Stuart and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 804
•24 June 2025
Stuart and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 804 (24 June 2025)
Applicant/s: Joelene Stuart
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/1052
Tribunal:General Member N. Purcell
Place:Sydney
Date:24 June 2025
Decision:The Tribunal affirms the decision under review.
........................................................................
General Member N. Purcell
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –whether the Applicant meets NDIS access criteria – permanency – Complex Post-Traumatic Stress Disorder – Borderline Personality Disorder – Fibromyalgia – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Beezley v Repatriation Commission (2015) FCAFC 165
Re Schwass and NDIA [2019] AATA 28
LPRK and National Disability Insurance Agency [2022] AATA 4428Secondary Materials
Our Guidelines – Becoming a participant – Applying to the NDIS, 14 October 2024 (pre-legislation changes)
Statement of Reasons
INTRODUCTION
The issue before the Tribunal is whether the Applicant meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’), in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
The Applicant is a 42-year-old woman, who seeks to become a participant of the NDIS based on physical and psycho-social impairments arising from Complex Post Traumatic Stress Disorder (C-PTSD), Borderline Personality Disorder (BPD) and Fibromyalgia. She lives in Sydney with her 8 year old daughter.
On 3 February 2023, a delegate on behalf of the Chief Executive Officer (CEO) of National Disability Insurance Agency (the Respondent) decided that although the Applicant satisfied the age and residency access criteria, she did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the Act.
On 6 February 2023, the Applicant sought internal review of the original decision, pursuant to section 100 of the NDIS Act. On 16 February 2023, another delegate of the Respondent affirmed the original decision. The Applicant then sought review of the internal review decision by the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the NDIS Act on 21 February 2023.
The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, the Applicant’s matter was automatically transferred to the ART.[1]
[1] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
On 14 June 2024, the Applicant participated in an independent assessment with psychiatrist Dr Surabhi Verma, funded by the Respondent. Dr Verma subsequently prepared a report dated 25 June 2024.
On 8 October 2024, the Applicant also participated in an independent assessment with occupational therapist (OT), Ms Trudie Warner, also arranged and paid for by the Respondent. Ms Warner produced a report dated 23 October 2024.
The Tribunal held a hearing by video on 21 May 2025. The Applicant represented herself in the proceedings. The Agency was represented by Mr Nicholas Swan of Counsel.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing tender bundle, which was accepted into evidence. This included a set of documents filed by the Respondent, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’),[2] various documents filed by the Applicant including a statement of lived experience, and the reports of Dr Verma and Ms Warner.
[2] Joint Hearing Bundle (JHB).
The Tribunal admitted a receipt dated 10 February 2025, filed by the Applicant the day prior to the hearing, which evidenced her attendance at a 5-day healing program in March 2025.[3]
[3] E1 – Tax Invoice of Healing Week Program 2 – 7 March, dated 10 February 2025.
The Applicant, Dr Verma and Ms Warner gave oral evidence at the hearing.
RELEVANT LAW
Amending Act
An issue arises in relation to whether the Tribunal should apply the provisions of the NDIS Act that applied at the time the Applicant’s access request and/or application to the Tribunal were made, or the Act as amended.
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act) commenced on 3 October 2024. The NDIS access criteria are set out under section 21 of the Act. The age (section 22) and residence (section 23) requirements remain unchanged in the Act. However, sections 24 and 25 of the Act have been amended by the Amending Act with effect from 3 October 2024.
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made a request to access the NDIS under the new Amending Act requirements on or after 3 October 2024.
Subitem 126(3) of Schedule 1 to the Amending Act also provides that the National Disability Insurance Scheme Rules made under section 27 of the Act as in force before 3 October 2024 continue to apply on and from 3 October 2024. This means that the Rules prior to 3 October 2024, continue to apply.
As the Applicant’s request for access to the NDIS was made before 3 October 2024, the Tribunal application must be determined in accordance with sections 24 and 25 of the NDIS Act as they existed before the commencement of the Amending Act on 3 October 2024. The Rules also continue to apply to the Applicant’s request for access.
The access criteria
To become a participant of the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
Section 24 of the Act states:
(1) A person meets the disability requirementsif:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If the Applicant does not meet the disability requirements, the Tribunal must consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states:
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant’s case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislative framework.
Access Rules
In respect of subsection 24(1)(b) of the Act, concerning permanency of an impairment, the Access Rules state:
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.
…
5.6 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).
…
In relation to substantially reduced functional capacity under subsection 24(1)(c), the Access 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.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[4] The relevant Operational Guideline at time of decision is Our Guidelines – Becoming a participant – Applying to the NDIS (14 October 2024)(‘the Access Guideline’).[5]
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[5] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 February 2024).
The Tribunal also notes that in Mulligan,[6] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[7] The Full Court of the Federal Court of Australia in Foster also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[8]
[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].
[7] Mulligan at [55].
[8] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) at [44].
For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[9]
[9] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Concept of impairment
The concept of impairment is central to considerations under section 24 of the Act. An impairment “is generally understood as involving the loss of or damage to a physical, sensory or mental function”.[10] It is “not merely … a reduction in [a] person’s capacity to do things which an unimpaired person would be able to do”.[11]
[10] Mulligan at [51].
[11] Re Schwass and NDIA [2019] AATA 28 at [34]-[35].
In Mulligan, it was held that the term disability is used as a descriptive concept for the overall effect of a person’s impairments on the person’s ability to participate in all aspects of personal and community life.[12] While the Act does not define disability, its first object[13] is giving effect to the Convention on the Rights of Persons with Disabilities[14] which defines the concept of disability as “[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.[15]
[12] Mulligan at [51].
[13] See section 3(1)(a).
[14] Convention on the Rights of Persons with Disabilities. Opened for signature 30 March 2007. 2515 UNTS 3
(entered into force 3 May 2008), Art 1.
[15] Mulligan at [15].
ISSUES IN DISPUTE
The Respondent conceded that the Applicant has a disability attributable to psychosocial impairments arising from BPD and C-PTSD and physical impairments arising from Fibromyalgia.
The two key issues in dispute were whether the Applicant’s impairments could be said to be permanent and whether her impairments result in substantially reduced functional capacity in one or more of the 6 relevant domains of communication, learning, self-care, self-management, mobility and social interaction.
The Respondent conceded that the Applicant’s impairments impact her social and economic participation (section 24(1)(d)) and that she would require NDIS supports for her lifetime if her impairments were found to be permanent (section 24(1)(e)).
EVIDENCE REGARDING PERMANENCY
The concept of permanency under section 24(1)(b) appears to cause considerable confusion and distress, particularly for some Applicants who feel that their experiences and/or diagnosis are called into question through discussions about permanency of impairments. This is both understandable and unfortunate especially when an Applicant’s traumatic experiences are part of the factual matrix being considered.
In this case, it is clear from the material that the Applicant has gone through some very challenging periods in her life. There is no doubt in the Tribunal’s mind that the Applicant has experienced several highly traumatic incidents. These experiences have undoubtedly impacted the Applicant’s life and appear, to a significant extent, to underlie her mental health diagnosis. The Tribunal does not intend to elaborate on these matters, except to say that the Applicant has clearly worked very hard, both in respect of her mental health and her life more generally to create stability and safety for herself and youngest daughter. She should feel proud of her efforts. The Tribunal also accepts that the Applicant may live with a diagnosis of BPD and/or C-PTSD for the rest of her life.
Physical or sensory impairments
The physical or sensory impairments were not clearly articulated by either party during the proceedings however the Tribunal understands from Ms Warner’s report that they can perhaps best be described as chronic pain, fatigue, limited mobility and physical function, incontinence and gastrointestinal issues involving nausea, vomiting and urgent trips to the toilet.[16]
[16] R2 of JHB, p401-402.
In a letter dated 23 August 2022,[17] Dr Beverley Ng, Consultant Rheumatologist, noted she had reviewed the Applicant in relation to fibromyalgia. It is unclear from this letter when the fibromyalgia was first suspected or diagnosed. Dr Ng confirmed that since her last review, the Applicant had undergone a bone scan which did not reveal any concerning pathology. Dr Ng’s impression was that the Applicant was experiencing cervical and lumbar osteoarthritis with concurrent fibromyalgia which was being exacerbated by poor sleep.
[17] T22 of JHB, p118.
Dr Ng recommended physiotherapy, ongoing counselling and psychotherapy to assist with sleep, regular exercise and to follow up in 6 months.[18]
[18] T22 of JHB, p118.
On 9 November 2022, the Applicant’s GP at the time, Dr Sanaz Aria wrote “based on information provided by [the Applicant]” she has received remedial massage, chiropractor and physiotherapy for Fibromyalgia.[19]
[19] T30 of JHB, p136.
At hearing, the Applicant’s evidence was somewhat unclear in relation to her physiotherapy treatment. She told the Tribunal she had been seeing a physiotherapist at a hospital but hadn’t gone for a few months and “I just ring up when I need to”. The Applicant indicated that there had been a period when the appointments were scheduled “then it was dropped down to when I next need it, which is actually after this injection”. The Tribunal understands the Applicant was scheduled to receive an injection associated with neck pain in a couple of weeks following the hearing. The Applicant later indicated that she sees her physiotherapist every fortnight but that it would probably be monthly going forward. The Applicant did not file a recent report from her physiotherapist or call them to give any oral evidence. [20]
[20] Applicant’s oral evidence.
The Applicant told the Tribunal she sees a chiropractor when she can afford it and indicated it was her chiropractor who first suspected Fibromyalgia.[21]
[21] A letter from chiropractor Dr Kelvin Cheung referred to a single consult on 11 October 2021 where the Applicant was “provided conservative and integrative therapy” following improvement in her initial symptoms. See T20 of JHB, p116.
In relation to Dr Ng’s recommendation for regular exercise, the Applicant explained she takes her dog for a 20 minute walk most days unless it’s raining and she also gets some incidental exercise from doing household duties. She would like to go to the gym but feels she would need guidance to do gym exercises so as not to injure herself.[22]
[22] Applicant’s oral evidence.
The Applicant told the Tribunal that she has not seen Rheumatologist Dr Ng since August 2022. She indicated she sees her new GP every couple of weeks.
The Applicant underwent sleeve bariatric surgery with Dr Ken Lloyd in 2019. She explained that Dr Lloyd passed away and she is now under the care of Dr Qiuye Cheng who is an upper gastrointestinal (GI) surgeon and dietician Jodie Hicks.[23] The Applicant indicated that Dr Cheng had recently put her on the list for a gastroscopy to investigate her gastrointestinal issues. The Applicant said she had not seen her Gastroenterologist Dr Wassam Rahman for a little while but his report had been forwarded to Dr Cheng “and now they’re dealing with their side of it as surgeons”.[24]
[23] A letter dated 15 September 2023 from Dr Qiuye Cheng indicates that the Applicant was eating much better at the time and that “a lot of the eating issues are psychological in nature”. See JHB, p616.
[24] Applicant’s oral evidence.
Dr Verma, in her report, disagreed with Mr Lloyd’s opinion in a report dated 8 February 2023 that the Applicant had symptoms of Avoidant/Restrictive Food Intake Disorder (ARFID) and considered the Applicant’s weight loss was “emanating from inadequately controlled symptoms of IBS”.[25]
[25] R1 of JHB, p373.
There was very limited evidence before the Tribunal about the Applicant’s self-reported incontinence issues. An email dated 10 June 2021 from counsellor Ms Manna Maniargo to the Applicant and clinical psychologist Mr Adam Finch regarding an application for the Disability Support Pension said, “[the Applicant] states she wanted to include incontinence and migraine concerns”.[26] There was no evidence of the Applicant engaging with any treatment for incontinence.
[26] JHB, p558.
The Applicant told the Tribunal she saw her GP the day prior to hearing who increased the dosage of her anti-depressant Cymbalta from 60mg to 90mg due to an increase in fibromyalgia symptoms. She explained that Cymbalta helps with both her physical symptoms and mental health issues. The Applicant did not file any letter or report from her new GP.[27]
[27] Applicant’s oral evidence.
Ms Warner suggested in her report that pain management therapy would help the Applicant manage or control chronic pain and allow her to engage in physical activity and daily tasks with greater comfort and less support.[28] In her oral evidence, Ms Warner explained that a GP or specialist would usually provide a referral to a pain management clinic or multidisciplinary team. The multidisciplinary team (often consisting of psychologist, OT and physiotherapist) would then explore what interventions could help a person to manage their pain more effectively. Ms Warner could not identify any material to confirm such a referral had been made for the Applicant.[29]
[28][28] R2 of JHB, p430.
[29] Ms Warner’s oral evidence.
Findings and observations:
Based on the above evidence regarding the Applicant’s physical or sensory impairments, the Tribunal makes the following findings and/or observations:
(a)The Applicant’s gastrointestinal issues are still being investigated by a GI surgeon and dietician.
(b)The Applicant’s long-term anti-depressant medication had not been reviewed for over 10 years, until the day prior to the hearing.
(c)There is no evidence that the Applicant has engaged with a practitioner in relation to claimed incontinence issues.
(d)There is no evidence that the Applicant has been referred to or attended a pain management clinic.
(e)The evidence is unclear with respect to the frequency of the Applicant’s engagement with a physiotherapist, particularly in the last 2 years.
(f)The Applicant does engage in regular daily walks of 20 minutes duration.
(g)As the Applicant has not seen her Rheumatologist for over 2 years it is unclear whether the Applicant should be doing other exercises such as weight bearing exercise or trying other strategies to manage her pain and fatigue.
(h)There were no specific treatment recommendations from a physiotherapist.
Psychosocial impairments
Noting that the Applicant’s case was largely based on her diagnosis of C-PTSD and BPD, it was somewhat difficult to ascertain the exact claimed impairments arising from these diagnosis. Ms Warner’s report noted that these conditions can lead to “emotional instability, fear of abandonment, and intense mood swings, making it difficult for her to maintain relationships and manage her emotions”. The Applicant also described panic attacks, social phobia and isolation, anxiety in social situations and chronic feelings of emptiness.[30] Dr Verma’s report indicates the Applicant reported experiencing nightmares, intrusive memories and difficulty with attention and concentration.[31] The Tribunal is satisfied the above descriptions of the Applicant’s symptoms most helpfully characterise the relevant impairments in the sense that they interfere with or contribute to a loss of the Applicant’s mental function. They will collectively be referred to as the Applicant’s psychosocial impairments.
[30] R2 of JHB, p402.
[31] R1 of JHB, p369.
In an undated statement of lived experience, the Applicant wrote:
The condition that I struggle with ongoingly and constantly is primarily my borderline personality disorder. I have struggled with this my entire life with it slowly becoming a more debilitating problem that has affected many areas of my life also leading to fibromyalgia. I have also suffered with of complex post-traumatic disorder which was caused due to childhood trauma and other traumas.[32]
[32] T37 of JHB, p166.
In relation to treatment, the Applicant wrote:
I started seeing counsellor when my condition was effecting my parenting. I was 20 yrs old with 2 children. I had been on antidepressants for a few years prior to that since the age of 17. I had also been on a sleeping tablet which became an addiction that I needed to cease. Later I began to focus on courses & programs and attended my first 5 day residential healing week at heal4life foundation in 2007. I went to a further 2 healing weeks in 2009 and again 2013. I continued to seek counselling and also attended various parenting programs to help assist me with my way of thinking and coping. I also learnt many strategies through the a 20 week group therapy program for dialectical behaviour therapy in 2020 which taught me many strategies that I have been trying to put into practise.[33]
[33] T37 of JHB, p166.
Psychiatrist, Dr Paul Friend saw the Applicant on 11 December 2012 for recurring periods of depression. He noted that she “has a non-melancholic depressions and probably generalised anxiety disorder as a consequence of the various experiences of her life. She could also be diagnosed as having personality traits consistent with Borderline Personality Disorder”.[34]
[34] T8 of JHB, p94.
Other evidence before the Tribunal suggests the Applicant has been prescribed Cymbalta 60mg for over 10 years. She has also engaged in periods of monthly counselling or psychology sessions including cognitive behaviour therapy (CBT). She attended Heal For Life residential healing programs in 2007, 2009 and 2013 and participated in dialectical behavioural therapy (DBT) in 2020, funded by the Central and Eastern Sydney Primary Health Network.[35]
[35] A7 of JHB, p292-295; A11 of JHB, p302-307; R1 of JHB, p 370; T10 of JHB, p96-99;
T26 of JHB, p127; T30 of JHB, p136; T33 of JBH, p144; T37 of JHB, p166.
The Applicant’s then GP, Dr Sanaz Aria wrote on 11 October 2023:
[The Applicant] reported some improvement being on prescribed medications in terms of less anxiety symptoms and less panic attacks. Her quality of sleep has improved and she gained more self-confidence. She thinks her mood is stable and she is able to regulate her emotions better, however, she is still suffering from anxiety and panic attacks.[36]
[36] A7 of JHB, p293.
In his email dated 11 March 2024, treating clinical psychologist Mr Chris Lloyd told the Respondent that over the 3 years he has treated the Applicant, he has used Cognitive Behaviour Therapy including psychoeducation, breathing retraining, cognitive restructuring, behavioural experiments and relapse prevention.[37] He explained that he used a conversational model which has been used to treat BPD since the 1980s. “The theoretical framework depends mainly on (i) the development of self in relationships, (ii) the processing of unconscious traumatic memory, and (iii) its integration into the self-esteem”. Mr Lloyd indicated he saw the Applicant under a mental health care plan which allowed a session about every 6 weeks.[38] In her oral evidence, the Applicant indicated to the Tribunal that she ceased seeing Mr Lloyd last year due to scheduling difficulties. She told the Tribunal that dealing with trauma has been a core feature of her CBT work.[39]
[37] A12(d) of JHB, p337.
[38] A12(d) of JHB, p337.
[39] Applicant’s oral evidence.
The Applicant re-engaged with ‘Heal for Life’ which provides trauma counselling and therapy programs earlier in the year, attending a 5-day residential program in March 2025 which cost $600.[40] She told the Tribunal she has seen a counsellor called ‘Dee’ from Heal for Life about 3 or 4 times this year, who she is paying $80 per session privately. The Applicant also explained she had recently started seeing a counsellor called ‘Anita’ through Victims Services. The Applicant did not file any documents from Dee or Anita or call them to give oral evidence.[41]
[40] E1 – Tax Invoice of Healing Week Program 2 – 7 March, dated 10 February 2025.
[41] Applicant’s oral evidence. A letter from Anita Calic dated 3 November 2022 at T29 of the JHB, p133. It is unclear to the Tribunal whether this is the same Anita.
The Applicant told the Tribunal she had an appointment with her new GP the day prior to the hearing and her anti-depressant Cymbalta was increased from 60mg to 90mg. The Applicant indicated that Cymbalta was for both fibromyalgia and her central nervous system, depression, and anxiety. Dr Verma explained in her evidence that it would take about one month until the efficacy of the medication change could be assessed.
Dr Verma described her interaction with the Applicant during the assessment as follows:
She gave a clear account of symptoms and difficulties. She reported her mood to be low and her affect was reactive. Her speech was spontaneous and normal in volume and tone. Her thoughts were logical and goal-directed. She currently reports concern with her physical symptoms of IBS and fibromyalgia. There was no evidence of any manic, psychotic or perceptual abnormalities. She had insight into her condition and her judgement was intact.[42]
[42] JHB, p372.
Dr Verma considered the Applicant’s presentation as consistent with the diagnosis of PTSD and BPD, providing an explanation of how the Applicant met the criteria for both PTSD and BPD in accordance with the Diagnostic and Statistical Manual of Mental Disorders – 5th Edition (DSM-5).[43]
[43] R1 of JHB, p373.
Dr Verma noted in her report that the Applicant had been on Cymbalta for over 10 years, had not trialled any other anti-depressants and had not seen any psychiatrist since 2013. The Tribunal understands that the psychiatrist the Applicant last saw was Dr Paul Friend, mentioned above. The Applicant was reportedly using CBD oil and gummies for chronic pain when she met with Dr Verma.[44] In her oral evidence, Dr Verma indicated that due to the type of diagnosis, the Applicant requires ongoing treatment and management to deal with fluctuations in her illness and requires optimisation of medications.
[44] R1 of JHB, p371.
Dr Verma opined that the Applicant’s engagement with treatment to date had helped stabilise her mental health and symptoms, but had not completely ameliorated them.[45] She explained that she did not believe the Applicant’s psychiatric diagnosis had been optimally treated and expressed the view that there is a high likelihood the Applicant’s symptoms (or impairments) will improve if she engages with evidence-based treatment like trauma-focused CBT and Eye Movement Desensitization and Reprocessing (EMDR).[46] Dr Verma noted that for someone with BPD, if they are well treated it is as though their symptoms are in remission – they are able to hold on to employment or their relationships, “but it is a personality disorder, it does not really kind of go away”.[47]
[45] R1 of JHB, p376.
[46] R1 of JHB, p377.
[47] Dr Verma’s oral evidence.
On the issue of EMDR, Dr Verma indicated either a psychiatrist or psychologist trained in the methodology could administer EMDR. She explained that EMDR is considered the first line of treatment for PTSD and medication is the second or third line of treatment. Dr Verma told the Tribunal that EMDR is usually administered over 16 to 20 sessions on a weekly or fortnightly basis. She said in practical terms it can take longer because the sessions may be triggering and therefore additional sessions may be required to work on coping strategies and containing anxiety. Dr Verma told the Tribunal that EMDR could be provided under a mental plan, which provides 10 subsidised consults per year.[48]
[48] Dr Verma’s oral evidence.
Dr Verma said there are different forms of CBT and that trauma focused CBT is designed for people with PTSD. She indicated other forms of CBT can be used for other mental health issues but have less of a role in treating PTSD. It was her impression from the material reviewed that the Applicant had not received trauma focused CBT and that she was likely to experience improvement if she received appropriate treatments for PTSD. Dr Verma was of the view that whilst DBT can be an effective form of treatment for BPD, it was not very effective for PTSD.[49]
[49] Dr Verma’s oral evidence.
When asked to describe how she would characterise the Applicant’s impairments arising from mental health issues, Dr Verma replied “she did not have any significant impairment arising from her mental health issues because they were mainly stabilised at the time that I saw her and were only being triggered because of the physical health issues” including IBS.
She opined that whilst there will be periods when individuals might be affected by external stressors like physical symptoms, interpersonal relationship difficulties or financial factors, the only difference between someone who does not have a mental health issue or BPD and someone who does will be the intensity of the response.
Dr Verma explained that one of the most effective treatments for BPD and C-PTSD is to attend a day program, much like the 20-week program the Applicant attended in 2020 for her BPD. She said most programs will involve one-on-one sessions with a psychologist as well as group therapy sessions. Dr Verma also stated that sometimes one set of sessions will not be enough and may need to be repeated, for example, the Applicant might need additional monthly or two monthly sessions depending on what is going on in her life and what other stressors she is experiencing. She thought the Applicant might benefit from revising the coping strategies she learnt in the BPD course, but this could be done in less sessions. Dr Verma acknowledged that there is cross-over between the symptoms arising from BPD and C-PTSD but suggested the Applicant would benefit from a day-program focused on PTSD because that condition hasn’t been treated as well.[50]
[50] Dr Verma’s oral evidence.
In terms of accessing treatment, Dr Verma noted that it can be extremely difficult to access a psychiatrist or day program through the public system because that system usually takes on only the most severe cases involving psychotic or bipolar mood disorders and those under the Mental Health Act. She did not think the Applicant would be a likely candidate for treatment from a public mental health team.[51]
[51] Dr Verma’s oral evidence.
Dr Verma told the Tribunal that the Applicant’s GP could refer her to a private psychiatrist, or a day program run through a private hospital. She noted that telehealth has reduced wait times to see a psychiatrist. An initial consult costs in the range of $800-1000 with Medicare covering about $240 and the rest is ‘out-of-pocket’. Follow up appointments were approximately $400 with Medicare covering about $150 of the cost.
Findings and observations:
Based on the above evidence in relation to the Applicant’s psychosocial impairments, the Tribunal makes the following findings and observations
(a)The Applicant undertook a 20-week DBT course in 2020 for her BPD.
(b)The Applicant has engaged with a range of therapists over several years and made good progress in understanding and managing her mental health.
(c)The Applicant has focused on trauma as part of her CBT however the exact modality, goals and outcomes achieved through this therapy is relatively unclear from the reports provided from the Applicant’s most recent treating psychologist Mr Lloyd.
(d)The Tribunal accepts that the Applicant’s engagement with the 20-week DBT course and some trauma focused CBT may have partially treated her C-PTSD as there is some cross-over in symptoms between BPD and C-PTSD.
(e)The Applicant has not seen a psychiatrist for over 10 years.
(f)A psychiatrist has not reviewed the Applicant’s medication for over 10 years.
(g)The Applicant’s GP can arrange a referral to a private psychiatrist with an initial out of pocket contribution in the vicinity of $600-700.
(h)It will take approximately 4 weeks before the efficacy of the increased Cymbalta dose can be assessed.
(i)EMDR is an effective form of treatment for C-PTSD which is available under a mental care health plan. Trauma focused CBT is also available under a mental health care plan.
(j)Attendance at a day program for C-PTSD is also an effective form of treatment.
(k)The Applicant did not provide details of her financial circumstances however the Tribunal accepts that as a single mother in receipt of Centrelink payments that her means are relatively modest. However, the Applicant recently paid $600 to attend a 5-day residential healing program and has been paying a counsellor $80 per session 3 or 4 times this year.
CONSIDERATION
Disability – subsection 24(1)(a)
The Respondent accepts that subsection 24(1)(a) is met with respect to the Applicant’s physical impairments.
The evidence indicates that the physical impairments are chronic pain, fatigue, limited mobility and physical function, incontinence and gastrointestinal issues including nausea, vomiting and urgent trips to the toilet. The psychosocial impairments arising from C-PTSD and BPD can be described as emotional instability, fear of abandonment, intense mood swings, panic attacks, nightmares, intrusive memories, social phobia and isolation, anxiety and chronic feelings of emptiness.
The Applicant has engaged with various practitioners and therapists in relation to these issues, including how these impairments effect the Applicant’s daily life and functional capacity. The Tribunal finds the Applicant’s physical impairments and impairments attributable to her psychosocial conditions satisfy section 24(1)(a).
Permanency – subsection 24(1)(b)
The Respondent contended that the evidence did not support a finding that the Applicant’s physical or psychosocial impairments are permanent. The Respondent further submits there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments.
There is evidence the Applicant has been diagnosed with a range of physical health conditions including Fibromyalgia, Osteoarthritis, Irritable Bowel Syndrome, Thoracic Outlet Syndrome, Carpal Tunnel Syndrome, Temporomandibular Joint Dysfunction, Spina Bifida Occulta and Spinal Scoliosis.[52] As mentioned above, the access criteria is concerned with impairments and so diagnoses are largely irrelevant except to the extent that they contribute to or help explain the Applicant’s claimed physical or sensory impairments of pain, fatigue, loss of strength, reduced movement / flexibility and gastrointestinal issues including associated treatment.
[52] R2 of JHB, p400-401.
In the decision of Davis, Mortimer J (as she then was) said of the meaning of “permanent” in s 24(1)(b):
The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.[53]
[53] National Disability Insurance Agency v Davis [2022] FCA 1002 at [130] (“Davis”).
The Access rules provide relevant guidance to assessing whether the Applicant’s physical impairments can be said to be permanent:
When is an impairment permanent or likely to be permanent for the disability requirements?
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.[54]
[54] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
Mortimer J observed that the Rules 5.4 and 5.6 were exclusionary, in the sense that they “prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting the permanency criterion in s 24(1)(b)”.[55]
[55] See Davis at [75]. See also [158].
Her Honour observed the following with respect to the adjectives used in r 5.4:
(a)the word ‘remedy’ should be understood to mean something approaching a removal or cure of the impairment’;[56]
(b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment’;[57]
(c)the word ‘appropriate’ ‘connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo’;[58] and
(d)the word ‘available’ should be understood as directed at what treatments an individual can, in reality, access’.[59]
[56] Davis at [136].
[57] Davis at [137].
[58] Davis at [137].
[59] Davis at [139].
The Respondent pointed to the decision of LPRK and National Disability Insurance Agency [2022] AATA 4428 in relation to the effect of Rule 5.4:
[70] When having regard to possible treatment of impairments, under subsection 24(1)(b) and Rule 5.4, it is not necessary that a cure be likely. Rather, the Tribunal must be satisfied that there are no treatments that would be likely to alleviate the Applicant’s impairments or ease their severity or impact. The evidence as to the Applicant’s diagnosis of post-traumatic stress disorder is accepted by the Tribunal. It is unclear whether the Applicant’s psychosocial impairment arising from the disorder would be enduring following regular and genuine engagement with treatment. There is no suggestion that this condition can be cured, but it may be possible to treat the symptoms in order the provide relief from their severity and, thus, to reduce or remove the existence of the impairment (as opposed to the existence of the diagnosis, or condition).
The Tribunal notes that this decision pre-dates the Davis authority, however it understands that it is required to consider the degree to which treatments are likely to alleviate the impairments or ease their severity or impact, in a manner approaching a cure. That assessment will turn on the facts of each case.
The Tribunal is satisfied on the evidence that the Applicant has made some genuine efforts to engage with treatments for her BPD and C-PTSD. The Tribunal accepts that the Applicant’s engagement has contributed to the apparent stability in her symptoms and impairments over the past few years. Dr Verma noted that the effective treatment of BPD can essentially result in a person’s impairments going into remission. The Applicant previously attended a 20-week DBT program through the public health system, suggesting the Applicant could re-engage with that program if she required a ‘refresher’ in relation to strategies and techniques for emotional regulation.
The Tribunal accepts Dr Verma’s evidence that whilst there is some cross-over in symptoms between BPD and C-PTSD, there are differences in the etiology and diagnostic criteria for the conditions, which in turn influences the type of treatments considered most effective. For this reason, the Tribunal is of the view that it must consider the optimal treatments for both conditions before the impairments arising from either or both conditions could be considered permanent.
The Tribunal accepts Dr Verma’s evidence that EMDR is now considered a front-line treatment for C-PTSD/PTSD. Whilst the Tribunal is unable to say with certainty what outcomes the treatment will produce, it is satisfied that it has not been attempted and it offers the best possible chance of providing a remedy for the Applicant’s psychosocial impairments.
EMDR treatment is available under a mental health care plan, albeit limited to 10 sessions per year and can be arranged with a psychologist or psychiatrist with a GP referral. The Tribunal understands the Applicant would likely need to contribute towards the cost of some sessions. The Tribunal is satisfied such contributions are not unreasonable or overly burdensome, noting the Applicant’s recent payment of $600 to Heal for Life and her private counselling sessions with Dee. The Tribunal finds EMDR is a known, available and appropriate evidence-based clinical treatment.
The Tribunal is also satisfied that a day program for C-PTSD is a known and appropriate evidence-based clinical treatment, however there was insufficient evidence before the Tribunal to make a conclusive determination whether it is available to the Applicant.
The Tribunal is satisfied that trauma-focused CBT can be accessed under a mental health care plan. While it appears the Applicant has engaged in some trauma-focused CBT, further engagement with a structured program of trauma-focused CBT that has clear goals is likely to be of benefit to the Applicant in terms of reducing her symptoms. The Tribunal is of the view that EMDR, as the front-line treatment, should take precedence. A treating therapist will be well-placed to make recommendations about the need, if any, for additional CBT following EMDR.
Accordingly, the Tribunal is not satisfied that the Applicant’s psychosocial impairments are permanent by reason of Rule 5.4 at this time.
Further, for reasons which were not exactly clear, the Applicant has not been referred to a psychiatrist for over 10 years and therefore her long-standing Cymbalta dose has not been reviewed by a psychiatrist. This appeared unusual in circumstances of such long-standing reported symptoms and the complexity of the conditions of BPD and C-PTSD. While the Applicant gave evidence that her new GP increased the dose of her Cymbalta from 60mg to 90mg the day prior to hearing, the Tribunal accepts Dr Verma’s evidence that it would take about 4 weeks for the change in medication to take effect. In her view, a psychiatrist should review the type and dose of the Applicant’s medication to ensure it is the most appropriate medication for her.
By reason of Rule 5.6, the Tribunal cannot be satisfied the Applicant’s psychosocial impairments are permanent because she requires further medical treatment and review.
In relation to the Applicant’s gastrointestinal issues, the Tribunal finds that these issues are still being investigated and treated by a GI surgeon and dietician. The underlying cause of those issues is not exactly clear.
In relation to impairments arising from fibromyalgia or other physical or sensory impairments, the Tribunal cannot be satisfied on the available evidence that the Applicant has accessed all known, available and appropriate-evidence treatments. She has not consulted with her rheumatologist for over 2 years, there were no clear treatment recommendations from her physiotherapist, and she has not been referred to a pain management clinic or multidisciplinary team.
The Tribunal finds by reason of Rules 5.4 and 5.6, the Applicant’s physical or sensory impairments cannot be considered permanent at this time.
Section 24(1)(b) is not met.
Section 25 – Early Intervention
Having concluded the Applicant does not satisfy section 24(1)(b), she cannot meet section 25(1)(a) of the Act in relation to permanency.
As the Applicant has not met either the disability requirements or the early intervention requirements of the Act, the Tribunal must affirm the decision under review.
DECISION:
The Tribunal affirms the decision under review.
Date(s) of hearing: 20-21 May 2025 – by video Applicant: Self-represented Counsel for the Respondent: Mr Nicholas Swan Solicitors for the Respondent: Ms Erin Hourigan, Maddocks
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