Sharma and National Disability Insurance Agency - [2024] AATA 1974

Sharma and National Disability Insurance Agency [2024] AATA 1974 (24 June 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/6876
Re:Reg Sharma
APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION
Tribunal:Member D. Barker
Date:24 June 2024
Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.
...................................[SGD].....................................
Member D. Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – disability requirements – chronic post-traumatic stress disorder – chronic major depression – somatic symptom disorder with predominant pain – whether the impairments are, or likely to be, permanent – whether the impairments result in substantially reduced functional capacity – early intervention requirements – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
NSW Mental Health Act 2007 (Cth)
CASES
Foster and the National Disability Insurance Agency [2021] AATA 4738
James and National Disability Insurance Agency [2019] AATA 4248
Kilgallin and National Disability Insurance Agency [2017] AATA 186
Madelaine and the National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency (2015) FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Firth and Minister for Capital Territory (1979) 2 ALD 183
Re Hill and Wilson and Minister for Capital Territory (1979) 2 ALD 457
Re MKKR and Minister of Immigration (2016) 69 AAR 512; [2016] AATA 458
Re Quinlivan and Minister for Capital Territory (No 2) (1979) 2 ALN No 59
SECONDARY MATERIALS
AAT President’s Practice Direction – Persons Giving Expert and Opinion Evidence, dated 30 June 2015.
Black Dog Institute (Web page) (Web page) on the Rights of Persons with Disabilities, opened for signature 13 December 2006, [2008] ATS 12, ratified by Australia 17 July 2008.
CT Scan (Web page) Dictionary (Web page) Act: Applying to the NDIS - National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) align="left">NSW Health (Web page) (Web page) symptom disorder (Web page) symptom disorder (Web page) Scan (Web page) FOR DECISION
Member D. Barker
24 June 2024
INTRODUCTION

This application is about whether the Applicant, Mr Reg Sharma, should be granted access as a participant to the National Disability Insurance Scheme (NDIS).
Mr Sharma is 39 years old and at the present time he lives with his sister and her immediate family in the Southwest Sydney region of NSW.
Mr Sharma applied to become a participant in the NDIS in March 2019 (the access request). Information provided in association with this application[1] indicated that Mr Sharma has impairment due to primary and secondary disabilities as a result of chronic post-traumatic stress disorder (PTSD), chronic major depression and somatic symptom disorder with predominant pain (SSD).
[1] Part F of the NDIS Access request Form dated 20 March 2019, completed by Dr Ann Stephenson, consultant psychiatrist, T3.
On 26 July 2019, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA and the Respondent) determined that Mr Sharma did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (the NDIS Act). In particular, the delegate determined the permanency requirements in s 24(1)(b) of the NDIS Act were not satisfied.[2]
[2] Original Decision – Access dated 26 July 2019, T4.
Mr Sharma, on 26 August 2019, requested an internal review by the Respondent.
On 26 September 2019, another delegate of the CEO (the NDIA Internal Reviewer) confirmed the decision that Mr Sharma did not satisfy required access criteria to become a NDIS participant (the internal review decision or IRD).[3] In the IRD the delegate explained that they were satisfied Mr Sharma has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or an impairment attributable to a psychiatric condition,[4] and that the impairments affect Mr Sharma’s capacity for social or economic participation.[5] The delegate was not however satisfied that the impairments are, or are likely to be, permanent.[6] The delegate was also not satisfied the evidence demonstrated that as a result of the impairments affecting him, Mr Sharma had substantially reduced functional capacity, or psychosocial function in the following domains: communication, social interaction, learning, mobility, self-care and self-management.[7] Further to this, the delegate was not satisfied that Mr Sharma was likely to require lifetime support from the NDIS,[8] nor that threshold early intervention requirements to access the scheme were satisfied.[9]
[3] Internal Review Decision dated 26 September 2019, T2.
[4] s 24(1)(a) of the NDIS Act.
[5] Ibid, s 24(1)(d).
[6] Ibid, s 24(1)(b).
[7] Ibid, s 24(1)(c)
[8] Ibid, s 24(1)(e).
[9] Ibid, s 25.
On 24 Oct 2019, Mr Sharma applied to the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.[10] In explaining why he contends that the decision to refuse him access to the NDIS was wrong, Mr Sharma stated: ‘I'm requesting a review for my disability's as Me and my treating doctors believe that the decision is incorrect. And it needs to be looked at properly.’[11]
[10] AAT Application for Review of Decision dated 24 October 2019, T1.
[11] Ibid.
The Tribunal’s jurisdiction to undertake this review arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), operating in conjunction with s 103 of the NDIS Act.
Mr Sharma and the Respondent (hereafter when referred to collectively referred to as the parties) participated in a number of case conferences and telephone direction hearings in which evidentiary gaps were identified, as well as suggestions as to how these evidentiary gaps could potentially be responded. The Tribunal is unaware of the content of discussions which took place without prejudice in case conferences facilitated by an AAT Conference Registrar. The Tribunal has however had the benefits of assessments, reports and other material which may have been filed with the Tribunal as a consequence of discussion of evidentiary gaps during case conference events and from telephone directions hearings.
The parties appeared before the Tribunal at hearing on 4 March 2024 and 5 March 2024 to give evidence and present arguments. These proceedings were listed to be conducted by video using the MS teams platform in response to the location of some participants and an indication from Mr Sharma that he would have a lot of difficulty attending an in-person hearing at the Tribunal’s Sydney registry. As it turned out, Mr Sharma gave oral evidence and made submissions during the proceedings by audio link only due to a reported difficulty with the camera in a laptop computer he had borrowed from his sister. Mr Sharma indicated that he could not access emails on his mobile phone and that it was therefore not practical for him to join the hearing utilising the camera function on his mobile phone.
No objection was raised by the Respondent with respect to Mr Sharma participating in the hearing by audio only, though both the Respondent and Tribunal noted that this was not ideal. Mr Sharma gave a clear indication that he was comfortable participating in the proceedings by audio. Fortunately, Mr Sharma indicated that he could both see and hear myself and Ms Katherine Hooper, counsel for the Respondent, and as well witnesses who were able to join the proceedings by video, with this being Mr Istvan Schreiner and Mr Christian Byrnes. As to the remaining witnesses called in these proceedings, Dr Nayef Kanawati and Mr Medhat Metry, they both linked with the proceedings and gave their evidence by telephone.
Whilst is not optimal for the Tribunal and Respondent to not have the benefit of Mr Sharma’s visual participation in the hearing, I am not of the view that Mr Sharma had a diminished opportunity to meaningfully participate in the proceedings and to present what evidence and arguments he saw appropriate. I am also not of the view that there was a lack of procedural fairness to either party through the manner in which the hearing proceeded and no such concerns were raised by either Mr Sharma or Respondent.
BACKGROUND
Mr Sharma was born in Fiji and migrated to Australia along with his family when he was approximately 12 years of age in 1998. He completed Year 11 of secondary school in Sydney, NSW. After leaving school, Mr Sharma worked in the electrical trade with his brother-in-law and had completed part of an electrical apprenticeship at the time he was involved in a motor vehicle accident (MVA) on 27 October 2010.[12]
[12] Motor Accidents Authority Medical Assessment service report dated 29 August 2012, T3A.
At the time of the MVA, Mr Sharma was driving home from work. He was in the middle lane when a truck in the left lane suddenly swerved and collided with the front of his car, causing it to be dragged for some three metres. The car then bounced off the truck and spun onto oncoming traffic, whereupon another truck hit the left-hand side of Mr Sharma’s car.[13] Mr Sharma was not taken to hospital, was able to walk afterwards, and returned home.[14]
[13] Ibid.
[14] Report of Professor Ian Harris, orthopaedic surgeon, dated 11 October 2011, TB2.2.
At the time of the MVA, Mr Sharma was living with his parents and his younger brother in the family home in Villawood, NSW. He is reported to have been in a stable relationship at that time, which unfortunately broke down in the aftermath of the MVA due to the onset of symptoms associated with the mental health conditions which Mr Sharma developed after the MVA. Mr Sharma is reported to have no history of mental health difficulties or physical functional impairments prior to the MVA in 2010.[15]
[15] Ibid.
Following the MVA Mr Sharma experienced increasing neck and shoulder pain and also regular nightmares accompanied by sweating. He is left hand dominant, which he reported caused him difficulty due to pain on his left side. The pain condition became chronic in nature and Mr Sharma became anxious and severely depressed with associated traits of social and emotional withdrawal.[16] He was initially treated by a few different general practitioners before commencing with Dr Nayef Kanawati in 2011. Mr Sharma has remained under the care of Dr Kanawati since that time.
[16] Ibid.
Mr Sharma was granted a disability support pension (DSP) in 2015 and has been reliant on this income support payment from Centrelink since that time.[17]
[17] Letter from Dr Stephenson dated 7 August 2019, T5.
Mr Sharma reports that he moved from his family home in Villawood to the home of his sister near Campbelltown in the Southwestern Sydney region in or around December 2023. He explained that this was because his elderly parents could no longer give him the care and support that he requires. He indicated at hearing that he continues to overnight with his parents in Villawood, on occasions such as when he has a medical or other health related appointment. He explained that this is because Dr Kanawati, along with his treating psychologist, Mr Metry and treating physiotherapist, Mr Roger Berbai, all work from a medical centre in Bankstown where they are in a reasonable proximity to where his parents live in Villawood.
Evidence at hearing indicated that Mr Sharma’s most recent consultation with both Dr Kanawati and Mr Metry was in November 2023. Mr Metry indicated that in total the Applicant attended two psychology consultations during 2023. As to consultations or treatment sessions with Mr Berbari, it would appear Mr Sharma may have most recently had contact with this physiotherapist in May 2023.[18]
[18] Letter to Dr Kanawati from Roger Berbari, physiotherapist, dated 28 March 2023, TB2.13.
LEGISLATIVE FRAMEWORK
The objects of the NDIS Act are set out in section 3. It includes, amongst other things, to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[19] and facilitate the development of a nationally consistent approach to access to, and planning and funding of, supports for people with disability.[20] The Act also states that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[21]
[19] Opened for signature 13 December 2006, [2008] ATS 12, ratified by Australia 17 July 2008.
[20] NDIS Act, s 3(1)(f).
[21] Ibid, s 3(3)(b).
There are general principles under section 4 of the Act and includes that people with disability be:
·supported to participate in and contribute to social and economic life;[22]
·able to receive the care and support they need over their lifetime and that there be certainty around this;[23]
·supported to pursue their goals and maximise their independence;[24]
·supported to live independently and to be included in the community as fully participating citizens;[25] and
·able to undertake activities that enable them to participate in the community and in employment.[26]
[22] Ibid, s 4(2).
[23] Ibid, s 4(3).
[24] Ibid, s (4)(11)(a).
[25] Ibid, s (4)(11)(b).
[26] Ibid, s (4)(11)(c).
Under section 18 of the NDIS Act, a person may make an access request to the NDIA to become a participant in the NDIS. If a prospective participant makes an access request, under s 20 of the Act, the CEO (or upon the matter being reviewed by the Tribunal, the Tribunal) must decide whether or not that person meets the ‘access criteria’ to become a participant in the NDIS. Pursuant to subsection 28(1) of the NDIS Act, a person becomes a NDIS participant on the day it is decided that the person meets the access criteria.
The provisions relating to access to the scheme are contained in Part 1 of Chapter 3 of the Act. Section 21 of the NDIS Act provides that for a person to meet the access criteria, they must meet the age and residence requirements in addition to either the disability requirements (s 24 of the NDIS Act) or the early intervention requirements (s 25 of the NDIS Act).
Amendments to sections 24 and 25 of the Act came into effect on 1 July 2022. Both the original decision which the NDIA made regarding the Applicant’s request for access to the NDIS, and the NDIA’s internal review decision, were made prior to those amendments. The Tribunal’s decision is made subsequent to those amendments.
At the time that the Agency made its internal review decision, a person met the disability requirements under section 24(1)(a) if:
the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition.[27]
[27] Internal review Decision dated 26 September 2019, T2.
The amendments removed the reference to impairments attributable to a psychiatric condition and replaced them with the phrase “one or more impairments to which a psychosocial disability is attributable”. From 1 July 2022, a person meets the disability requirements under section 24(1)(a) if:
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.
The Respondent contends that the amended legislation does not apply to this case.[28] This is not my view, as the transitional provisions at Schedule 2, Item 54 of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth) provide that:
1 The amendments of sections 24 and 25 of the National Disability Insurance Scheme Act 2013 made by this Schedule apply in relation to the following:
(a) an access request made on or after the commencement of this item;
(b) an access request that was pending immediately before that commencement;
(c) a revocation under section 30 of that Act made on or after that commencement.
[28] Respondent SFICS, TB5.1.
As the decision under review relates to the determination of an access request under section 18 of the NDIS Act, it follows that the term “an access request that [is] pending immediately before” the commencement covers a decision under review, as in this review, that “has not been finalised prior to the commencement”. The Revised Explanatory Memorandum provides, in relation to Schedule 3, Item 56 that the amendment would apply “if a decision on their request under section 18 of the Act has not been finalised prior to the commencement”.
With respect to the current disability requirements, section 24 of the NDIS Act provides:
s 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.
…
Each subsection of s 24(1) of the NDIS Act needs to be met. In regard to this, the linking term ‘and’ in the provisions is significant. In effect, each of subsection s 24(1)(a) through s 24(1)(e) are threshold requirements that need to be satisfied in order for a person to be eligible to become a participant of the NDIS. The Tribunal must be satisfied, on the basis of rationally probative and relevant evidence, that these and other required provisions are met.
The early intervention requirements are set out in s 25 of the Act:
S 25 early entrance 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 sub-sections (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.

The NDIS Act also provides, in subsection 209(1), that the Minister may make rules prescribing matters under the NDIS Act. Section 27 of the NDIS Act further states that the rules may prescribe circumstances in which, or criteria to be applied with respect to assessing whether, a person meets the disability requirements under section 24 or the early intervention requirements under section 25 of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), of which Part 5 is relevant and is discussed as appropriate in following sections of this decision record.
On 1 February 2024, the NDIA updated its policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS [29] (the Access Guidelines). The Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime.
[29] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 1 February 2024) < EVIDENCE
The documents before the Tribunal are as follows.
The ‘T-Documents’ (T1 – T13, pp 1 – 170) provided under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to the Tribunal by the Respondent after the application for review was made, which comprises evidence provided by the Applicant to the Respondent and other documents available to the NDIA Internal Reviewer at the time of their decision. The contents of the T-Documents are as follows:
T1       AAT Application for Review of Decision - 24 October 2019.
T2       Internal Review Decision - 26 September 2019.
T3       Access Request Form, completed by Applicant and Dr Ann Stephenson    (Psychiatrist), dated 20 March 2019 attaching:
a)Report, Dr Norman Robert Rose (Psychiatrist) (29 August 2012)
b)Report, Dr Nayef Kanawati (General Practitioner) (23 March 2016)
c)Report, Dr Stephenson (30 March 2016)
d)Report, Dr Kanawati (1 June 2016).
T4       Original NDIA Access Request Decision - 26 July 2019.
T5       Letter, Dr Ann Stephenson (Psychiatrist) - 7 August 2019.
T6       Medical Certificate, Dr Kanawati - 22 August 2019.
T7       Report, Mr Medhat Metry (Psychologist) - 22 August 2019.
T8       Request for Internal Review - 22 August 2019.
T9 Letter, Respondent to Applicant, acknowledging receipt of Internal Review Request - 10 September 2019.
T10Extract of NDIA Interaction Records various over period 29 April 2019 - 26 September 2019.
Part B – Legislative and Operational Guidance
T11 National Disability Insurance Scheme Act 2013 (NDIS Act) ss 20-25.
T12 National Disability Insurance Scheme (Becoming a Participant) Rules 2016.
T13      Extract from Operational Guidelines - Access.
The oral evidence of the Applicant and witnesses at hearing on 4 March 2024 and 5 March 2024.
The Applicant’s material as follows:
a)Letter of Dr Kanawati - 24 April 2020.
b)Imaging report of Dr Prasad Kundum - 21 April 2020.
c)Imaging report of Dr Farhana Younis, - 21 April 2020.
d)Applicant Statement of Lived Experience (SLE) - 13 July 2020.
e)Report of Mr Medhat Metry (Psychologist), - 17 November 2020.
f)Letter from Anne Kazas-Rogaris - 6 July 2021 (and letter from Agency dated 28 June 2021 posing questions).
g)Statement of Lila Kumar, Applicant’s mother, received 2 February 2022.
h)Document entitled "Attendant Care Assistance provided for Reg Sharma from April 2017 to date".
i)Bundle of documents received by email from the Applicant on 5 March 2022, including:
I.Medical certificate prepared by Dr Kanawati - 25 February 2022.
II.Letter to Dr Kanawati from Dr Anne Stephenson, psychiatrist, regarding her impending retirement, - 19 February 2020.
III.Dr Kanawati referral letter to Dr A Philip, - 1 April 2021.
IV.Report of Mr Medhat Metry - 28 February 2022
V.GP Mental Health Care Plan - 1 February 2022.
The Respondent ’s material as follows:
a)Respondent 's supplementary evidence, which comprises:
Material produced under summons by Kanawati Medical Centre
(i)    Letter from Dr N Kanawati to Kheir Lawyers, - 23 September 2011.
(ii)    Medical report of Prof I Harris, - 11 October 2011.
(iii)   Independent medical examination report of Dr G Vickery, - 18 April 2012.
(iv)   Psychiatric progress report of Dr A Stephenson, - 13 July 2012.
(v)    Confidential psychological report of Dr J McMahon, - 12 July 2013.
(vi)   Letter from Dr Kanawati to Kheir Lawyers, - 25 October 2013.
(vii)     Psychological report of Mr Metry - 9 January 2019.
(viii)    Letter of Mr R Berbari, physiotherapist - 10 April 2020.
(ix)   Medical imaging results re MRI of cervical spine, - 21 April 2020.
(x)    Letter from Dr Kanawati re opinion, - 24 April 2020.
Material produced under summons by Mr Roger Berbari - physiotherapist
(xi)   Letter from R Berbari to Dr Kanawati, - 1 February 2022.
(xii)     Letter from R Berbari to Dr Kanawati, - 9 August 2022.
(xiii)    Letter from R Berbari to Dr Kanawati, - 28 March 2022.
Material produced under summons by Mr Medhat Metry, psychologist, MM Psychological Support Services
(xiv)   Confidential psychological report of Mr Metry, - 13 May 2020.
(xv)     Report on session - 1 February 2022.
(xvi)   Report on session - 15 February 2022.
(xvii) Letter from Mr Metry dated 28 February 2022.
(xviii) Report on session - 1 March 2022.
(xix)   Report on session - 24 May 2022.
(xx)     Report on session - 28 March 2022.
b)Report of Dr Istvan Schreiner, Clinical and Forensic Psychologist, - 23 May 2021.
c)Briefing letter to Dr I Schreiner, - 6 May 2021 (enclosures not reproduced).
d)Briefing letter to Dr I Schreiner, - 27 November 2023 (enclosures not reproduced).
e)Care and Domestic Assistance Assessment for Mr Reg SHARMA, prepared by Mr Christian Byrnes, occupational therapist, - 21 April 2022.
f)Briefing letter to Mr Christian Byrnes, - 28 March 2022 (with amendments, as sent, enclosures not reproduced).
g)NDIS Operational Guideline — Applying to the NDIS.
h)Further Respondent supplementary evidence which comprises:
(i)Updated (current) NDIS Operational Guideline — Applying to the NDIS.
(ii)NDIS Operational Guideline — Assistive technology (equipment, technology and devices).
(iii)NDIS Operational Guideline — Home modifications .
(iv)Credentialed Mental Health Nurse Service | South Western Sydney PHN – information sheet – accessed 1 March 2024.
(v)Information about funded mental health services – South Western Sydney PHN - information sheet – accessed 1 March 2024.
Where relevant, evidence from the material before the Tribunal and the evidence provided by Mr Sharma and witnesses at hearing is referred to in following sections of this decision record.
ISSUES
The issue arising in this case is whether Mr Sharma satisfies the access requirements to become a participant of the NDIS. The Respondent accepts that Mr Sharma meets the age and residence requirements in the NDIS Act. The Tribunal finds accordingly.
The issues arising for determination by the Tribunal in this application are:
a)whether Mr Sharma meets the “disability requirements” under s 24 of the NDIS Act; or alternatively,
b)whether Mr Sharma meets the “early intervention requirements” under s 25 of the NDIS Act.
Mr Sharma contends that he meets the required criteria to become a participant of the NDIS.
The Respondent accepts that Mr Sharma meets the requirement that he has a disability that is attributable to one or more physical impairments and/or to one or more impairments attributable to a psychiatric condition (s 24(1)(a)); and the requirement that the impairment or impairments affect his capacity for social or economic participation (s 24(1)(d)). However, the Respondent contends that Mr Sharma does not satisfy the balance of the disability requirements, being ss 24(1)(b), (c), (e), or the early intervention requirements in s 25 of the NDIS Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Disability Requirements
Does the Applicant have a disability attributable to one or more impairments? – s 24(1)(a)
The Tribunal first turned its mind to whether Mr Sharma 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.
The NDIA provides the following policy guidance to decision-makers in its Operational Guidelines, which broadly reflects s 24(1)(a) of the NDIS Act:[30]
[30]
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.
The Act does not define the word, “disability,” nor the word, “impairment.” The Tribunal is aware that the concept of impairment, rather than a definition of disability, is central to the threshold provisions such as s 24. In Mulligan v National Disability Insurance Agency (Mulligan), Justice Mortimer discussed the meaning of these terms.[31]
Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.
[31] Mulligan v National Disability Insurance Agency (2015) FCA 544, [51].
The distinction between the statutory concept of impairment and the concept of a medical condition or diagnosis was discussed by Justice Mortimer in Davis.[32] Her Honour noted at [69]:
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.
[32] National Disability Insurance Agency v Davis [2022] FCA 1002.
In Mulligan, Justice Mortimer described the importance of the assessment needed to ascertain a person’s eligibility to become a participant of the NDIS. Her Honour stated:[33]
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
[33] Mulligan v National Disability Insurance Agency (2015) FCA 544, [55]
In a report regarding Mr Sharma, prepared for a legal firm in 2011, Dr Kanawati states that injuries and symptoms developed by Mr Sharma following the MVA in 2010 were: post-traumatic headaches, severe insomnia, anxiety and panic reaction, cervical discopathy and ligamentous injury to the left shoulder.[34] Mr Sharma was subsequently referred for specialist treatment with Dr Stephenson, consultant psychiatrist, Dr Abrasko, neurosurgeon and also to a psychologist[35] and a physiotherapist.[36]
[34] Report of Dr Kanawati to Kheir Lawyers dated 23 September 2011, TB2.1.
[35] Motor Accidents Authority Medical Assessment service report dated 29 August 2012, T3A [28].
[36] Letter from R Berbari to Dr Kanawati dated 1 February 2022, TB2.11.
In relation to Mr Sharma, an independent medico-legal examination report prepared by Dr Ian Harris, professor of orthopaedic surgery, in October 2011[37] provides information which includes, but is not limited to the following:
[37] Independent medico-legal examination report prepared by Dr Ian Harris, professor of orthopaedic surgery, dated 11 October 2011, TB, TB2.2.
Examination of the cervical spine revealed no deformity. Range of motion was mildly restricted in all directions. There was tenderness to light touch over the left paraspinal muscles but there was no underlying muscle spasm.
There was generalised tenderness around the left shoulder girdle. There was no deformity or muscle wasting around the left shoulder.
Range of motion in both shoulders was normal with full elevation, rotation, and abduction/adduction. Range of motion in the elbow, forearm, wrist and hand was normal bilaterally.
He described altered sensation around the shoulder girdle and arm to light touch but there were no sensory changes below the elbow.
Neurological examination revealed poor effort in most muscle groups in the left upper limb but no specific areas of weakness. Specifically, median, ulnar and radial nerve function in the left hand was normal.
…….
Plain radiographs of the cervical spine from 28 October 2010 were seen. They show no abnormality.
An MRI scan of the cervical spine from 14 December 2010 was seen. It shows no evidence of recent trauma and no significant abnormality. There is an incidental cyst in T2 vertebra.
An MRI scan of the left shoulder from 30 June 2011 was seen. No significant abnormality was noted.
A whole body bone scan from 22 February 2011 was seen. There is some mild abnormality reported at CA/CS and C5/C6 but I could find no abnormality on visualising the scans.
In response to a question as to the likelihood of Mr Sharma been able to upgrade from the reduced hours he was at that time cleared to work, Professor Harris stated that “There is no physical basis on which to apply any restrictions and there is no underlying physical diagnosis to which he symptoms are attributable” and that Mr Sharma’s "symptoms and his inability to upgrade his activities are at least partly attributable to his current psychological problems.”[38]
[38] Ibid.
A Statement of Lived Experience (SLE) prepared by Mr Sharma[39] in 2020 states that he has sustained permanent impairments and disabilities including PTSD, SSD, adjustment disorder with anxiety, chronic major depression and a neck and shoulder injury. In the SLE Mr Sharma contends that his injuries have restricted his functioning as follows:
[39] Applicant Statement of Lived Experience (SLE) dated 13 July 2020, TB3.2.
·he is unable to walk for long distances.
·he cannot hold objects more than one kilogram in weight.
·he cannot bend over to naturally pick up objects.
·he cannot do repetitive movements.
·he cannot dress or shower himself without assistance.
·he cannot cook apart from making sandwiches on a daily basis.
·he needs assistance with meal preparation.
·he cannot drive because of his physical disability and requires transport to his various medical appointments.
·he is unable to do shopping as cannot carry heavy bags or walk long distances to public transport.
·his use of public transport is problematic due to mental health issues, including being forgetful and becoming disoriented quite easily.
·he gets agitated and anxious when in close proximity to other people on public transport.
In the SLE Mr Sharma contends that he had relied on support provided by his elderly mother for personal care, cleaning, shopping and transport for over five years but that she was no longer in a position to assist him as she has incurred disabilities of her own and is on a disability pension. At the time of preparing the SLE Mr Sharma contended that his father had only provided him minimal assistance as he was in full-time work.
Information filed by Mr Sharma includes an undated statement purportedly prepared and signed by his mother, Mrs Lima Kumar.[40] At the request of the Respondent, Mrs Kumar was summonsed to appear at hearing as a witness to speak to this statement and respond to other questions. At the commencement of the hearing, Mr Sharma indicated that Mrs Kumar would not be available to be called as a witness and declined to provide telephone contact details for her in order for the Tribunal to clarify her availability to respond to the summons or to give evidence during the proceedings. The Tribunal considers it unfortunate that Mrs Kumar was not available to provide evidence to the Tribunal at hearing and is of the view that the undated document purportedly signed by her does not provide useful insight into the current level of impairment affecting the Applicant as a consequence of disabilities attributable to his physical and mental health conditions. The Tribunal’s view in relation to this is also informed by Mr Sharma’s evidence that he no longer resides in the family home with his mother and father. As a consequence, the Tribunal has placed no weight on the document purportedly prepared by Mrs Kumar.
[40] Statement of Lila Kumar received 2 February 2022, TB 3.5.
Notwithstanding their not currently treating the applicant, due to their retirement from clinical practice in 2022 or 2023 and that they were not called as a witness in these proceedings, I consider information provided by Dr Stephenson to have probative value. This is due to their specialist qualifications as a consultant psychiatrist and the length of time Mr Sharma was in treatment with this medical specialist.
In a report, prepared in July 2012,[41] Dr Stephenson states that Mr Sharma’s major problem is "chronic severe major depression" with "panic attacks" and opines that whilst they had “not been asked to complete a Permanent Psychiatric Impairment Rating Scale (PIRS), it is clear that Mr Sharma would score in a higher range, sufficient to emphasise Mr Shanna's inability to undertake occupational employment.”
[41] Psychiatric progress report prepared by Dr Stephenson on 13 July 2012, TB2.4.
Reports prepared by Mr Sharma’s treating psychologist, Mr Metry,[42] state that the Applicant has ongoing symptoms of anxiety and depression including: depressed mood, loss of interest, negative thoughts, excessive worries, difficulty controlling his worries, anger, irritability, low self-esteem, loss of confidence, poor memory and reduced quality of life. Mr Metry indicates that Mr Sharma also reported a chronic physical pain condition as he suffers from persistent back, neck, left arm and left shoulder pain.
[42] Reports of Mr Metry dated: 9 January 2019, TB2.7; 22 August 2019, T7; 13 May 2020, TB2.14.

The clinical psychologist, Mr Istvan Schreiner, who assessed Mr Sharma at the request of the Respondent in May 2021, reports that Mr Sharma was suffering from symptoms consistent with a persistent depressive disorder (PDD), major depressive disorder (MDD) and PTSD.[43]
[43] Report of Dr Istvan Schreiner, Clinical and Forensic Psychologist, - 23 May 2021, TB2.21.
The documents available for the Tribunal to review include four letters regarding Mr Sharma prepared by Mr Berbari, physiotherapist. The first of these, prepared in April 2019,[44] indicates that Mr Sharma was referred for physiotherapy treatment in May 2017 and at that time presented with lumbar pain. Mr Berbari reports that Mr Sharma stated he had no pre-existing lumbar pain prior to attending a massage centre in 2016, but suffered pain in the cervical and upper thoracic spine regions following the MVA in 2010. Three further letters prepared by Mr Berbari in February 2022[45], 9 August 2022[46] and March 2023[47] provide feedback to Dr Kanawati, as the referring doctor and indicate that Mr Sharma reports ongoing chronic lumbosacral region pain and experiences functional capacity restrictions, with symptoms aggravated on prolonged sitting, standing and lifting.
[44] Letter of Mr Roger Berbari – 10 April 2019, TB2.8.
[45] Letter of Mr Roger Berbari – 1 February 2022, TB2.11.
[46] Letter of Mr Roger Berbari – 9 August 2022, TB2.12.
[47] Letter of Mr Roger Berbari – 28 March 2023, TB2.13.
The occupational therapist, Mr Christian Byrnes, who in April 2022 prepared a comprehensive care and domestic assistance assessment report regarding Mr Sharma at the request of the Respondent, reports that Mr Sharma’s activities of daily living are impacted in a variety of ways as a consequence of a chronic pain condition, with Mr Sharma reporting areas affected by pain as his: neck, back, left upper limb and lower limbs. Mr Byrnes opines that impacts from Mr Sharma’s pain condition include: reduced movement, strength and endurance (neck, back, left upper limb and lower back); reduced balance; and poor psychological health.[48] At hearing Mr Byrne opined that Mr Sharma has avoidant and fear of pain behaviours associated with his pain condition, which in conjunction with symptoms associated with depression and anxiety, contribute to Mr Sharma’s physical deconditioning and reliance upon assistive technology such as crutches and walking sticks.[49]
[48] Care and domestic assistance assessment report of Mr Christian Byrnes dated 21 April 2022, TB2.24.
[49] Hearing Transcript, 05/03/24, p.100.
Conclusion as to s 24(1)(a)
The evidence before the Tribunal is sufficient to demonstrate that Mr Sharma has developed a range of symptoms impairing his physical and psychosocial functioning since the MVA in 2010. The Tribunal is satisfied the evidence establishes that after the MVA Mr Sharma became and continues to be socially withdrawn, depressed, anxious, avoidant and demotivated. The Tribunal is satisfied Mr Sharma has a low self-esteem and that he lacks confidence, experiences sleep difficulties and has memory and concentration difficulties.
Further to this The Tribunal is satisfied that the following the MVA in 2010 Mr Sharma became and continues to be affected by chronic pain, with exacerbation of pain experienced on prolonged standing, sitting, bending and lifting. The Tribunal is satisfied that Mr Sharma is physical deconditioned and that he has restricted physical functioning. The Tribunal is satisfied that the reported physical difficulty affecting Mr Sharma includes: reduced movement, strength and endurance. The Tribunal is satisfied that these difficulties and symptoms impair Mr Sharma’s ability to participate in aspects of his personal and community life on a daily basis.
On the basis of the available evidence, including that outlined in Mr Sharma SLE and the evidence provided by medical and allied health professionals, the Tribunal is satisfied that Mr Sharma has a disability that is attributable to physical impairments, and one or more impairments to which a psychosocial disability is attributable.
Accordingly, the requirements in s 24(1)(a) are met.
Are the Applicant’s impairments permanent? – s 24(1)(b)
In Davis,[50] a decision of the Federal Court of Australia where Justice Mortimer addresses the meaning of “permanent” in the context of s 24(1)(b). Her Honour states at [130]:
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis. As s 29 and s 30 make clear, the intention of the scheme is that once a person meets the access requirements, then subject to certain specific exceptions, the person will remain supported by the NDIS through their lifetime.
[50] National Disability Insurance Agency v Davis [2022] FCA 1002.
Consistent with Davis,[51] the Tribunal has considered whether the impairments experienced by Mr Sharma, rather than the cause of the impairments, or the medical conditions which he has over time been diagnosed with, have an enduring quality so as to require supports funded and/or provided through the NDIS on an ongoing basis.
[51] Ibid.
Part 5 of the Access Rules address when impairments are, or are likely to be, permanent for the purposes of s 24(1)(b). Relevant to this review, rules 5.4 states:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
Rule 5.5 provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 provides that an impairment “may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent”. This rule also provides that:
The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency (or likely permanency) to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
Rule 5.7 provides that “if an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
In Davis,[52] Her Honour discusses the meaning of terms she considers important for the proper construction of the Access Rules and in relation to such terms states at [136] – [139]:
The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment “would be likely to remedy the impairment”. In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured. As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them. The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
“adjective 1. suitable or ready for use; at hand; of use or service …”Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
[52] Ibid.
Mr Sharma contends that the permanence of the impairments affecting him can be established if the evidence from his treating medical practitioners and allied health professionals is given appropriate weight. He contends that this evidence: details the symptoms associated with the conditions he was diagnosed with following the MVA; the length of time despite treatment that he has been affected by these symptoms; and as well, the ways that he is affected by impairment caused by the severity of these symptoms.[53]
[53] Hearing Transcript, 04/03/24, p.9.
Mr Sharma noted out that he receives a disability support pension and contends that he would not have been granted this pension if the government doctors who assessed him had not determined that he was permanently disabled mentally and physically.[54] In relation to this particular contention, the Tribunal does not accept it, as the requirements for the grant of a Centrelink benefit are covered by legislation specific to those benefit types and the Tribunal is not satisfied the legislative requirements pertaining to the grant of a DSP equate to the provisions in the NDIS Act which prescribes the requirements which must be met to access the NDIS.
[54] Ibid, 04/03/24, p.10.
Mr Sharma contends that notwithstanding the treatment he has received to date his functioning remains severely impaired by the physical and psychosocial consequences of the MVA he suffered in 2010 and that his functioning will further deteriorate as he gets older if he does not receive support around the house and transport assistance to get to the health professionals that he needs ongoing support from. Mr Sharma contends that he cannot afford to fund required supports, assistance and treatment that he requires from his own financial resources.[55]
[55] Ibid, 04/03/24, p.9.
Mr Sharma contends that his parents are elderly and frail and can no longer support him to the extent they did in the past and that his siblings, including his sister with whom he currently resides, have their own lives to lead and he cannot assume they can provide him with the assistance he needs on an ongoing basis. The Applicant contends that the NDIS is the appropriate and only realistic source of the support to meet his needs at the present time and into the future.[56]
[56] Ibid, 05/03/24 p.125.
In relation to whether the Mr Sharma’s impairments are permanent,[57] the Respondent contends that there is no evidence before the Tribunal which would allow it to be positively satisfied that there are no appropriate available treatments likely to improve the impairments.[58]
[57] NDIS Act, s 24(1)(b).
[58] Hearing transcript, 05/03/24, p.112.
I note that the Access Rules emphasise the term ‘remedy’ rather than ‘improve’ and consistent with Davis, I take the view that ‘“remedy” should be understood to mean more than just relieve or improve’ and for the purposes of r 5.4 ‘the word “remedy” should be understood to mean something approaching a removal or cure of the impairment.’[59]
[59] National Disability Insurance Agency v Davis [2022] FCA 1002.
In the circumstances of this case, where there is a complex interweaving of physical and psychosocial impairments, categorisation of the impairment and the application of the Access Rules can appear to have some arbitrary features. For instance, the effect of pain can influence a person’s physical functioning, as is reported in Mr Sharma’s situation – resulting in impairment. Pain can also influence the mood state and behaviour of a person, which is also demonstrably so in Mr Sharma’s circumstances – again resulting in impairment. For the purposes of assessing the permanency of impairments affecting Mr Sharma, I have considered factors arising from his experience of pain as an aspect and contributing factor to his physical impairments, notwithstanding the psychological and behavioural factors present when a person is impacted by chronic pain. The Tribunal does not view pain to be, in and of itself, to be an impairment. Rather, the Tribunal would suggest, it is the ways in which pain influences a person’s behaviour and their state of mind and body which creates the impairment that effects a person’s day to day life.
For the purpose of assessing this legislative criteria I have categorised Mr Sharma’s impairments as follows, whilst in doing so acknowledging that Mr Sharma’s experience of these impairments may not so easily be differentiated or separated from each other:
a)Physical impairments: mobility limitations; restricted physical functioning in relation to standing, sitting, bending and lifting; reduced strength and endurance; physical deconditioning.
b)Psychosocial impairments: social withdrawal, depressive symptoms, anxiety symptoms including panic attacks, avoidant behaviours, amotivation, sleep difficulties, low self-esteem, lack of self-confidence, poor concentration and memory difficulties.
The Applicant’s physical impairments
In the SLE prepared by Mr Sharma in July 2020 he states that the permanency of his neck and shoulder injury is supported by a report prepared by Dr Kanawati in April 2020. Consistent with the principles discussed in Davis,[60] the Tribunal has reviewed this document in order to ascertain whether it contains information which reflects on the permanency, or likely permanency of the impairments affecting Mr Sharma. In this report Dr Kanawati states the Applicant developed the following injuries after the MVA of 27 October 2010: 1. Cervical injuries; 2. Iumbo-sacral injury; 3.Left shoulder injury; 4. Post traumatic stress disorder.[61] In this report, Dr Kanawati goes on to state that since the MVA Mr Sharma “has constantly complained of the following: Neck pain with bilateral brachialgia[62]; hopic pain with bilateral sciatica[63]; Left shoulder pain” and that new MRI Scan and CT Scan were performed with the results revealing “Cervical + Lumbar-sacral discopathy and osteoarthritis.”[64] The Tribunal considers a question arising from this report is the extent to which the physical impairments affecting Mr Sharma are caused by pain arising from the neck, shoulder and back injuries.
[60] Ibid.
[61] Letter from Dr Kanawati dated 24 April 2020, STB1.
[62] Brachialgia is a technical term for arm pain.- Sciatica is the name given to pain that radiates along the path of the sciatic nerve, usually causing low back pain, buttock or hip pain, and pain down the back of the leg.- Letter from Dr Kanawati dated 24 April 2020, STB1.
With respect to the conditions which contribute to Mr Sharma physical impairments, the Respondent contends that they require specialist assessment to establish if there is a need for treatment intervention and appropriate treatment/rehabilitation. The Respondent contends that in the absence of recent evidence of specialist assessments and recommended treatments, and the extent to which Mr Sharma may have exhausted treatment options which may improve his physical symptoms, the permanence of physical impairments affecting Mr Sharma cannot be satisfactorily established.[65] For the following reasons, the Tribunal accepts the Respondent’s contentions with respect to the physical impairments impacting Mr Sharma.
[65] Hearing transcript, 05/03/24, p.112.
Professor Ian Harris, orthopaedic surgeon, in 2011 assessed Mr Sharma in relation to a worker's compensation claim. He reported that examination of Mr Sharma cervical spine revealed no deformity. In his report, Professor Harris stated:
Plain radiographs of the cervical spine from 28 October 2010 were seen. They show no abnormality.
An MRI scan of the cervical spine from 14 December 2010 was seen. It shows no evidence of recent trauma and no significant abnormality. There is an incidental cyst in T2 vertebra.
An MRI scan of the left shoulder from 30 June 2011 was seen. No significant abnormality was noted.
A whole body bone scan from 22 February 2011 was seen. There is some mild abnormality reported at C4/C5 and C5/C6 but I could find no abnormality on visualising the scans.[66]
[66] Report of Professor Ian Harris, orthopaedic surgeon, dated 11 October 2011, TB2.2.
In their SFIC, the Respondent noted that Professor Harris found no physical basis to apply any restrictions on Mr Sharma’s physical activity.[67] In response to a question as to the likelihood of Mr Sharma being able to upgrade from the reduced hours he was at that time cleared to work, Professor Harris stated that “There is no physical basis on which to apply any restrictions and there is no underlying physical diagnosis to which he symptoms are attributable” and that Mr Sharma’s "symptoms and his inability to upgrade his activities are at least partly attributable to his current psychological problems.”[68] In the view of the Tribunal this report, albeit from 2011 and having limited relevance to Mr Sharma’s current circumstances, is noteworthy as it did not establish a physical basis for physical impairments affecting Mr Sharma and suggested they may be at least in part attributable to psychological problems.
[67] Respondent SFIC, TB5.1.
[68] Medical Report of Professor Ian Harris, orthopaedic surgeon, dated 11 October 2011, TB2.2.
In a report prepared for a solicitor in October 2011, Dr Kanawati, stated in relation to imaging results “SPECT[69] and CT[70] images demonstrate loss of cervical lordosis,[71] consistent with a muscular spasm” and that he had “referred Mr Sharma for more investigations as he still suffering from persistent pain in his left shoulder and neck.”[72] In a follow up report in October 2013, Dr Kanawati states that in addition to Post traumatic headaches, anxiety, panic, depression and severe insomnia Mr Sharma had “Musculo-ligamentous injuries to the Cervical spine with discal implications”.[73] In the report prepared in April 2020, Dr Kanawati states that his belief that Mr Sharma’s physical injuries are permanent and that it is unlikely that the injuries would improve further. At hearing Dr Kanawati confirmed that in relation to Mr Sharma’s physical symptoms, the areas of his body that are affected are his left shoulder, his neck and his lower back.
[69] A SPECT scan is a type of imaging test that uses a radioactive substance and a special camera to create 3D pictures. - A computed tomography (CT) scan is a type of x-ray that creates 2- or 3-dimensional images of your body. It is also known as a computed axial tomography (CAT) scan. - Natural curvature of the spine.
[72] Letter from Dr Kanawati to Kheir Lawyers, dated 23 September 2011, TB2.1.
[73] Letter from Dr Kanawati to Kheir Lawyers, dated 25 October 2013, TB2.6.

In relation to treatment for Mr Sharma’s physical conditions Dr Kanawati indicated that he prescribed analgesics for pain relief and also sometimes anti-inflammatory medications for inflammation of the little joints of Mr Sharma’s spine and left shoulder. Dr Kanawati noted that these are to relieve the pain but will not remove the pain completely. Dr Kanawati indicated that on top of that he has referred Mr Sharma for physiotherapy and Mr Sharma is advised to do home exercises to improve the muscle power of his system, so as to make the pain a bit easier for him. Further to this, Dr Kanawati recommended hydrotherapy and also walking, with the latter form of exercise, in the view of the doctor is the best exercise for the back and neck muscles. Dr Kanawati thinks Mr Sharma has also tried acupuncture in the past though the doctor does not have much faith in this sort of treatment. [74]
[74] Hearing Transcript, 04/03/24, p.46.
In response to a question from the Respondent, Dr Kanawati gave evidence that he referred Mr Sharma to an orthopaedic specialist, Dr Maniam, in 2020 but that he has no record, such as a letter from Dr Maniam, which would indicate this referral was followed up by Mr Sharma. Dr Kanawati indicated that he had previously referred Mr Sharma to an orthopaedic surgeon, Dr Khan, in 2018, but had also received no letter or report back from that specialist.[75]
[75] Hearing Transcript, 04/03/24, P48, p.51.
In assessing the permanency, or likely permanency of Mr Sharma’s physical impairments it is of concern that Dr Kanawati perceived it to be clinically indicated to seek opinions from orthopaedic specialists in 2018 and 2020, but that these were not followed up by Mr Sharma. The Tribunal considers there to be a lack of information from relevant medical specialists regarding treatment options for the physical health conditions affecting Mr Sharma. Whilst understanding the financial constraints experienced by Mr Sharma, his sole source of income being the DSP, the Tribunal is not persuaded what may be perceived as a valid constraint on the availability of ongoing treatment, as discussed in Davis,[76] should be viewed as a reason a review by an appropriate medical specialist, as envisaged in Rule 6 of the Access Rules, would not be required in order for the permanency (or likely permanency) of the physical impairments to be demonstrated.
[76] National Disability Insurance Agency v Davis [2022] FCA 1002.
Mr Sharma has reported that he is at present using a walking stick to assist his stability whilst walking and that prior to misplacing it, he was reliant on assistive technology which appears to have been a Canadian crutch.[77] Mr Sharma contends that Dr Kanawati recommended that he use a crutch. However, at hearing Dr Kanawati gave evidence that he has at no stage recommended Mr Sharma to use a crutch and further to this both Dr Kanawati and Mr Metry confirmed that Mr Sharma has not been observed using a crutch when attending the medical centre in which they work. The significance the Tribunal has drawn from the inconsistency apparent as to whether the use of assistive technology is necessary, or was recommended by Dr Kanawati is less towards whether Mr Sharma is a reliable or unreliable source of information regarding his circumstances and more towards the extent to which her perceives the use of assistive technology is required. In relation to this factor, I consider comments made by Mr Byrnes, provide some possible insight. At hearing Mr Byrnes was asked to elaborate upon on the recommendations in his report that Mr Sharma would benefit from referral to a pain management program and stated:
Mr Sharma presented with evidence of, like, physical deconditioning, and also what I’ll consider fear avoidant behaviour, like fear of movement or fear of activity. And my opinion, as an occupational therapist with post-grad qualifications in pain management, was that he would likely benefit from some education regarding pacing, movement, perhaps understanding how to move safely, to promote improvement in his functional capacity to perform activities of daily living. And also an occupational therapist could also be present to help if necessary, prescribe any aids or equipment of that was also required …[78]
[77] Hearing Transcript, 05/03/24, p.100.
[78] Ibid, 05/03/24, p.95.
The opinions provided by Mr Byrne place Mr Sharma’s experience of chronic pain as a significant factor affecting the reduction in his ability to do things across a number of life domains. In his report Mr Byrne states that pain has the following impacts on Mr Sharma’s activities of daily living:
·Reduces his motivation to leave the house.
·Inhibits his capacity to drive to locations outside his local area.
·Pain inhibits his ability to contribute to mowing the lawn or complete home repairs.
·Pain associated with prolonged standing results in increased reliance on his family for preparing his food and cleaning the windows and results in his cessation of his hobbies.
·Pain makes bending down to wash his car, complete home repairs or reaching to manage laundry difficult (resulting in dependency on his family).
·Pain limits his capacity to engage in any form of exercise or walking.
·Pain reduces his capacity to lift and carry resulting in a greater reliance on his family to help with shopping, carry washing and results in an ability to work as an electrician.
·Pain adversely impacts on his sleep resulting in fatigue during the daytime and fluctuations in his mood.[79]
[79] Care and domestic assistance assessment report of Mr Christian Byrnes dated 21 April 2022, TB2.24.
Of relevance to assessing the permanency of physical impairments, the report of Mr Byrnes notes that Mr Sharma displayed a reluctance to engage in treatment, but that if that were to change he would benefit from, amongst other things:
….. participating in pain management program to assist him to manage his chronic pain and fear of movement. Due to the level of his disability his treating physiotherapy and psychologist should work collaboratively with the pain management program to maximise benefits achieved.[80]
[80] Ibid.
In relation to the extent of collaboration with Mr Sharma’s treating psychologist and physiotherapist, Dr Kanawati explained that they work independently but do in difficult cases discuss things and that in relation to Mr Sharma, two or three such discussions had occurred over the time Dr Kanawati has treated him since 2010.[81]
[81] Hearing transcript, 04/03/24, p.55.
In reports prepared in August 2019[82] and May 2020[83] Mr Sharma’s treating psychologist, Mr Metry, states that Mr Sharma would benefit from a structured cognitive behavioural pain management program which explore living with pain techniques and encourage Mr Sharma to engage in a deep focus on his pain and limitations. At hearing Mr Metry gave evidence that he has discussed pain management strategies with Mr Sharma.[84]
[82] Report of Mr Metry dated 22 August 2019, T7, p.52-53.
[83] Report of Mr Metry dated 13 May 2020, TB2.14, p. 228-229.
[84] Hearing Transcript, 05/03/24, p.82.
In relation to his recommendation that Mr Sharma would benefit from a structured cognitive behavioural pain management program, Mr Metry noted that there are two different ways of providing a pain management program, one being through participation in a pain management program involving a multi-disciplinary team, usually provided in a hospital or university setting. He indicated the other way is for pain management to be included in the treatment provided by a psychologist as part of an overall psychological intervention, with the latter being the type of pain management provided to the applicant.[85] Of note, in his evidence at hearing Mr Sharma could not recall any specific pain management strategies Mr Metry may have suggested he try.[86]
[85] Ibid, 05/03/24, p.76.
[86] Ibid, 04/03/24, p.69.
In relation to why he recommended Mr Sharma participate in a formal pain management program Mr Byrnes made the following comment:
Mr Sharma presents with significant levels of reported chronic pain, pain avoidant behaviour, presented with physical decondition related to a lack of activity, a lack of engagement, a lack of performing functional tasks. And a pain management program, again, is – well normally managed by the medical profession, but it’s a group of perhaps doctors, OT, nurses, psychologists, working together. Can be one on one, can also be group work to assist a person improve their capacity and despite pain.[87]
[87] Ibid, 05/03/24, p.97-98.
In response to questions from the Respondent as his view about the potential benefit from referring Mr Sharma to a pain management clinic, Dr Kanawati initially indicated that he ‘maybe’ would recommend this to Mr Sharma.[88] However Dr Kanawati then told the Tribunal that he had not to date made such a recommendation to Mr Sharma, at least in part out of concern that the outcome from referring other patients to pain management programs is that they returned with recommendations from the programs that he prescribe Schedule 8 medications such as Endone, Morphine or Codeine and that he does not consider this appropriate unless the situation is hopeless due to the addictive nature of these medications.[89]
[88] Ibid, 04/03/24, p.48.
[89] Ibid, 04/03/24, p.50-51.
In considering whether the physical impairments experienced by Mr Sharma are permanent, the Tribunal has formed the pain management interventions are known evidence based treatments aimed at improving a person’s functional capacity.
As to whether pain management interventions have the capacity to remedy the physical impairments caused by Mr Sharma’s chronic pain condition, the evidence of Mr Metry is that pain management strategies have been included as part of the overall psychological treatment provided to Mr Sharma. The Tribunal is satisfied that the evidence shows that pain management provided in this format has come any way close to removal or cure of the pain related impairment affecting the Applicant. To the contrary, the Tribunal’s assessment of the evidence is that these impairments are quite entrenched and pervasive.
The evidence in this case demonstrates a complex interaction between the physical and psychological conditions from which Mr Sharma suffers. Whilst mindful of Dr Kanawati’s reticence to refer Mr Sharma to a formal pain management program. The Tribunal has preferred the evidence of Mr Byrne that Mr Sharma may benefit from referral to such a program. In forming this view the Tribunal has placed weight on Mr Byrnes’ opinion that there is benefit from a pain management program where there is involvement of a multi-disciplinary team working in collaboration with other health professionals treating a program participant, such as those run through public hospitals.
With respect to this latter factor and whilst not questioning the commitment of the health professionals who have to date treated Mr Sharma, the Tribunal is not persuaded case discussion between Dr Kanawati, Mr Metry and Mr Berbari on two or three occasions over a period of more than 13 years, and a present context where contact between Mr Sharma and these health professionals is episodic at best, constitutes the collaborative multi-disciplinary team based intervention available through a more formal pain management program.
The evidence before the Tribunal from Mr Byrne, who I accept has qualifications and experience in the area of pain management, is that the Applicant is suitable for referral to a pain management program of a type offered by public health services in NSW. Dr Kanawati’s evidence is that he has a general reticence to make such a referral, but it is not that such a referral is unavailable as an option.
The Tribunal is of the view that Rule 5.6 is not satisfied in relation to the physical impairments affecting Mr Sharma, as I consider the evidence shows that further treatment, through a formal pain management program provided by a multi-disciplinary team is necessary in order for the permanency of the physical impairments be demonstrated. The review of the extent to which the impact on the Mr Sharma’s functional capacity is influenced by participation in a pain management program of the type recommended by Mr Byrne would also provide information to assessing the permanency of the physical impairments. If an intake assessment established Mr Sharma was unsuitable for such a program, this would in my view also provide relevant information.
The Tribunal is of the view that Rule 5.6 is not satisfied because of the lack of information that could have been forthcoming from opinion sought by Dr Kanawati from orthopaedic specialists in 2018 and 2020, or from any specialist assessment undertaken more recently than those dates. Without the information which would be forthcoming as a consequence of further treatment, or review of the type discussed, the Tribunal is not of the view Rule 5.6 is satisfied in relation to the physical impairments impacting the Applicant.
The Applicant’s psycho-social impairments
For the purpose of assessing whether the provisions of s 24(1)(b) of the NDIS Act are met Mr Sharma’s psychosocial impairments are taken to include the following: social withdrawal, depressive symptoms, anxiety symptoms, panic attacks, avoidant behaviours, amotivation, sleep difficulties, low self-esteem and lack of self-confidence.
Are there ‘known’ treatments which can be identified by Australian medical practitioners as suitable treatments for the Applicant’s psychosocial impairments?
In a manner which is by no means unique to this case, comment in the evidence before the Tribunal frequently discusses the permanency of the diagnosed mental health conditions underlying and contributing to the psychosocial impairments which impact Mr Sharma. It is necessary, notwithstanding this factor, to review this material in order to determine the permanency, or likely permanency of psychosocial impairments. This is consistent with the Access Rules, which cumulatively require assessment as to whether sufficient appropriate treatment has occurred in order to form a view as to whether one or more of the psychosocial impairments have an enduring nature. The Tribunal understands this is on the premise that effective treatment of underlying mental health conditions may lead to a remedy of impairments which result from the mental health conditions.
The Tribunal is satisfied that Dr Stephenson’s medical speciality as a psychiatrist is relevant to the treatment of symptoms which contribute to a range of Mr Sharma’s reported psychosocial impairments and that the duration of her involvement in his treatment warrants weight be accorded to her assessment of the efficacy and suitability of interventions to treat those symptoms.
Comments in a report prepared in 2012 by Dr Stephenson encapsulate the complexity and interconnected nature of health conditions and disability which were affecting Mr Sharma at that time. In my view these comments continue to have relevance to the circumstances and lived experience of Mr Sharma at the present time.
“The longer symptomatology persists, the more difficult it is to achieve improvement. It must be accepted that deterioration in functioning may be inevitable, whether it involves family over-protection or lack of social interaction” and “With the passage of time, bad habits of thinking, feeling and behaving together with over-dependence on family members, have rendered appropriate intervention more and more difficult. Comorbidity of pain and depression is linked to greater severity of depression, longer duration, greater functional impairment and poorer clinical outcome. Such effects are further compounded as a result of comorbid chronic posttraumatic stress disorder.”[90]
[90] Psychiatric progress report prepared by Dr Stephenson on 13 July 2012, TB2.4.
A response to a question regarding Mr Sharma’s prognosis for recovery in a 2013 report prepared by Dr McMahon, clinical psychologist also present as relevant to Mr Sharma’s current circumstances:
Unfortunately, the prognosis for mental disorders tends to be poorer the longer
the acute symptoms endure, and Mr Sharma’s prognosis is not good. That Mr Sharma has returned to driving, indicates that he is able to overcome anxiety
and that it can resolve. However, the present issue is the inability to motivate
himself and engage in adaptive behaviours and, I suspect, unless there is
intensive treatment as outlined above, his symptoms may become chronic and
unremitting.[91]
91 Confidential psychology report of Dr J. McMahon dated 12 July 2013, TB2.5. – the intensive treatment referred to by Dr McMahon was ‘further trials of antipsychotic medication and would benefit from review for novel therapies such as Electro Convulsive Therapy or Transcranial Magnetic Stimulation by a psychiatrist experienced in these specialized treatments.’
In relation to whether there is a psychological reason for the Applicant’s pain experience Dr Kanawati made the following comment at hearing:
It’s a good question, and I have thought, to be fair to you guys and to the patient and to me as well, that psychological overlay is there, definitely. He has severe depression and post-traumatic stress, and the accident has deeply traumatised him, because if you cross it with the history of the accident, I’m sure you know it very well. It traumatised him very well – I mean clearly traumatised him. To be fair for all of us, somebody who has an injury like this, it leaves an effect in him and his brain. It has to affect somehow on his pain and, you know, he’s fed up of everything – anything he does, he’s not happy. It certainly will affect the severity of the pain and it will make the pain worse, and that’s why we treat the psychological effects as well, hoping – hoping – that the pain will be alleviated.[92]
[92] Hearing Transcript 04/03/24, p.55.
In the view of the Tribunal the evidence before it demonstrates that symptoms associated with Mr Sharma’s mental health conditions continue to affect him, albeit with the symptom intensity fluctuating over time. Psychosocial impairments resulting from the symptoms of the mental health conditions also continue to affect Mr Sharma, although not in uniform ways.
In relation to how treatment may improve Mr Sharma’s situation, Dr Stephenson opined in 2012 that Mr Sharma required ongoing education and development of techniques that would help him to understand, live with and in time, manage his symptoms. As referred to previously, Dr Stephenson opined that the longer the symptomatology persisted the more difficult it would be to achieve improvement and that whilst the possibility of referral to an inpatient unit for Mr Sharma’s treatment resistant depression was considered, the additional comorbid conditions of chronic pain and PTSD were a likely problem in gaining admission to a suitable patient facility.[93]
Post traumatic stress disorder
[93] Ibid.
In relation to symptoms and by extension, impairment which may be associated with PTSD, Mr Schreiner’s report states that this condition can cause ‘lasting emotional, cognitive and physiological symptoms associated with a significant traumatic event’ and that Mr Sharma ‘experiences both physiological and cognitive symptoms of posttraumatic stress, as well as emotional numbing and avoidance.’[94] Symptoms reported by Mr Sharma during consultations with Mr Metry include: depressed mood, loss of interest, negative thoughts, excessive worries, anger, irritability, anxiety symptoms, low self-esteem, loss of confidence and poor memory.
[94] Psychological evaluation by Dr Istvan Schreiner, Clinical and Forensic Psychologist, dated 23 May 2021, TB 2.21.
In his report Mr Schreiner recommended the following treatment for Mr Sharma’s mental health conditions:[95]
[95] Ibid.
4.5.1 Mr Sharma would benefit from Cognitive Behaviour Therapy (CBT) based therapy/intervention. CBT places priority on changing and challenging negative cognitions and changing maladaptive behaviour patterns. CBT would be useful to address chronic PTSD symptoms as well as depression/persistent depression.
4.5.2 Mr Sharma’s treatment should include psycho-education and symptom reduction. Counselling should explore coping skills, such as relaxation strategies and cognitive strategies aimed at changing “negative self-talk”, social skills training and reducing isolation. Treatment should also include various behavioural strategies, such as activity scheduling that Mr Sharma could complete independently.
4.5.3 Most importantly, Mr Sharma would benefit from graded exposure therapy that would directly target his PSTD symptoms. His treating psychologist would need to be willing to guide the exposure therapy, first involving imaginary or “in vivo” exposure (e.g., thinking about driving and using driving simulators) and in the later stages supervising and accompanying him to various activities, such as visiting shops and talking to shop assistants, using public transport, and later driving independently. Driving may be done with the assistance of a driving instructor and a trained psychologist. Throughout the exposure therapy component Mr Sharma’s treating psychologist should guide and encourage Mr Sharma to use the strategies he learned in earlier treatment sessions. The goal of exposure therapy would be to encourage and retrain Mr Sharma to return to pre-accident level of functioning.
4.5.4 It is likely that Mr Sharma’s negative self-view and exaggerated view of his
impairment would significantly hinder his progress. Throughout the delivery of exposure therapy a careful approach should be maintained towards directly challenging Mr Sharma’s beliefs and rewarding him even for minimal improvements. A suitably trained and experienced clinical psychologist should be able to deliver treatment.
4.5.5 In my opinion, Mr Sharma should attend treatment once per week. The goal of treatment should be to provide him with enough “homework” and other tasks that he could complete between sessions. However, regular attendance would be necessary to reduce Mr Sharma’s symptoms and to adequately challenge his negative and “self-defeating” beliefs.
4.5.6 Considering the chronic nature of Mr Sharma’s condition, he would require
approximately 20 weekly sessions to successfully treat his condition. He should be able to complete his treatment within a 6 month time frame.
4.5.7 Additionally to the above recommendations, Mr Sharma’s suicidal ideation
should be further evaluated. In case his suicidal thinking is as severe as he indicates it (see 3.5.8), he may require immediate intervention and/or admission to a psychiatric facility.

In cases where a layman may challenge opinion evidence given by an expert the Tribunal has consistently ruled that, in the absence of obvious error, the evidence of the expert must be preferred to that of the layman.[142] It is accepted, however, that different considerations would arise if it were shown that the expert’s opinion was based on insufficient or incorrect data.[143] A general rule about acceptance of expert evidence may be seen to be that the expert should be required to spell out the facts on which his or her opinion is based lest it be shown that they differ from the Tribunal’s findings of fact.[144] With respect to opinions provided by either Mr Byrnes, or Mr Schreiner, the Tribunal is satisfied that they adequately explained the basis upon which their opinions were based.
[142] Re Firth and Minister for Capital Territory (1979) 2 ALD 183; Re Hill and Wilson and Minister for Capital Territory (1979) 2 ALD 457.
[143] Re Quinlivan and Minister for Capital Territory (No 2) (1979) 2 ALN No 59.
[144] Re MKKR and Minister of Immigration (2016) 69 AAR 512; [2016] AATA 458.
Communication
The Operational Guidelines with respect to communication currently state:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Communication difficulty was not identified by Dr Stephenson as an area in which the Applicant requires assistance in the NDIS Access request form by which Mr Sharma in 2019 applied to become a participant of the NDIS. Mr Sharma has not identified communication as an area of specific difficulty in his SLE. In his evidence at hearing Mr Sharma made it apparent he is competent using social media and operating other functions on his smart phone requiring the use of keyboard skills. At hearing the Respondent noted that Mr Sharma had communicated exceptionally well throughout the conduct of the hearing. This is a view shared by the Tribunal.
In response to a question in his report as to whether Mr Sharma is able to communicate effectively with others, Mr Byrnes commented “Based upon assessment findings the Applicant is independently able to effectively communicate with others.”. Mr Byrnes further notes that Mr Sharma requires no assistance to effectively communicate with others. Notwithstanding this, reports prepared by Mr Sharma’s treating psychologist state that in relation to communication, Mr Sharma “is very limited to express his needs due to his depression and poor concentration.”[145] There is no evidence before the Tribunal which cause it to doubt the veracity of Mr Byrnes opinion with regard to this factor.
[145] Reports of Mr Metry dated 9 January 2019, TB2.7, 22 August 2019, T7, 13 May 2020, TB2.14.
With respect to the domain of communication, the Tribunal accepts the extent to which Mr Sharma communicates with other people fluctuates according to his mood state and the extent to which he is affected by symptoms associated with chronic pain and mental health conditions. However, when considering what Mr Sharma is able to do, the Tribunal is satisfied that he can without assistance communicate effectively verbally and also through the use of social media and other platforms requiring keyboard skills. The Tribunal is not satisfied that Mr Sharma experiences a substantial functional impairment in relation to his capacity for communication.
Accordingly, with respect to the domain of communication, the requirements of s 24(1)(c)(i) of the Act are not satisfied.
Social interaction
The Operational Guidelines with respect to social interaction currently state:
Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
The need for assistance to interact with other because of his disability was identified by Dr Stephenson in the NDIS Access request form by which the Applicant in 2019 applied to become a participant of the NDIS, however the type of assistance identified by Dr Stephenson was assistance with transport to social interaction opportunities, rather than in relation to assisting the applicant manage his behaviour, feelings or emotions whilst interacting with other people.
In response to a question at hearing as to ways his day-to-day life is impacted by impairment associated with the pain he experiences, Mr Sharma identified socialising with other people, amongst other things.[146] However, Mr Sharma that he had over the weekend prior to the hearing, as he does on other occasions, accompanied his sister on visits to other family members, such as this occasion, an aunt.[147] The applicant conceded that he also maintains contact with one to two friends over social media, albeit his social network is markedly reduced from what it was prior to the MVA in 2010. This evidence is broadly consistent with reports prepared by Mr Metry, which state that in relation to social and recreational activities, Mr Sharma reported that he has withdrawn from many social activities, as he had lost interest to meet his friends and going out and preferred to be alone.
[146] Hearing Transcript, 04/03/24, p.69.
[147] Ibid, 04/03/24, p.28-29.
The report of Mr Byrnes notes that pain experienced by Mr Sharma reduces his motivation to leave the house. In his SLE Mr Sharma describes becoming anxious when using public transport and in his evidence at hearing he indicated that a fear of pain contributes to this anxiety. However, it is apparent from the evidence that Mr Sharma does have the capacity to leave his residential setting, whether to accompany his sister when shopping or visiting his parents or other relatives, or for short walks around their neighbourhood.
In response to a question in his report as to whether Mr Sharma is able to interact with others in social situations (e.g. by telephone, face to face, social media, group environments, community environments), Mr Byrnes commented “Based upon assessment findings Mr Sharma is independently able to interact with others in social situations. He gave an example that he has continued to maintain contact with a friend in person and via telephone.” Mr Byrnes further notes that Mr Sharma requires no assistance to support him to interact with others in social situations. There is no evidence before the Tribunal which cause it to doubt the veracity of Mr Byrnes’ opinion with regard to this factor.
In Kilgallin and National Disability Insurance Agency,[148] the Tribunal was faced with the circumstances of an applicant who had significantly reduced their social interactions as a result of their disability. In that case, the Tribunal found that the applicant may well have reduced psychosocial functioning in undertaking such activities, but the skills required for social interaction were not significantly affected. This is in my view similar to Mr Sharma’s situation. It is plausible that the level of Mr Sharma’s social interaction with others has reduced markedly in the years since the MVA, but the evidence demonstrates that he continues to interact with relatives and a few friends, whether this be in person or by telephone or through social media. It is also apparent from the evidence, as is highlighted in the Respondent’s closing submissions that Mr Sharma can effectively communicate with strangers when selling items on Facebook Market place.
[148] Kilgallin and National Disability Insurance Agency [2017] AATA 186.
With respect to the domain of social interaction, the Tribunal is not persuaded that Mr Sharma’s has a substantial functional impairment. With respect to the domain of social interaction, the Tribunal finds that the requirements of s 24(1)(c)(i) of the Act are not satisfied.
Learning
The Operational Guidelines with respect to learning currently state:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Learning difficulty was identified by Dr Stephenson as an area in which the Applicant requires assistance in the NDIS Access request form, with the form of assistance required pertaining again to assistance with transport, for example to classes which may be suitable for Mr Sharma to undertake at TAFE. Reports prepared by Mr Metry state that in relation to concentration and task completion, depression and physical pain result in Mr Sharma not being able to maintain his concentration, and that due to a poor attention span and pain, Mr Sharma sometimes becomes confused and cannot complete a task and that he also has difficulties learning new skills.[149]
[149] Reports of Mr Metry dated 9 January 2019, TB2.7, 22 August 2019, T7, 13 May 2020, TB2.14
Mr Sharma did not identify difficulties in the domain of learning in his SLE. At hearing he gave evidence regarding his occasional use of internet-based platforms such as Facebook Marketplace and of his more frequent use of electronic banking via his smartphone. It is the assessment of the Tribunal that this is indicative of Mr Sharma’s capacity to learn and understand new things, given these sorts of electronic facilities have largely developed and become widespread over the period since the MVA in 2010 which resulted in the onset of Mr Sharma’s impairments.
In response to a question in his report as to whether Mr Sharma is able to learn new things, e.g. new material or skills, Mr Byrnes commented “Based upon assessment findings the Applicant is independently able to learn. He demonstrated capacity to understand the nature of the NDIS system and able to explain the current review process.” Mr Byrnes further notes that Mr Sharma requires no assistance to support him to learn new things.
The Tribunal does not assess Dr Stephenson’s reference to a need for assisting with transport to potential learning opportunities reflects an actual limitation on Mr Sharma’s functioning in the domain of learning. As to the factors raised by Mr Metry, which can influence Mr Sharma’s concentration span and level of confusion, the Tribunal is satisfied this can, if you like affect Mr Sharma ‘on a bad day’ but is not persuaded that the evidence demonstrates that this is reflective of his overall learning capacity.
With respect to the domain of learning, the Tribunal is satisfied the available evidence demonstrates Mr Sharma has the capacity to learn, understand and remember new things. Whilst accepting his capacity in relation to this domain may fluctuate in response to the intensity of symptoms associated with chronic pain and mental health conditions which affect him the Tribunal is not persuaded that Mr Sharma has a substantial functional impairment in relation to learning.
With respect to the domain of learning, the Tribunal finds that the requirements of s 24(1)(c)(i) of the Act are not satisfied.
Mobility
The Operational Guidelines with respect to mobility currently states as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
The current rule 5.8(a) of the Access Rules requires the Tribunal to consider whether Mr Sharma can participate effectively and completely in the activity of mobility on the basis that he is unaided by assistive technology, equipment (other than commonly used items such as glasses) or home modifications.
Mobility was identified by Dr Stephenson as an area in which Mr Sharma requires assistance in the NDIS Access request form, with that response being qualified by an indication that assistance with showering and multiple activities of self-care required verification by a relevant specialist or general practitioner. Whilst Dr Stephenson makes reference to activities more specifically located in the domain of self-care rather than mobility, the Tribunal considers the manner in which she qualifies her response pertinent and in relation to this issue considers reasonable the submission of the Respondent that the only assessment by a health professional with specialist skills in assessing a person’s functional capacity is that undertaken by Mr Byrnes in 2021.
The report of Mr Byrnes states that pain limits Mr Sharma’s capacity to engage in any form of exercise or walking. Mr Byrnes comments that Mr Sharma’s functioning is impacted by general physical deconditioning (i.e. lack of cardiovascular fitness), pain and fear avoidance behaviours. In response to a question in his report as to whether Mr Sharma is able to mobilise on his own, Mr Byrnes commented “Based upon assessment findings Mr Sharma is independently able to able to mobilise on their own (i.e. was observed to independently mobilise and traverse stairs with the use of a Canadian crutch). Mr Sharma indicated that he is able to drive, although rarely leaves his residence, and last drive three weeks ago. With suitable aids, equipment and home modifications Mr Sharma demonstrated capacity to perform tasks requiring the use of his limbs.”
In response to a request to Mr Byrnes to quantify and comment on Mr Sharma’s walking tolerance indoors and outdoors, with and without the use of aids, Mr Byrnes commented “Mr Sharma demonstrated a walking tolerance of 35 seconds with the use of a Canadian crutch before the need for a rest break. Mr Sharma reported a walking tolerance of 15 minutes, inside and outside, over even terrain.” In relation to supports Mr Sharma had available to him at that time in in regard to transportation to access community based social and recreational activities, Mr Byrnes noted that “Mr Sharma reported capacity to drive in the local area.”
Dr Kanawati reports that Mr Sharma is never pain free. However, in contrast to the Mr Sharma’s claims, Dr Kanawati gave evidence that he has at no stage assessed Mr Sharma as requiring assistance technology to help him mobilise and has observed Mr Sharma walking and transferring from a standing to a seated position without the use of assistive technology. Reports prepared by Mr Metry state that Mr Sharma is very limited in his mobility due to his chronic physical pain condition as he suffers from persistent back pain, as well as neck, left arm and left shoulder pain and that Mr Sharma also complained of frustration as a result of his physical limitations. Reports prepared by Mr Berbari, the physiotherapist who has treated the applicant in recent years, refer to Mr Sharma’s pain and injuries but do not comment on specific functional difficulty he has with respect to mobilising which flow from limitations associated with those injuries.
In relation to the function of mobility, the Respondent contends that while it is accepted that Mr Sharma experiences some reduced functional capacity in relation to mobility, he can effectively mobilise within his home and in the community.[150] In their SFIC, the Respondent refers to the decision of Madelaine and the National Disability Insurance Agency. [151] In that decision the Tribunal noted that the threshold requirements to achieve functional capacity in relation to mobility are modest and elaborating on this factor stated:
[a] person has functional capacity in relation to this activity if they can move about their home, get in and out of bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as movable, not fixed, free to move.[152]
[150] Ibid.
[151] Madelaine and the National Disability Insurance Agency [2020] AATA 4025.
[152] Ibid, [103]-[104].
Mr Sharma gave evidence at hearing that amongst the ways his day-to-day life is impacted by impairment associated with the pain he experiences is “getting out of the house to attend things like appointments”.[153] In terms of activities he and his sister do outside of the house together, Mr Sharma gave evidence that he may go for a little walk around the block with her and that he also can accompany her to the local shopping centre. With regard to the latter activity he noted that he does not go into places like Woolworths, preferring to sit outside on a bench whilst his sister does her shopping.[154]
[153] Hearing Transcript, 04/03/24, p.69.
[154] Ibid, 04/03/24, p.26-27.
As referred to in an earlier section of this decision, Mr Sharma gave evidence that until he misplaced the crutch, he was reliant on it to assist his stability whilst mobilising, whether inside or outside of his home. Mr Sharma indicated that he used this assistive technology at the time he was assessed by Mr Byrnes in 2021 and that after he subsequently misplaced it, he purchased a walking stick from a local chemist with money provided to him by his mother.[155] Irrespective of Mr Sharma’s claim that use of a crutch was recommended by Dr Kanawati, he conceded during the hearing that neither the crutch nor the walking stick he now uses required a prescription to purchase.
[155] Ibid.
The Tribunal accepts Mr Sharma may have used assistive technology in the form of a Canadian crutch and continue to on occasion use a walking stick. The Tribunal is not satisfied Mr Sharma’s is reliant on such assistive technology, which the Tribunal is satisfied are both commonly used items of assistive technology, to the extent he claims and considers his claims with regard to this issue to reflect a psychological factor referred to in the report of Mr Schreiner where he discusses, at paragraphs 4.2.7 and 4.2.8, the Applicant’s responses on a psychological instrument in which:
4.2.7 … he showed a notable tendency towards exaggerating his symptoms and
portraying a clinical picture that is considerably more severe than his condition would warrant. Yet, this exaggeration was unlikely to be a conscious effort (as in malingering), rather an actual belief that his condition and symptoms are severe and “cannot be helped”.
4.2.8It is beyond the scope of this report to explain how the PAI validity scales
work, however, it is apparent that Mr Sharma sees himself as psychologically more impaired than his actual level of impairment would suggest. Such self-perception often associated with severe depression and a “cry for help”. Exaggerated symptoms may also suggest an internal belief that the symptoms are permanent and cannot be treated. This belief, in turn would undermine motivation to participate in treatment to the best of Mr Sharma’s capacity.
The Tribunal is satisfied the evidence supports the evidence from Dr Kanawati that he did not recommend Mr Sharma use assistive technology in the form of a crutch, walking stick or walking frame.[156] The Tribunal considers it plausible that the use of commonly used assistive technology may have been suggested by a health professional some years ago, but there is no clear evidence when this may have been or in relation to which specific need any such recommendation was made. The Tribunal is satisfied that Mr Sharma’s feeling of reliance on such items may be reflective of the SSD and / or chronic pain condition from which he suffers.
[156] Mr Byrnes noted a walking frame was present where Mr Sharma was residing in 2021, namely in the home of his elderly parents. Mr Sharma gave evidence at hearing that the walking frame had always been there.
In relation to the difficulty Mr Sharma experiences moving around his residential setting and in the community, the Tribunal accepts he experiences a level of difficulty. The Tribunal finds that the available evidence demonstrates that Mr Sharma can however transfer from a prone to a standing position unaided. He can seat himself and stand from a seating position unaided. He can move around his home and in the community unaided, albeit at times with the assistance of commonly used assistive technology to give him a sense of stability and manage a fear of falling. The Tribunal finds that whilst Mr Sharma no longer drives a car and primarily relies on assistance from family members to travel to appointments or for social interaction purposes. This is due to him no longer owning a car and financial constraints on his use of taxis and as well due to his preference to travel with family members that he feels comfortable with, rather than due to an inability to drive or utilise other forms of public transport.

With respect to the domain of mobility, the Tribunal is satisfied the available evidence demonstrates Mr Sharma has the capacity to move around his residential setting and the community, albeit with some difficulty. Whilst accepting his capacity in relation to this domain may fluctuate in response to the intensity of symptoms associated with chronic pain and mental health conditions which affect him, the Tribunal is not persuaded that Mr Sharma has a substantial functional impairment.
With respect to the domain of mobility, the Tribunal finds that the requirements of s 24(1)(c)(i) of the Act are not satisfied.
Self-care
The Operational Guidelines with respect to self-care currently state:
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.
Self-care was identified by Dr Stephenson as an area in which Mr Sharma requires assistance in the NDIS Access request form, with that response being qualified by an indication that assistance with showering and multiple activities of self-care required verification by a relevant specialist or general practitioner. As discussed in relation to the domain of mobility, the Tribunal considers the manner in which Dr Stephenson qualifies her response pertinent and is satisfied the relevant specialist health professional to make comment with respect to this factor is Mr Byrnes.
In response to a question in his report as to whether Mr Sharma is, by reference to his functional capacity whilst using any commonly used item(s), able to manage his own self-care, Mr Byrnes commented “Based upon assessment findings it is deemed that Mr Sharma can independently manage their self-care with the provision of suitable aids, equipment and home modification (recorded above) and with suitable support (i.e. education, prompting and psychological counselling).”
In the report Mr Byrnes details the assistive technology recommended for Mr Sharma and noted that he does not at present utilise this sort of assistive technology, instead he relies on family support for personal care. At hearing Mr Byrnes noted that around two years have passed since he assessed Mr Sharma, and this constrained his ability to comment on Mr Sharma’s current functional abilities. With respect to items of assistive technology which may be of benefit to Mr Sharma in relation to mobility and self-care, Mr Byrnes gave evidence at hearing that his assessment was that Mr Sharma was managing effectively without the items he had recommended in his report, with the exception of a shower chair which he was utilising in his parent’s home. Mr Byrnes opined that recommended items, such as a grab rail in the bathroom, would nonetheless be of potential benefit to Mr Sharma. Mr Byrnes confirmed that the types of assistive technology recommended in his report were commonly used items, such as grabrails, shower chairs and the like which are relatively inexpensive, easily obtained from places such as pharmacies and which do not require a prescription.[157]
[157] Hearing Transcript, 05/03/24, p 96.
At hearing, Mr Byrnes confirmed that Mr Sharma was using a Canadian crutch at the time he participated in the functional assessment in 2021. Mr Byrnes indicated that he was unaware of any diagnosis or other information suggesting there was an injury affecting Mr Sharma’s legs and in relation to benefits Mr Sharma may derive from using the crutch, Mr Byrnes opined that he thought that partly it was almost a psychological crutch in response to the applicant having a fear of falling or fear of pain and therefore Mr Sharma felt reassurance from having a crutch available to him.[158]
[158] Ibid, 05/03/24, p.100.
As to the types of support Mr Sharma requires to assist with his impairments, Dr Kanawati opined that as a very depressed person, Mr Sharma would probably need support at home, support with shopping and with cleaning himself and his home. Dr Kanawati explained that Mr Sharma tells him he has no appetite to go out, or to clean his home, or to go out with friends. However upon further questions regarding these factors, Dr Kanawati conceded that he has at no time observed Mr Sharma to be dishevelled, dirty or unclean and that when he attends appointments he comes shaved and clean.[159]
[159] Ibid, 04/03/24, p.57.
A report prepared by Mr Berbari, physiotherapist, in April 2019, states that the Applicant
“reports of having a restriction in functional capacity. Lumbar spinal symptoms are aggravated on prolonged standing, sitting, bending and on lifting. Mr Sharma is however independent with personal hygiene and self dress.”[160]
[160] Letter from R. Berbari dated 10 April 2019, TB2.8.; Emphasis added.
Reports prepared by Mr Metry state that in relation to self-care, Mr Sharma always needs assistance with his domestic needs, including showering due to his depression, pain and poor concentration he has difficulty showering due to his pain and poor motivation.[161]
[161] Reports of Mr Metry dated 9 January 2019, TB2.7, 22 August 2019, T7, 13 May 2020, TB2.14.
In relation to his current circumstances, Mr Sharma gave evidence that there are difficulties for him where he is residing at his sister’s home, as the bathroom and toilet areas are quite small. For instance, he has to manage showering without a shower chair as there is insufficient room for this sort of equipment. He cannot always manage to shower without assistance on hand and as a consequence he may only shower every three days or so. He does not need someone to physically help him into the shower but feels anxious if there is no one he could call out to bring him towel if it was too painful to reach where the towels are located. He indicates that he also gets anxious because he has in the past had a fall in the shower.[162]
[162] Hearing Transcript, 04/03/24, p.65.
Mr Sharma gave evidence that there have been no modifications in his sister’s house to assist him manage with his disabilities but that there was a walker (walking frame) and modifications such as something that went on the toilet seat thing, a handle to hold onto for showering (grab rail) and stuff like that at his parents’ place, which were installed by his father. Mr Sharma indicated that the toilet seat and walker have always been there and he is uncertain but thinks his father installed the handle around two years ago.[163]
[163] Ibid, 04/03/24, p.26.
Mr Sharma gave evidence art hearing that his sister prepares meals for him, which he eats alone, usually after reheating them in a microwave oven.[164] Mr Sharma explained that he has never prepared his own meals or made sandwiches, or things like that, as his mother had always done it for him when he lived in the family home. He would however, before the MVA in 2010 assisted his mother by washing the dishes and doing other tasks around the family home.[165]
[164] Ibid, 04/03/24, p.62.
[165] Ibid, 04/03/24, p.63.
In considering the evidence regarding Mr Sharma’s functioning in the domain of self-care, the Tribunal accepts that Mr Sharma experiences fluctuating difficulty in relation to activities of daily living within this domain. However in terms of what the evidence indicates he can do, the Tribunal is satisfied Mr Sharma can attend to his personal care, hygiene, grooming, eating and drinking, and health. The Tribunal is not persuaded the difficulties experienced by Mr Sharma with these and similar activities of daily living to do with self-care cross the threshold such that they constitute substantial functional impairment. In forming these views the Tribunal has preferred the evidence of Mr Byrnes, as his assessment of Mr Sharma’s functioning in relation to self-care was based on his qualifications and experience as an occupational therapist and direct observation of Mr Sharma in his residential setting.
With respect to the domain of self-care, the Tribunal finds that the requirements of s 24(1)(c)(i) of the Act are not satisfied.
Self-management
The Operational Guidelines with respect to self-management currently state:
Self-management (if older than 6) – 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.
Self-management was identified in 2019 by Dr Stephenson as an area in which Mr Sharma requires assistance in the NDIS Access request form. Assistance with transport was again highlighted by Dr Stephenson as a type of assistance required by Mr Sharma. Further to this, assistance with decision making was identified as a type of assistance required by Mr Sharma.
In response to a question in his report as to what level of complexity making decisions and/or solving problems Mr Sharma is able to do independently, Mr Byrnes commented “Based upon assessment findings Mr Sharma is independently able to perform self-management tasks. He demonstrated capacity to make decisions, choose where to live and pay his bills.”. Mr Byrnes further notes that Mr Sharma requires no assistance for self-management tasks, including being able to: independently make and attend appointments; display insight into his ability to make decisions and independently follow his medication regime.
In relation to tasks which the Tribunal is satisfied fall within the domain of self-management, at hearing Mr Sharma gave evidence that his DSP payments are paid straight into his bank account and that he uses online banking, to pay bills and things like that as he does not find doing so on his phone overly complicated.[166] Mr Sharma gave evidence that he also used his phones to call family members, doctors and people like that. He also uses his phone for access the internet and review his social media Facebook account and applications such as Facebook messenger and Facebook Marketplace. An example of an item that he has sold on Facebook Marketplace is a clothes dryer.[167]
[166] Ibid, 04/03/24, p.30; p.60.
[167] Ibid, 04/03/24, p.61.
Mr Sharma pays his sister $600 a fortnight board and lodging and with the remaining money from his DSP pays for his phone and things like coffee or maybe a pizza when he is out with his sister. Further to this Mr Sharma gave evidence that on occasion he has arranged for meal delivery from providers such as DoorDash.[168]
[168] Ibid, 04/03/24, p. 63.
Reports prepared by Mr Metry state that in relation to self-management, Mr Sharma suffers from psychological conditions which precipitated his loss of motivation, poor concentration, lack of attention and loss of confidence. Mr Metry reported that Mr Sharma is however able to make decisions and manage his finances.[169] This evidence is broadly consistent with that provided by Dr Kanawati, who at hearing explained that the depressive and other symptoms associated with Mr Sharma’s mental health conditions result in him being unhappy, withdrawn and in pain on each occasion he attends consultations with Dr Kanawati.
[169] Reports of Mr Metry dated 9 January 2019, TB2.7, 22 August 2019, T7, 13 May 2020, TB2.14.
In relation to the domain of self-management, the evidence before the Tribunal is that Mr Sharma’s decision making can be influenced by his mood state and related factors such as amotivation and a sense of hopelessness. There is however no evidence to demonstrate he lacks the cognitive capacity, or that he suffers from symptoms associated with a mental health condition, which impair his decision-making capacity in relation to his financial affairs, or in relation to life choices pertaining to his health care, accommodation and services he wishes to engage with.
Whilst the psychosocial impairments affecting Mr Sharma, in conjunction with the chronic pain condition he suffers from, create challenges for him in terms of how he organises his life, makes plans, decisions and looks after himself, the Tribunal is not satisfied the degree of difficulty experienced by Mr Sharma cross the threshold such that they constitute substantial functional impairment.
With respect to the domain of self-management, the Tribunal finds that the requirements of s 24(1)(c)(i) of the Act are not satisfied.
Conclusion as to whether the impairments result in substantially reduced functional capacity?
After carefully considering the available evidence, including the documents which have been filed with the Tribunal and as well evidence provide at hearing by Mr Sharma and other witnesses, the Tribunal finds that impairments affecting Mr Sharma in the domains of communication, social interaction, learning, mobility, self-care and self-management do not result in substantially reduced functional capacity to undertake activity in one or more of those activity domains. As a consequence s 24(1)(c) is not met. This means that the disability requirements to become a participant of the NDIS are not met.
Conclusion with regard to the disability requirements
As discussed previously in this decision, each of the subsection s 24(1)(a) through s 24(1)(e) of the NDIS Act are threshold requirements that need to be satisfied in order for a person to be eligible to become a participant of the NDIS. As the Tribunal has determined the provisions of s 24(1)(c) are not met, the disability requirements cannot be satisfied, and it is not necessary for the Tribunal to consider the remaining provisions of s 24(1)(d)-(e).
The early intervention requirements
The Respondent contends that for similar reasons as are discussed in relation to s 24(1)(b), the impairments impacting Mr Sharma are not permanent and as a consequence a threshold requirement, namely s 25(1)(a) cannot be satisfied. The Tribunal does not accept this submission as the Tribunal is satisfied that Mr Sharma has identified impairments to which a psychosocial disability is attributable. As a consequence, the Tribunal finds that the provisions of s 25(1)(a)(ii) are satisfied and accordingly s 25(1)(a) is met.
The requirement of s 25(1)(b) is that “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”. Rule 2.5(b) of the Access Rules provides that:
“… a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment.”
In the decision of James and National Disability Insurance Agency,[170] the Tribunal stated, in respect of the purpose and intent of the early intervention requirements of section 25, that:
The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the long term. Accordingly, the early intervention requirements look at the likely trajectory and impact of a person’s impairment over time and the potential benefits for early intervention on the impact of the impairment on the person’s functional capacity .
[170] James and National Disability Insurance Agency [2019] AATA 4248, [49].
The evidence before the Tribunal is that the psychosocial impairments which the Tribunal accepts are permanent in this case are longstanding. They have developed as the consequence of the MVA in 2010 and have been extensively treated over the years since that time by a psychiatrist, psychologists and general practitioners. Diagnosed mental health conditions which result in on or more of the psychosocial impairments include: MDD, PDD, PTSD and SSD. The Tribunal has found these longstanding psychosocial impairments include: social withdrawal, depressive symptoms, anxiety symptoms, panic attacks, avoidant behaviours, amotivation, sleep difficulties, low self-esteem, lack of self-confidence, poor concentration and memory difficulties.
When the available evidence is considered, it is not clear to the Tribunal how the provision of supports now could be considered “early” given the length of time Mr Sharma has been impacted by the impairment and the underlying mental health conditions contributing to the psychosocial impairments which are considered permanent, or likely to be permanent. This would equally be the case for physical impairments which the Tribunal has found require further treatment, or review, before permanency, or likely permanency of those impairments can be properly assessed.
The Tribunal understands Mr Sharma feels uncertain and anxious about his circumstances. It is not however clear to the Tribunal how early intervention supports would benefit Mr Sharma by reducing his future needs for supports in relation to his disability. As a consequence, the Tribunal is not satisfied the provisions of s 25(1)(c) are not satisfied.
As each subsection of s 25 of the NDIS Act is a threshold requirement, it follows that s 25 is not met. This means that the early entry requirements to become a participant of the NDIS are not met.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act. It is therefore proper to affirm the decision under review.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Act 1975 (Cth), the Tribunal affirms the decision under review.

I certify that the preceding 229 (two hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

....................................[SGD]....................................
Associate
Dated: 24 June 2024

Date(s) of hearing: 4-5 March 2024

Applicant: By telephone

Counsel for the Respondent: Ms K Hooper

Solicitors for the Respondent: Mr D McLaren

Date(s) of hearing:	4-5 March 2024
Applicant:	By telephone
Counsel for the Respondent:	Ms K Hooper
Solicitors for the Respondent:	Mr D McLaren