imbalance and weakness”.[109] The Tribunal notes that this is no longer the case since RVTJ’s surgeries on his spine. Further, as a psychiatrist, Dr DG is not suitably qualified to make statements about RVTJ’s physical condition and the Tribunal prefers instead to place weight on the medical reports provided by Dr SN, Dr CT, and Dr SL, as well as RVTJ’s own evidence about his physical issues.[110]
[101] Dr DG’s NDIS Form 2023, page 1.
[102] Ibid, page 3.
[103] Ibid.
[104] Ibid.
[105] Ibid.
[106] Ibid.
[107] Ibid.
[108] Ibid.
[109] Ibid.
[110] Ibid.
Dr DG was not called as a witness at the hearing. Her diagnoses and opinions about whether RVTJ’s medical conditions, including her diagnoses of ASD, ADHD, PTSD, and “Acute Anxiety”, were unable to be tested.
At the request of the NDIA, the Tribunal issued a number of summonses compelling the production of RVTJ’s medical reports and information relating to his medical and clinical history of psychiatric conditions and treatments, including those held by Dr DG. The parties extracted selected summonsed documents and tendered them as evidence. Of note, the NDIA tendered two additional earlier medical reports issued by Dr DG in 2020, specifically:
(a)Dr DG’s report dated 15 February 2020 (‘Dr DG’s Feb 2020 Report’);[111] and
(b)Dr DG’s report dated 6 June 2020 (‘Dr DG’s June 2020 Report).[112]
[111] NDIA’s HTB, pages 66 to 74.
[112] Ibid, page 41 to 47.
In Dr DG’s Feb 2020 Report, she provided further detailed information about RVTJ’s earlier medical history. Dr DG stated that RVTJ was referred to her by Dr AM, “for suspected ADHD and known comorbidities of ASD, MDD, PTSD”. Dr DG noted that before she saw RVTJ, he had completed “pre-assessment documents”, and “attended an assessment interview” with Ms FS, Mental Health Care Nurse.
In Dr DG’s Feb 2020 Report, she states as follows: “Trigger for this referral: wife and son diagnosed with ADHD, now feels that he may have this diagnosis as well”.[113] The Tribunal notes that the impetus for obtaining a diagnosis of ASD arose from RVTJ’s opinion that he has this condition.
[113] Ibid, page 66.
In Dr DG’s Feb 2020 Report, she set out the “DSM5” criteria for ADHD and referred to RVTJ’s symptoms at that time, as he reported them to her. Dr DG also set out the results of a brief test (comprising six questions only) entitled “Adult ADHD Self-Report Screening Scale for DSM-5 (ASRS-5)”. This test is based entirely on self-reported information.[114] RVTJ scored 17 out of 24. A score above 14 is “suggestive” of a person having ADHD.[115]
[114] Ibid, page 67.
[115] Ibid.
In Dr DG’s Feb 2020 Report, she stated that RVTJ had reported a “mental breakdown/shut down” in 1993/1994 when Ex-W left him with three children and his mother and grandmother had passed away.[116] Dr DG reported that RVTJ was first diagnosed with “depression” in 2010 after his father died and he was treated with Pristiq (50mg).[117] Dr DG stated this was “sufficient until workplace discord”.[118]
[116] Ibid, page 69.
[117] Ibid, page 70.
[118] Ibid.
In Dr DG’s Feb 2020 Report, she stated that RVTJ had “struggled for four years with alcoholism” and with “the children being truant, stealing, destruction”.[119] Dr DG reported that RVTJ was treated by Dr SGK for “alcoholism”, continued on Pristiq (50mg) and attended Hospital D’s weekly men’s group therapy.[120] Dr DG stated that RVTJ “used to drink one bottle of whisky per night and more on the weekend for approx. 15 years duration”.[121] She states that he has had “nil in past 4 years”.[122]
[119] Ibid.
[120] Ibid.
[121] Ibid, page 71.
[122] Ibid.
In Dr DG’s Feb 2020 Report, she stated that RVTJ’s other “addictive behaviours include internet games in the past which involved gambling/buying”.[123] Dr DG stated that RVTJ was formerly a smoker and that he had previously smoked 60 cigarettes a day. Dr DG also recorded that for a limited time when RVTJ was a young adult, he reported taking marijuana and “pills/MDMA/GHB/mushrooms” between the ages of 18 and 21 (and nil since that time).[124] Fortunately, RVTJ has managed to control his alcohol use disorder which is now in remission. There was no evidence before the Tribunal of him experiencing a continuing gambling problem or that he takes other illicit substances.
[123] Ibid.
[124] Ibid.
In Dr DG’s Feb 2020 Report, she stated that between 2014 to 2019, RVTJ reported to have participated in a biweekly inpatient group therapy at Hospital D. RVTJ received treatment therapies which included ACT, dialectical behaviour therapy (‘DBT’), CBT, mindfulness, and that he attended a men’s support group.[125]
[125] T-Documents, T3/50.
In Dr DG’s Feb 2020 Report, she stated that:[126]
(a)Dr AM had diagnosed RVTJ in 2018, with “MDD and severe anxiety”;
(b)Dr MP had assisted RVTJ to develop psychological supports; and
(c)Dr SGK changed RVTJ’s antidepressant with reported limited success and pharmacogenomic DNA testing indicated that Fluoxetine and Mirtazapine were more compatible with RVTJ’s “CYP450” enzyme.
[126] NDIA’s HTB, page 70.
In Dr DG’s Feb 2020 Report, she stated that RVTJ was “often suicidal” and “sometimes experienced visual or auditory hallucinations”.[127]
[127] Ibid.
In Dr DG’s June 2020 Report, she lists RVTJ’s “pleasurable activities” as including “reading, investigating ancient civilisations, learning guitar, music, gardening, attending AFL”.[128] At the hearing, RVTJ said he no longer attends AFL matches and that there were not many things growing in his vegetable garden. He confirmed that he had planted some fruit trees in his backyard, as this was referred to in one of the reports before the Tribunal. In Dr DG’s June 2020 Report, she noted that RVTJ’s “alcohol use disorder” was in response to the loss of his mother and grandmother, and marital separation “leaving him” to raise three children.[129] Dr DG stated that four weeks before she saw RVTJ (that is, in about May 2020), there was a “suicide attempt” by RVTJ during a family crisis in relation to S. Dr DG stated that RVTJ reported to her that he took 15 tablets of Oxycodone.[130] He was not hospitalised in relation to this incident.
[128] Ibid, page 44.
[129] Ibid.
[130] Ibid, page 45.
At the hearing, RVTJ gave evidence that he no longer considered that he is a suicide risk which aligns with his earlier reporting to Dr DG in June 2020 (see two paragraphs below). Nor is there any recent evidence of RVTJ experiencing hallucinations.
In Dr DG’s June 2020 Report, she diagnosed RVTJ with ADHD (“inattention presentation”), with co-morbidities for ASD, MDD, PTSD, and “severe psychosocial stressors”. She described RVTJ has being “depressed” and “anxious but not suicidal”.[131] Dr DG noted that RVTJ told her that, “I have severe anxiety. I suffer from PTSD as an adolescent (bullied, shamed, beaten physically and mentally). I can have panic attacks but mainly manage them through mindfulness techniques and through a better understanding of CBT and ACT”.[132] Dr DG recorded that RVTJ attended three “coaching sessions” with Ms FS, mental health care nurse, on 9 and 30 April 2020 and 28 May 2020.[133]
[131] Ibid, page 46.
[132] Ibid.
[133] Ibid, page 47.
In Dr DG’s June 2020 Report, Dr DG referred to a “mental state examination” of RVTJ which took place on 6 August 2020.[134] Dr DG described RVTJ as follows (emphasis added):[135]
Cheerful. Becoming more confident. Depression – always there, knows the mental strategies (live in the now). No risk. Working with [Ms FS] on loss and grief around symptoms of ASD and ADHD prior to diagnosis and the effect of these undiagnosed conditions on relationships and self-esteem. Since Feb has realised that fear was his driver. Learning how Neurotypical people work. Philosophical about his future.
[134] The Tribunal notes that either the date of this examination as stated by Dr DG in this report, is a typographical error, or the date of Dr DG’s June 2020 Report is a typographical error.
[135] NDIA’s HTB, page 74.
In Dr DG’s June 2020 Report, she indicated that at least by June 2020 (or August 2020),[136] RVTJ’s mental state/condition had vastly improved after the breakdown that he experienced in 2018.
[136] The Tribunal notes that either the stated date of this examination is a typographical error, or the date on Dr DG’s June 2020 Report is a typographical error (most likely the latter).
The summonsed documents included a further earlier report issued by Dr RE on 21 April 2021 (‘Dr RE’s 2021 Report’).[137] In Dr RE’s 2021 Report, he stated that RVTJ had referred himself to Dr RE and that W and S had both been diagnosed with ASD. Dr RE referred to the WAIS-III assessment having been administered on RVTJ on 15 February 2013, which is a general intelligence test for adults. Dr RE explained that the WAIS-III was a “good instrument” to determine whether an adult has the profile of strengths and weaknesses over a range of cognitive skills, that are commonly found in a person with ASD.
[137] T-Documents, T3/48 & 49.
In Dr RE’s 2021 Report, he stated that RVTJ was assessed as having an overall IQ of 127 which is in the “superior” range of intelligence.[138] Dr RE stated as follows (emphasis added):
There was considerable variation across the various subtests, making the overall score somewhat unreliable. He showed better skills with long term memory, word knowledge, and mental arithmetic, and struggled with abstract thinking and short-term auditory memory. In the visual domain, [RVTJ] demonstrated very strong skills with attention to detail and visual organisation skills, with a relative weakness in the area of processing speed. [RVTJ]’s results display a characteristic pattern of strengths and weaknesses across his cognitive profile that is consistent with Autism.
[138] The mean IQ for a person is 100.
Dr RE reports that RVTJ has had “a long history of elevated anxiety and self-medicated with alcohol for many years”, and that RVTJ had reported having a “very busy mind” and “can’t stop thinking”.[139] Dr RE stated that RVTJ “now has additional diagnoses” of ADHD, MDD, “Acute Anxiety”, and “Complex PTSD”.[140] Dr RE did not provide particulars of who made those diagnoses or indicate whether he was making them as part of his assessment of RVTJ in 2021. Dr RE confirmed that RVTJ had a history of impairments in social interaction and communication and a restricted range of interests which are “characteristic of disorders on the Autism Spectrum (DSM V – Level 2, requiring substantial support)”.[141]
[139] T-Documents, T3/49.
[140] Ibid.
[141] Ibid.
Whether RVTJ has impairment/s from MDD or “MDD with anxiety”
At the conclusion of the substantive hearing, Ms Stowell informed the Tribunal that the NDIA accepts that RVTJ has an impairment attributable to psychosocial disability arising from his condition of “MDD with anxiety”. The Tribunal notes that RVTJ has been diagnosed with MDD by several treating and independent psychiatrists and psychologists who have examined RVTJ, as outlined above under the heading “Impairments which are attributable to psychosocial disabilities” (see, in particular, paragraphs [98] to [100] and [102], [105], [107], [123(a)] and [127]), and that RVTJ’s symptoms have consistently been described as including “depression” and “anxiety”. In Dr JH’s Report, he stated that RVTJ has a clear history of MDD and continued to suffer from depressive episodes. At the hearing, Dr JH opined that RVTJ’s “main diagnosis” is MDD. Dr JH said he concurred with the multiple other reports from psychiatrists and psychologists which had been provided to him diagnosing RVTJ with MDD.
The Tribunal finds that RVTJ has the condition of “MDD” and also experiences symptoms of “anxiety”.
During closing submissions, Ms Stowell contended that there is an ongoing medication regiment in place for RVTJ’s depression and anxiety, which can be adjusted if his symptoms become “more substantial or change over time”. Ms Stowell highlighted that RVTJ gave evidence at the hearing that he is independent in respect of taking this medication and he has a plan in place, of consulting with doctors and following their advice, if difficulties arise. Ms Stowell referred to having put this “course of treatment” to Dr JH at the hearing, and that Dr JH opined that this was an appropriate course of treatment for MDD.
The Tribunal finds that RVTJ has the psychiatric condition of MDD and that he also experiences symptoms of anxiety. The Tribunal finds that this condition and these symptoms are optimally medically and clinically managed by his treating general practitioners, psychiatrist, psychologist, and mental health nurse. RVTJ receives regular therapy by those health practitioners and takes psychotropic medication as prescribed by his treating general practitioner under the supervision of his treating psychiatrist, Dr DG. Dr DG also prescribes psychostimulants to RVTJ intended to assist him with the ADHD condition that Dr DG considers RVTJ to have.
Despite the above treatment regime, the Tribunal finds that RVTJ has residual impairments attributable to his psychosocial disability arising from his condition of “MDD, with symptoms of anxiety”.
Whether RVTJ has impairment/s from ADHD
RVTJ was diagnosed with ADHD for the first time in about 2020/2021 by Dr DG. RVTJ is adamant that he has ADHD and says he is sure about this, because if he stops taking the ADHD medication (psychostimulants) which Dr DG prescribes to him, his concentration and focus will deteriorate.
RVTJ referred to “Dr DG’s report” in relation to her diagnosis of ADHD and specifically, that Dr DG had “applied the DSM-5”, had indicated that “the symptoms are present”, and that Dr DG’s report “is thorough”. When RVTJ was asked by the Tribunal whether his treating general practitioner was “on board” with Dr DG’s diagnosis of ADHD, RVTJ answered in the affirmative. RVTJ highlighted that Dr DG, being a psychiatrist, has prescribed psychostimulant medication to him and that it is a restricted medication.[142]
[142] RVTJ gave evidence at the hearing that he had tried taking other stimulant medication, such as Ritalin, but it had not worked. He said he had weird dreams and hot sweats.
In Dr JH’s Report, he stated that from the perspective of an “IME psychiatrist”, he was unable to “clearly identify features of the condition” of ADHD. However, he noted that RVTJ was medicated for ADHD. In Dr JH’s Report, he opined that “it is possible” that RVTJ suffers from this condition.
At the hearing, Dr JH continued to express some reservations about whether RVTJ has the condition of ADHD. He said that in his view, while it is possible that RVTJ has ADHD, his view is that “it is less likely that he suffers from it”. Dr JH explained that this condition would have been apparent earlier in RVTJ’s life and he noted that RVTJ had progressed satisfactorily at school and during his working life. Dr JH also provided the following clinical reasons for why he doubted that RVTJ had ADHD. Dr JH said that he did not detect from RVTJ any “sense of hyperactivity”, nor did he detect any “sense of attention issues”. Dr JH said that his medical examination of RVTJ was lengthy and that RVTJ was attentive throughout. Dr JH said that he did not “feel that [RVTJ] had lost track of the conversation”. Dr JH acknowledged that RVTJ was taking medication for ADHD so he reflected that perhaps, RVTJ may have been more focussed than he would have been had he not been taking that medication.

Mr EM stated in his report that RVTJ told him that he could perform bed transfers independently. Mr EM stated that he observed RVTJ performing chair transfers with full independence, using the arm of the chair for support.[166] Mr EM said he observed RVTJ performing toilet transfers with modified independence in that he would use the seat of the toilet during the transfers. Mr EM stated that he observed RVTJ to perform shower transfers with full independence and transfers into and out of an Isuzu D-Mux utility vehicle. Mr EM said his usual car was a Jeep, which he reported to Mr EM that he could transfer into and out of independently.[167]
[166] Ibid.
[167] Ibid, page 24.
Mr EM stated that RVTJ had told him that his lifting tolerance was about 10kg. The Tribunal considers RVTJ’s lifting tolerance to be quite good.
Mr EM opined that RVTJ would be able to use public transport with full independence, which is consistent with RVTJ’s own evidence.
When mobilising in the community, RVTJ told Mr EM that he used a four-wheeled walker and that he often used this when mobilising in the community. Mr EM stated that he did not observe RVTJ using the four-wheeled walker during the assessment. The Tribunal did not observe RVTJ using a four-wheeled walker during the first day of the in-person hearing process to assist him to mobilise. Mr EM recommended falls risk education for RVTJ and suggested that he use equipment over his toilet seat to “reduce the risk of falls”.[168]
[168] Ibid, page 25.
Based on RVTJ’s own evidence, he is able to mobilise in and around his home and in the community even if there is a limit to him walking long distances. He can move his arms and legs and use his body in a way which enables him to walk, climb stairs, manipulate and lift objects with his hands, bend over to collect water from his pool, go to shops to buy items and to bring them back to his home, and to undertake a range of different transfers independent of assistance from another person. The only area where RVTJ may need additional assistance is in relation to undertaking safe toilet transfers and avoiding falls as he mobilises. RVTJ gave evidence that on the exterior of his home, the surfaces comprised “grass, concrete, paving and asphalt”. When asked if he could move across those surfaces without assistance, he answered “Yes”.
The Tribunal finds, on balance, that that the circumstances set out in Rule 5.8 of the Access Rules do not apply in RVTJ’s case when he is undertaking the activity of mobility when considering all of the tasks comprising this activity as a whole. For this reason, the Tribunal concludes that RVTJ is not deemed to have met subsection 24(1)(c) of the NDIS Act.
Further, based on the Tribunal’s finding that RVTJ has capacity to undertake the activity of mobility as outlined above, the Tribunal is not satisfied that RVTJ meets the required threshold of having a substantially reduced functional capacity in undertaking the activity of mobility as a result of RVTJ’s Psychosocial Impairment.
Self-care
The NDIA’s operational guidelines describe the second Prescribed Activity of “self-care” as follows:
Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
RVTJ’s own evidence is that he is independent with most ADLs. This is consistent with the Tribunal’s finding that RVTJ does not have any physical impairments.
RVTJ said he can shower and use the taps and vanity, independently. RVTJ gave evidence that he can hang and use towels in the bathroom, independently. He confirmed that he can dry himself when he comes out of the shower. He remarked that he does not shower very much. RVTJ gave evidence that he showered once every couple of weeks. When asked why that is so, he said he does not think about it much. When asked if this worried him, RVTJ said it does not, unless he is going to the shops. The Tribunal considers this to be a matter of personal prerogative for RVTJ how often he showers, given that RVTJ does not suffer from any cognitive deficits. The Tribunal finds that RVTJ is able to shower himself independently as and when it is his personal preference to do so.
RVTJ’s own evidence at the hearing was that when he steps out of the shower, he is able to dry himself. He also confirmed he is able to go to the toilet without support from another person. RVTJ gave evidence that he experiences urinary leakage everyday due to a weakness in the urinary tract. He said he uses incontinence pads which he says he buys from Chemist Warehouse.
RVTJ is able to brush is teeth and his hair independently. He does not require assistance to eat his meals. His arms and hands are dextrous as the Tribunal could observe as RVTJ handled objects such as his phone and documents during the hearing process. RVTJ can use his hands and arm to feed himself independently.
Dr DG stated that RVTJ needed “regular support with daily activities and self-care particularly in view of previous severely disturbed behaviour which may include self-harm, suicide attempts, unprovoked and provoked aggression towards others or manic behaviours/excitement”. This does not reflect RVTJ’s own evidence about his capacity to attend to virtually all everyday tasks required for him to take care of himself.
At the hearing, Dr JH said that based on his examination of RVTJ (which took place by video link) he considered that RVTJ was “a little bit down in self-care and presentation” but based on his visible appearance and the information he provided about his ability to do certain tasks, he formed the view that RVTJ was able to care for himself and did not need the assistance of others. Dr JH said he was able to see RVTJ relatively clearly through the video link. Dr JH said that RVTJ had a “mild requirement for prompting” in respect of showering. Dr JH said he did not think RVTJ needed any particular support with self-care.
In Mr EM’s Report, he would support that RVTJ may “further improve and maximise” his functional capacity in the domain of self-care if he were to receive assistance from a hoarding service and also if he were to discuss the continence aids program with his treating GP. At the hearing, Mr EM withdrew the first of those recommendations on the basis that this is a support that is required by W’s hoarding issues and is unrelated to RVTJ. Mr EM told the Tribunal he wished to strike out this first recommendation from his report. The second recommendation is a non-issue in the context of this proceeding, because RVTJ gave evidence that he currently sources and uses continence aids which he has sourced and funded privately. The important point is that RVTJ is receiving the identified support at the present time (irrespective of who is funding it).
The Tribunal finds, on balance, that that the circumstances set out in Rule 5.8 of the Access Rules do not apply in RVTJ’s case when he is undertaking the activity of self-care when considering all of the tasks comprising this activity as a whole. For this reason, the Tribunal concludes that RVTJ is not deemed to have met subsection 24(1)(c) of the NDIS Act.
On balance, the Tribunal finds that RVTJ had no reduced capacity in respect of his ability to undertake the activities of self-care as a result of RVTJ’s Psychosocial Impairment.
Self-management
The NDIA’s operational guidelines describe the second Prescribed Activity of “self-management” as follows:
…how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day 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.
As mentioned at the hearing, the Tribunal does not agree with this description of what “self-management” encompasses in that it should not be limited to the mental or cognitive ability of the person to undertake that task, but rather the Tribunal should consider whether the person can undertake the tasks within the activity of self-management or whether they are unable to do so because of one or more of their permanent impairments. The Tribunal considers that this includes all aspects of doing each task whether they be the mental or cognitive aspect of it, or the physical aspect of doing the task.
In Dr DG’s Oct 2021 Report, she stated that RVTJ’s “judgement, decision-making, planning and organisation functions can be disturbed, sometimes severely, but not often”. She also stated that RVTJ’s “behaviours, thoughts and conversations are significantly and on occasion, disturbed”. She stated that he “exhibits poor judgement” and that his activity levels are “noticeably decreased or reduced”. Dr DG stated that RVTJ has “difficulties in attending to responsibilities due to lack of motivation, interest, concentration, organisation, or different priorities, easily overwhelmed”. Dr DG stated that RVTJ “requires prompting, needs assistance managing household responsibilities (paying bills, house cleaning and laundry)”. In conclusion, Dr DG stated that RVTJ needed:
(a)“daily support for one to two hours to help get control in his environment and into healthy routines”;
(b)“to regularly work with a psychologist and mental health coach to identify systems that need to be put in place to help him take control of his life” and
(c)“to monitor stress levels as there is extreme change occurring in his life”. Dr DG did not specify what those changes were.
Dr DG stated that RVTJ had engaged in a “long fight with WorkCover for permanent impairment benefit, NDIS access and son’s [disability support pension] application”. Dr DG stated that RVTJ has adopted a “responsible approach to taking medication”. Dr DG stated that RVTJ was able to “cook and shop locally”.
RVTJ’s main concern about being able to engage in the activity of self-management is that he says he becomes hyper focused on his special interests to the detriment of attending to other daily tasks he needs to do.
RVTJ’s own evidence is that he:
(a)goes to the shops to buys groceries;
(b)is able to use a washing machine unassisted by another person;
(c)is able to use a tumble dryer;
(d)is able to hang clothes on the clothes line;
(e)is able to lift baskets of wet laundry without assistance from another person. He said prior to the spinal surgery, he could not undertake this task but that he can do so now;
(f)goes to Bunnings to buy pool maintenance items (chemicals) as required;
(g)takes the leaves out of his pool;
(h)goes to the Chemist to source his medication and continence pads;
(i)make arrangements and meets up with his two friends once or twice a month;
(j)make appointments with his health specialists and makes it to those appointments; and
(k)manages his medication regime using a webster pack.
When asked whether he can cook, RVTJ’s reply was that he can put a meal on the table but that it may not be a “cordon bleu”. He said sometimes he cooks on his own, or sometimes he will cook with W (as he described as being “nice”). When asked whether RVTJ is able to access all areas of the kitchen, he said, “Yes, pretty well, I am”. RVTJ confirmed that he can use the oven independently and that he can bend down and put an oven dish in the oven. When asked whether he can “handle boiling water”, RVTJ said he can put it onto his walker. RVTJ referred to having worked with the “rehabilitation people” (OTs) after his spinal injuries. He confirmed they had assisted him to identify hazards in his home and that he could “problem solve” in his home if problems presented themselves.
RVTJ’s manages his own finances and bank account. At the hearing, RVTJ gave evidence that both W and he will pay the bills. He said the bills are paid from their bank account and that they use BPay. When asked whether RVTJ was “tech savvy”, he answered “reasonably”. The Tribunal acknowledges that RVTJ gave oral evidence about having been scammed out of a sum of $20,000 indicating some vulnerabilities in this area but there were not enough details about this to draw any conclusions from this incident and in particular, whether this event could be attributed to any of RVTJ’s claimed impairments.
RVTJ said he would like some help with his finances. The evidence revealed that he still has a mortgage over his home, he has ceased working, his WorkCover had ceased, and his superannuation is running low. It does not seem surprising that RVTJ had financial issues in these circumstances but there was no evidence before the Tribunal that those financial difficulties arise as a result of RVTJ’s Psychosocial Impairment. There was no evidence before the Tribunal that RVTJ suffers from a gambling addiction at the present time.
RVTJ has demonstrated that he has been able to manage a crisis situation involving the flooding of his home and is navigating the process of making and pursing an insurance claim in respect of the reparation work required as a result of the flooding. RVTJ gave evidence that this incident occurred in October 2021 when there was a major storm flooding the downstairs of his home. RVTJ said that he is still working with the insurance company about this and that his insurer had put forward a building proposal and contract. RVTJ said that he wanted a clause taken out which would give the builder the right to access his property. RVTJ said that the mould issue is now resolved but there are still unrepaired structural issues.
RVTJ has demonstrated that he is able to manage the tasks required to regularly maintain his pool. Occasionally, he will feed his pets to ensure they remain fed and alive.
In Mr ME’s opinion, RVTJ is independent in the activity of “self-management” with one qualification being that RVTJ and W struggle to managed their budget. This is a difficulty that many unemployed people may face, regardless of whether they have a disability.
RVTJ has MDD with symptoms of anxiety so the Tribunal expects that RVTJ may, when he is experiencing a depressive episode, experience a reduction in functional capacity in respect of the activity of self-management if his motivation and energy levels decrease. However, based on the evidence before the Tribunal and in particular, RVTJ’s own evidence, the Tribunal is not satisfied that he has reached the threshold of having a substantially reduced functional capacity in undertaking the activity of self-management. The Tribunal also concludes that none of the circumstances in Rule 5.8 of the Access Rules apply in RVTJ’s case in relation to this activity, which would deem him to have met the criterion under subsection 24(1)(c) of the NDIS Act.
Conclusion regarding s 24
Although the Tribunal has found that RVTJ meets subsection 24(1)(a) and (b), he does not meet the third mandatory criterion under subsection 24(1)(c) of the NDIS Act. The criteria under subsection 24(1) are cumulative so it is not necessary for the Tribunal to proceed to a consideration of the other mandatory criteria under subsections 24(1)(d) and (e).
The Tribunal concludes that RVTJ does not meet the “disability requirements” under s 24 of the NDIS Act because he does not meet the mandatory criterion under subsection 24(1)(c) of the NDIS Act.
Whether RVTJ meets the early intervention requirements under s 25
RVTJ made his access request to the NDIA prior to the legislative amendments on 3 October 2024. The Tribunal must decide whether RVTJ meets the early intervention requirements under s 25, based on the wording of this provision as it existed prior to the legislative amendments on 3 October 2024.
Prior to the legislative amendments, s 25 of the NDIS Act provided as follows:
Early intervention requirements
(1)       A person meets the early intervention requirements if:
(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 to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)      is a child who has 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.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)       as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In RVTJ’s Final Submissions, he asserted that he fulfils all criteria for early intervention support under the NDIS. RVTJ “maintains that early intervention is the appropriate pathway to mitigate and diminish future harm, alleviate pain, and reduce both future costs and the burden on himself, his family, and the healthcare system”.[169]
[169] RVTJ’s Final Submissions, page 2.
For this same reasons as set out above, the Tribunal concludes that RVTJ has met subsection 25(1)(a)(ii) because the Tribunal has found that he has RVTJ’s Psychosocial Impairment as referred to in paragraph [194] above. This impairment is attributable to psychosocial disabilities arising from RVTJ’s diagnosed conditions of MDD and his symptoms of anxiety. RVTJ has had those conditions for a very lengthy period of time. Dr DG stated that his depression started after RVTJ’s father died in 2010. However, the Tribunal notes (and accepts as likely to be more accurate), that RVTJ’s MDD commenced before this time – see Dr MP’s statement as referred to in bold highlight in paragraph [100].
The Tribunal has also found that RVTJ’s conditions of MDD and his symptoms of anxiety have been optimally medically and clinically managed for quite a long period of time as set out in the medical history set out in this Statement of Reasons. He has been taught comprehensive psychological strategies and tools to assist him if he becomes overwhelmed or has a panic attack. He referred to using some of those strategies when he gave evidence at the hearing upon encountering a distressing situation such as travelling close to his old workplace. RVTJ’s and his treating doctors also refer to his depression being stable under his current medication regime. Dr DG opined that there were no early intervention supports likely to reduce RVTJ’s future support needs.[170]
[170] SEF completed by Dr DG and lodged in support of the Access Request.

In those circumstances, the Tribunal is not satisfied that there are any interventions which could be provided to RVTJ which could appropriately be described as early interventions at this late stage of the trajectory of RVTJ’s treatment history for his MDD and anxiety symptoms, and which are likely to reduce RVTJ’s future needs for support. The Tribunal is satisfied that the impairments arising from his MDD and symptoms of anxiety have stabilised.
For this reason, the Tribunal is not satisfied that the provision of early intervention supports for RVTJ’s Psychosocial Impairment is likely to benefit RVTJ by reducing his future needs for supports in relation to this disability. The Tribunal concludes that RVTJ does not meet the mandatory criterion under subsection 25(1)(b) of the NDIS Act.
The criteria under subsection 25(1) are cumulative and so it is not necessary for the Tribunal to consider the remaining criteria under subsection 25(1) of the NDIS Act. Nor does the Tribunal need to consider whether the circumstances set out in subsection 25(3) apply in RVTJ’s case.
Accordingly, the Tribunal concludes that RVTJ does not meet the “early intervention requirements” under s 25 of the NDIS Act.
CONCLUSION
The Tribunal has concluded that RVTJ does not meet the “disability requirements” under s 24 of the NDIS Act. The Tribunal has also concluded that RVTJ does not meet the “early intervention requirements” under s 25 of the NDIS Act.
For these reasons, the Tribunal concludes that RVTJ does not meet the access criteria under s 21 of the NDIS Act. This means RVTJ will not be granted access as a participant in the NDIS.
The Tribunal affirms the Decision Under Review.

1. I certify that the preceding 284 (two-hundred-and-eighty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

...............................[sgd]....................................
Associate
Dated: 23 May 2025

Dates of hearing:
25 & 26 March 2025 and 14 April 2025

Date last submission lodged: 28 April 2025

Applicant: In person

Counsel for the Respondent: Ms Kate Stowell

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	25 & 26 March 2025 and 14 April 2025
Date last submission lodged:	28 April 2025
Applicant:	In person
Counsel for the Respondent:	Ms Kate Stowell
Solicitors for the Respondent:	Sparke Helmore Lawyers