Soliman and National Disability Insurance Agency

Soliman and National Disability Insurance Agency [2020] AATA 4478 (9 November 2020)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/4404
Re:Maged Soliman
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:9 November 2020
Place:Sydney

The decision under review is affirmed.
.........[sgd]...............................................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – lumbar and cervical spine impairments – shoulder impairments – persistent depressive disorder – section 24 – whether the applicant meets the disability requirements – whether the impairments are permanent – where Tribunal finds only mental health impairment is permanent – where there is no substantial reduction in functional capacity – inconsistent evidence of functional capacity – whether the applicant needs the NDIS for life – section 25 – early intervention supports – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Mulligan and National Disability Insurance Agency [2014] AATA 374
Mulligan and National Disability Insurance Agency [2015] AATA 974
Mulligan v National Disability Insurance Agency [2015] FCA 544
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Operational Guideline – Access to the NDIS
REASONS FOR DECISION
Dr L Bygrave, Member
9 November 2020
INTRODUCTION

The applicant, Mr Maged Soliman, lodged an ‘Access Request Form’ on 29 August 2018 to become a participant in the National Disability Insurance Scheme (the NDIS). This form was completed by Dr John Lui (general practitioner) who listed Mr Soliman’s disabilities as:
- back pain, neck pain, shoulder pain, L[eft] arm pain
- depression[1]
[1] Exhibit T-T212, page 418.
On 17 September 2018, a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the NDIA) determined that Mr Soliman did not meet the access requirements set out in the National Disability Insurance Scheme Act 2013 (Cth) (the Act); in particular, he did not meet the criteria in section 24 (disability requirements) of the Act.
Mr Soliman requested an internal review of this decision and, on 9 July 2019, a delegate of the CEO of the NDIA affirmed Mr Soliman did not satisfy the access criteria in either section 24 or section 25 (early intervention requirements) of the Act (internal review decision).
On 19 July 2019, Mr Soliman filed an application for review to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal). In accordance with section 103 of the Act, the Tribunal has jurisdiction to review the internal review decision.
The matter was heard in Sydney by video conference and conference telephone on 15–17 September 2020. Mr Soliman attended the hearing and gave evidence by conference telephone. He did not have the assistance of a disability advocate or legal representation, although this support was discussed with him prior to his hearing.
RELEVANT LEGISLATION
The Parliament of Australia expressly provided objects and principles in the Act to give guidance on the interpretation of the statute.
The objects are set out in section 3 of the Act and include:
·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12);
·supporting the independence and social and economic participation of people with disability;
·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
·raising community awareness of the issues that affect the social and economic participation of people with disability, and facilitating greater community inclusion of people with disability.
Paragraph 3(3)(b) of the Act also provides that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
The general principles guiding actions under the Act are contained in section 4 and include:
·affirming that people with disability should be supported to participate in and contribute to social and economic life to the extent of their ability; and
·promoting the positive personal and social development of people with disability.
The Minister may make rules prescribing matters under subsection 209(1) of the Act. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Participant Rules), which form part of the legislation.
Operational Guidelines written by the CEO of the NDIA also assist staff to make decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
The access criteria
To become a participant in the NDIS, Mr Soliman must satisfy the access criteria, which are summarised in subsection 21(1) of the Act:
21 When a person meets the access criteria
(1)     A person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)     the person meets the disability requirements (see section 24); or
(ii)    the person meets the early intervention requirements (see section 25).
There is no dispute that Mr Soliman meets the age requirements in section 22 and the residence requirements in section 23 of the Act. The issue in dispute, and therefore the sole issue for determination by the Tribunal, is whether Mr Soliman meets the access criteria in either section 24 or section 25 of the Act. For completeness, I note the alternative access criteria set out in subsection 21(2) of the Act are not relevant to this matter.
Sections 24 and 25 of the Act provide:
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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, 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.
25 Early intervention requirements
(1)       A person meets the early intervention requirements if:
(a)the person:
(i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)    has one or more identified impairments that are attributable to a psychiatric condition and 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.
(2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (the Access Operational Guideline); chapter 8 of the Access Operational Guideline is titled ‘The disability requirements’ and chapter 9 is titled ‘Early intervention requirements’.
EVIDENCE
Medical evidence – lumbar and cervical spine, shoulder and left arm
On 11 May 2002, Mr Soliman injured his spine while lifting at work. Subsequent review and treatment of this injury is set out in detailed medical reports by Dr Lui, Dr Medhat Guirgis (orthopaedic surgeon), Dr Geoffrey Rosenberg (orthopaedic surgeon), Dr Andreas Loefler (spinal surgeon) and Dr Ashish Diwan (chief, spine service at the Department of Orthopaedic Surgery, University of New South Wales).
Dr Guirgis described the history of Mr Soliman’s injury and treatment in a report dated 19 January 2004, observing he continued to experience ‘symptoms and signs of post-traumatic mechanical derangement of the lumbar and cervical areas of the spine with right & left S1 sciatica’.[3]
[3] Exhibit T-T20, page 38.
In 2006 and 2007, Mr Soliman was reviewed by Dr Rosenberg and Dr Loefler. On 21 April 2006, Dr Rosenberg reported that Mr Soliman was ‘suffering true mechanical back pain through degeneration of the disc at the L4-5 level’ and recommended surgery involving ‘L4-5 decompression, discectomy and instrumental fusion’.[4] Dr Loefler, in a report dated 30 March 2007, also recommended back surgery to ‘allow decompression of his nerve roots’.[5]
[4] Exhibit T-T60, page 90.
[5] Exhibit T-T78, page 164.
Mr Soliman underwent spinal surgery in mid-2007. Reports by Dr Rosenberg in the period from 10 December 2007 to 3 April 2009 stated Mr Soliman continued to experience pain and remained ‘much the same as his pre-operative status with back and right leg pain’, and proposed Mr Soliman have ‘revision surgery’.[6] The final report by Dr Rosenberg before the Tribunal is dated 5 August 2011 and noted Mr Soliman’s ‘situation remains much the same’ and advised ‘further investigation’ through ‘an MR scan’.[7]
[6] Exhibit T-T114, page 212 and T119, page 217.
[7] Exhibit T-T149, page 251.
On 16 February 2009, after Mr Soliman’s surgery, Dr Guirgis diagnosed Mr Soliman with:
-    Chronic Post-traumatic mechanical derangement of the lumbar area of the spine with several contributing factors:
1.Progress of the discopathic cycle of changes at the operated upon level and above it.
2.Post-surgical scarring.
3.Chronic lumbar myofascial and ligamentous insufficiency.
4.Implication of the lumbosacral nerve roots causing the lumbosciatic syndrome described above.
5.The development of structural changes of chronic regional spinal pain syndrome at the local level, at the spinal cord level and the cerebral level.
-    Post-traumatic mechanical derangement of the cervical area of the spine caused by musculo-ligamentous sprain \ strain with intervertebral disc involvement which had also triggered & aggravated the effects of underlying spondylotic changes.
-    Symptoms and signs of chronic pain/anxiety/depression.[8]
[8] Exhibit T-T117, page 215.
Dr Guirgis provided additional reports in September 2009 and February 2010 that Mr Soliman should continue with conservative treatment as there was ‘no role’ for further surgical interference.[9]
[9] Exhibit T-T117, page 215.
In a report dated 16 September 2009, Dr Diwan set out surgical options for Mr Soliman and proposed spinal injections. On 18 October 2010, Dr Guirgis reported Mr Soliman had had injections at ‘the L4-5 level with poor response’ and at the ‘L3-4 level [with]… no effect’.[10]
[10] Exhibit T-T142, page 243.
On 22 September 2012, Mr Soliman was further injured as a pedestrian in a road traffic accident. He was subsequently reviewed by Dr Guirgis who reported on 15 October 2012 that the accident had caused injuries to Mr Soliman’s left wrist joint, left elbow joint, left shoulder joint and left side of chest wall. Dr Guirgis also noted Mr Soliman had:
Further post-traumatic mechanical derangement of the cervical area of the spine. This was caused by muscular-ligamentous sprain \ strain with possible further intervertebral disc involvement. This had also triggered & aggravated the effects of underlying spondylotic changes.[11]
[11] Exhibit T-T159, page 263.
A report by Mr David Yuen (physiotherapist) dated 17 March 2013 noted Mr Soliman presented in February 2013 with pain in his shoulder, and physiotherapy treatment led to ‘significant improvement of his shoulder pain and stiffness’.[12]
[12] Exhibit T-T164, page 319.
Mr Soliman was again reviewed by Dr Diwan on 7 October 2015 regarding surgical options for his spine. Dr Diwan reported on the risks of surgery ‘performing a long spinal column adult reconstruction in the public system’ and outlined alternative treatment options for Mr Soliman such as attending a chronic pain management clinic and improving his aerobic fitness using an exercise program.[13]
[13] Exhibit T-T188, page 364.
On 18 November 2017 and 16 December 2017, Mr Soliman was reviewed by Dr Tim Ho (pain and rehabilitation specialist). Dr Ho described Mr Soliman’s pain issues as:
Refractory back pain post L4/5 fusion
Adjacent level disease
Maladaptive coping with cure focus, fear avoidance and poor self efficacy [14]
[14] Exhibit TBR, page 27.
Dr Ho noted that he discussed with Mr Soliman strategies including psychoeducation, home core exercise and walking programs, activity goal setting and chronic pain management principles. Dr Ho also proposed ‘RF [radiofrequency] treatment’ if this treatment is covered by private insurance.[15]
[15] Exhibit TBR, page 27.
In January and February 2019, Mr Soliman was reviewed by the Pain Management Unit at St George Hospital. On 30 January 2019, Dr Preshanthy Rajeepan (pain and rehabilitation specialist) opined Mr Soliman had chronic pain secondary to musculoskeletal degenerative disease and noted that:
On examination, he had antalgic gait, scoliosis of his spine and pes planus. His neck, shoulder, lumbar spine movements were limited to pain. Flexion, abduction of both hips were limited due to pain and tightness of his abdominal and back muscles. There was no hyperalgesia or allodynia. He was noted to be wearing a lumbar brace, shoulder brace and ankle brace.[16]
[16] Exhibit TBR, pages 50-51.
Mr Soliman was also reviewed by Ms Madeline Begg (clinical psychology registrar) who provided a written report on 19 February 2019 and Mr Scott Swinson (physiotherapist) who wrote a report dated 8 February 2019. These reports by Ms Begg and Mr Swinson included recommendations that Mr Soliman attend:
·a pain education session and complete the ACTIVATE pain management program – a high intensity program that runs three to four days a week for four consecutive weeks and aims to help patients understand chronic pain and how it affects the brain and body, and to learn strategies for chronic pain management; and
·the WOW (walking outside weekly) program and strength and mindfulness classes organised by the Pain Management Unit at St George Hospital.
Evidence – Dr John Lui (general practitioner)
The NDIA summonsed the medical records of Dr Lui, which provide a comprehensive overview of Mr Soliman’s spinal conditions and his shoulder and left arm conditions. Dr Lui also attended the Tribunal hearing and gave oral evidence.
In relation to Mr Soliman’s spinal condition, Dr Lui told the Tribunal that Mr Soliman had participated in extensive review by specialists and opined that surgery was unlikely to assist Mr Soliman. He accepted that Mr Soliman has adopted a passive approach towards his pain with prolonged resting during the day, and confirmed that conservative treatment options, including walking and undertaking a home exercise program, would improve Mr Soliman’s condition.
Dr Lui told the Tribunal that Mr Soliman’s pain in his cervical spine ‘fluctuated’, there had been no specialist review of his cervical spine since 2013 and that conservative treatment options recommended for Mr Soliman’s spinal condition would also be likely to improve his neck pain.[17] In relation to Mr Soliman’s left shoulder, Dr Lui said that Mr Soliman had been reviewed by Dr Guirgis in October 2012 after the accident on 22 September 2012 and there had been no further imaging or review since 2012. Dr Lui noted that treatment for Mr Soliman’s shoulder could include specialist review and conservative treatment including physiotherapy.
[17] Oral evidence of Dr Lui on 16 September 2020, page 159.
At the hearing, Dr Lui said he had most recently seen Mr Soliman on 1 August 2020 and reported his ‘mobility was normal’ at that appointment.[18]
[18] Oral evidence of Dr Lui on 16 September 2020, page 174.
Medical evidence – depression
Mr Soliman’s medical records show he was treated by Ms Wendy Bailey (clinical psychologist) from 2003 to 2007. The final report by Ms Baily that is before the Tribunal is dated 10 May 2004; she stated that Mr Soliman was compliant with psychological rehabilitation and described his ‘emotional stabilisation’ as ‘guarded’.[19]
[19] Exhibit T-T22, page 41.
Dr Lui’s summonsed medical records show Mr Soliman has not engaged with psychological counselling since 2007: Dr Lui provided a referral for Mr Soliman to see a psychologist in 2015 but told the Tribunal Mr Soliman did not attend because the psychologist’s fee was not fully covered by a mental health care plan under Medicare.
Evidence – Dr David Hughes (consultant psychiatrist)
Dr David Hughes has treated Mr Soliman for his depression since 2003. Dr Hughes has written multiple reports dating from 4 August 2003 to 6 January 2020 that set out the history of his diagnoses and treatment. Dr Hughes also attended the Tribunal hearing and gave oral evidence.
Dr Hughes’ most recent report dated 6 January 2020 stated:
Mr Soliman has a diagnosis of Persistent Depressive Disorder first diagnosed in 2004 and following a workplace injury. He is no longer suffering from a full major depressive syndrome but continues to experience problems with chronically low mood, motivation and enjoyment.
Mr Soliman…has been treated predominantly with a mixture of antidepressant medication and supportive psychotherapy. He has had a range of antidepressants but has been stable on mirtazapine 60 mg daily for many years. He continues to experience low-grade symptoms of mood disturbance…associated with marked social isolation. His compliance with pharmacotherapy is good. He struggles to engage in psychological and behavioural treatment strategies.[20]
[20] Exhibit TBR, page 207.

Dr Hughes advised that he did not recommend any further evidence-based treatment options for Mr Soliman, particularly as his ‘lack of motivation for psychological strategies restricts the usefulness of these in his case’.[21]
[21] Exhibit TBR, page 208.
At the Tribunal hearing, Dr Hughes confirmed Mr Soliman’s mental health has remained stable since 2010 and explained that, although some of Mr Soliman’s original presenting symptoms had responded well to antidepressant medication, he continues to have residual problems due to his physical health complaints. Dr Hughes advised he has continued to see Mr Soliman to provide therapeutic support and periodic review of medication; he most recently saw Mr Soliman on 30 July 2020.
Dr Hughes reviewed the Depression, Anxiety and Stress Scale (DASS 21) assessment completed by Mr Soliman with Ms Dorothea Minikin (occupational therapist) on 17 February 2020 and concurred that the assessment that Mr Soliman had symptoms of mild depression, normal anxiety and normal stress was consistent with his impression of Mr Soliman when he saw him on 30 July 2020.
Medical evidence – other conditions
Heart condition
Reports by Dr Fred Nasser (cardiologist) and Dr David Ramsay (cardiologist) described Mr Soliman’s history of ischaemic heart disease. These reports show Mr Soliman was admitted to St George Hospital in August 2004 with ‘acute inferior myocardial infarction complicated with ventricular fibrillation’ and underwent a successful emergency stent implantation.[22]
[22] Exhibit T-T41, page 65.
Dr Nasser’s reports date from 24 September 2004. Dr Nasser reported on 2 August 2007 that Mr Soliman had ‘no ischaemic chest pain or symptoms of left heart failure’.[23] He also noted on 13 March 2014 that Mr Soliman is ‘stable from a cardiovascular aspect’.[24] The most recent report by Dr Nasser dated 25 March 2020 confirmed Mr Soliman is ‘symptomatically stable’ and has ‘no ischaemic chest pain’.[25]
[23] Exhibit T-T86, page 179.
[24] Exhibit T-T171, page 332.
[25] Exhibit TBR, page 158.
Rectal cancer
In March 2019, Mr Soliman was diagnosed with rectal cancer. Mr Soliman’s diagnosis and subsequent treatment is set out in reports by Dr Kim-Chi Phan-Thien (colorectal surgeon) and Dr Hussein Soudy (medical oncologist) and state Mr Soliman had neoadjuvant chemoradiotherapy from April 2019 to June 2019.
Most recently, a report by Dr Soudy on 23 June 2020 set out that scans in November 2019 showed local recurrence of rectal cancer: Mr Soliman ‘declined surgical resection and opted for palliative chemotherapy’, which commenced in January 2020.[26] Dr Soudy reported Mr Soliman was experiencing lethargy but no ‘nausea or vomiting, peripheral neuropathy, chest pain, hand food syndrome, bowel changes or bleeding’, and he ‘looked well’.[27]
[26] Exhibit TBR, page 170.
[27] Exhibit TBR, pages 170-171.
Evidence – Ms Dorothea Minikin (occupational therapist)
For the purpose of this proceeding and with Mr Soliman’s consent, the NDIA requested Ms Minikin undertake an occupational therapy assessment of Mr Soliman. This assessment was completed at Mr Soliman’s place of residence on 17 February 2020.
On 11 March 2020, Ms Minikin provided a report that outlined Mr Soliman’s social situation, his current medical status and medications, and set out her functional assessment of Mr Soliman. Ms Minikin reported Mr Soliman’s functional capacity as follows:
·Communication: Mr Soliman communicated in a ‘clear manner’ and reported ‘no difficulties’ communicating with family and friends.[28]
·Social interaction: Mr Soliman demonstrated ‘appropriate social skills’ and reported ‘no difficulties’ interacting with other people in social situations.[29]
·Learning: Mr Soliman reported enjoying ‘learning about new things via reading books he borrows from the library’.[30]
·Mobility: Mr Soliman was observed to walk without the use of a walking aid in the home and to walk to the local shops (a distance of 1000 metres) at a slow and even pace ‘without using a walking stick or needing a rest’.[31] Mr Soliman reported sometimes using a walking stick for additional support and Ms Minikin noted he ‘displayed self-limiting behaviours related to pain catastrophization’.[32]
·Self-care: Mr Soliman was independent in self-care tasks including showering, dressing and toileting, ‘albeit with some discomfort’.[33]
·Self-management: Mr Soliman was able to read and complete forms ‘unassisted’ and manage ‘his personal affairs independently’.[34]
[28] Exhibit TBR, page 235.
[29] Exhibit TBR, pages 235-236.
[30] Exhibit TBR, page 237.
[31] Exhibit TBR, pages 237-238.
[32] Exhibit TBR, page 239.
[33] Exhibit TBR, page 239.
[34] Exhibit TBR, page 241.
Based on her assessment, Ms Minikin concluded that Mr Soliman ‘did not demonstrate a substantially reduced capacity in his communication, social interaction, learning, mobility, self-care, and self-management’ but noted the following:
[Mr Soliman] may benefit from further pain education and rehabilitation, eg exercise physiology, to improve his pain efficacy and overall fitness for activity. These interventions are available in the public hospital system or through Enhanced Primary Care.
…He would benefit from provision of a bath transfer board and over-toilet aid. However, he has previously declined equipment and at assessment he prefers to be independent and would not use these items.
In my opinion, he otherwise has capacity for independently completing his self-care. In his current living arrangements, he has limited responsibility for domestic chores being his own meal preparation and laundry, cleaning the kitchen after use, and cleaning his bedroom. He is currently completing these activities independently and did not demonstrate restrictions in his ability to continue to do so.[35]
[35] Exhibit TBR, page 243.
Evidence of Mr Soliman
Mr Soliman filed a brief statement of lived experience with the Tribunal dated 27 September 2019 and provided oral evidence at his hearing on 15 and 16 September 2020.
Mr Soliman is 58 years old; he was born and raised in Egypt where he attended high school and studied two years of university before migrating to Australia in 1985. He has been married twice and has four children. He said that, while he is estranged from his ex-wives, he continues to have good relationships with his children.
Prior to his injury, Mr Soliman was employed as a nursing assistant in aged care and nursing facilities. He sustained a spinal injury at work in 2002 and subsequently received workers compensation. He then experienced further injury when he was hit by a vehicle while walking in 2012. Mr Soliman’s workers compensation claim was financially settled in 2015 and he is now in receipt of disability support pension.
Mr Soliman provided extensive oral evidence about treatment recommended by Dr Lui and medical specialists from 2002.
In relation to his lumbar and cervical spine, shoulder and arm conditions, Mr Soliman described the treatments he has undertaken including surgery in 2007, on-going review by specialists, physiotherapy and review by the Pain Management Unit at St George Hospital in early 2019. Mr Soliman said he had not acted on the recommendations by Ms Begg and Mr Swinson – such as attending the ACTIVATE pain management clinic, the WOW program or the strength and mindfulness classes – due to his diagnosis of rectal cancer in March 2019 and his subsequent chemotherapy treatment.
Mr Soliman said he attended counselling appointments with Ms Bailey from 2003 to 2007 and has continued to see Dr Hughes for treatment and review of his depression. He noted he has not attended counselling since 2007 as he cannot afford to see a clinical psychologist unless there is a full rebate through Medicare. He accepted his depression has remained stable since 2010.
Mr Soliman described his current living situation to the Tribunal. He said he has resided in his current share-house accommodation with a housemate since 2015. His housemate cleans the common living areas (including the bathroom), but they do not share any cooking or other household activities. Mr Soliman said he spends most of his time in his bedroom lying on the couch watching movies, listening to music and reading.
Mr Soliman told the Tribunal that he travelled to Egypt to visit his family in 2016 for about four months and again in 2017 for a further six months. He flew alone and walked to the airport gate and got on/off the plane without assistance. He stayed with his sister and socialised with his extended family while in Egypt; he had not seen his family for many years and his time in Egypt helped to alleviate his depression.
Regarding social activities, Mr Soliman said that he last attended church about a year ago because sitting is painful. He sees his youngest two children regularly and goes to the library every two to three weeks to borrow books and DVDs.
In his statement of lived experience on 27 September 2019, Mr Soliman wrote that he wakes at 8am, has breakfast and medications at 8:30am, walks to the shopping centre from 10am to 11am, lies down until he has lunch and medications at 2pm, and then lies down until 11pm. He noted this is his daily routine ‘seven days per week’ unless he has a doctor’s appointment.[36]
[36] Exhibit TBA-TB12.
At his hearing, Mr Soliman spoke about his cancer diagnosis and treatment, and submitted his health and mobility has deteriorated over the past six months. He said he now drives to the shops or library and prefers not to leave his house except for medical appointments.
When asked about the supports he is seeking from the NDIS, Mr Soliman told the Tribunal that he is unsure about the purpose of the NDIS and the supports he can access through the NDIS or the health system.
CONSIDERATION
At the outset, while the evidence shows Mr Soliman has a history of ischaemic heart disease and is receiving palliative chemotherapy for his rectal cancer, both Mr Soliman and the NDIA accept these are medical conditions that are being appropriately treated through the health system and are not an impairment or disability for the purpose of Mr Soliman’s NDIS claim.
For this reason, my consideration of whether Mr Soliman meets the requirements in the Act to become a participant in the NDIS only examines his lumbar and cervical spine, shoulder and left arm conditions, and his condition of persistent depressive disorder.
The disability requirements
Mr Soliman must meet all the requirements specified in paragraphs 24(1)(a)–(e) to satisfy subsection 24(1) of the Act. I now consider each of these requirements.
Paragraph 24(1)(a) – does Mr Soliman have a disability?
Paragraph 24(1)(a) of the Act requires that a 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’.
The following guidance outlined in chapter 8.1 of the Access Operational Guideline is consistent with Mortimer J’s decision in Mulligan v National Disability Insurance Agency[37]:
For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.
The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.
The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules). [emphasis added]
[37] [2015] FCA 544 at [15] to [16].
These paragraphs specify that for a person to have a disability within the meaning of paragraph 24(1)(a) of the Act, they must demonstrate that:
·they have an impairment, which is a loss of, or damage to, a physical, sensory or mental function; and
·their impairment must be the cause of their reduction or loss of ability to perform an activity.
The medical evidence before the Tribunal shows Mr Soliman was diagnosed by Dr Guirgis in 2009 and 2012 with chronic post-traumatic mechanical derangement of the lumbar and cervical spine. In 2019, Dr Rajeepan diagnosed Mr Soliman with chronic pain syndrome secondary to musculoskeletal degenerative disease, noting he had antalgic gait, scoliosis of his spine and pes planus. Dr Rajeepan also observed Mr Soliman’s movement in his neck, shoulder, lumbar spine and hips was limited due to pain.
I am satisfied that Mr Soliman has musculoskeletal degenerative disease that affects his lumbar spine, cervical spine and shoulder. I find this condition is a disability because it causes Mr Soliman to experience a loss of, or damage to, his physical function and causes a reduction in his ability to perform activities.
I am also satisfied there is no contemporary medical evidence that supports Mr Soliman has a left arm impairment: the only medical evidence is from Dr Guirgis in October 2012 that notes Mr Soliman injured his left wrist and left elbow in the traffic accident. As there has been no further medical review, I cannot find Mr Soliman has a left arm disability.
Dr Hughes’ evidence verifies Mr Soliman has persistent depressive disorder that causes him to experience chronic low mood, motivation and enjoyment. I am satisfied Mr Soliman’s depression is a disability because it is an impairment that causes a loss of, or damage to, his mental function and causes a reduction or loss in his ability to perform activities.
Having regard to the evidence, I am satisfied Mr Soliman’s lumbar spine, cervical spine and shoulder conditions, and his persistent depressive disorder separately comprise ‘a disability’ consistent with the meaning in paragraph 24(1)(a) of the Act.
Paragraph 24(1)(b) – are Mr Soliman’s impairments permanent?
Paragraph 24(1)(b) of the Act requires Mr Soliman’s ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Participant Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition. [emphasis added]
I now consider whether each of Mr Soliman’s impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act and the Participant Rules.
Lumbar spine, cervical spine and shoulder impairments
Having regard to Dr Rajeepan’s diagnosis of chronic pain syndrome secondary to musculoskeletal degenerative disease, I am satisfied that Mr Soliman’s lumbar spine, cervical spine and shoulder impairments are of a degenerative nature. This means that rule 5.7 applies and, in determining whether Mr Soliman’s impairments are permanent, I must consider whether there are medical or other treatments that would be likely to improve the condition.
At paragraphs 16 to 33, I have set out in detail the history of Mr Soliman’s treatments and review of his lumbar spine, cervical spine and shoulder impairments from 2002 to 2020. I accept the weight of medical opinions suggests surgery is unlikely to improve Mr Soliman’s conditions. However, the consistent evidence of Dr Ho, specialists at the Pain Management Unit at St George Hospital, Dr Lui and Ms Minikin is that Mr Soliman’s pain efficacy and his level of fitness to participate in activities would be improved by conservative treatments, such as exercise and walking programs, and physiotherapy.
Mr Soliman acknowledged that he has not implemented the recommendations made by the specialists at the Pain Management Unit at St George Hospital in January–February 2019. While I can understand that his situation was complicated by his diagnosis of rectal cancer in March 2019, I also note that there have been significant periods (for example between June and December 2019) where he was not undergoing treatment for rectal cancer and had an opportunity to implement these recommendations, such as attending the ACTIVATE pain management clinic, the WOW program or the strength and mindfulness classes.
In view of the evidence that Mr Soliman has not implemented recommendations made by the Pain Management Unit at St George Hospital that would improve his conditions, I cannot find that his impairments are permanent as required by the Act.
I am not satisfied Mr Soliman’s lumbar spine, cervical spine and shoulder impairments are permanent within the meaning of paragraph 24(1)(b) of the Act.
Persistent depressive disorder impairment
I am satisfied the evidence of Dr Hughes and Dr Lui shows Mr Soliman has engaged in evidence-based clinical, medical or other treatments as required by rule 5.4; this has included Mr Soliman taking antidepressant medications and participating in periodic review by Dr Hughes. I find there is no further treatment available that would be likely to remedy Mr Soliman’s impairment of persistent depressive disorder.
For these reasons, I am satisfied Mr Soliman’s impairment of persistent depressive disorder is permanent within the meaning of paragraph 24(1)(b) of the Act.
Paragraph 24(1)(c) – do Mr Soliman’s impairments result in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management?
To comply with paragraph 24(1)(c) of the Act, Mr Soliman must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in subparagraphs (i) to (vi): communication, social interaction, learning, mobility, self-care or self-management.
Paragraph 5.8 of the Participant Rules provide:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person. [emphasis added]

Further guidance is set out in chapter 8.3.1 of the Access Operational Guideline:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant’s impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person’s need for assistance is consistent with normal expectations of a person of a similar age.
…
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes. [emphasis in original]
I note that Dr Lui wrote in Mr Soliman’s ‘Access Request Form’ completed on 27 August 2018 that Mr Soliman needs assistance from other persons for social interaction due to depression and assistance ‘cleaning around the house’.[38] Mr Soliman told the Tribunal that he would like to become a NDIS participant but is not aware of the supports available to him through the NDIS.
[38] Exhibit T-T214, page 430.
In considering whether Mr Soliman’s impairments result in him having substantially reduced functional capacity to undertake any one or more of the following activities – communication, social interaction, learning, mobility, self-care or self-management – I have had particular regard to the written report and oral evidence of Ms Minikin, an experienced occupational therapist, based on her assessment of Mr Soliman.
I found Ms Minikin’s evidence was highly professional, credible and empathetic to Mr Soliman’s circumstances. While Ms Minikin observed that Mr Soliman would benefit from equipment in his bathroom and pain education/rehabilitation, she concluded Mr Soliman did not have substantially reduced functional capacity in his communication, social interaction, learning, mobility, self-care or self-management.
I also observe that Mr Soliman was able to participate actively and constructively over the three days of his hearing at the Tribunal, which included him providing considered and clear oral evidence about his medical history and circumstances. Mr Soliman described activities such as attending the library and local shops, being in regular contact with his children and talking by phone with his family members in Egypt weekly. Mr Soliman confirmed to the Tribunal that he manages his personal affairs including finances, medical appointments and grocery shopping. He said he is able to undertake activities of self-care, albeit with difficulty, but again declined to use aids/equipment in the bathroom that could assist him. He cleans his bedroom and washes his laundry, although is assisted by his housemate who cleans the common areas of their shared accommodation
Finally, I considered Mr Soliman’s oral evidence to the Tribunal that his mobility has significantly declined in the past six months (since Ms Minikin’s assessment in February 2020) and he no longer is able to walk to his local shops. It was not clear from Mr Soliman’s evidence to the Tribunal the reasons for this significant decline. Unfortunately, this evidence is also inconsistent with the report of Dr Soudy dated 23 June 2020 that Mr Soliman was experiencing lethargy but ‘looked well’, or the oral evidence of Dr Lui that Mr Soliman's mobility on 1 August 2020 was ‘normal’.
I am satisfied the evidence before the Tribunal does not support a finding that Mr Soliman’s impairments result in substantially reduced functional capacity to undertake activities in any of the domains of communication, social interaction, learning, mobility, self-care or self-management as required by paragraph 24(1)(c) of the Act.
Paragraph 24(1)(d) – do Mr Soliman’s impairments affect his capacity for social or economic participation?
Paragraph 24(1)(d) of the Act requires that the applicant’s impairment or impairments affect his capacity for social or economic participation.
As Mr Soliman has not participated in employment since 2002, I am satisfied he meets the requirement in paragraph 24(1)(d) of the Act because his impairments affect his capacity for economic participation.
Paragraph 24(1)(e) – is Mr Soliman likely to require support under the NDIS for his lifetime?
Chapter 8.5 of the Access Operational Guideline states the following:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
As set out in paragraphs 78 and 80, I am satisfied that Mr Soliman’s lumbar spine, cervical spine and shoulder impairments are not permanent, and his impairment of persistent depressive disorder is permanent. I am also satisfied, as I conclude at paragraph 89, that Mr Soliman’s impairments do not result in him having substantially reduced functional capacity to undertake activities in any of the domains of communication, social interaction, learning, mobility, self-care or self-management.
Reading the policy guidance set out in chapter 8.5 of the Access Operational Guideline, I consider that it would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management.
As I find Mr Soliman’s impairments do not result in substantially reduced functional capacity to undertake activities, I am satisfied he will not require assistance under the NDIS for his lifetime. This means that Mr Soliman does not meet the requirement of paragraph 24(1)(e) of the Act.
The early intervention requirements
The early intervention requirements are set out in section 25 of the Act. Chapter 9 of the Access Operational Guideline explains the purposes of the early intervention requirements as follows:
Early intervention support is available to both children and adults who meet the early intervention requirements. The intention of early intervention is to alleviate the impact of a person’s impairment upon their functional capacity by providing support at the earliest possible stage. Early intervention support is also intended to benefit a person by reducing their future needs for supports.
I now consider whether Mr Soliman meets the early intervention requirements.
Paragraph 25(1)(a) – does Mr Soliman have a permanent impairment?
For the reasons set out at paragraphs 74 to 78, I do not find Mr Soliman’s lumbar spine, cervical spine and shoulder impairments are permanent. As explained at paragraphs 79 to 80, I am satisfied Mr Soliman’s impairment of persistent depressive disorder is permanent within the meaning of the Act.
This means that Mr Soliman has a permanent impairment of persistent depressive disorder as required by paragraph 25(1)(a) of the Act.
Paragraphs 25(1)(b) and (c) – will the provision of early intervention supports benefit Mr Soliman?
Paragraphs 25(1)(b) and (c) of the Act require the CEO of the NDIA to be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person’ in various ways:
·Paragraph (b) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by reducing the person’s future needs for supports in relation to disability.
·Paragraph (c) requires a state of satisfaction that the provision of early intervention supports is likely to benefit the person by mitigating or alleviating the impact of the person’s impairment, preventing the deterioration of functional capacity, improving functional capacity, or strengthening the sustainability of informal supports available to the person.
Paragraph 6.9 of the Participant Rules sets out the issues the CEO of the NDIA would consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the Act:
6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)the likely trajectory and impact of the person’s impairment over time; and
(b)the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
There is no medical evidence before the Tribunal regarding the potential benefit of early intervention on Mr Soliman’s impairments or his functional capacity that would reduce his future needs for supports. Therefore, I cannot be satisfied that early intervention supports would benefit Mr Soliman in the ways specified in paragraphs 25(1)(b) and (c) of the Act.
Subsection 25(3) – is early intervention support most appropriately funded or provided through the NDIS?
Subsection 25(3) operates in circumstances where, even if Mr Soliman meets subsections 25(1) and (2) of the Act, he may not meet the requirements of early intervention support because the support is not most appropriately funded or provided through the NDIS and is more appropriately funded or provided through other general systems of service delivery or support services, such as through the health system.
There is no evidence before the Tribunal that shows Mr Soliman requires early intervention support through the NDIS. Ms Minikin observed further pain education and rehabilitation, such as exercise physiology, is available to Mr Soliman through the public hospital system or through Enhanced Primary Care. I am satisfied that support for Mr Soliman’s impairments is most appropriately delivered through the health system. I also make this finding noting that Mr Soliman is currently in receipt of disability support pension.
Accordingly, I find that Mr Soliman does not fulfil the early intervention requirements to enable him to become a participant in the NDIS.
CONCLUSION
As I am satisfied Mr Soliman does not meet the access criteria in either section 24 or section 25 of the Act, I find the internal review decision made by the NDIA on 9 July 2019 is correct.
DECISION
The decision under review is affirmed.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.........[sgd]...............................................................
Associate
Dated: 9 November 2020

Dates of hearing: 15, 16 and 17 September 2020

Applicant: Self-represented

Counsel for the Respondent: Ms M Fisher

Solicitors for the Respondent: Ms C Broad, National Disability Insurance Agency

[2020] AATA 4478

9 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Remedies

Appeal

Dates of hearing:	15, 16 and 17 September 2020
Applicant:	Self-represented
Counsel for the Respondent:	Ms M Fisher
Solicitors for the Respondent:	Ms C Broad, National Disability Insurance Agency