VWBX and National Disability Insurance Agency - [2022] AATA 2736

VWBX and National Disability Insurance Agency [2022] AATA 2736 (19 August 2022)
AppID: VWBX and National Disability Insurance Agency
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2020/2653
Re:VWBX
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:19 August 2022
Place:Sydney

The decision under review, made by the National Disability Insurance Agency on 16 March 2020 is affirmed.
...............................SGD.........................................
Mr Rob Reitano, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access to scheme - whether Applicant meets NDIS access criteria – whether Applicant meets the disability or early intervention requirements - Child Applicant – whether impairments are permanent- whether impairment results in substantially reduced functional capacity – whether provision of early intervention supports is likely to reduce the Applicant’s future needs for supports in relation to disability Social Anxiety Disorder – Generalised Anxiety Disorder - Hypermobility Spectrum Disorder -Dysgraphia - Attention Deficit Hyperactivity Disorder – Early Intervention Supports- Specific Learning Disorder - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42DNational Disability Insurance Scheme Act 2013 (Cth) ss 22, 23, 24, 25
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)
CASES
Mulligan and National Disability Insurance Agency [2014] AATA 374
Mulligan and the National Disability Insurance Agency [2015] AATA 974
SECONDARY MATERIALS
National Disability Insurance Scheme Operational Guidelines - Access
REASONS FOR DECISION
Mr Rob Reitano, Member
19 August 2022

A person who wishes to participate in the National Disability Insurance Scheme (NDIS) is required to meet each of the access criteria in ss.22, 23, 24 and 25 of the National Disability Insurance Scheme Act 2013 (Cth) (Act).
On 16 March 2020, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) following an internal review of an earlier decision declined the Applicant’s request for access to the NDIS because the Applicant did not meet the access criteria.
On 11 May 2020, an application for a review of the decision of the delegate of the CEO was made following an extension of time granted to the Applicant to file the application.
I have decided to affirm the delegate’s decision and what follows are my reasons for making that decision.
I should indicate that because a confidentially order was made in this matter as the Applicant is a child I have used initials for all of the witnesses except for the Applicant’s mother and father who are referred to as the ‘Applicant’s mother’ and ‘the Applicant’s father’, so as to preclude as far as possible any prospect that the Applicant might be identified from these reasons.
Background
The Applicant is 13 years of age. The Applicant is an Australian citizen and resides in suburban Sydney. He attends school in suburban Sydney as well.
The Applicant is described in very positive terms by a range of people with one of doctor describing him as ‘a happy, chatty, bright and enthusiastic boy’, and an expert in the proceedings remembering him as ‘happy and co-operative’ and giving answers that were ‘honest and straightforward’. He has also been described as presenting as ‘well-mannered and socially engaged’. His school reports also cast him in a very positive light having been school captain, a position usually associated with social acceptance and popularity amongst peers, and indicate he has some mathematical ability. His class teacher described him as having a ‘sweet nature’ and ‘an absolute pleasure to teach.’ His parents are clearly loving and devoted parents. On all accounts he is a lovely child.
The Applicant has had some disabilities for some years. Those which were claimed to support his request for access to the NDIS were hypermobility spectrum disorder, general anxiety, specific learning disorder - reading (dyslexia), specific learning disorder - writing, attention deficit hyperactivity disorder (ADHD), dysgraphia and although before the hearing of the matter the Applicant indicated that he no longer relied on general anxiety as a basis for seeking access to the NDIS but rather relied more generally on mental illness.
The regulatory scheme
As I have already observed, access to the NDIS is subject to an applicant satisfying the access requirements. The scheme of the legislation so far as access to the NDIS is concerned, at least in its terms, is relatively straightforward although one can well understand that to the lay person unfamiliar with legislative drafting and legal matters it might be more than a little daunting. It is found for the most part in ss. 21, 22, 23, 24 and 25. It is helpful to set those sections out and to make some particular observations about them along the way.
Section 21 of the Act 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).
(2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:
(a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1));
(b) the person:
(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and
(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;
(c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports.
(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21‑day period referred to in section 20; or
(b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14‑day period referred to in that subsection.
Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
The terms of s.21 require the CEO to make an evaluative judgment about the matters that are found respectively in ss. 22, 23, 24 and 25. This is because of the words ‘is satisfied that’ in each of the nominated sections. The state of satisfaction is required to be a positive or affirmative one based on the evidence that the Tribunal has before it. It is also important that each of the requisite states of satisfaction, except for the age requirement, must be gained at the time of considering the request.
The Tribunal stands in the shoes of the CEO. The Tribunal is required to address the same matters that the CEO was required to and make up its mind whether it is satisfied about them for itself. The material before the Tribunal often, like in this case, includes more information than was available to the CEO. The Tribunal is required to be satisfied about the same things that the CEO was required to be satisfied about although it is considering the request on the material the Tribunal has available before it.
Section 22 of the Act deals with the first of the requirements which is about age. It is relatively straightforward and is not an issue in this matter. It provides:
(1) A person meets the age requirements if:
(a) the person was aged under 65 when the access request in relation to the person was made; and
(b) the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules.
(2) Without limiting paragraph (1)(b), National Disability Insurance Scheme rules made for the purposes of that paragraph:
(a) may prescribe that a person must be a prescribed age on a prescribed date or a date in a prescribed period only if the person resides in a prescribed area of Australia; and
(b) may prescribe different ages and different dates in relation to different areas of Australia.
Section 23 of the Act deals with the second of the requirements which is about residence and it too is not controversial in this matter. It provides:
(1) A person meets the residence requirements if the person:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder; and
(c) satisfies the other requirements that are prescribed by the National Disability Insurance Scheme rules.
(2) In deciding whether or not a person resides in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
(3) Without limiting paragraph (1)(c), National Disability Insurance Scheme rules made for the purposes of that paragraph:
(a) may require that a person reside in a prescribed area of Australia on a prescribed date or a date in a prescribed period in order to meet the residence requirements; and
(b) may require that a person has resided in a prescribed area for a prescribed period in order to meet the residence requirements; and
(c) may require that a person continue to reside in a prescribed area of Australia in order to meet the residence requirements; and
(d) may require that a person satisfy a prescribed requirement relating to either or both of the following:
(i) the purpose for which the person resides in a particular geographical area;
(ii) exceptional circumstances applying in relation to the person.
Section 24 of the Act sets out what are known as the disability requirements. They are at the core of much of the controversy in this matter. Section 24 provides:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the Act is an alternative basis to enter the NDIS which is based upon early intervention. I will deal with the detail of the section later but for now it is only necessary to recite its terms. It provides:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In order to engage s.25(1) the Tribunal must be satisfied about each of the matters in s.25(a), (b) and (c) and even then, there is a discretion which is evident from s.25(3).
The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (Rules) are also relevant because they assist in dealing with the question of whether an impairment is or is likely to be permanent, which is the requirement of s.24(1)(b) and s.25(1)(a).
Rules 5.4, 5.5, 5.6, and 5.7 provide:
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.
Likewise, Rule 5.8 offers assistance in determining whether a person has ‘substantially reduced functional capacity’ for the purpose of s.24(1)(c). Rule 5.8 provides:
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.
Finally, the policy contained in paragraph 8.5 of the National Disability Insurance Scheme Operational Guidelines - Access is relevant and provides:
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person’s lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and the NDIA)[1].
For example, if a person’s support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person’s lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA[2] and Mulligan and NDIA[3].
[1] [2015] AATA 974 at [153]
[2] [2014] AATA 374 at [53]
[3] [2015] AATA 974 at [146] – [150]
ISSUES
The issue is whether the Tribunal is satisfied that the Applicant meets the access requirements in ss. 22, 23, 24(1)(a),(b),(c),(d) and (e) and 25 of the Act. Neither the CEO, or the Tribunal standing in the CEO’s shoes, have the power or discretion to depart from any of the requirements that must be met before a person has access to the NDIS. If any one of the requirements are not met a person must not be admitted to the NDIS.
It is necessary to deal with each of the access criteria in the sections I have referred to in turn. It will be seen that some of the access criteria only need to be briefly addressed because the Agency did not contest them and because the Tribunal can be well satisfied they have been met.
Section 22 - Age

The Agency conceded and I am satisfied that the Applicant was under 65 years of age when the access request was made and that there are no requirements in relation to age in the Rules that preclude him from access to the NDIS.
Section 23 – Residence
The Agency conceded and I am satisfied that the Applicant is a resident of Australia, an Australian citizen, and satisfies the other requirements of the Rules so far as residence is concerned.
What are the relevant disabilities (s.24(1)(a))?
As I have already observed s.24(1) sets out the disability requirements that must met. The first is in s.24(1)(a) and is that the person must have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, physical, or psychological or psychiatric impairments. It is convenient to address each of the disabilities that were claimed to satisfy the requirements of those sub-sections. I will deal first with the three impairments that were not contentious and then with the three that were.
Before dealing with them I should deal with two additional matters. The first is that in preparation for the hearing the Applicant was asked to provide a document that set out the relevant impairments that were relied upon in seeking to meet the access requirements. That is the origin of the identification of the six impairments that I consider below. At the end of the hearing there was some suggestion by the Applicant that he relied upon Severs disease as an impairment. Aside from the procedural difficulty presented by dealing with a matter raised at the end of the hearing the real difficulty is that there was no evidence directed to that impairment, whether it was permanent or likely to be permanent, its nature and whether or not it resulted in substantially reduced functional capacity. I am unable to make any findings about that because the evidence did not deal with it.
The second is that in the course of the hearing the pplicant tendered a document that set out what the Applicant had ‘discovered’ from research such as by using the internet and from the Applicant’s mother’s general knowledge about criteria for various diagnosis that were relevant to the impairments in this case. The document was then submitted to Dr RH for him to indicate what he observed about the relevant criteria. The types of things recorded in the document were ‘forgetful in daily activities’ or ‘anxiety’ or ‘fatigue’. The document it seems was intended to be used as a diagnostic tool or to illustrate the functional impact of the diagnoses on the Applicant. In either case I do not understand how the document is intended to work, or how it achieves the conclusions expressed. It is sufficient to indicate I do not consider that it is of any use in determining the medical questions concerning the impairments in issue, their permanence or likely permanence and their functional impact upon the Applicant. The expert evidence given in the hearing was much more informative and directly relevant to those issues.
Hypermobility Spectrum Disorder
Hypermobility Spectrum Disorder occurs where children with joints that move beyond normal limits suffer from pain in many joints, muscle pain, or fatigue.
The Agency conceded, and I am satisfied, that the Applicant has an impairment which is Hypermobility Spectrum Disorder which is attributable to one or more intellectual, cognitive, neurological, sensory, physical, or psychological or psychiatric impairments. The concession about Hypermobility Spectrum Disorder was supported by the medical evidence although qualified on the basis that the Applicant did not suffer from hypermobility in his ankles.
The medical evidence that supported the existence of the impairment was from Dr RH, a Consultant Paediatrician who first saw the Applicant in late 2016 and who has been treating the Applicant since 2017, Dr LT, a Rehabilitation Paediatrician who provided a report dated 5 February 2020 and Dr JM, a Paediatrician retained by the Agency who prepared two reports the first of which dated 23 September 2020 diagnosed the condition. A physiotherapist, Ms AP also noted hypermobility on examination of the Applicant ‘around both knees, elbows, 5^th finger and the distal interphalangeal joints of his fingers’. Dr JM did not diagnose any hypermobility in the ankles and considered that ‘[the Applicant’s] hands did not demonstrate generalised hypermobility (e.g. his thumbs had normal mobility)’. Dr JM nonetheless frankly said that he would not question Dr LT’s diagnosis ‘given her expertise in this area’.
There was an issue about whether the Applicant suffered from hypermobility in his ankles. That issue is quickly disposed of. Dr LT in her report of 5 February 2020 did not refer to hypermobility in the ankles observing it only in ‘both little fingers, both elbows and both knees’. Ms AP did not observe hypermobility in the Applicant’s ankles. The only doctor who undertook any tests concerning hypermobility in the Applicant’s ankles was Dr JM who found no hypermobility in the ankles. I accept Dr JM’s evidence that there was no hypermobility in the Applicant’s ankles.
There was also an issue late in the hearing that the Applicant’s Hypermobility Spectrum Disorder was ‘masked’ by ‘Sever’s disease’. There was no evidence from any of the doctors who gave expert evidence to support that suggestion. I am unable to make such a finding because it is essentially one for medical evidence and as I have said there is none that suggest the Applicant has that disease and even if he does that it ‘masks’ his Hypermobility Spectrum Disorder.
I am satisfied that the Applicant has the disability known as Hypermobility Spectrum Disorder.
Dysgraphia
The Agency conceded and I am satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or to one or more impairments attributable to a psychiatric condition that falls within the s.24(1)(a) which is Dysgraphia.
Dysgraphia is usually associated with things like ‘difficulty with spelling, poor handwriting and/or trouble putting thoughts on paper’. For the Applicant, it came down to ‘challenges in handwriting and subtle difficulties in spelling’ that confirmed the diagnosis and a possible contributing factor involving ‘the cognitive formulation of what he wishes to write as well as the mechanics of handwriting’.
The evidence of Dr RH, albeit that he hesitated and would ‘defer to a paediatric occupational therapists’ opinion on the issue, and that of Dr JM firmly supports a conclusion that the Applicant is impaired by Dysgraphia. Again, there was some disagreement between the doctors, at least on the face of things, as to the severity of the Applicant’s impairment with Dr RH initially saying it was severe, but later agreeing with Dr JM’s evidence that it was moderate. In the end both doctors agreed that the Applicant’s Dysgraphia was moderate, but in any event, I prefer Dr JM’s evidence because it was consistent.
Attention Deficit Hyperactivity Disorder
The Agency conceded and I am satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or to one or more impairments attributable to a psychiatric condition that falls within the s.24(1)(a) which is Attention Deficit Hyperactivity Disorder.
In early 2020 the Applicant was diagnosed by Dr RH with Attention Deficit Hyperactivity Disorder. Dr JM agrees with that diagnosis. The Applicant’s Attention Deficit Hyperactivity Disorder is controlled by medication. There was no evidence that from either Dr RH or Dr JM that suggested otherwise.
Specific Learning Disorder with Impairment in Reading (Dyslexia)
The first of the contentious impairments is Specific Learning Disorder with Impairment in Reading which ‘is a learning disability that is neurobiological in origin. It is characterised by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.
Following an assessment on 17 September 2019, Ms KS, a psychologist, prepared a report in which she said that the Applicant had symptoms ‘consistent with’ the impairment of ‘Specific Learning Disorder with Impairment in Reading (word reading accuracy)/Dyslexia (mild severity)’.The ‘assessment’ that were behind the report were undertaken by a Ms HM. Ms HM appears to have no qualifications, certainly none that are in evidence, of a medical or psychological kind. It is significant that the person who undertook the assessment was not a qualified psychologist, and it is not at all clear what qualifications Ms HM had to conduct such an assessment. Further, the assessment was carried out when the Applicant was unwell with bronchitis and when he was engaging in school refusal. That on the face of things suggest that it was conducted at a time that was, perhaps, less than optimal.
There are two other aspects of Ms KS’s report that are worthwhile noting a little more than in passing. First, Ms KS expresses her diagnosis as being one of ‘mild severity’. Second, it is significant that Ms KS observes that the Applicant ‘had been able to mask his reading disability with his strong oral language skills that he has been able to read connected text and comprehend despite poor accuracy and difficulty in applying letter-sound relationships to working out unknown words.’ These observations suggest that the symptoms ‘consistent with’ the impairment involved judgments that were finely balanced.
I should say before addressing the specialist paediatric evidence that I reject the suggestion that either Dr RH or Dr JM were not qualified by their training and experience to diagnose Dyslexia as was suggested by the Applicant’s mother. Their work as paediatricians and their training and qualifications places them in a position where they are well qualified to express such opinions. I certainly consider that both of them were more qualified to express an opinion about that question than a lay person. Further, having regard to their agreement to give their evidence as an expert I have little doubt that both of them would have told the Tribunal that they were not so qualified if they considered that was so.
Dr RH expressed the opinion that the Applicant has severe challenges with reading and has been diagnosed with specific learning disorder with impairment in reading’. There was little or no explanation as to the basis upon which Dr RH made that diagnosis. In the absence of an explanation that suggested the reasons for making that diagnosis, such as submitting the Applicant to testing or having regard to some objective evidence, it is difficult to place any considerable weight on Dr RH’s opinion even if he did have the benefit of seeing the Applicant annually between 2016 and the beginning of 2020 and every few months throughout 2020. Significantly Dr RH relied upon Ms KS’s ‘diagnosis’ and Ms HM’s assessment as he did not ‘do that sort of testing because its generally done by an educational psychologist or speech pathologist’. It is noteworthy, again, that Ms HM does not appear to have held those qualifications. In the end Dr RH after being shown some of the detail in recent school reports and being shown parts of Dr JM’s assessment as well as other information that was now available to him said it would be necessary to undertake further testing to determine the validity of the diagnosis, or more accurately to be confident about the opinion that he had when he gave evidence.
In any event, I prefer the evidence of Dr JM in his two reports of 23 September 2020 and 25 March 2021 to that of Ms KS and Dr RH. I do so mainly because of Dr JM’s expertise by reason of qualification and experience over 25 years in the fields of developmental and behavioural paediatrics and in children’s learning disorders. His expert opinion was reasoned and coherent. Dr JM’s evidence was easy to understand and expressed in a manner that was moderate and confident. It is also relevant that the assessment he made of the Applicant was personally undertaken by him.
In his report dated 25 March 2021 Dr JM set out the diagnostic criteria for ‘Specific Learning Disorder – Literacy’, which is another name for the same disability. He said that those criteria included a problem that persists despite intervention for at least 6 months which result in performance statistically and functionally below that for an expected age which manifests in problems in early school life, and which is not better explained by something else. The relevance of the diagnostic criteria for this purpose is not to suggest some lay application of diagnostic criteria but is to give some context to the disability that is being addressed. Dr JM did not agree with the diagnosis of Specific Learning Disorder – Literacy’. He said of Ms KS’s diagnosis:
I am not convinced by the diagnosis of Specific Learning Disorder – Reading (SLD-R). It is probable that [the Applicant] struggled with literacy in the past, however he appears to have ‘caught up’ with additional tuition. SLD-R communicates, to my understanding, a more fundamental impairment of literacy that is not recovered to this extent, with this level of intervention.
By the words ‘I am not convinced…’ Dr JM conveyed his disagreement with the diagnosis and by the words ‘to my understanding…’ that there is some concession that his understanding might not be completely correct.
The more compelling aspect of Dr JM’s report concerning this impairment concerns his reasons for the opinion he formed; notably, relying as he did on the fact that Ms KS’s formal tests involving reading and comprehension found that the Applicant’s results were ‘average’, that the Applicant’s school reports had identified no significant impairment, that the Applicant had responded to intervention (that is, additional tuition from a tuition provider and through what was known as MacqLit) such that his reading skills were normal following intervention, and that his own testing of single word reading skills placed the Applicant in the average range. That testing included use of the Burt Word Reading Test (revised) that placed the Applicant (who was then 11 years of age) ‘just above a 12-year-old level’.
Dr JM, after noting that the Applicant did not meet the diagnostic criteria for ‘Specific Learning Disorder – Literacy’, made clear that he did not wish to imply that the Applicant’s skills ‘are normal, but rather fell in the ‘space where skills are problematically ‘weak’ for age, rather than categorically impaired’. On reviewing some of the Applicant’s school reports Dr JM considered that they ‘indicated that [the Applicant] has a functional weakness in literacy’ but that ‘he could not see sufficient data on the ongoing severity of the problem, or the lack of response to 6 months intervention that comprise the diagnostic criteria for’ Specific Learning Disorder – Literacy’.
I am not satisfied on the material before me that the Applicant has the impairment of Specific Learning Disorder with Impairment in Reading because Dr JM’s evidence casts sufficient doubt over the diagnosis of Ms KS and of Dr RH so that I am unable to arrive at a level of satisfaction about the diagnosis of the impairment.
General anxiety or other mental health condition
So far as the chronology of the Applicant’s ‘anxiety’ is concerned it is important that when Dr RH saw the Applicant in the latter part of 2017, he did not consider that the Applicant’s anxiety was clinically significant even though he prepared a Mental Health Care Plan and referred the Applicant to a psychologist.
The first diagnosis of the Applicant suffering Generalised Anxiety Disorder was by Dr RH and was recorded in his letter of 4 February 2020. That letter did not say a great deal about how Dr RH came to diagnose the condition recording that the Applicant had attended the doctor since November 2016 and had ‘experienced difficulties primarily because of an anxiety disorder and severe learning disorder and severe graphomotor dysfunction’. It also said that ‘[the Applicant] has developed an anxiety disorder including separation anxiety. This resulted in debilitating school refusal behaviours developed during 2019’. The diagnosis appears on the face of things to be based upon what was reported to Dr RH about separation and school refusal behaviours. There was no suggestion at any time by Dr RH that any of conditions he diagnosed so far as anxiety and mental health had anything to do with medication that the Applicant was taking for Attention Deficit Hyperactivity Disorder
A further letter of Dr RH dated 21 May 2020 recorded under the heading ‘Clinical Impression’: ‘Generalised anxiety disorder with marked separation anxiety and school refusal behaviours commencing during 2019, with associated reduction in self-esteem. Dysthymic mood changes evident during COVID-19 pandemic. Commenced fluvoxamine May 2020.’ To the extent that what was recorded in that letter was a diagnosis of General Anxiety Disorder it relied upon the reports of the Applicant’s mother, so much is apparent from the terms of the letter itself which was confirmed by the Applicant’s mother’s evidence in the Tribunal. The letter referred, for example to ‘[the Applicant’s mother] informed me that [the Applicant] had found home schooling very challenging’ and that when the Applicant’s mother asked him ‘to start a task or complete a task’ the Applicant ‘overreacts and says, ‘shoot me’ or ‘I want to kill myself’. The letter went on to say that ‘[the Applicant] has expressed thoughts of self-harm and appears anxious when expected to attend to chores and academic tasks’. The letter recorded so far as the Dr RH’s observation that ‘[the Applicant] did not seem overtly depressed or anxious.’ Dr RH based his diagnosis on what had been reported to him by the Applicant’s mother.
On 17 August 2020 Dr RH prepared another letter that followed some enquiries by the Agency. The letter again repeated the diagnosis of Generalised Anxiety Disorder. It did not cast much light on the basis for the diagnosis. In his evidence Dr RH said that ‘Dr JM is not a child and adolescent psychiatrist who would be the medical professional with the great expertise in matters relating to anxiety and mood disorders in children and adolescents…’ As will be seen Professor SE is a child and adolescent psychiatrist who saw the Applicant and did not diagnose any mental health condition.
Dr JM did not agree with the diagnosis of Generalised Anxiety Disorder recording that the Applicant’s anxiety in 2019 was ‘in part at least, reactive to life circumstances’. He said he saw little evidence the signs of Generalised Anxiety Disorder which included ‘biological causation, a pervasive impact across multiple areas of life and a consistency of impact over time’. It is the identification of these kinds of things, and notably their absence, that gives to Dr JM’s opinion greater weight. That in his opinion is reasoned very clearly in his report. Dr JM’s identification of the difference between an ‘anxious temperament that makes him vulnerable to adversity’ and Generalised Anxiety Disorder’ is both understandable and, in context, rational. In simple terms that someone might be anxious is one thing, that they might suffer a mental illness such as Generalised Anxiety Disorder is another.
Professor SE, a professor of child and adolescent psychiatry who specialises in developmental disorders of children provided an expert opinion about whether he considered that diagnosis of the Applicant with Generalised Anxiety Disorder and separation anxiety were ‘appropriate’ and whether any other anxiety or psycho social diagnosis was appropriate. Professor SE was asked a series of consequential questions, but the starting point was clearly his clinical opinion about whether the Applicant was impaired by reason of Generalised Anxiety Disorder or some other mental illness. Professor SE was provided with Dr RH’s letter of 17 August 2020 as well as a great deal of the documentary material that was in evidence. Professor SE also conducted interviews with the Applicant and his parents on two occasions in March 2021 which were undertaken for the purpose of preparing his opinion.

Professor SE’s opinion was set out in two letters of 16 April 2021 and 5 May 2021. The first letter recorded particular documents that he had available to him and in particular referred to ‘possible anxiety symptoms in the past’ which was referred to particular events that were happening in 2019. It also referred to a reported incident in early 2021 which involved the Applicant attempting to cut himself with a Swiss army knife and wrapping a strap around his neck. Professor SE expressed the opinion that that episode was not indicative of a mental disorder and was more likely related to the Applicant feeling overwhelmed or confronting new challenges at the time. Professor SE also referred to the Applicant’s ‘school refusal’ and very deliberately pointed out that this was the only area of dysfunction that he could identify and that ‘school refusal is not synonymous with separation anxiety’ and that it is ‘quite erroneous to regard them as synonymous’. Professor SE concluded that it was not clear that the Applicant’s school refusal was a result of anxiety.
It is convenient to add here that the Applicant’s school refusal was very much historical being characteristic of his schooling in late 2019. It had largely resolved by the time of the hearing with absences from school after the latter part of 2019 being attributable to illness. To the extent that the Applicant’s mother suggested that school refusal continued after the end of 2019 I reject her evidence. It is not consistent with the objective evidence and is not consistent with the evidence that the Applicant attended school throughout 2020 without any apparent instances of refusal and certainly without any ongoing or significant issues.
Returning then to Professor SE’s opinion. Professor SE said in his report that his impression was that the Applicant ‘has a vulnerability to respond to stresses with anxiety, and this causes him to have anxiety symptoms from time to time’ but went on to say that ‘these do not cause either sufficient distress or sufficient dysfunction to meet criteria for a diagnosis of mental disorder’. He went on to say he did not diagnose any anxiety disorder and did not think the Applicant had Generalised Anxiety Disorder or Separation Anxiety Disorder. He concluded that in his opinion the Applicant did not have any mental disorder diagnosis. The second letter updated Professor SE’s opinion because some further documents had come to light, but they did not alter the opinion Professor SE had expressed in his earlier letter. I accept Professor SE’s evidence especially because of his expertise but also because it rationally explains the reasons behind his opinion and was informed by the available historical and contemporary evidence.
On 22 June 2021, Mr NS, a registered psychologist who had seen the Applicant ten times wrote a letter to one of the Applicant’s doctors in which he described in a little detail the circumstances that were confronting the Applicant surrounding the episode of self-harm referred to in Professor SE’s report and the ‘significant stressors in the home related to his older brother’s struggle with mental health, his father’s struggle with mental health, and complex family dynamics, as well as difficulties managing academically at a new school (i.e. related to prior diagnoses of dyslexia and dysgraphia) may be contributing factors.’ Significantly after describing aspects of the sessions the letter went on: ‘in regard to diagnosis, [the Applicant] presents with features of Social Anxiety Disorder with specifier of performance only, however he does not meet full diagnostic criteria’ and that ‘it is not clear whether social anxiety is the driving factor contributing to his impairment’.
The advantage the psychologist had over others is that he had the benefit of ten sessions with the Applicant. The letter he prepared identifies coherently the nature of the issues that were dealt with. Apart from anything else the letter does not identify or diagnose Generalised Anxiety Disorder in a context where diagnostic criteria for anxiety related conditions are discussed and expressly identifies for the one condition in play, Social Anxiety Disorder, that the diagnostic criteria even for that were not met.
I am not satisfied that the Applicant suffers from Generalised Anxiety Disorder or any other mental health condition because of the expert opinions. The sheer weight of expert opinion, in particular that of Dr JM and Professor SE as well as the recency and extent, that is over ten sessions, of Mr NS’s experience of the Applicant strongly suggest that the Applicant does not have Generalised Anxiety Disorder or any mental health condition. I cannot be satisfied that the Applicant does have such conditions in the face of that evidence.
Specific Learning Disorder – Impairment in handwriting
On 2 December 2019 Dr RH wrote in a letter to the Applicant’s general practitioner that Ms KS ‘noted that [the Applicant] presented with difficulties in writing and was at risk for a specific learning disorder, with impairment in writing.’ Dr RH repeated that in some of his later reports and although he referred in his report of 17 August 2020 to the Applicant ‘experiencing … specific learning disorder impairment in writing’ he made clear in his oral evidence that he made no such diagnosis. Dr RH’s evidence was at best unclear whether he had made such diagnosis and whether he had sufficient information to make such a diagnosis. There was no substantial evidence that supports a finding that the Applicant is impaired by Specific Learning Disorder Impairment in handwriting which can support a finding that the Applicant is so impaired.
In any event, Doctor JM in his supplementary report of 25 March 2021 expressed the opinion that whilst he considered the Applicant’s functional writing was a ‘demonstrable weakness in his academic profile’ he did not ‘consider it to be a ‘Specific learning disorder (written expression)’. I have earlier expressed the view that having regard to Dr JM’s qualifications and his evidence, was more generally a witness in who I have some considerable confidence, this is particularly so given his expertise in learning disorders.
I am not satisfied that the Applicant is impaired by Specific Learning Disorder Impairment in handwriting.
Are the impairments permanent (s.24(1)(b))?
The next issue is, having found that the Applicant is impaired by Hypermobility Spectrum Disorder, Dysgraphia and Attention Deficit Hyperactivity Disorder, whether those impairments are or are likely to be permanent which is the criteria that is laid down by s.24(1)(b). It is again convenient to deal with each impairment separately.
I will deal first with the Applicant’s Hypermobility Spectrum Disorder. It is necessary to keep in mind that although the impairment was found to exist by the medical specialists who examined the Applicant only two of them expressed opinions about its severity. Dr JM considered that it was at ‘the milder end of severity’ noting that Dr LT considered that ‘the problem could be managed with a set of recommendations without the need for follow up’.
Dr RH initially described the impairment as ‘benign joint hypermobility’ and later expressed the opinion that ‘[the Applicant’s] anxiety disorders, specific learning disorders, severe graphomotor dysfunction, hypermobility spectrum disorder and attention deficit/hyperactivity are likely to cause permanent impairments and remain a lifelong problem’. Dr RH did not, it appears, dissemble the impairments in identifying whether any one of them were permanent or likely to be permanent. In any event given my observations about Dr JM’s evidence on other matters and the acceptance of Dr LT opinion by him I prefer Dr JM’s opinion.
Further, there was some other evidence that supported the position that the Applicant’s condition was mild, in particular his year 7 school report referred to his ‘proficient movement skills in a range of contexts’ and his ‘capacity to transfer skills to a variety of challenging movement situations’. That observation by the Applicant’s Personal Development, Health and Physical Education teacher is valuable because it is more probable than not an observation made over time, namely Semester 1 of the school year, and by someone who would have particular skills in making such observations.
Dr LT made a set of recommendations that concerned things like the use of orthotics and regular exercise for strength and control but did not consider ‘specific physiotherapy per se’ was necessary or that routine follow up should occur. Dr LT did not in terms deal with the issue of permanence either generally or specifically in terms of the matters to which the Act and the Rules refer but the kinds of things that are contemplated appear to suggest that the impairment was one that could be managed over time.
Dr JM specifically addressed the question of whether the Applicant’s Hypermobility Spectrum Disorder was permanent or likely to be permanent. His opinion was qualified by the words ‘to my understanding’ because he conceded he was not an expert in the area. His training and experience, however, equipped him to express some views about the issue. His opinion was that the permanence of the impairment would depend upon how it was managed ‘during the childhood and teenage years’ and ‘if sensible precautions are taken to prevent injury, along with strengthening, ankle management (to prevent contractures) and prosthetic support, it would be my opinion that impairment into the future is unlikely’.
The opinion expressed by Dr JM is the only direct medical evidence concerning the question of permanence or likely permanence of the Applicant’s Hypermobility Spectrum Disorder. That opinion is to a large extent supported by Dr LT who did not suggest that the impairment would be permanent or likely to be permanent and suggested that strengthening and control activities should be engaged. The latter was presumably to deal with the impairment in a manner that is consistent with what Dr JM was suggesting. Dr LT did not suggest any programme of treatment or routine for future evaluation.
The Rules provide that ‘an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical or other treatments that would be likely to remedy the impairment’. Dr JM’s evidence as well as that of Dr LT’s suggests that there are known, available and appropriate evidence-based treatments that are likely to remedy the Applicant’s Hypermobility Spectrum Disorder such that impairment into the future is unlikely.
The opinion expressed by Dr JM confirmed indirectly by Dr LT and the lack of any direct medical or expert evidence that suggests that the Applicant’s Hypermobility Spectrum Disorder is permanent or is likely to be permanent means I cannot be satisfied that it is permanent. At the very best, the evidence is equivocal such that a state of satisfaction is not capable of being arrived at.
There was one other submission made by the Applicant which was so far as it could be discerned suggested that the Applicant’s Severs disease in his ankle had the effect of masking his Hypermobility Spectrum Disorder. There are a number of problems with this submission not least of which was that there is simply no evidence by any of the medical practitioners who gave evidence or provided reports that suggest that the Applicant suffers from Severs disease.
So far as the Applicant’s impairments by Dysgraphia and Attention Deficit Hyperactivity Disorder are concerned again, I am satisfied that those impairments are permanent or are likely to be permanent, in particular based on the opinion expressed by Dr JM in respect to both of them. The Agency conceded that I should be so satisfied. I am satisfied that both of those impairments are permanent or are likely to be permanent.
Is there substantially reduced functional capacity (s.24(1)(c))?
Next, it is necessary to have regard to what the Applicant is able to do or is unable to do by reason of the permanent impairments that I am satisfied he is disabled by, namely Dysgraphia and Attention Deficit Hyperactivity Disorder. That requires consideration of how those impairments impact upon the Applicant’s communication, social interaction, learning, mobility, self-care and self-management.
The main evidence about the Applicant’s functional capacity was a series of reports prepared by Ms KW, a qualified occupational therapist of some 20 years’ experience. Ms KW was initially asked to prepare ‘a report detailing your functional assessment of the Applicant and the outcomes of that assessment’. Ms KW prepared her initial report dated 21 October 2020 informed by much of the relevant evidence in the matter and, significantly, a two and one half hour visit to the Applicant’s house where she spoke to him, watched him and engaged in some activities with him and spoke to his parents. Ms KW had the opportunity to watch and engage with the Applicant. The report dealt with things that were observed by Ms KW as what was reported to her by the Applicant and his mother.
The initial report, especially in aspects of its detail provides insight into the Applicant’s practical capacity to function over the six domains that I have identified which suggest that the Applicant’s functional capacity is not significantly affected by his impairments. The detail of the reports is particularly instructive, but a little care needs to be taken with them as some of the information relied upon by Ms KW was not correct and some of it relied on permanent impairments which I have found the Applicant does not have. In the end, despite those things it is fairly apparent from Ms KW’s evidence that the Applicant does not have substantially reduced functional capacity in any of the six domains.
So far as activities related to mobility were concerned the initial report dealt with things like standing, walking, sitting, lifting, carrying, pushing, climbing, balancing, kneeling, stooping, squatting and reaching, and so on without any suggestion of significant functional difficulty apart from getting tired when walking around for periods of more than thirty minutes, but even then he only needed to rest for a minute or two before continuing on. There was clearly no significant reduction in the Applicant’s mobility as result of the impairments I have found or indeed as a result of anything.
In relation to communication the Applicant was able to communicate effectively with Ms KW for something like a little over an hour. The report recorded that at times the Applicant had difficulty communicating his thoughts. The report dealt with the Applicant’s difficulties with handwriting which meant that ‘on a good day’ he could write a sentence or two and on ‘a bad day’ he could only write a sentence. Significantly he uses a computer for writing speeches and types all of his work at school. His school has put in place a plan that permits him to use a laptop computer to type all of his work in class. He is a confident typist according to what he told one of his psychologists. That his functional capacity for communication in written form could be dealt with by technology, in particular computers and typing, was confirmed by Dr JM and by Dr RH. There was no substantial reduction in the Applicant’s capacity to communicate because of his permanent impairments.
In relation to learning Ms KW was told that the Applicant’s ‘literacy level is at Year 3’. Ms KW deduced that the Applicant had a three-year gap in his reading and literacy skills and that would widen without continuing support but early intervention in reading and literacy would facilitate his communication skills as he grew older.
After being presented with further information, including Professor JM’s report and the Applicant’s semester 2 school report for 2020, Ms KW in her report of 12 April 2021 adhered to her opinion that the Applicant would need academic support above that needed by an ‘average student’ in the future. The Applicant was at the time of Ms KW’s assessment attending fortnightly occupational therapy sessions, had a weekly tutor for reading during school term, attended MacqLit classes three times a week which included reading, dictation, and spelling. Ms KW did not consider that the Applicant would need occupational therapy to ‘participate in school’. Ms KW’s opinion was that the occupational therapy sessions that the Applicant had participated in 2021 were being used to assist the Applicant with his schoolwork and that it would be more efficient for the Applicant for those things to be attended to by his school. The existence of the personal learning plan which engaged access to the learning support team at his school were better placed to deal with the Applicant’s needs. Ms KW considered an occupational therapist or similar specialist might need to be engaged when the learning plan was being reviewed.
The Applicant’s November 2020 school report noted his improvements in learning in particularly improvements ‘across all areas of reading, spelling and writing.’ The Applicant is assisted by his parents with some schoolwork. The report was prepared after Ms KW’s report but nonetheless confirms that the Applicant’s functional capacity for learning was not affected by his impairments and certainly not substantially affected or reduced.
So far as self-care is concerned the report identified that the Applicant was able to shower, clean his teeth (when prompted), toilet (again needing prompting to clean himself and flush), cut his toenails, put his shoes on and tie his shoes laces and comb his hair. He has some difficulty getting for school. He is able to make small meals himself (such as making sandwiches) and can use kitchen utensils. Ms KW concluded the Applicant was independently able to perform self-care tasks.
So far as self-management was concerned Ms KW noted that the Applicant was then 11 years of age so was to some extent reliant on his parents but was able to make decisions himself although he often refused to do things. Ms KW noted that the Applicant was seeing his occupational therapist fortnightly in relation to his executive functioning and that his teachers would need to be prompted to assist in various respects including to study for exams. Ms KW concluded so far as the Applicant’s Attention Deficit Hyperactivity Disorder that it was ‘anticipated that [the Applicant] should not require support with executive functioning beyond that generally provided to a child as they mature, other than increased assistance with planning schoolwork as above.’ Also, to the extent that the Applicant’s Attention Deficit Hyperactivity Disorder might impact upon his capacity to make decisions it was important that his impairment is presently well manage by medication.
The Applicant’s capacity to socially interact was referred to in the report with Ms KW, on the face of things like the other experts who met the Applicant, having no difficulty interacting with the Applicant. Ms KW noted the observation in the Applicant’s school report; that cast the Applicant in a positive light so far as his interpersonal skills were concerned. There was no substantial reduction in the Applicant’s capacity to communicate because of his permanent impairments. Dr RH referred to the Applicant being reluctant to leave the family home or walk with his family members and being tearful when demands were made on him, but none of the evidence about that was attributed to any one or other of the impairments to which his report referred. Even if that evidence were accepted it is difficult to see how it significantly affects the functional capacity to socially interact, it seems rather at the margin on any view of things especially given the other evidence of the Applicant’s social interactions to which I have referred.
In summary, Ms KW suggested interventions involving increased liaison between the Applicant’s parents and teachers, a period of intensive psychological intervention (which was only necessary if the diagnosis of generalised anxiety disorder was maintained) and intermittent occupational therapy to ‘improve his writing and typing for academic purposes and to address deficiencies in relation to his executive functioning due to ADHD.’ Ms KW also considered that intermittent physiotherapy to deal with his joint hypermobility and academic support by continuing the programmes he was undertaking and special consideration for exams due to his Attention Deficit Hyperactivity Disorder as being appropriate interventions.

Ms KW summarised her opinion by concluding that the Applicant’s supports were capable of being met with the education and health systems. So far as his mental health care needs were concerned if the Applicant did not have Generalised Anxiety Disorder Ms KW considered his mental health needs were capable of being met by the public health system. If he had a specific learning disorder, then those needs could be met by the public education system with ‘appropriate advocacy from his parents’. These things would require continuing advocacy by the Applicant’s parents and taking advantage of Medicare funded services. The handwriting aspects of his dysgraphia although requiring ongoing intervention from an occupational therapist could be dealt with by the public health system depending upon the frequency of treatments needed. These matters are important for aspects dealt with later in these reasons. Further, Ms KW expressed the opinion that from time to time, ‘intermittently’ to use her word, the Applicant would require ‘occupational therapy intervention to participate at home and in the community’ to assist him to learn ways to manage his pain and fatigue, the result of his hypermobility spectrum disorder, with some activities.
I am not satisfied that the Applicant’s permanent impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking communication, social interaction, learning, mobility, self-care and self-management.
Capacity for social and economic participation (s.24(1)(d))
Strictly speaking it is unnecessary to deal with this criteria because the criteria in s.24(1I has not been met and as I have observed it is necessary to satisfy each of the criteria in each sub-section of s.24 in order to be admitted to the NDIS. Nonetheless I will deal with this consideration which requires a satisfaction that the Applicant’s permanent impairments of Dysgraphia and Attention Deficit Hyperactivity Disorder affect his capacity for social or economic participation.
So far as economic participation is concerned there is no effect on the Applicant’s capacity for economic participation as he does not participate economically as a young child. Moreover, there is no evidence that either impairment has affected his social participation. There was evidence about his attendance at school and his participation in the types of activities that young boys participate in such as sporting events. He is, so it appears, reasonably popular at his school where he was elected school captain. The kind of things noted by the various experts who spoke to the Applicant, some of which I referred to at the beginning of these reasons, such as his engaging personality all suggest that his permanent impairments do not affect at all his capacity for social interaction.
I am not satisfied that the Applicant’s permanent impairments affect his capacity for social or economic participation.
Is the Applicant likely to require support under the NDIS for his lifetime? (s.24(1)I)
Again, it is not strictly necessary to make any finding about whether the Applicant will require support under the NDIS for his lifetime as I have found that the criteria in s.24(1)I has not been met, but nonetheless I will deal with it albeit briefly.
I earlier referred to Ms KW’s evidence that the Applicant’s support needs could be adequately met through the public education and public health systems. So far as any learning needs are concerned it is important that they are unlikely to be lifelong in nature: they will only persist throughout the years that the Applicant undertakes education. There was no evidence at all that that the Applicant’s permanent impairments would have any affect beyond his formative or educative years such that he would requiring support either from the NDIS or elsewhere for the rest of his life.
I am not satisfied that the Applicant will require support under the NDIS for the rest of his life.
Early intervention (s.25)
Section 25 like s.24 requires satisfaction of each of the criteria identified in s.25(1)(a), (b) and (c). In order to meet the early intervention requirements, it is necessary to consider each of those sub-sections in turn, but before doing so it is necessary to identify what are said to be the early intervention supports that are relevant.
What are the disabilities? (s.25(1)(a))
Section 25(1)(a) requires one of the three criteria in (i), (ii) or (iii) to be satisfied. Sub-section 25(1)(a)(i) lays down the criteria that a person ‘has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent’. I have already found in considering s.24(1)(a) and (b) that the Applicant has Dysgraphia and Attention Deficit Hyperactivity Disorder which are permanent impairments meeting the legislative criteria. The requirements of s.25(1)(a) are met.
Will the Applicant benefit from early intervention supports? (s25(1)(b))
Sub-section 25(1)(b) requires that the Tribunal be 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’. The question raised by the section seems plain enough – if support is provided early on in the piece will it mean that needs for future support will be reduced.
There was no identification of what early intervention supports were considered that would benefit the Applicant for either of his permanent impairments. He currently sees an occupational therapist but that does not appear to be for the purpose of dealing with his Dysgraphia or Attention Deficit Hyperactivity Disorder. Likewise, his attendance with a psychologist and his additional tutoring in reading is not for either of his permanent impairments.
So far as the disability of Dysgraphia is concerned both Dr RH and Dr JM agreed occupational therapy is unlikely to improve things. There was no other evidence that would suggest support by early intervention so far as the Applicant’s Dysgraphia would improve things for the future. As far as Attention Deficit Hyperactivity Disorder there was no evidence at all that any early intervention would assist things for the future.
I am not satisfied that the provision of early intervention supports to the Applicant is likely to benefit him by reducing his future needs in relation to either of his permanent disabilities.
Would early intervention supports be of benefit? (Section 25(1)I)
Section 25(1)I requires that the Tribunal be ‘satisfied that provision of early intervention supports for the person is likely to benefit the person by having one or other of the four effects specified in the section’, because the requirement in s.25(1(b) is not met it is unnecessary to consider it.
Discretion Section 25(3)
The effect of s.25(3) is that the Tribunal even if it finds that the requirements for early intervention supports are met may find that person does not meet those requirements where they are not appropriately funded by the NDIS and are more appropriately funded by a person, agency or body who offers those supports in accordance ‘with reasonable adjustments required under a law dealing with discrimination on the basis of disability’.
I need only deal with the matter briefly because I have already found that s.25(1)(b) is not met, the effect of which is that the early intervention requirements are not met. There are really five propositions that inform the determination of this issue. First, the supports relevant to the Applicant’s Dysgraphia and Attention Deficit Hyperactivity Disorder arise from the Applicant’s education requirements which are the responsibility of the Department of Education. Second, the Department of Education is required by the Disability Standards for Education to make reasonable adjustments for people with disabilities. Third, those reasonable adjustments provide amongst other things for personalised learning and support which includes access to specialist teachers and individual learning plans. Fourth, in practice the school that the Applicant attends has an individual learning plan for the Applicant. Fifth, the Applicant’s treating paediatrician Dr RH agreed that the learning plan supported the Applicant’s needs so far as his two permanent impairments, Dysgraphia and Attention Deficit Hyperactivity Disorder were concerned. It follows that both the legal and practical obligation is that of the Department of Education and not one for the NDIS. That so much is so follows from the Department’s implementation of the individualised plan.
Even if the Applicant satisfied the requirements of s.25(1) I would have found that the requirements for early intervention are not appropriately funded by the NDIS and are more appropriately funded by the Department for the reasons I have given..
DECISION
I am not satisfied that Applicant meets the access criteria in s.24 or s.25 of the Act. The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

..............................SGD..........................................
Associate
Dated: 19 August 2022

Dates of hearing:
18 November 2020; 3 November 2021; 4 November 2021; 5 November 2021; 18 January 2022

Advocate for the Applicant: Applicant's father

Counsel for the Respondent:

Solicitors for the Respondent:

Ms M Fisher

Ms M Knight, Ashurst