VLSY and National Disability Insurance Agency (NDIS)
[2025] ARTA 677
•30 May 2025
VLSY and National Disability Insurance Agency (NDIS) [2025] ARTA 677 (30 May 2025)
Applicant:VLSY
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/2342
Tribunal:Deputy President K Dordevic
Place:Sydney
Date:30 May 2025
Decision:The Tribunal affirms the decision under review.
..........................[SGD]...........................................
Deputy President K Dordevic
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme - reviewable decision of Chief Executive Officer – becoming a participant – Bipolar disorder – Complex post-traumatic stress disorder – age and residence requirements met – permanence – substantially reduced functional capacity – disability and early intervention requirements – decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Foster [2023] FCAFC 11
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015Rooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (14 October 2024) (Web Page), < align="center">Statement of Reasons
BACKGROUND
This issue requiring determination by this Tribunal is whether VLSY (the Applicant) meets the legislative requirements to gain access to the National Disability Insurance Scheme (the NDIS or the scheme).
The Applicant sought access to the scheme on 10 November 2022 for impairments arising from bipolar disorder, post-traumatic stress disorder (PTSD), emphysema and attention-deficit hyperactivity disorder (ADHD).[1]
[1] T3, folio 38.
On 30 November 2022 a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency (the NDIA) determined that the Applicant did not meet the access criteria.[2] The Applicant lodged a timely review to that decision, which was confirmed on 14 March 2023 by a different delegate of the CEO.[3]
[2] T7, folios 94 to 98.
[3] T13, folio 108.
On 12 April 2023 the Applicant made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[4]
[4] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The matter was timetabled for a video hearing by Microsoft Teams on 26 and 27 March 2025. The Applicant was represented by Ms Emma Knight, an Advocate from Disability Advocacy NSW. The Respondent, the National Disability Insurance Agency (the Respondent) was represented by Ms Stephanie Miller, Sparke Helmore Lawyers.
The Tribunal accepted into evidence various documents contained in the T Documents and joint hearing tender bundle. In addition, the Tribunal accepted into evidence a letter from Dr Maxwell Qu, psychiatrist, a letter from Dr Brian Pilgram, GP, and medical records regarding the Applicant’s care under Dr Curson, general practitioner, from 2005 to 2025, noting that the Respondent raised no objection.[5]
[5] Marked folios A24 to A26.
The Tribunal also had the benefit of oral testimony provided under affirmation from the Applicant, Ms Christina Hully, clinical psychologist, Dr Jeffrey Bertucen, psychiatrist and Mr Glen Dwyer, occupational therapist.
LEGISLATIVE FRAMEWORK
To become a participant of the scheme, the Applicant must satisfy the access criteria as prescribed in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), which provides:
(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).
If at the time of his application the Applicant met the age and resident requirements set down in sections 22 and 23 of the Act, the Tribunal must then determine whether the Applicant meets the access criteria as set down 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 requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self care;
(vi) self management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
If the Applicant does not satisfy the disability requirements, the Tribunal must then consider whether he meets the early intervention requirements set down in section 25 of the Act:
(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.
…
Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may make provision for determining any matter for the purposes of sections 24 and 25 of the Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules), which form part of the legislation.
Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b) of the Act, the Rules relevantly 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.
5.5 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.
As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c) of the Act, the Rules state:
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. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[6] In the case of G v MIBP,[7] the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[7] [2018] FCA 1229.
In assessing the Applicant’s claim the relevant operational guideline is Applying to the NDIS[8] (the Access Guideline).
[8] Dated 14 October 2024.
The case law developed in this jurisdiction provides guidance. In the matter of Mulligan[9] Mortimer J (as she then was) stated that the legislative regime:
55. …contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
56. That being the case, no arbitrary limits are placed on access to the NDIS. No decision maker need be satisfied a person’s impairment is “serious”, or more serious than another person's. No qualitative judgements in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do…[10]
[9] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).
[10] Mulligan, at [55]-[56].
This approach was endorsed by the Full Court in Foster.[11]
CONSIDERATION
[11] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
Age and residency requirements
I find that the Applicant was under 65 years of age when he requested access to the scheme. I am also satisfied that the Applicant resides in Australia and is an Australian citizen.
Paragraphs 21(1)(a) and (b) of the Act are satisfied.
I next considered whether the Applicant meets the disability requirements to gain access to the scheme as set down in section 24 of the Act.
Disability requirements
Does the Applicant have a disability attributable to an impairment?
I have taken into account the oral testimony and written statements made by Ms Christina Hully, clinical psychologist, the independent medico-legal examination conducted by Dr Jeff Bertucen, psychiatrist, MedicoLegal Assessments Group on 25 June 2024[12] and Dr Maxwell Qu, psychiatrist, following a telehealth consultation on 14 March 2025.[13]
[12] JTB, R4.
[13] A24.
I am satisfied on the basis of the extensive medical evidence before me that the Applicant was diagnosed with bipolar disorder in 2003 and has undergone various hospital admissions as a result of that condition.[14] I accept that he has received long-standing pharmacological treatment and has engaged in cognitive behavioural therapy since April 2019 to address his PTSD.[15] I will refer to his bipolar disorder and PTSD collectively as his mental health disorders.
[14] T-Documents folios 102 to 103, JTB, A1.
[15] T-Documents folios 102 to 103, JTB, A5.
Ms Hully conducted an assessment of the Applicant’s functioning in relation to symptoms of ADHD on 14 September 2023.[16] The Applicant reported symptoms mostly relating to inattention and impulsivity. I note that both Drs Bertucen and Qu confirm the diagnosis of ADHD.
[16] JTB, A9.
In opening submissions Ms Knight confirmed that the Applicant does not seek access to the scheme on the basis of his ADHD diagnosis or emphysema. Therefore, I did not proceed to consider the impairments arising from these conditions any further.
There is conflicting evidence before me regarding the Applicant’s sobriety. As the Applicant does not rely on this condition in seeking access, I did not proceed to consider his alcohol addiction and the impact that any impairments arising from this condition have on his daily functioning.[17]
[17] JTB, A10 and A12, R4.
I am satisfied that the Applicant has impairments to which a psychosocial disability is attributable, so satisfying paragraph 24(1)(a) of the Act.
Are the Applicant’s impairments permanent or likely to be permanent?
I have already set down the relevant Rules at paragraph 14.
The Respondent contends that the permanency criteria set down in paragraph 24(1)(b) of the Act is not met for the mental health disorders. The Respondent submits that the independent medical examination conducted by Dr Bertucen does not support a conclusion that a change to the Applicant’s medications, including treatment of his ADHD and alcohol addition, would not substantially relieve the Applicant’s mental health condition.
The Respondent relies on Dr Bertucen’s report which relevantly states:[18]
…
[The Applicant] is currently prescribed high dose desvenlafaxine (200mg) for depression, olanzapine (15mg) as a mood stabiliser, and mirtazapine as a night-time antidepressant as well as aid for sleep. These medications, in my opinion, are also intended for amelioration of symptoms of post-traumatic stress disorder. He does not currently utilise any pharmacotherapy specifically for ADHD (e.g. methylphenidate, dexamphetamine etc). While [the Applicant] appears to be gaining a measure of stability and relief from the use of these medications and has not required hospital admission for nearly 20 years, in my opinion the treatments are suboptimal and [VSLY] still claims to be chronically depressed, suffering occasional episodes of disinhibited spending and sleep disturbance with nightmares, as well as daytime flashbacks …
[The Applicant] was unable to provide any information as to whether he has received specific treatments for ADHD (eg stimulants) and I am not able to provide any reference to these. It is, however, likely in my opinion that the use of stimulant medications would carry a high risk of destabilising his bipolar disorder condition and possibly precipitate manic/hypomanic episodes.
[18] JTB, R4.
When asked whether there was any treatment that would likely remedy the Applicant’s impairments, Dr Bertucen replied:[19]
[The Applicant] may possibly benefit from additional pharmacotherapies to ameliorate his residual symptoms of depressed mood and sleep disturbances, including e.g. lamotrigine, lithium and sympathoplegic medication such as Prazosin or Clonidine. These should ideally be administered by a psychiatrist. In my opinion, these treatments may further ameliorate symptomatology and improve the level of impairment, but not in my view to the extent that [the Applicant] would be e.g. able to return to the workforce.
[19] JTB, R4, folio 240.
It is apparent that there was some merit to Dr Bertucen’s recommendation. Following consultation on 14 March 2025 Dr Qu recommended a trial of Prazosin for the Applicant’s PTSD symptoms and consideration of re-introducing lithium or valproate if the Applicant’s mood destabilised.[20] Dr Qu did not recommend any medications for the treatment of the Applicant’s ADHD or to support his abstinence from alcohol.
[20] A24.
The Respondent submits that Dr Berucen’s report established that known, available and appropriate treatments that are likely to remedy the impairment. My attention was drawn to the decision of FBJV[21] where there was discussion of the Access Guidelines in place at that time which referred to ‘substantially relieve’ the impairment. In that case the Tribunal adopted the definition of ‘relieve’ from the Macquarie Dictionary, which included “to ease or alleviate (pain, distress, anxiety, need, etc)” to assist in determining whether or not an impairment was permanent.[22] As I understand it, the Respondent seeks to rely on the term ‘relieve’ in the Access Guidelines to establish that the change to the Applicant’s medications may relieve his impairments and consequently that his mental health disorders are not permanent.
[21] FBJV and National Disability Insurance Agency [2021] AATA 913 (FBJV).
[22] FBJV, [117].
The Access Guideline in place prior to the legislative changes in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) relevantly states:
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.[23]
[23]National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (14 October 2024) (Web Page), <>
I accept that the Guideline provides assistance to NDIS staff when applying the legislation. I have already outlined above the well established principle that the Tribunal is not bound to follow this policy but should do so providing that it is not inconsistent with the legislation.
However, in my view there is no need to refer to the Access Guideline for assistance. The ordinary rules of statutory construction apply. It is inappropriate and unnecessary to adopt the term ‘relieve’ from the Access Guideline to ascertain the meaning of ‘permanent’ when the judicial guidance in respect of permanency is instructive.
As Mortimer J explained in Davis[24] explained the correct meaning of the term ‘permanent’ is that it is “enduring”[25] and:
… The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by the 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.[26]
[24] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis)
[25] Davis, [85].
[26] Davis, [86].
Mortimer J went on to explain that the term ‘remedy’ as outlined in Rule 5.4:
… should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring and, whilst its impact on a person from time to time might fluctuate, it is not an impairment which is likely to be removed or cured. [27]
[27] Davis, [136].
I am not satisfied that the change to the Applicant’s pharmacotherapies are likely to remedy the impairments arising from his mental health disorders. Whilst I accept that changing from one anti-psychotic to another and introducing a medication that may result in some relief to the Applicant’s PTSD symptoms (by way of nightmare reduction) there is no clinical evidence before me to suggest that the changes to his medications may do more than “relieve or improve” the Applicant’s symptomology. There is nothing to suggest that this change to medications would amount to a cure or removal of impairment or that the Applicant’s mental health disorders do not have an enduring quality.
In my view the changes to the Applicant’s medication regime, or even treatment for his sobriety and ADHD, do not suggest that the impairments arising from Applicant’s mental health disorders would likely be removed or cured. At its highest Dr Bertucen posits there may be some amelioration of symptoms and improvement to the level impairment but suggests that this would not be significant referring, by way of example, that any improvement would not result in the Applicant returning to work. In fact, Dr Bertucen went on to recommend that the Applicant gain access to the scheme.[28]
[28] JTB, R4, folio 241.
My conclusion in respect of permanency is consistent with Access Rules 5.5 and 5.6 which state that a condition may be permanent even if it continues to be treated and receive regular review and where there are prospects that a person’s functional capacity may improve.
After consideration of the medical evidence, I am satisfied that the impairments arising from the Applicant’s diagnoses of bipolar disorder and PTSD are permanent or likely to be permanent within the meaning set down in paragraph 24(1)(b) of the Act.
Do the Applicant’s impairments result in substantially reduced functional capacity?
The Tribunal must next determine whether the Applicant’s impairments result in substantially reduced functional capacity in at least one of the six domains of communication, learning, self-care, self-management, social interaction and mobility.
As I understand it, the Applicant submits that he has substantially reduced functional capacity in the domains of communication, self-care, self-management and social interaction.
The Respondent contends that the Applicant does not have substantially reduced functional capacity in one or more of the domains listed in subsection 24(1)(c) of the Act.
Access Rule 5.8 (already been set down at paragraph 15 above) provides guidance as to when an impairment results in substantially reduced functional capacity.
The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[29] A person will not necessarily be found to have a substantially reduced functional capacity simply because one task cannot be completed without assistive technology. Instead, the degree to which the person can participate in the activity must be assessed.[30] The test is one of objectivity and not a subjective comparison.[31] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[32]
[29] Mulligan, [55].
[30] Davis, [88].
[31] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine), [109].
[32] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, [96].
In Mulligan, Mortimer J confirmed that Rule 5.8 defines the circumstances in which a person must be taken to have ‘substantially reduced functional capacity’ for the purposes of paragraph 24(1)(c).[33] Her Honour further confirmed that Rule 5.8 is a deeming provision which has the effect of mandatorily including some people in the category of person with substantially reduced functional capacity if the criteria in the rule are met.[34] Her Honour also noted that the concept of ‘substantially reduced functional capacity’ is not exhaustively defined by Rule 5.8 and so, while a decision maker must turn their mind to whether an applicant falls within the deeming effect of this rule, that is not necessarily the end of the exercise.[35] The decision maker must then proceed to consider whether, regardless of Rule 5.8, a person’s functional capacity is substantially reduced in any of the six domains of activity.[36]
The medical evidence
[33] Mulligan, [66].
[34] Ibid, [77].
[35] Ibid.
[36] Ibid.
In a letter dated 22 November 2016 Dr Felicity Ng, advanced trainee psychiatric registrar, Tablelands Mental Health reported that the Applicant has a history of bipolar affective disorder Type 1 which was diagnosed during an episode of hospitalisation for a severe depressive episode following an overdose over a decade before. The Applicant reported several manic episodes lasting more than seven days with symptoms of grandiosity, impulsivity, flight of ideas, lack of need for sleep, driven behaviour, pressurised speech, some perceptual disturbance, distractibility and irritability. During these episodes he incurred significant debts, followed by severe depressive episodes where he would typically experience neurovegetative symptoms lasting for months. He continues to experience depressive symptoms despite being on a reasonable combination and strength of medications. Dr Ng recommended psychological intervention and that the Applicant attend a formal social activity.[37]
[37] JTB, A2.
In a statement dated 23 February 2023 the Applicant declared that his main purpose in seeking access to the scheme is to be able to have fortnightly psychological sessions, which he has found enormously beneficial. He has also been told that he would benefit from having support workers.[38] He reported feeling low motivation to undertake daily tasks resulting in neglecting showering and meal preparation. He describes limited social contacts which he tries to avoid.
[38] T-Documents, folios 99 to 101.
In a statement dated 4 July 2023 the Applicant stated that he has difficulties in the sphere of social interaction.[39] He reports having no close friends, many acquaintances but that he generally avoids interacting with others. He does have an arrangement with an aunt, uncle and sister that he texts them each morning to confirm that he is safe. He reported that he is enrolled in a weekly exercise group, but only attends about half of the classes because he cannot bring himself to face people and interact with them. He thinks that if he had support to attend the group he would probably attend more often. He went on to state that he struggles to motivate himself to attend to activities of self-care including showering, attending to personal hygiene generally, undertake household cleaning or preparing meals. Though he can drive he will only make short trips to the supermarket or doctor; he never travels alone to unfamiliar places. He requires support to attend some medical appointments; if he does not receive such support, he generally will not attend. He manages his own finances and shops online to avoid interacting with people. He struggles to remember tasks. He avoids visiting people or having visitors at his home, as it makes him highly anxious. He reports that he does not require assistance to take his medication. His main source of support is his clinical psychologist whom he sees every fortnight. He also speaks with a mental health nurse weekly. He seeks access to the scheme to receive regular sessions with his clinical psychologist. He reports that his clinical psychologist has recommended he receive assistance to attend appointments and social activities.
[39] JTB, A4
In an undated statement the Applicant reiterated that he is socially isolated, requires a support worker to assist with his daily functioning as well as regular and intensive psychological input.[40] In a later undated statement the Applicant stressed that little weight should be given to the functional capacity assessment undertaken by Mr Dwyer as he does not feel comfortable around men.[41]
[40] JTB, A16, noting that at A19 he suggests that this was statement was authored on 22 November 2024.
[41] JTB, A19.
On 19 February 2022 Ms Hully authored a letter stating that the Applicant’s supports under a mental health care plan are not adequate to meet his continuous and ongoing support needs.[42] She also recommended assessment and engagement with an occupational therapist, physiotherapist or exercise physiologist and support from a support worker to assist the Applicant in meeting his daily needs.
[42] T-Documents, T4.
On 10 November 2022 Ms Hully declared that the Applicant experiences difficulties in all domains. He has difficulties being understood and asking for assistance, interacting in the community, learning new skills, requires assistance with house cleaning and meal preparation in addition to attending medical appointments, making goals and planning.[43] She noted that the Applicant would benefit from engaging with a physiotherapist or exercise physiologist for assessment and ongoing support. She recommended access to a laptop so that the Applicant could engage in creative writing and attend telehealth appointments.
[43] T-Documents, T6.
On 17 August 2023 Ms Hully reported that the Applicant experiences difficulties in emotional regulation often experiencing debilitating low mood where he is unable to care for himself adequately.[44] He neglects his diet and other self-care activities and is unable to leave the home to undertake shopping or interact socially. In the more manic phases of his bipolar condition he is at risk of excessive spending. At these times his planning and decision-making abilities become compromised. He also experiences extreme sleep disturbance.
[44] JTB, A5.
In a report dated 13 November 2023 Ms Hully reported that the Applicant experiences difficulty with all aspects of executive functioning.[45] She went on to state that her experience in working with the Applicant for over four years makes clear that he requires significant support to meet everyday tasks, including daily routines and behaviours. She reported that his ADHD impacts on his ability to communicate, interact socially, his learning, self-care and self-management.
[45] JTB, A9.
Ms Emma Page, accredited exercise physiologist, stated in an undated letter that the Applicant displays significant social disconnection and was overwhelmed in a group exercise setting.[46] She recommends that the Applicant receive ongoing psychological and exercise physiology support as well as a support worker to assist him in engage with the community.
[46] JTB, A20.
Ms Becky Jackson, mental health nurse, Health Communities Foundation Australia, advised in an undated statement that the Applicant finds it hard to deal with people and lacks confidence to communicate in large groups.[47]
[47] JTB, A22.
Mr Glen Dwyer, occupational therapist, completed a functional capacity assessment on 1 March 2024.[48] Mr Dwyer reported that the Applicant is independent in the domains of communication, learning and mobility.
[48] JTB, R2.
As to social interaction and self-management, Mr Dwyer recommended that the Applicant work with an experienced mental health support worker to increase his tolerance for accessing the community as well as an occupational therapist to assist with independent living skills and techniques to address his anxiety. In respect to self-care, it was recommended that the Applicant engage with an experienced mental health support worker to support him with goal setting, hygiene, planning assistance and to build up his shopping tolerance. It was also suggested that the Applicant be provided with advice about nutrition, diet and house cleaning support in terms of energy conservation, goal setting and task planning.
I have already referred to the independent psychiatric evaluation conducted by Dr Bertucen, via video conference on 24 June 2024.[49] Dr Bertucen stated that the Applicant had advised a number of impairments across a range of domains, including disturbed sleep, impaired concentration, focus and executive functioning, relationship functioning, and poor motivation to undertake self-care activities including exercise and dietary hygiene.
[49] JTB, R4.
Dr Bertucen testified that Dr Qu would be able to make a clear diagnostic picture if the Applicant had remained abstinent for a couple of months prior to the assessment. He echoed his report findings that it would be beneficial that the Applicant engage with alcohol counselling to achieve and maintain sobriety. He concluded his testimony by stating that it would be likely that the Applicant would continue to experience impairments even with optimal treatment, though they may diminish and the Applicant’s subjective sense of wellbeing may improve.
It is noted that Dr Qu’s letter dated 14 March 2025 refers to difficulties in impulse control and spending when the Applicant experiences manic episodes. He also noted that the Applicant engages in significant social avoidance behaviours and continues to experience frequent mood episodes and PTSD symptoms that affect his daily functioning and social engagement.[50]
[50] A24.
At hearing the Applicant testified that he had been sober for about eight or nine months. Ms Hully’s oral evidence was such that the Applicant has had periods of reduced frequency and volume of alcohol consumption since about 2023.
Assessment of the evidence
The Tribunal’s first task is to determine if the Applicant’s circumstances are captured by the deeming provision. On its face, Rule 5.8 prescribes a circumstance in which one or more impairments results in substantially reduced functional capacity. If the deeming provision does not apply, I must then consider the evidence regarding his functional capacity in each domain and determine whether he meets the statutory threshold.
In Foster[51] the Full Court emphasised that the task is to assess the degree to which the person can participate in the activity,[52] focusing not on specific tasks[53] but rather to a more general assessment of the persons’ capacity to undertake an activity with the benefit of assistive technology.[54]
[51] [2023] FCAFC 11.
[52] Foster, [88].
[53] Ibid, [97].
[54] Ibid, [66].
In undertaking the assessment of the Applicant’s functional capacity I adopt the Tribunal’s reasoning in Rooney[55] where it was held that the word ‘substantially’ in paragraph 24(1)(c) of the Act takes its ordinary meaning and so establishes a “significant threshold” that a prospective participant must meet.[56]
[55] Rooney and National Disability Insurance Agency [2021] AATA 3523].
[56] Ibid, [22].
Communication
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake communication activities.
The medical evidence, independent assessments and oral testimony provided by Dr Bertucen, Ms Hully, Mr Dwyer and the Applicant at hearing lead to the conclusion that the Applicant is able to participate effectively and completely in communication activities without assistance from a person, assistive technology and equipment or home modifications.
I conclude that the Applicant’s impairments do not result in a substantially reduced functional capacity in activities requiring communication.
Social interaction
The Respondent contends that the Applicant can access the community and interact socially with others, albeit that he has difficulties in doing so. Therefore, he does not demonstrate a substantially reduced functional capacity in this domain.
I accept without hesitation the Applicant’s written statements and oral testimony regarding the difficulties he experiences in this domain. It is clear that he engages in avoidance techniques to minimise his social interactions with his family members, acquaintances and his local community. He can easily become overwhelmed in social situations and reports that there are periods where he does not leave his home. With assistance from his mental health nurse and exercise physiologist he has participated in social activities, but the evidence suggests that he is not able to sustain these interactions on a medium-term basis.
However, the evidence before me does not support a broader finding that the Applicant has a substantially reduced functional impairment with respect to social interaction. He is able to participate effectively and completely in some social interactions; he can leave his home without assistance to attend his local supermarket (albeit early in the morning) and attend medical appointments with his general practitioner. He can tolerate limited interactions with family members, his neighbour and former wife.
I am not persuaded that the independent evidence before me gives rise to a finding that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring social interaction.
I conclude that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake social interaction activities.
Learning
The Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake learning activities.
Ms Hully refers to deficits in new learning, but did not elaborate. I accept the Applicant’s evidence that he sometimes forgets everyday tasks such as putting his bin out. Otherwise, he and his treating medical and allied health practitioners do not contend that he has deficits in this domain.
At hearing it was not apparent that the Applicant had any cognitive deficits. This is consistent with Mr Dwyer’s assessment.
I conclude that his impairments do not result in substantially reduced functional capacity in activities involving learning.
Mobility
The Respondent submits that the Applicant’s impairments do not result in a substantially reduced functional capacity to undertake activities involving mobility.
The Applicant does not dispute that he is independent in this domain. There is no medical evidence before me to contradict this.
It follows that the Applicant’s impairments do not result in substantially reduced functional capacity in activities involving mobility as required by subparagraph 24(1)(c)(iv) of the Act.
Self-care
The Respondent contends that the impairments for which the Applicant seeks access to the scheme do not result in a substantially reduced functional capacity to undertake self-care.
I accept the Applicant’s evidence that his poor motivation impacts on his ability to meet his self-care needs. He does not shower or change his clothes every day. He has experienced difficulties in undertaking general household chores and prepares only simple meals, low-nutrition meals. He generally only finds the motivation to clean his home when there is an upcoming inspection.
I also accept Mr Dwyer’s recommendation that the Applicant would benefit from house cleaning support, with a gradual reduction as he builds his tolerances and routines. At hearing Mr Dwyer reported that in this domain, and in self-management, the Applicant is “on the cusp” of being able to complete some self-care activities independently.
Foster decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of self-care (in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed. The Full Court relevantly observed:
64.In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
65.Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.[57]
66.The question to which the Tribunal should have directed itself was whether Mr Foster’s impairment, about which there was no dispute, resulted in Mr Foster’s having substantially reduced functional capacity (s 27(b)) to undertake the activity of self-care (s 24(1)(c)). For the purposes of the NDIS, the activity is not “toileting”; the activity is “self-care”. In considering that question, the Access Rules directed the Tribunal to consider whether Mr Foster was unable to participate “effectively or completely” in self-care “without assistive technology”. The “assessment tools” set out in the Guidelines cannot dictate the answer to that question.
67.Self-evidently Mr Foster is able to toilet himself. His impairment inhibits his ability to urinate; he is able to void his bowels. He remains capable of voiding his bladder independently as and when required, albeit with the use of a catheter. This was an agreed fact. As the Guidelines explain, consistently with a multi-faceted, functional assessment, “[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity”.
[57] Foster, [64]-[65].
I am not persuaded that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring self-care.
I accept that the Applicant cannot consistently meet some self-care tasks. Having said that, he can independently undertake grooming tasks, prepare meals, undertake laundry and complete some basic household cleaning tasks.
On balance, I conclude that the Applicant’s impairments do not result in substantially reduced functional capacity in activities involving self-care as required by subparagraph 24(1)(c)(v) of the Act.
Self-management
The Respondent contends that the Applicant’s impairments in this domain do not result in a substantially reduced functional capacity.
I accept that the Applicant is generally able to manage his finances, except when experiencing a manic episode. He has adopted various adaptive techniques including online shopping and direct debiting of household expenses. However, this is not always successful; Mr Dwyer noted that the Applicant did not have sufficient funds to purchase food on the day of assessment. Mr Dwyer, appropriately in my view, recommends that the Applicant be provided professional support to assist him with planning and organising and techniques to address his anxiety.
The evidence establishes that the Applicant can become easily overwhelmed when anxious, which impacts on his planning and timely completion of tasks. The Applicant can plan and attend medical appointments with his general practitioner, though avoids undertaking medical assessments that require him to attend unfamiliar environments. He manages his own medications, prioritising this as he wishes to avoid an acute mental health episode.[58] It is apparent that the Applicant is able to problem solve and make decisions.
[58] JTB, A4.
It is apparent that the Applicant is able to participate effectively in activities of self-management notwithstanding the fact that he may benefit from assistance from others to build up his skills in this domain.
I am not persuaded that the deeming provisions set down in Rule 5.8 are satisfied in respect of activities requiring self-management.
I conclude that the Applicant’s impairments in this domain are sufficient to give rise to a finding that he has a substantially reduced functional capacity in activities requiring self-management.
Conclusion
Having concluded that the Applicant does not satisfy paragraph 24(1)(c) of the Act, I am not required to consider whether the Applicant’s impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e) of the Act.
I conclude that the Applicant does not meet the disability requirements in accordance with section 24 of the Act.
EARLY INTERVENTION REQUIREMENTS
I will now consider whether the Applicant satisfies the early intervention requirements for access to the scheme as set down in section 25 of the Act.
Are the Applicant’s impairments permanent?
As already set out at paragraph 11 above, a person meets the early intervention requirements if the person has impairments that are, or are likely to be, permanent or the person is a child who has developmental delay. Access Rules 6.4 to 6.7 with respect to section 25 of the Act mirror Rules 5.4 to 5.7 relating to section 24.
Self-evidently, the Applicant is not a child who has developmental delay. Therefore, subparagraph 25(1)(a)(iii) of the Act is not made out.
I have already concluded that the Applicant’s impairments are permanent. Therefore, paragraph 25(1)(a) of the Act is satisfied.
Will provision of early intervention supports reduce the Applicant’s future needs for support?
The Applicant has received long-term and intensive psychological support from Ms Hully. This has not led to a significant change in his level of impairment, notwithstanding the fact that the Applicant credits Ms Hully with him still being alive.
Whilst I accept that Mr Dwyer opined in his report that with some immediate support in household management and cleaning the Applicant may not require longer-term household management support. At hearing Mr Dwyer testified that given the long-standing nature of the Applicant’s disability it is more likely than not that he would require some level of baseline support, particularly given the Applicant’s statements to Dr Bertucen regarding his alcohol consumption.
I am not sufficiently persuaded that early intervention supports would build the Applicant’s capacity to such an extent that it would reduce the functional impact of the Applicant’s impairments. The requirements of paragraph 25(1)(b) of the Act are therefore not met.
Having concluded that the Applicant does not meet the requirements of paragraph 25(1)(b) of the Act, I am therefore not required to consider paragraphs 25(1)(c) and (d) of the Act.
As section 25 of the Act is not met, the Applicant does not meet the early intervention requirements that would enable him to become a NDIS participant under this provision.
CONCLUSION
The Applicant does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act.
Therefore, the decision under review is correct and so is affirmed pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing: 26 to 27 March 2025 Advocate for the Applicant: E Knight, Disability Advocacy NSW Solicitors for the Respondent: S Miller, Sparke Helmore Lawyers
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