Touma and National Disability Insurance Agency (NDIS)
[2025] ARTA 200
•6 February 2025
Touma and National Disability Insurance Agency (NDIS) [2025] ARTA 200 (6 February 2025)
Decision and Reasons for Decision
Applicant/s: Samantha Touma
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2023/3064
Tribunal: Senior Member K Bean
Place: Sydney
Date: 6 February 2025
Decision: The Tribunal affirms the decision under review.
..............................[SGD]..................................
Senior Member K Bean
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether applicant meets the access criteria – whether applicant meets the disability requirements – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether applicant meets the early intervention requirements – whether impairments are, or are likely to be, permanent – whether treatment was available - impairments not permanent - whether early intervention supports would likely have a significant impact on the course of impairment – disability and early intervention requirements not met – reviewable decision affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Beezley v Repatriation Commission (2015) FCAFC 165
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Richardson and National Disability Insurance Agency [2024] AATA 3505
SECONDARY MATERIALS
Our Guidelines – Becoming a participant – Applying to the NDIS (14 October 2024)
Statement of Reasons
INTRODUCTION
The issue before the Tribunal is whether the Applicant, Ms Touma, meets the access criteria to be a participant of the National Disability Insurance Scheme (‘the NDIS’) in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’).
Ms Touma is a 36-year-old woman who currently lives with her mother and three sisters in western Sydney. She suffers from a range of medical conditions which have a very significant impact on her functioning, including fibromyalgia, chronic pain, depression and anxiety.
In February 2022, Ms Touma applied for access to the NDIS based on her impairments. However, on 6 March 2023, a delegate of the Respondent decided she did not meet the requirements for access to the NDIS and her request was denied. She subsequently sought internal review of that decision and on 5 May 2023 a different delegate affirmed the original decision. On 5 May 2023, Ms Touma applied to this Tribunal for review of the internal review decision affirming the original decision that she did not meet the criteria for access to the NDIS.
One of the main issues in Ms Touma’s case is whether the impairments resulting from her medical conditions are sufficiently permanent to meet the NDIS access criteria.
A hearing was ultimately held in this matter over three days, being 12 and 13 November and 4 December 2024. Ms Touma was represented by a Disability Advocate, Mr Hampton, and the Respondent was represented by counsel, Ms Rao.
In arriving at my decision, I have considered the various documents which were accepted into evidence, together with additional material tendered during and after the hearing.
I will first outline the applicable legislative framework before identifying and addressing the issues with more precision.
LEGISLATIVE FRAMEWORK
The access criteria
To become a participant of the NDIS, an 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 Ms Touma satisfies the age and the residence requirements. What the Tribunal must decide is whether she also satisfies the access criteria in section 24 (‘the disability requirements’) or section 25 (‘the early intervention requirements’).
I should note that although sections 24 and 25 have since been amended, those amendments only apply to access requests made to the Agency after 3 October 2024.1 Accordingly, I am required to apply the Act as in effect prior to 3 October 2024.
At the relevant time, section 24 of the Act stated:
(1) A person meets the disability requirements if:
1 The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024, s 126.
(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 Ms Touma 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 stated:
(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 a developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in Ms Touma’s case are the National Disability
Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), as in force prior to 3 October 20242, which form part of the legislative framework.
Access Rules
In respect of subsection 24(1)(b) of the Act, the Access Rules provided:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Part 6 of the Access Rules relevantly described the early intervention requirements under section 25 of the NDIS Act as follows:
6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS.
2 National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024, s 126(3).
…
6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
6.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity may improve.
6.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
6.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.3 The relevant Operational Guideline for access requests made prior to 3 October 2024 is Our Guidelines – Becoming a participant – Applying to the NDIS (14 October 2024) (‘the Access Guideline’).
3 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
ISSUES AND EVIDENCE
Introduction
As explained above, for Ms Touma to gain access to the NDIS, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. Ms Touma carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.4
Disability - Subsection 24(1)(a)
The Respondent accepts that Ms Touma meets the disability requirements in subsection 24(1)(a) with respect to a combination of the following diagnosed conditions:
(a)Fibromyalgia;
(b)Pigmented villonodular synovitis (PVNS);
(c)Chronic Pain;
(d)Major Depressive Disorder;
(e)Anxiety;
(f)Addison’s Disease; and
(g)Postural orthostatic tachycardia syndrome (POTS).5
The Respondent also accepts Ms Touma has been diagnosed with ankylosing spondylitis, although the weight of the evidence at the hearing did not support the ankylosing spondylitis diagnosis, and Mr Hampton conceded at the hearing that Ms Touma did not have this condition.
4 For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
5 Respondent’s Statement of Facts, Issues and Contentions dated 20 August 2024 at [18].
As there is some complexity involved in applying the statutory framework to the impairments resulting from Ms Touma’s conditions, I will briefly address the nature, history and impacts of each relevant condition before assessing whether the other criteria are met.
Fibromyalgia
On the material before me, Ms Touma had been diagnosed with fibromyalgia by 2016,6 although she stated at the hearing she had had the condition for 16 years. Her then treating rheumatologist, Professor Youssef, noted in a report of 3 February 2019 that she had developed “general joint and muscle pain and stiffness”7, which he attributed to fibromyalgia. He noted in a subsequent report of 20 May 2019 that “On examining her joints, there was no inflammation and there was a good range of movement”.8 In a report of 24 February 2023, Professor Youssef again confirmed that he found no evidence of joint inflammation and commented that Ms Touma had “developed a significant fibromyalgia component to her symptoms”.9
In his report of 1 October 2023, Ms Touma’s general practitioner, Dr Hany Basta, also stated that Ms Touma suffered from “severe joint and soft tissue pain due to fibromyalgia syndrome”10 and he confirmed this in his oral evidence at the hearing. He also explained in his report that while Ms Touma’s widespread joint symptoms were mainly due to fibromyalgia, her joint pains were aggravated by her other medical conditions, including the PVNS in her left knee, a stress fracture of the right talus bone in her foot, rotator cuff tendinosis and subacromial bursitis of both shoulders, adhesive capsulitis of the left shoulder and degenerative disc changes at her C6/7 level.11
It is clear on the evidence before me therefore that Ms Touma has fibromyalgia, and it is one of the conditions which has the greatest impact on her daily functioning.
6 JTB 87.
7 JTB 92.
8 JTB 93.
9 JTB 319.
10 JTB 617.
11 JTB 617-18.
PVNS
I understand this condition is a type of synovial swelling. Ms Touma was first diagnosed with the condition (in her left knee) in 1999 and underwent arthroscopic debridement procedures to address it.12 A bone scan in September 2022 showed a stress reaction in her left knee and “very active inflammatory arthropathy”.13
In his report of 1 October 2023, Dr Basta noted Ms Touma had experienced:
“Recurrent pigmented villonodular synovitis (PVNS) in the posterior aspect of the left knee requiring multiple surgeries. Her last left knee surgery on 6.12.2022 was followed by the development of pain and allodynia (increased skin sensitivity) over the medial aspect of the left lower leg”.14
He also noted:
“She has been suffering from pain in both knees, the pain is moderate on the right, the pain is very severe in the left knee, the pain increases with walking in particular walking upstairs and downstairs, standing, bending her knees, sitting, getting up from sitting position.”15
Dr Basta also noted that a rheumatologist, Professor Sturgess, had organised for Ms Touma to have an “ultrasound guided nerve block” of her knee16 and “She sees regularly her orthopaedic surgeon….for her recurrent left knee pigmented villonodular synovitis”.17
There is no doubt on the evidence that Ms Touma’s PVNS is ongoing and continuing to result in significant impairment.
12 JTB 165.
13 JTB 166.
14 JTB, 617.
15 JTB 617.
16 JTB 618.
17 JTB 619.
Chronic Pain
It is also clear on the medical evidence, and not disputed by the Respondent, that Ms Touma suffers from chronic pain which is not fully accounted for by her fibromyalgia condition. Professor Sturgess refers to both conditions in his report of 20 October 2023 as follows:
“She does have chronic pain. I think there are several factors causing her pains. A consultant shoulder surgeon diagnosed “frozen shoulders” – this is an inflammation of the shoulder capsule that settles over 1-2 years. Second, she reports pain from the posterior of the left knee down to the left calf. She reports this is due to knee surgery for
….villonodular synovitis… Third, she reports diffuse pain all over. This is fibromyalgia, a
common pain condition often seen in patients with mental health issues.”18
I accept that in addition to fibromyalgia, Ms Touma experiences chronic pain associated with physical issues at various sites in her body including her shoulders and left knee.
Depression and anxiety
In his report of 1 October 2023, Dr Basta stated that Ms Touma was suffering from “severe anxiety and depression”.19 He also noted she had been receiving counselling from a clinical psychologist at the Pain Management Unit at St George Hospital.
Ms Touma consulted a clinical psychologist, Mr Tom Jones, for a period in 2023 and in his report of 7 February 2023 he recorded that she was suffering from “Anxiety, both generalised and as panic attacks” and “Depressed mood” among other symptoms and concerns.20 In a NDIS application form completed on 5 April 2023, Mr Jones also recorded that Ms Touma had “somatic symptom disorder with predominant pain”, “panic disorder”, “gambling disorder” and “major depressive disorder”.21
I accept that Ms Touma continues to suffer from anxiety and depression, together with other possible mental health conditions which have not been fully explored.
18 JTB 623.
19 JTB 617.
20 JTB 278.
21 JTB 377.
Addison’s Disease
At the hearing, both Ms Touma and Dr Basta explained that she had been diagnosed with Addison’s disease or adrenal insufficiency in 2023. Ms Touma indicated this was related to excessive cortisone injections.
In his oral evidence, Dr Basta stated this condition had been effectively treated and reversed and was no longer resulting in symptoms.
I accept Ms Touma was diagnosed with this condition, however it does not appear to be resulting in any ongoing impairment.
POTS
Ms Touma and Dr Basta also explained at the hearing that Ms Touma was also diagnosed with POTS in 2023 resulting in dizziness and light-headedness.
In his evidence at the hearing, Dr Basta indicated this condition had been treated and was now relatively well-managed. However, he indicated it was still resulting in some symptoms and required ongoing management through practical measures.
I accept Ms Touma continues to suffer from POTS resulting in some ongoing symptoms and some degree of impairment, albeit the current level of impairment is relatively mild.
Other conditions
Although not specifically conceded by the Respondent, for completeness I should also acknowledge the medical evidence supports the existence of several other specific physical conditions which are contributing to or associated with Ms Touma’s pain.
As noted above, in his report of 1 October 2023, Dr Basta indicated Ms Touma was suffering from a stress fracture to the right talus bone in her foot due to underlying osteopenia.22 He also recorded that she currently had, or had had rotator cuff tendinosis and subacromial bursitis and adhesive capsulitis (frozen shoulder) of the left shoulder, rotator cuff tendinosis
22 JTB 617.
and subacromial bursitis of the right shoulder, and degenerative cervical disc changes at the C6/7 level.23
I did not understand the Respondent to dispute the existence of any of these conditions or that they were each resulting in some degree of impairment.
Conclusions on disability
Consistently with the position taken by the Respondent, I am satisfied Ms Touma suffers from each of the conditions referred to above and has a range of impairments attributable to those conditions, although in my view there is no longer any impairment resulting from Addison’s disease as that condition has resolved.
Accordingly, Ms Touma satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the NDIS Act.
The next question is whether these disabilities are permanent.
Permanency – subsection 24(1)(b)
As explained above, for Ms Touma to qualify for access to the NDIS, it must be established that her relevant disabilities, being impairments attributable to the conditions discussed above, are permanent in the relevant sense.
When will an impairment be considered permanent?
In the decision of Davis24 Mortimer J (as she then was) said of the meaning of “permanent” in section 24(1)(b):
[85]…In my opinion, the correct meaning of “permanent” in s 24(1)(b) is “enduring”. This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.
[86] The critical point is that “permanent” is used as an adjective in s 24(1) to the noun “impairment” (or in the plural, “impairments”). The focus of the text, consistently
23 JTB 618.
24 National Disability Insurance Agency v Davis [2022] FCA 1002 at [85-86] and [130] (“Davis”).
with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.
…
[130] …I explained …above my view about the correct construction of “permanent” in s 24(1)(b). The phrase “permanent impairment” in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.
In Davis, Mortimer J also observed that the Access Rules in rule 5.4 and rule 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 section 24(1)(b)”.25
As to the adjectives in rule 5.4, her Honour observed that:
(a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”;26
(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”;27
(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”;28
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”.29
In relation to whether an impairment is likely to be permanent, the Access Guideline states:
We need evidence that you’ll likely have your impairment for your whole life.
25 See Davis at [75] and [131]. See also [158].
26 Davis at [136].
27 Davis at [137].
28 Davis at [137].
29 Davis at [138].
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity (s 24(3)). Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
…
We don’t fund supports to treat your impairment.
Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life. They can also help you increase your functional capacity, independence, and your ability to work, study or take part in social life.
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are (NDIS Rules rr 5.4, 6.4.)
• known and available
• appropriate for you and your impairment
• evidence-based – that is, there’s proof they are likely to be effective.
The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent (Rules rr 5.6, 6.6)
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time: Rules rr 5.5, 6.5.
…
Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.30
30 Davis at [139].
Are Ms Touma’s impairments permanent?
In assessing their permanence, I will consider Ms Touma’s similar or related conditions together, beginning with her depression and anxiety.
Depression and anxiety
At the hearing it was acknowledged by both Ms Touma and Dr Basta that Ms Touma was not currently consulting either a psychologist or a psychiatrist for her serious mental health issues. Aside from limited psychological support received through the St George Pain Clinic, it appears the last psychologist Ms Touma saw was Mr Tom Jones, whom she consulted for a relatively brief period in early 2023.
Dr Basta also acknowledged at the hearing that Ms Touma required further treatment for her mental health issues, would benefit from seeing a psychologist and required assessment and treatment by a psychiatrist. As to the impact of her mental health issues, I note in his report of 1 October 2023, Dr Basta stated “Her impairments are mainly caused by medical conditions of fibromyalgia syndrome and severe anxiety and depression”.
The records indicate Dr Basta prepared a GP Mental Health Care Plan and referral letter on 13 March 2024 directed to a psychologist, Ms Prasad, requesting treatment for Ms Touma and noting “She is extremely distressed because of her chronic severe pain”. Prior to this, on 2 February 2023 Dr Basta referred Ms Touma to Mr Jones for treatment for the same reasons. Although Ms Touma saw Mr Jones a couple of times, she did not persist with this and has not sought treatment from Ms Prasad.
As they are currently untreated and likely to be significantly improved by appropriate treatment, it is clear the impairments resulting from Ms Touma’s depression and anxiety are not currently permanent.
Fibromyalgia and chronic pain
With respect to treatment for the various causes of Ms Touma’s pain, Dr Basta has outlined in his report of 1 October 2023 the treatment he has recommended and that received by Ms Touma.31
It is clear Ms Touma has undergone extensive treatment for many of her identified physical conditions, including physiotherapy and chiropractic treatments, cortisone and anaesthetic injections into her shoulders, a nerve block of her left knee, and specialist treatment for her foot fracture, PVS and fibromyalgia. She has also been prescribed and taken a range of medications including strong slow-release and immediate-release pain medication.
In his report of 20 October 2023, Professor Sturgess commented that fibromyalgia is “a common pain condition often seen in patients with mental health issues”32 and “The treatment for her chronic pain issues is exercise and psychological support”.33 He recommended that she persist with the Pain Clinic programme she was currently attending for a least 12 months and wean herself off narcotics. He commented “If she would engage in more exercise her chronic pain issues would be improved”.34 He suggested it would be possible for Ms Touma to “learn to live with” her chronic pain.
A medical specialist at the St George Pain Management Unit, Dr Vasic, has also provided a report dated 15 December 2022, following an initial review of Ms Touma at the clinic on that day. Dr Vasic noted Ms Touma’s complicated medical history and indicated she would benefit from participation in an “intensive pain program”. Ms Touma was accordingly advised to undertake the clinic’s Activate Pain Management Program “sometime in 2023”, which I note she subsequently did, graduating from the program on 1 September 2023. Dr Vasic also made some recommendations with respect to medication and stated “She would benefit from seeing a psychiatrist or psychologist externally”35 for management of depression and anxiety.
31 JTB 617-619.
32 JTB 623.
33 Ibid.
34 JTB 624.
35 JTB 230.
Mrs Madeline Begg, a clinical psychologist with the St George Pain Management Unit has also provided a short response to questions directed to her, dated 20 October 2023 (after Ms Touma had completed the pain management program). While noting that “the outcome of her attending the Acitvate pain management program has been that her chronic widespread pain has continued”, she indicated that Ms Touma’s impairments had not yet been appropriately treated. She said Ms Touma should continue to engage with a clinical psychologist external to the clinic “to manage symptoms of mental health disorders that are interfering with her ability to practise the pain management strategies she has learned”. 36 She also recommended that Ms Touma engage with one of the clinical psychologists at the clinic, “for continued support with learning and practising pain management strategies”. 37 She added:
“I do not believe that these treatments would cure her impairment, however they may relieve her impairment to a certain extent.”38
The opinions expressed in both Dr Basta’s report and oral evidence were to the effect that Ms Touma has undergone or is in the process of undergoing the treatment which is available for the physical conditions causing her pain, including fibromyalgia. With respect to Ms Touma’s fibromyalgia specifically, his evidence was that the indicated treatment was attendance at a pain management clinic. He noted Ms Touma had already attended the pain management clinic and completed the program and it had not improved her symptoms. He expected Ms Touma’s fibromyalgia to persist as there was no further treatment for the condition, other than medication to manage the symptoms, which she was taking.
Evaluating the net effect of this evidence is not straightforward. The evidence suggests there is a complex relationship, and some overlap, between Ms Touma’s fibromyalgia and chronic pain conditions and between both those conditions and her mental health conditions. The evidence also suggests Ms Touma’s chronic pain and fibromyalgia conditions are likely to benefit significantly from psychological support and exercise.
36 JTB 622.
37 Ibid.
38 Ibid.
There is no medical evidence before me which suggests that psychological support and exercise will “cure” the impairments resulting from Ms Touma’s fibromyalgia and chronic pain. The evidence of Professor Sturgess and Ms Begg is to the effect that it would be likely to improve her impairment. Professor Sturgess appears to be of the view they would be likely to improve her impairment significantly.
In addition, there are contributors to Ms Touma’s chronic pain which appear likely to persist for the foreseeable future. I accept she appears to have engaged in the available treatments for her left knee condition which has persisted despite treatment.
I note on 1 April 2024, Dr Basta referred Ms Touma to the Royal Prince Alfred Outpatient Clinic for assessment and management with respect to pain in her ankles and feet. Following a consultation on 2 December 2024, Dr Hwang reported there was no structural pathology on imaging and no structural or orthopaedic ailment requiring surgical intervention. Ms Touma was referred to a podiatrist and/or exercise physiologist for “Gait assessment and footwear optimization”.39
I also note Ms Touma is expecting to undergo a further procedure to address a nerve entrapment issue in her elbow, which may have benefits for her shoulder symptoms.
The question of whether the impairments resulting from Ms Touma’s chronic pain and fibromyalgia conditions can properly be regarded as permanent in these circumstances is finely balanced. There appears to be real likelihood her current level of impairment can be significantly reduced, and her functional capacity improved, by psychological support in combination with exercise, as well as further treatment for her shoulder pain and implementation of the recommended treatment for her foot and ankle pain.
I accept that even with the benefit of further treatment including psychological and psychiatric support, it is likely Ms Touma will be left with a level of impairment which is permanent. However much of the evidence suggests that her psychological conditions are significantly affecting her pain experience, reducing her ability to exercise, and acting as a barrier to improving her functional capacity. Although Ms Touma has attended a pain management program, I understand that program was only for 4 weeks. Further, she has
39 Progress Note Medical, Dr Hwang, 2 December 2024.
not been able to fully implement the approaches recommended and taught in that program or continue with the follow up activities, due to a combination of physical issues and what appear to be psychological barriers.
Counsel for the Respondent, Ms Rao, directed my attention to the possibility of Ms Touma suffering from a psychiatric disorder such as Somatic Symptom Disorder which was playing a large part in her pain experience. I note Mr Jones referred in a NDIS form to having diagnosed this condition in 2023.40 I have no other evidence directed to the existence of this condition. However, I accept it is possible Ms Touma does suffer from this or a similar condition which could be explored and addressed through further psychological and/or psychiatric treatment.
One of the main difficulties for Ms Touma’s application is that it appears premature to assess the extent to which the impairments resulting from her chronic pain and fibromyalgia are permanent. It is clear she has not pursued or obtained all the treatment recommended for these conditions, and there are real prospects of the impairments being reduced by that treatment. It is also apparent she is experiencing impairments flowing from her untreated psychological conditions which are difficult to disentangle from her pain-related impairments. I note Dr Basta’s opinion that her impairments are “mainly caused” by her fibromyalgia and “severe anxiety and depression”.41 In my view, it is simply not possible to determine the extent to which the impairments resulting from Ms Touma’s fibromyalgia and chronic pain conditions are permanent until those conditions and her related depression and anxiety conditions have been fully assessed and treated, including by a psychiatrist.
I accept the submission made by Ms Rao that Ms Touma appears to have suffered from fibromyalgia for many years, and at times been much more physically active than she is now, despite that condition. The relatively recent decline in her functioning appears to coincide with a deterioration in her mental health, which may well be making a big contribution to that decline.
As I observed in Richardson and National Disability Insurance Agency [2024] AATA 3505 at [49]:
40 JTB 377.
41 JTB 619.
“While an impairment can be permanent notwithstanding fluctuations or positive changes in its impact on a person’s functional capacity, it is not tenable in my view to regard an impairment as permanent in circumstances where treatment offers the possibility of a dramatic and lasting improvement which will substantially increase a person’s functional capacity. Where this is the case, in my view it is simply not accurate to say that the person’s current impairment is permanent. The concept of ‘impairment’ has both a qualitative and a quantitative dimension. Even where it is likely a person’s impairment will persist but at a much lower level, it would not be accurate, or consistent with the aims and objectives of the Act, to regard their current impairment as permanent.”
I would add that it would be surprising if an impairment which was resulting in a substantial reduction in functional capacity could be regarded as permanent for the purposes of the Act, despite the existence of unexplored treatment which offered the possibility of increasing a person’s ongoing functional capacity above the applicable threshold. In my view it is implicit in the statutory framework that treatment which offers a strong possibility of increasing a person’s functional capacity in a way which could affect their eligibility for the NDIS must be explored and obtained before a relevant impairment can be considered permanent for the purposes of s24(1)(b).
Having regard to that analysis, the uncertainty surrounding the extent to which Ms Touma’s pain-related impairments can be reduced by further treatment, and the requirement in Rule
5.6 for impairments to be appropriately treated before being assessed for permanence, I have ultimately concluded that neither Ms Touma’s fibromyalgia or chronic pain related impairments can properly be regarded as permanent in the relevant sense. For abundant clarity, I am satisfied Rule 5.6 applies to both sets of impairments as both require further treatment before a determination can be made as to their permanence or likely permanence. Rule 5.6 therefore operates to exclude both sets of impairment from being regarded as permanent at this stage.
It may well be the case that Ms Touma will ultimately be able to demonstrate a permanent impairment related to these conditions. However, she must first pursue all the treatment available for the conditions before it will be possible to accurately assess permanency and determine the degree of impairment which is permanent.
PVS
As indicated above, I accept that Ms Touma’s PVS condition is long-standing, and she has undertaken the available treatments for the condition. As such, I accept that the impairment resulting from that condition should be regarded as permanent.
Addison’s disease
As also noted above, I understand the effects of this condition have effectively been reversed through effective treatment. As such, there does not appear to be any impairment currently resulting from this condition.
POTS
On the basis of Dr Basta’s evidence, I note this condition is currently fully treated, and is largely manageable, albeit it still causes Ms Touma some symptoms and impairment. Accordingly, I accept the impairment resulting from Ms Touma’s POTS can appropriately be considered permanent.
Conclusion re permanency
It follows that the only impairments I consider are currently permanent within the meaning of the Act and Rules are the impairments resulting from Ms Touma’s POTS and PVS conditions.
Substantially Reduced Functional Capacity - subsection 24(1)(c)
Impact of Relevant Impairments
With respect to POTS, as referred to above, I note Dr Basta’s oral evidence that this condition is currently well managed and symptoms attributable to the condition are generally fleeting and settle quickly, though the condition can cause dizziness and light headedness on occasion if not carefully managed through pacing and other measures. Whilst the symptoms were more pronounced at the time of an Occupational Capacity Functional
Capacity Assessment undertaken by Ms Sale on 20 May 202442, it is my understanding they currently persist at a lower level. At the hearing, Ms Touma indicated she was not currently troubled by POTS symptoms.
With respect to PVS, I note this condition causes pain, sensitivity, and a reduced range of movement in Ms Touma’s left knee. However, the weight of the evidence suggests that fibromyalgia and chronic pain are the main contributors to Ms Touma’s physical limitations.
The difficulty with assessing the extent to which Ms Touma has substantially reduced functional capacity with respect to her POTS and PVS related impairments is that any impairments related to those conditions are currently subsumed by and relatively minor in comparison with the reduced functional capacity resulting from Ms Touma’s fibromyalgia and chronic pain conditions, in conjunction with her depression and anxiety. While the POTS and PVS conditions could theoretically reduce her functional capacity in the domains of mobility and/or self-care, the effects of these conditions are currently dwarfed by the impact of her other conditions which have not been fully treated.
It follows in my view that neither the POTS or PVS impairments are currently resulting in any identifiable reduction in Ms Touma’s functional capacity. It follows further that they do not currently result in substantially reduced functional capacity in any of the relevant domains.
As none of Ms Touma’s impairments satisfy all the criteria in s 24, I have concluded she does not meet the disability requirements for access to the Scheme.
Does Ms Touma meet the early intervention requirements in s 25?
Having concluded Ms Touma does not satisfy the disability requirements in s 24, the only remaining issue is whether she satisfies the criteria for early intervention pursuant to s 25.
42 JTB 657.
As set out above, s 25(1)(a) relevantly specifies that to meet the early intervention requirements a person must have “one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent” or “one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent”. Having regard to my conclusions above, it is clear the only impairments which satisfy this requirement are those attributable to Ms Touma’s POTS and PVS conditions.
The next requirement of s 25 is that:
(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.
However, Ms Touma’s POTS condition is causing minimal symptoms and does not require provision of supports. While Ms Touma’s PVS condition could potentially reduce her functional capacity, her current support needs relate primarily to the impact of her fibromyalgia and chronic pain conditions, not the PVS. Because of the greater impact of her fibromyalgia and chronic pain conditions, it is not possible at this stage to identify the impacts of or support needs relating to her PVS impairments alone. It follows that it would be impractical to provide supports related to the effects of PVS at this stage and I am not satisfied such supports would reduce Ms Touma’s future support needs in relation to her PVS impairments.
It also follows that Ms Touma does not satisfy the requirements or s 25 of the Act and therefore does not qualify for access to the NDIS.
CONCLUSION
I have ultimately concluded the primary contributors to Ms Touma’s impairments are her fibromyalgia, chronic pain, severe depression, and severe anxiety conditions, which are interrelated. Indeed, there is a strong suggestion on the evidence that these conditions tend to reinforce and magnify one another.
While Ms Touma is currently very impaired by these conditions, it is also apparent on the evidence that these conditions have not been fully treated. The evidence suggests her current level of impairment is likely to be significantly and perhaps substantially reduced by further treatment, in particular psychological and psychiatric treatment in conjunction with exercise.
In these circumstances I have concluded that the impairments resulting from Ms Touma’s chronic pain, fibromyalgia, anxiety, and depression cannot properly be regarded as permanent for the purposes of the Act. While Ms Touma’s PVS and POTS conditions are resulting in permanent impairment, that impairment is subsumed by the impairments caused by her pain and mental health conditions. Therefore, it is not possible to be satisfied those impairments are currently resulting in any reduction in functional capacity which satisfies the requirements of the Act. For similar reasons, as explained above, I am also not satisfied Ms Touma meets the early intervention requirements with respect to her PVS and POTS conditions.
As I have concluded Ms Touma does not currently meet the requirements for access to the NDIS, I am obliged to affirm the decision under review.
DECISION
The decision under review is affirmed.
Date(s)of hearing: 12 and 13 November and 4 December 2024 Applicant
Advocate for the Applicant:
S. Touma, by Microsoft Teams
M. Hampton, Synapse, by Microsoft Teams
SolicitorsfortheRespondent:
A. Whiteley, Maddocks Lawyers, by Microsoft Teams
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