Xie and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 1296
•27 July 2025
Xie and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1296 (27 July 2025)
Applicant/s: Yunzhong Xie
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/0940
Tribunal:General Member L Proske
Place:Adelaide
Date:27 July 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 27 July 2025 at 3:11pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – psychosocial, sensory and cognitive impairments – permanence – substantially reduced functional capacity – early intervention requirements – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016Cases
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC, 11
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409TZQP and CEO, NDIA [2025] ARTA 839 (25 June 2025)
Secondary Materials
NDIS, Applying to the NDIS – Pre-legislation changes updated 14 October 2024
Statement of Reasons
The Applicant (Mr Xie) has applied to the Tribunal for review of a decision made by the CEO of the National Disability Insurance Agency (Respondent) on 23 January 2024. That decision confirmed an earlier decision made by the Respondent that Mr Xie did not meet the access criteria to become a participant of the National Disability Insurance Scheme (NDIS).
For the reasons below, the Tribunal has determined that Mr Xie does not meet the access criteria to become a participant of the NDIS.
BACKGROUND AND JURISDICTION
Ms Xie made an access request to become a participant of the NDIS. On 13 October 2023, a delegate of the CEO of the Respondent determined that Mr Xie did not meet the access criteria for the NDIS (original decision).[1] On 31 October 2023, Mr Xie requested that the original decision be reviewed by a reviewer.[2]
[1] Exhibit 1 (E1), 66.
[2] E1, 76.
On 23 January 2024, a reviewer confirmed the original decision (internal review decision).[3] On 16 February 2024, Mr Xie made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[4] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[5]
[3] E1, 34.
[4] E1, 30.
[5] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (NDIS Act) unless otherwise stated.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[6] Mr Xie’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[7] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[6] s 8 of the Administrative Review Tribunal Act 2024.
[7] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
LEGISLATION AND POLICY
Mr Xie must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.
There is no dispute between the parties, and the Tribunal is similarly satisfied, that Mr Xie meets the age and residence requirements in ss 22 and 23.[8] The issue for determination by the Tribunal is whether Mr Xie meets the disability requirements in s 24 or the early intervention requirements in s 25.
[8] Respondent’s written closing submissions, [2].
Section 24 provides:
24 Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or 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.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
Section 25 provides:
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii)(has one or more identified impairments to which a psychosocial disability is attributable and that 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.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(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.
Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules), which form part of the legislation.
Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline ‘Applying to the NDIS’ (Access Guideline) is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[9]
[9] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
A joint tender bundle was filed with the Tribunal. That joint tender bundle included the T-Documents filed by the Respondent in accordance with s 37 of the AAT Act, and evidence filed by Mr Xie and the Respondent during the review. A supplementary joint tender bundle was also filed with the Tribunal. That supplementary joint tender bundle included additional documents relied upon by Mr Xie and the Respondent. The joint tender bundle and supplementary joint tender bundle were received into evidence at the hearing, marked ‘Exhibit 1’ and ‘Exhibit 2’ respectively.
A hearing was held by Microsoft Teams on 23 and 24 April 2025. Mr Xie gave oral evidence. The Tribunal was informed at the commencement of the hearing that in circumstances where Mr Xie had indicated he did not seek to cross-examine Ms Yang Lu (Ms Lu), an occupational therapist engaged by the Respondent to prepare a Functional Capacity Assessment Report, Ms Lu would not be called to give oral evidence.
The Respondent filed a Statement of Facts, Issues and Contentions. Ms Xie filed an outline of argument.[10] Both the Respondent and Mr Xie made oral opening submissions at the hearing and filed written closing submissions after the hearing.
[10] E1, 27.
The Tribunal has considered the written evidence, oral evidence, and submissions referred to above in paragraphs [12] to [14].
CONSIDERATION
The issue for determination by the Tribunal is whether Mr Xie meets the disability requirements in s 24 or the early intervention requirements in s 25.
Does Mr Xie meet the disability requirements?
In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J (as Her Honour then was) observed:
‘What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by the person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person’.[11]
[11] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69].
Consistent with s 24(1) and Mortimer J’s observation of the legislative scheme as cited in paragraph [17], the Tribunal must focus on Mr Xie’s impairments, not his diagnosis or condition, when considering whether he meets the disability requirements.
Does Mr Xie have a disability attributable to an impairment?
For the purposes of s 24(1)(a), the Tribunal must be satisfied that Mr Xie has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable.
The concept of ‘impairment’ is generally understood as involving the loss or damage to a physical, sensory or mental function.[12] The term ‘disability’ is used in s 24 as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life.[13]
[12] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51].
[13] Mulligan, [51].
In an email dated 17 June 2024, Mr Xie’s former legal representative confirmed Mr Xie sought access to the NDIS on the basis of physical impairments arising from fluoride exposure resulting in low back pain, chronic joint pain, arthritic symptoms, calcification of ligaments, muscle wasting, and osteoporosis of cancellous bones.[14] At the commencement of the hearing, Mr Xie informed the Tribunal and the Respondent that he also seeks access to the NDIS on the basis of impairments arising from major depressive disorder and hearing loss. The Respondent did not object to the Tribunal considering Mr Xie’s application on this basis.
[14] Exhibit 2 (E2), 126.
The Respondent submits that the Tribunal can be satisfied Mr Xie has a disability attributable to a sensory or physical impairment, namely pain; a disability attributable to a sensory impairment, namely hearing loss; impairments to which a psychosocial disability is attributable; and cognitive impairments arising out of his major depressive disorder.[15] The Respondent submits the Tribunal cannot be satisfied Mr Xie has a disability attributable to arthritic symptoms, calcification of ligaments, muscle wasting, or osteoporosis of cancellous bones.[16]
[15] Respondent’s written closing submissions, [18], [31], [36].
[16] Respondent’s written closing submissions, [19].
Mr Xie contends he was exposed to fluoride in his workplace from September 2017 and that this resulted in fluoride poisoning.[17] The Tribunal understands from Mr Xie’s evidence there are ongoing legal proceedings concerning his work injury claim.
[17] E1, 114.
In a Statement of Lived Experience dated 1 July 2024, Mr Xie states he began experiencing lower back pain in May 2019; by October 2020 the pain was too severe for him to stand for a long time; and by 2021 he could no longer work for 5 days continuously.[18] He states he has bone and joint pain, his muscles are starting to atrophy and lose strength; his nervous system, hearing and memory are declining; and he has difficulty concentrating.[19] He describes difficulty doing certain things, or an inability to do certain things, because of this.[20] Mr Xie attributes all of his symptoms to fluoride poisoning.[21]
[18] E1, 114.
[19] E1, 114, 115.
[20] E1, 114-116.
[21] Mr Xie’s oral opening submissions; E1, 114.
Mr Xie gave oral evidence he has bone pain throughout his body, joint pain, muscle weakness, nerve degeneration, reduced cognition, and hearing loss. He gave further evidence that he was diagnosed with depression in January 2024; and more recently his depressive symptoms have intensified such that he was hospitalised earlier this year. With respect to hearing loss, Mr Xie’s oral evidence was to the effect he struggles in noisy environments; when watching television at home he needs to turn the television up; he does not currently wear hearing aids; he did try a hearing aid which worked beautifully, however it was expensive and it was suggested to him he make a work injury claim in relation to that; he has made that claim but is yet to receive a response.
Dr Roberto D’Onise (Dr D’Onise), an occupational physician, assessed Mr Xie in June 2023 for the purpose of an independent medical examination report (IME report) within the context of Mr Xie’s work injury claim.[22] Dr D’Onise reported that Mr Xie had pain in his low back, wrists, forearms and legs.[23] Dr D’Onise referred to CT scans of Mr Xie’s spine dated 25 May 2019 and 29 September 2020.[24] He noted that the first of those scans showed slight prominence annulus of the disc at L3-L4, but no other significant problem; and that the latter of those scans showed minor angular disc bulge L3-L4 and L4-L5, and no significant abnormality.[25] On examination Mr Xie had bilateral lumbar spine guarding, stiffness on movement and slightly restricted motion; and his upper and lower limb neurological assessment was normal.[26] Dr D’Onise concluded Mr Xie had non-specific back pain.[27] He opined that considering all of Mr Xie’s symptoms/signs in isolation, it is difficult to draw a relationship; however, ‘there is a constellation of symptoms that could in total correlate with fluorosis exposure’.[28]
[22] E1, 98.
[23] E1, 99.
[24] E1, 101.
[25] E1, 101.
[26] E1, 100.
[27] E1, 102.
[28] E1, 103.
There are various documents in evidence prepared by Mr Xie’s treating general practitioner, Dr Wei Liu (Dr Liu). Those documents span the period July 2023 to August 2024. In July 2023 Dr Liu reported that Mr Xie had fluoride poisoning, chronic back pain from poisoning, and depressed mood.[29] In September and October 2023, Dr Liu reported that Mr Xie was unable to work due to back pain, and that he had more recently developed symptoms of depression including suicidal ideation.[30] A consult note records the reason for Mr Xie consulting with Dr Liu in early February 2024 as ‘depression’.[31] On 9 August 2024 Dr Liu signed a GP management plan for Mr Xie, the primary focus of which was recorded as ‘fluoride poison – pain throughout body’.[32]
[29] E1, 59.
[30] E1, 63, 73, 122.
[31] E1, 124.
[32] E1, 129, 192, 193.
In September 2023 Dr Liu referred Mr Xie to Ms Maria Tam (Ms Tam), a counsellor and Associate Professor Dennis Liu (Associate Professor Liu), a psychiatrist.[33] In September 2023, Ms Tam reported that Mr Xie had been referred to her due to persistent and debilitating depression which had lasted approximately 1 year.[34] Mr Xie reported to Ms Tam that he experienced pain throughout his body, feelings of hopelessness and despair, and suicidal ideation.[35] In January 2024, Associate Professor Liu reported that Mr Xie had been experiencing a depressed mood for the past 12 months, characterised by pervasive low mood and sadness; his cognitive function was poor, with difficulties in memory and concentration; and he lacked motivation.[36] Dr Liu stated Mr Xie is preoccupied with a range of somatic symptoms, including fatigue, poor memory and concentration, and chronic pain.[37] Associate Professor Liu opined that Mr Xie was suffering from major depressive disorder in the context of a work-related injury.[38]
[33] E1, 122, 200.
[34] E1, 64.
[35] E1, 64.
[36] E1, 171.
[37] E1, 171.
[38] E1, 172
There are various documents in evidence prepared by Mr Eric Fong (Mr Fong), a physiotherapist. Mr Fong met with Mr Xie 5 times between 29 September 2023 and 7 August 2024.[39] Relevant to the requirement in s 24(1)(a):
a) In October 2023 Mr Fong reported Mr Xie shows common disabling effects of fluoride exposure including chronic joint pain, arthritic symptoms, calcification of ligaments, muscle wasting, and osteosclerosis of cancellous bones.[40] He also recorded that Mr Xie mentioned crippling depression and suicidal ideation.[41]
b) In November 2023 Mr Fong reported Mr Xie was put through a serious of physical tasks and his vital signs were monitored.[42] He concluded Mr Xie’s cardiovascular health and muscle strength was not typical of someone his age and opined fluoride poisoning to be the main contributing factor.[43]
c) In December 2023, Mr Fong completed an Access Request – Supporting Evidence Form.[44] On that form, Mr Fong described Mr Xie’s primary impairment as ‘reduced functional capacity – endurance, strength, cardiovascular and muscular toxicity’; and his other impairments were recorded as impaired cognition compounded by depression and hearing loss.[45]
d) In an undated response to targeted questions prepared by the Respondent in July 2024, Mr Fong reported Mr Xie’s low back pain was diagnosed against the Visual Analogue Scale, and his muscle wasting was diagnosed against manual muscle testing and endurance testing.[46] Mr Fong confirmed he had treated Mr Xie’s lower back pain, chronic joint pain, and muscle wasting which resulted in reduced muscle strength, reduced exercise endurance, and reduced cognition.[47]
[39] E1, 240.
[40] E1, 71.
[41] E1, 72.
[42] E1, 77.
[43] E1, 78.
[44] E1, 87.
[45] E1, 89.
[46] E1, 220, 240.
[47] E1, 220, 240.
At the hearing, the Tribunal asked Mr Xie what he understood Mr Fong meant by ‘arthritic symptoms’, and whether that referred to something other than his pain. Mr Xie gave evidence to the effect that he is not a doctor and could not comment on this.
In August 2024 Ms Yang Lu (Ms Lu), an occupational therapist, prepared a medical evidence checklist in relation to Mr Xie’s application for a Disability Support Pension (DSP).[48] She reported that Mr Xie experiences pain, difficulty with concentration and memory, depression, and reduced motivation.[49] In December 2024, the Respondent engaged Ms Lu to complete a functional capacity assessment of Mr Xie for the purpose of this review.[50] In her associated report, Ms Lu opined that Mr Xie’s daily routine is significantly impacted by his pain, fatigue, and mental health challenges.[51] Ms Lu reported that Mr Xie’s cognitive performance, in particular his concentration and short-term memory, is impaired; and that this is exacerbated by pain, fatigue and agitation.[52]
[48] E1, 208.
[49] E1, 209.
[50] E1, 254.
[51] E1, 266.
[52] E1, 264, 268.
A discharge summary from SA Health confirms Mr Xie was hospitalised from 17 March 2025 to 4 April 2025 due to suicidal ideation.[53] That summary recorded the author’s impression that Mr Xie had major depressive disorder exacerbation in the context of protracted legal proceedings.[54] His antidepressant medication was adjusted whilst he was in hospital.[55]
[53] E2, 29.
[54] E2, 30.
[55] E2, 30.
With respect to hearing loss, Mr Xie underwent screening on 11 July 2023 with Attune.[56] The test result was recorded as ‘failed’ and a pure tone audiogram was recommended.[57] Mr Xie attended Amplicon on 6 September 2024 for a hearing assessment.[58] Mr Joshua Dwinovan (Mr Dwinovan), an audiologist, reported that pure tone audiometry showed a moderately severe to severe sensorineural hearing loss bilaterally, noting deterioration since the screening test by Attune; whilst speech discrimination tests revealed good auditory discrimination in both ears with appropriate levels of amplification.[59] At the hearing, Mr Xie gave evidence that he does not currently wear hearing aids, however he has made a work injury claim through which he hopes to obtain those.
[56] E1, 143.
[57] E1, 143.
[58] E1, 205.
[59] E1, 205.
Having considered the evidence before it, particularly that referred to above, the Tribunal finds Mr Xie has consistently reported to various medical and allied health practitioners that he experiences pain which reduces his ability to function. That reported experience is consistent with Mr Xie’s written and oral evidence, and written evidence authored by Dr D’Onise, Dr Liu, Mr Fong, and Ms Yu. On this basis, the Tribunal is satisfied that Mr Xie has a disability that is attributable to pain. The Respondent contends Mr Xie’s pain could be construed as a sensory or physical impairment. For reasons that will become clear later in this decision, the Tribunal considers Mr Xie’s pain is most appropriately classified as a sensory impairment (sensory impairment (pain)). In any event, the decision whether Mr Xie does or does not meet the access criteria to become a participant of the NDIS does not turn on how his pain is classified.
In addition to pain, Mr Xie relies on arthritic symptoms, calcification of ligaments, muscle wasting, and osteoporosis of cancellous bones for access to the NDIS. The Tribunal acknowledges Mr Fong’s evidence as outlined at paragraph [29(a)]. However, consistent with the Respondent’s written closing submissions, the Tribunal finds that Mr Fong has not disclosed the basis on which he has identified that Mr Xie has those impairments, the particulars of those impairments, or whether those impairments give rise to any disability.[60] It is unclear to the Tribunal how, in the absence of imaging or the like, to which Mr Fong has not referred in his evidence, calcification of ligaments or osteoporosis of cancellous bones could be properly diagnosed.
[60] Respondent’s written closing submissions, [19].
Dr D’Onise’s evidence that on examination Mr Xie’s upper and lower limb neurological assessment was normal, and CT scans of Mr Xie’s lumber spine in May 2019 and September 2020 did not identify any significant abnormality, stands in contrast to Mr Fong’s evidence with respect to Mr Xie having arthritic symptoms, calcification of ligaments, muscle wasting, or osteoporosis of cancellous bones. Nor is there other clinical evidence that supports or corroborates conclusions drawn by Mr Fong in this respect. For these reasons, the Tribunal is not persuaded on the material before it that Mr Xie does have arthritic symptoms, calcification of ligaments, muscle wasting, or osteoporosis of cancellous bones. It follows that the Tribunal is not satisfied on the material before it that Mr Xie has a disability attributable to those impairments. As the requirements in s 24(1) are cumulative, the Tribunal will not consider those impairments further.
The Tribunal accepts that Associate Professor Liu, a psychiatrist, diagnosed Mr Xie with major depressive disorder in January 2024. The Tribunal also accepts that Mr Xie was hospitalised from 17 March 2025 to 4 April 2025 because of suicidal ideation, during which time his medication was adjusted. On this basis, the Tribunal is satisfied that Mr Xie has one or more impairments to which a psychosocial disability is attributable. Those impairments include depressed mood, reduced motivation, and suicidal ideation (psychosocial impairments).
Mr Xie gave evidence he experiences difficulties with memory and concentration. Associate Professor Liu reported that Mr Xie’s cognitive function is poor, and he is preoccupied with a range of somatic symptoms including poor memory and concentration. It appears from Associate Professor Liu’s letter dated January 2024 that this informed his diagnosis of Mr Xie’s major depressive disorder. Mr Fong and Ms Yu similarly reported Mr Xie has impaired cognition. The Tribunal accepts that Mr Xie has a disability attributable to a cognitive impairment arising from his major depressive disorder, specifically poor memory and concentration (cognitive impairment).
Based on the screening test conducted by Attune and Mr Dwinovan’s report, the Tribunal accepts Mr Xie has sensorineural hearing loss bilaterally. The Tribunal also accepts Mr Xie’s evidence that he struggles in loud environments and needs to turn the television volume up. On this basis, the Tribunal is satisfied Mr Xie has a disability that is attributable to a sensory impairment, specifically hearing loss (sensory impairment (hearing loss)).
Are Mr Xie’s impairments permanent?
For the purposes of s 24(1)(b), the Tribunal must be satisfied that Mr Xie’s impairment or impairments are, or are likely to be, permanent. Within the context of s 24(1)(b), a permanent impairment is an impairment which is of an enduring nature.[61]
[61] Davis, [85], [130]
Rules 5.4 to 5.7 of the Access Rules provide that:
5.4 An impairment is, or is likely to be, permanent 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.
In Davis, Mortimer J confirmed that within the context of Rule 5.4, the word ‘known’ means a treatment which can be identified by an Australian medical professional as suitable for a person’s particular impairment; the word ‘appropriate’ means a treatment which has a capacity to ‘remedy’ the impairment and is suitable for the particular individual to undergo; and the word ‘available’ means available to a particular individual.[62] The word ‘remedy’ in Rule 5.4 means something approaching a removal or cure.[63]
[62] Davis, [137]-[138]
[63] Davis, [136].
Sensory impairment (pain)
Mr Xie contends his sensory impairment (pain) is permanent within the meaning of s 24(1)(b).[64] He broadly submits that his sensory impairment (pain) results from fluoride exposure; there are no known and available treatments for fluoride exposure; and in those circumstances his sensory impairment (pain) is permanent.[65]
[64] Mr Xie’s written closing submissions.
[65] Mr Xie’s oral opening submissions.
The Respondent contends the Tribunal cannot be satisfied that s 24(1)(b) is met with respect to Mr Xie’s sensory impairment (pain).[66] The Respondent submits:
a) There is a lack of evidence to satisfy the Tribunal that the underlying cause of Mr Xie’s sensory impairment (pain), fluoride over-exposure, has no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the related impairments.[67]
b) There is insufficient evidence to establish that Mr Xie has explored all known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the sensory impairment (pain) identified.[68]
c) The Tribunal cannot be satisfied the sensory impairment (pain) does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.[69]
[66] Respondent’s written closing submissions, [59].
[67] Respondent’s written closing submissions, [51].
[68] Respondent’s written closing submissions, [54].
[69] Respondent’s written closing submissions, [58].
Mr Xie’s evidence is that his GP identified his condition as fluoride poisoning and referred him to Dr Joshua Kartika (Dr Kartika), an occupational physician, for treatment.[70] His treatment was delayed due to various investigations done by Dr Kartika for a report for WorkCover.[71] In Dr D’Onise’s IME report dated June 2023, he noted a report prepared by Dr Kartika in which Dr Kartika purportedly concluded Mr Xie’s complaints were not as a result of work-related fluorosis.[72]
[70] E1, 114.
[71] E1, 114.
[72] E1, 101; E2, 26.
Whilst the Tribunal accepts Mr Xie had some engagement with Dr Kartika, there is no report from Dr Kartika in evidence. It is unclear what the ‘various investigations’ are to which Mr Xie’s evidence at paragraph [45] refers. The evidence does not disclose who the GP was that referred Mr Xie to Dr Kartika. In circumstances where the earliest record produced under summons by Vitality Healthcare Medical Centre (at which Mr Xie consults Dr Liu) is dated July 2023; and no documents produced under summons by Vitality Healthcare Medical Centre include a referral to or a report/letter from Dr Kartika; it would seem the GP who referred Mr Xie to Dr Kartika is someone other than Dr Liu. Whilst Mr Xie claims the relevant GP ‘identified his condition as fluoride poisoning’, there is no evidence before the Tribunal from the relevant GP which corroborates this or discloses the basis on which any such condition was identified. In any event, the Tribunal considers that it is beyond the expertise of a GP to diagnose fluoride poisoning.
In January 2023, Dr Kartika referred Mr Xie to Dr David Cullum (Dr Cullum) of Adelaide Neuro Diagnostics regarding his work injury claim for fluoride poisoning.[73] In response to that referral, Dr Cullum informed Dr Kartika he had not practised in occupational and environmental medicine for many years, and he could not manage a toxicology case.[74] Dr Cullum suggested Dr Tony Thoo (Dr Thoo) or Dr Kar Ng (Dr Ng) might be interested.[75] There is no evidence before the Tribunal as to whether enquiries were made with Dr Thoo or Dr Ng, nor whether Mr Xie was referred to either of those specialists, by Dr Kartika or the unidentified GP who referred Mr Xie to Dr Kartika. There is no record in the documents produced under summons by Vitality Healthcare Medical Centre that Dr Liu (or any other GP at that practise) made enquiries regarding Mr Xie with Dr Thoo or Dr Ng or referred Mr Xie to them. In the absence of any such evidence, the Tribunal is not persuaded any such enquiry or referral was made.
[73] E2, 26.
[74] E2, 26.
[75] E2, 26.
Mr Xie obtained an IME report from Dr D’Onise within the context of his work injury claim.[76] Dr D’Onise saw Mr Xie on one occasion in June 2023.[77] In June 2023, following an examination and review of investigations, Dr D’Onise opined Mr Xie has non-specific back pain.[78] He stated that considering all of Mr Xie’s symptoms/signs in isolation, it is difficult to draw a relationship; however, there is a constellation of symptoms that could in total correlate with fluorosis exposure.[79] Dr D’Onise reported that Mr Xie’s disability is greater than can be interpreted through clinical testing, and some of his loss may be related to his psychological state and response to the work exposure.[80] Dr D’Onise stated he did not have any advice in relation to treatment apart from education and psychological assessment.[81]
[76] E1, 98. The Tribunal notes this letter is addressed to Anderson Solicitors.
[77] E1, 98.
[78] E1, 102.
[79] E1, 103.
[80] E1, 106.
[81] E1, 106.
In July 2023, Dr Liu settled a GP Management Plan (GPMP) for Mr Xie.[82] On that GPMP, Dr Liu recorded Mr Xie’s problem as ‘chronic pain back pain from poisoning’ and referred Mr Xie to Ms Heining Li (Ms Li), a physiotherapist, for 4 sessions under a Chronic Disease Management Plan (CDMP).[83] There is no evidence before the Tribunal from Ms Li.
[82] E1, 59.
[83] E1, 60, 61
In October 2023, Dr Liu reported that Mr Xie’s condition was basically stable without deterioration since he ceased work in October 2022, and that his treatment at that time was mainly pain management, including physiotherapy, reasonable rest, and pain killers as required.[84]
[84] E1, 73.
In October and November 2023, Mr Fong recommended Mr Xie receive exercise therapy under the supervision of a physiotherapist or exercise physiologist to assist him in managing the long-term effects of fluoride exposure.[85] Mr Fong opined exercise therapy and prescription will aid in slowing down further deterioration of Mr Xie’s physical function.[86] In December 2023, Mr Fong opined that Mr Xie’s impairments arising from fluoride exposure were likely to be lifelong, and reported that Mr Xie had been to his GP for medications, which included pain relief, anti-depressants and muscle relaxants.[87]
[85] E1, 71, 77.
[86] E1, 72.
[87] E1, 89.
In January 2024, Dr Liu reviewed Mr Xie’s GPMP.[88] Mr Xie’s problem or relevant condition was described on that GPMP as ‘chronic pain back pain from poisoning’.[89] He again referred Mr Xie to Ms Li under a CDMP.[90]
[88] E1, 149-150.
[89] E1, 150.
[90] E1, 150.
In a letter of support dated July 2024, Dr Liu reported:
‘He has been seen by occupational therapy doctor/specialist, and was diagnosed as chronic fluoride toxicity. However, for the consequence of the fluoride toxicity it seems there is no treatments available so far, he has been advised by his specialist in regards to this issue. To my best knowledge, there are no fluoride poisoning specialists available in Adelaide or Australia, this was also told by his specialist.’[91]
[91] E1, 204.
In July 2024, the Respondent provided targeted questions to Mr Fong.[92] In an undated response to those targeted questions, Mr Fong stated:
a) He had met with Mr Xie 5 times between 29 September 2023 and 7 August 2024; those appointments ranged between 30 to 60 minutes; and the nature of the appointments ranged from going through legal documents and NDIS forms, to manual and exercise therapy.[93] Mr Fong clarified that only half of his sessions with Mr Xie were actual treatments.[94]
b) The manual therapy was implemented with reasonable short-term effect; however treatments were discontinued as Mr Xie was unable to afford physiotherapy sessions.[95] In those circumstances, Mr Fong prescribed home exercises.[96] Mr Fong stated Mr Xie reported a period of consistent adherence to that exercise regime ‘but failed to continue due to ongoing issues with depression and suicidal thoughts’.[97]
c) He made recommendations Mr Xie be seen by an exercise physiologist as well as an occupational therapist for cognitive assessment and therapy, but Mr Xie indicated his inability to further fund any therapy.[98]
[92] E1, 223.
[93] E1, 240.
[94] E1, 242.
[95] E1, 241.
[96] E1, 241.
[97] E1, 241.
[98] E1, 241.
On 9 August 2024, Dr Liu referred Mr Xie to both Mr Fong and Ms Lu under a CDMP.[99] Dr Liu recorded Ms Xie’s problem or relevant condition on that CDMP as ‘fluoride poison – pain throughout the body’.[100]
[99] E1, 128, 188-191.
[100] E1, 193.
In the Functional Capacity Assessment Report prepared by Ms Yu in December 2024, Ms Yu opined that while ongoing physiotherapy may help to alleviate symptoms, it is not guaranteed to improve overall physical functioning; and due to a lack of physiotherapy or rehabilitation input thus far, it remains uncertain whether such interventions could result in substantial functional improvement.[101]
[101] E1, 261.
With respect to Mr Xie’s evidence, in January 2024 he stated he had seen various doctors over the past few years and they have no treatment for fluorosis; once poisoned, it is incurable’.[102] In July 2024, Mr Xie stated:
‘Nothing we have tried can treat me now. The only things my GP can recommend are to reduce pain. My physiotherapist came to the same conclusion, that my condition is no longer curable and all we can do is try to prevent it from worsening. We are just trying to maintain my strength.’[103]
[102] E1, 96; E2, 8.
[103] E1, 114.
At the hearing, Mr Xie gave the following oral evidence:
a) He has seen 2 physiotherapists, those being Ms Li and Mr Fong. He thinks he saw Ms Li approximately 3 times, and Mr Fong approximately 4 or 5 times. His consults with Mr Li were under a CDMP. His consults with Mr Fong were not under a CMDP. Dr Liu did refer him to Mr Fong under a CDMP in around September 2024, however he has not utilised those sessions because of a lack of effective treatment methods, his physical problems make travelling to a clinic difficult, and psychologically he is still a bit moody so he didn’t want to go. He thinks it was more than a year ago that he last met with a physiotherapist.
b) When the Tribunal asked whether his GP had referred him to any specialist to consider whether there is something that can be done to alleviate his pain, he stated Dr Liu had referred him to Mr Fong for physiotherapy, and to an acupuncturist, neither of whom could do much to help his pain arising from poisoning as they can’t do much to change the root cause.
c) When the Tribunal asked whether his GP or any other medical professional had discussed a pain management program with him, he gave evidence his GP is looking after him, he is taking advice from his GP, if there were pain management programs available his GP would know about them and would have referred him to that if it was suitable. He further stated he has not been referred to a pain management program and is highly reliant on his GP.
d) When the Tribunal asked whether his GP or any other medical professional had discussed a pain education program with him, he stated that the pain arising from toxicity is different from pain arising from an injury or inflammation as it originates from the bone and is uncurable. He stated further that the medical fraternity are all quite aware of that.
e) The Tribunal explained it understood there are publicly funded pain management and pain education programs in South Australia.[104] In response to this, he gave evidence to the effect his doctor would have referred him to such programs if he thought it would be helpful.
f) When the Tribunal asked whether he had sought a second opinion from someone other than his treating GP about whether there are treatments for the symptoms he is experiencing, he gave evidence to the effect that he had spoken with 4 doctors – Dr Kartika, Dr D’Onise, Dr Liu and Dr Cullum – and as soon as fluoride toxicity was mentioned they stated they do not have a plan, they don’t know how to treat it.
g) He met with Associate Professor Liu once in January 2024. He thinks he saw a psychologist whilst he was hospitalised earlier in 2025 for suicidal ideation. He last saw Ms Lim for counselling in approximately January or February 2024. He has not previously had a mental health treatment plan.
[104] E1, 345, 511.
With respect to Mr Xie’s broad submissions that his sensory impairment (pain) results from fluoride exposure; there are no known and available treatments for fluoride exposure; and in those circumstances his sensory impairment (pain) is permanent; that Tribunal notes the following:
a) The disability requirements focus upon a person’s impairment or impairments, rather than their diagnosis or condition. That distinction is important.[105] Nevertheless, as was noted by the Tribunal in TZQP and CEO, NDIA [2025] ARTA 839, a person’s diagnosis or condition can be relevant to the extent that they can help explain the impairment and/or identify appropriate treatments or interventions for the impairment.[106]
b) Mr Xie attributes his sensory impairment (pain) to fluoride exposure within his workplace.[107] Mr Xie relies upon Dr D’Onise’s report, and in particular his statement ‘there is a constellation of symptoms that could in total correlate with the fluoride exposure’, as evidence he has in fact been diagnosed with fluoride poisoning. However, given the circumspect way in which Dr D’Onise has framed his view, in particular his use of the word ‘could’, the Tribunal is not persuaded Dr D’Onise did in fact diagnose Mr Xie with fluoride poisoning.
c) It is clear on the evidence that Dr Liu, Mr Fong and Ms Yu consider or accept that Mr Xie has been diagnosed with fluoride poisoning; and they each attribute his sensory impairment (pain) to that condition. However, it appears to the Tribunal that they have each relied on Mr Xie’s self-reporting, and/or Mr Xie’s reading of Dr D’Onise’s report, and/or their own reading of Dr D’Onise’s report, in relation to this. In any case, the Tribunal does not consider that it is within the expertise of a GP, a physiotherapist, or an occupational therapist, to diagnose fluoride poisoning. There is no clinical evidence before the Tribunal from any specialist appropriately qualified to diagnose fluoride poisoning, other than Dr D’Onise.
d) For the reasons referred to in this paragraph, the Tribunal is not persuaded on the material before it that Mr Xie has in fact been diagnosed with fluoride poisoning, or lives with that condition. It follows that the Tribunal is not persuaded on the material before it that Mr Xie’s sensory impairment (pain) results from that condition.
e) Even had the Tribunal accepted that Mr Xie has been diagnosed with fluoride poisoning and lives with that condition, the Tribunal is not persuaded on the material before it that there are no known, available and appropriate evidence-based treatments for fluoride poisoning that would be likely to remedy Mr Xie’s sensory impairment (pain). This is because:
i.The is no evidence before the Tribunal from Dr Kartika, who is 1 of only 2 specialists with whom Mr Xie has consulted regarding fluoride poisoning.
ii.There is no evidence before the Tribunal as to whether enquiries were made with Dr Thoo or Dr Ng, nor whether Mr Xie was referred to either of those specialists, by Dr Kartika or the unidentified GP who referred Mr Xie to Dr Kartika. There is no record in the documents produced under summons by Vitality Healthcare Medical Centre that Dr Liu (or any other GP at that practise) made enquiries regarding Mr Xie with Dr Thoo or Dr Ng or referred Mr Xie to them. In the absence of any such evidence, the Tribunal is not persuaded any such enquiry or referral was made.
iii.Dr Lui’s evidence is to the effect that Mr Xie has been advised by his specialist there are no treatments available for fluoride poisoning. This suggests to the Tribunal Dr Lui has relied on Mr Xie’s self-report with respect to this. Documents produced under summons by Vitality Healthcare Medical Centre do not evidence Dr Lui having personally made any independent enquiries or referrals for specialist opinion in relation to this; nor do they disclose any basis on which Dr Lui may have independently drawn such a conclusion.
iv.Mr Fong and Ms Yu similarly appear to have relied on Mr Xie’s report to them that there are no treatments available for fluoride poisoning; and in any event the Tribunal does not consider it is within the expertise of a physiotherapist or an occupational therapist to opine on whether there are or are not treatments available for that condition.
[105] Davis, [118].
[106] TZQP and CEO, NDIA (NDIS) [2025] ARTA 839 (25 June 2025), [188]
[107] E1, 46, 114; Applicant’s oral opening submission; Applicant’s oral evidence.
The Tribunal finds that Mr Xie has been consulting with Dr Liu regarding his sensory impairment (pain) since approximately July 2023; and Dr Liu’s treatment of that impairment has been limited to prescribing medication and making referrals to physiotherapists under a CDMP.
Mr Xie’s evidence, which the Tribunal accepts, is that he saw Ms Li approximately 3 times. Mr Fong’s evidence, which the Tribunal accepts, is that he had 5 sessions with Mr Xie between September 2023 and August 2024; and only half of those were for treatment. It follows that Mr Xie has at most had 6 physiotherapy sessions for treatment of his sensory impairment (pain), and no physiotherapy since August 2024. This is despite a new CDMP having been settled by Dr Liu in August 2024, under which Mr Xie could access a Medicare rebate for physiotherapy sessions; physiotherapy having been recommended for Mr Xie by Dr Liu and Mr Fong; and physiotherapy being recognised as an integral part of the primary care management of chronic pain.[108]
[108] E1, 379.
The Tribunal notes Mr Xie’s and Mr Fong’s evidence regarding Mr Xie’s limited financial means. Evidence regarding Mr Xie’s financial circumstances is incomplete. In a statement of lived experience dated July 2024, Mr Xie stated that he and his wife have been unemployed since 2019; their only source of income is JobSeeker payment; and all of his Centrelink entitlement is used for household expenses.[109] At the hearing, Mr Xie gave oral evidence his wife is now receiving a Carer’s Payment; he has recently applied for a DSP; and he has a pensioner concession card. No particulars of Mr Xie’s expenses are in evidence. On the limited evidence available to the Tribunal regarding Mr Xie’s financial circumstances, the Tribunal is not persuaded those are such that physiotherapy is not available to him.
[109] E1, 113.
Documents produced under summons by Vitality Healthcare Medical Centre do not include any evidence of Mr Xie having been referred for psychological assessment or intervention in relation to his sensory impairment (pain). Mr Xie confirmed in oral evidence he has not been referred to a psychologist in relation to his sensory impairment (pain). The Tribunal accepts that evidence and finds that despite Dr D’Onise having recommended a psychological assessment in June 2023, and the evidence-based support for psychological intervention within the context of chronic pain management, Mr Xie has not been referred to or had any psychological assessment or intervention for his sensory impairment (pain).[110]
[110] E1, 387, 444.
Whilst the Tribunal accepts that Mr Xie had some engagement with Dr Kartika, the extent and purpose of that is unclear on the evidence. He met with Dr D’Onise on only 1 occasion in June 2023 for the specific purpose of an IME report within the context of his work injury claim. Documents produced under summons by Vitality Healthcare Medical Centre do not include any evidence of Mr Xie having been referred to a pain specialist or the like. The Tribunal finds Mr Xie has not been referred to an appropriately qualified specialist, such as a pain specialist, for review and management of his sensory impairment (pain). Nor has Mr Xie been referred to a pain management program or pain education program; or had the benefit of trialling a multidisciplinary team approach to the management of his sensory impairment (pain).[111]
[111] E1, 25, 26, 27
There is extremely limited evidence of investigations having been undertaken – such as scans, x-rays or the like – to try and identify the underlying cause or causes of Mr Xie’s sensory impairment (pain). The scans which were undertaken did not identify any significant abnormality. The Tribunal has not been persuaded on the material before it that Mr Xie has been diagnosed with fluoride poisoning or that his sensory impairment (pain) results from that condition. In these circumstances, the Tribunal considers further investigations have the potential to explain, at least in part, why Mr Xie is experiencing pain; and inform consideration of whether the cause or causes of that pain could be treated such that his sensory impairment (pain) would likely be remedied. The absence of a confirmed clinical explanation for Mr Xie’s pain is why the Tribunal considers it is best classified as a sensory impairment.
The Tribunal is not persuaded there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mr Xie’s sensory impairment (pain).[112] Nor is the Tribunal persuaded Mr Xie’s sensory impairment (pain) does not require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent.[113] For these reasons, the Tribunal is not satisfied Mr Xie’s sensory impairment (pain) is, or is likely to be, permanent. Accordingly, the requirement in s 24(1)(b) is not met in relation to Mr Xie’s sensory impairment (pain).
[112] r 5.4 of the Access Rules.
[113] r 5.6 of the Access Rules.
Psychosocial and cognitive impairments
The Tribunal understands that Mr Xie contends his psychosocial and cognitive impairments are permanent within the meaning of s 24(1)(b).[114]
[114] Mr Xie’s written closing submissions.
The Respondent submits Mr Xie has only engaged in minimal treatment of his major depressive disorder to date; and on that basis contends the Tribunal cannot be satisfied s 24(1)(b) is met in respect of the permanency of Mr Xie’s psychosocial or cognitive impairments arising out of that condition.[115]
[115] Respondent’s written closing submissions, [62], [70].
In June 2023, Dr D’Onise recommended psychological assessment.[116]
[116] E1, 106.
In September 2023, Dr Liu reported that Mr Xie had more recently developed symptoms of depression including suicidal ideation, which needs medication therapy and psychological referral.[117] He commenced Mr Xie on a trial of Zoloft, and referred him to Ms Tam, a counsellor and Associate Professor Liu, a psychiatrist.[118]
[117] E1, 63.
[118] E1, 122, 153, 223.
In September 2023, Ms Tam opined it is advisable Mr Xie seek a second opinion from a psychiatrist to evaluate the severity of his depression and determine the most suitable course of treatment.[119] Ms Tam also recommended continuation of counselling sessions.[120]
[119] E1, 64.
[120] E1, 64.
In October 2023, Mr Fong reported Mr Xie had mentioned crippling depression and suicidal ideation which would warrant a need for a referral to a psychologist or psychiatrist, at the discretion of this treating medical professional.[121] In December 2023, Mr Fong reported that Mr Xie had been to his GP for medication, which included pain relief, anti-depressants and muscle relaxants.[122] He also reported Mr Xie was to be seen by a psychiatrist on 19 January 2024.[123]
[121] E1, 72.
[122] E1, 89.
[123] E1, 89.
Mr Xie met with Associate Professor Liu on 19 January 2024. Associate Professor Liu diagnosed Mr Xie with major depressive disorder and changed Mr Xie’s medication from Zoloft to Mirtazapine 15 mg at night, with the option to increase the dosage up to 60 mg if tolerated.[124] Associate Professor Liu also recommended Mr Xie continue seeing Ms Tam for psychotherapy, and opined he would benefit from social rehabilitation and support to develop coping skills.[125] Documents released under summons indicate Mr Xie obtained further prescriptions for Mirtazapine 15mg from Dr Liu in February and August 2024.[126] The Tribunal notes that documents released under summons by Vitality Healthcare Medical Centre only cover the period up to September 2024.[127]
[124] E1, 172.
[125] E1, 172.
[126] E1, 124, 128.
[127] E1, 117.
A discharge summary from SA Health confirms Mr Xie was hospitalised from 17 March 2025 to 4 April 2025 due to suicidal ideation.[128] That summary states that Mr Xie was diagnosed with major depressive disorder in January 2024 and prescribed mirtazapine, but he is ‘not totally compliant due to sedating effects this has on his driving ability’.[129] During this stay, his mirtazapine dosage was increased to 30 mg, and he was prescribed quetiapine 25 mg daily.[130] Upon discharge a referral was sent to the Community Mental Health Services (CMHS) at Noarlunga, and a follow-up out-patient appointment was scheduled for 22 May 2025.[131]
[128] E2, 29.
[129] E2, 29.
[130] E2, 31.
[131] E2, 30, 31.
At the hearing, Mr Xie gave the following oral evidence:
a) He ceased having counselling sessions with Ms Tam after he was prescribed medication by Associate Professor Liu. He did not continue those sessions because of the cost.
b) He only met with Associate Professor Liu once in January 2024. He has not subsequently seen Associate Professor Liu or any other psychiatrist. He would like to see a psychiatrist but that is expensive, and his medication is quite effective.
c) He does not see any health practitioner in relation to his major depressive disorder, other than Dr Liu. He gets his medication from Dr Liu. Dr Liu is in regular contact with Associate Professor Liu in terms of adjusting his medication. When it was put to him in cross-examination that the documents produced under summons by Vitality Healthcare Medical Centre do not show any ongoing contact between Dr Liu and Associate Professor Liu, he stated their offices are just across from each other, and the fact he is prescribed medication each month supports their being an ongoing relationship between them.
d) He thinks he met with a psychologist whilst hospitalised earlier this year.
e) Since being diagnosed with major depressive disorder in January 2024, he has been taking medication. When it was put to him that the discharge summary referred to in paragraph [73] states he is not totally compliant with taking mirtazapine, he stated he takes that medication daily, but when there is a special requirement – such as when he needs to drive or has a Tribunal hearing – he stops taking that medication. When asked how often those special occasions arise, he said ‘not too often’.
f) Following his discharge from hospital in April 2025, a community doctor has visited him as part of the CMHS referral. The doctor provided ‘some guidance’ and he thinks they are going to set up some kind of mental health treatment plan. He thought the doctor just wanted to see if he had stabilised. He described this as a ‘follow-up review visit’. He agreed there was an outpatient appointment coming up at the hospital. He thought this was to ensure his mood has stabilised and check whether he needs any further treatment.
g) When asked whether he now has a mental health treatment plan in place, he stated Dr Liu told him that he just needs to follow the instructions he was given by the hospital doctors.
Mr Xie has both psychosocial and cognitive impairments arising form his major depressive disorder. With respect to those impairments:
a) The Tribunal accepts Mr Xie has since at least January 2024 been prescribed medication. However, based on the discharge summary referred to in paragraph [74], and Mr Xie’s oral evidence, the Tribunal finds he is not always compliant with taking the prescribed medication.
b) The Tribunal accepts Mr Xie met with Associate Professor Liu on 1 occasion in January 2024, but finds he has not otherwise been referred to or under the care of a psychiatrist. In the absence of any corroborating clinical evidence, the Tribunal does not accept Associate Professor Liu is in any way involved in the ongoing management and treatment of Mr Xie’s psychosocial impairments through engagement with Dr Liu.
c) The Tribunal accepts Mr Xie attended an unknown number of counselling sessions with Ms Tam between September 2023 and January 2024, but finds he has had no counselling since January 2024. This is despite both Ms Tam and Associate Professor Liu having recommended Mr Xie continue to see a counsellor.
d) Based on Mr Xie’s oral evidence and the documents produced under summons by Vitality Healthcare Medical Centre, the Tribunal finds Mr Xie has not been referred to, or engaged with, any psychologist other than when he was hospitalised earlier this year. Nor has he had a mental health treatment plan.
e) Mr Xie’s medication was changed whilst he was hospitalised for the period 17 March 2025 to 4 April 2025. Specifically, the dosage of his existing medication was increased, and an additional medication was introduced. He has been referred to the CMHS, through which he has had at least 1 visit from a community doctor; and he had a follow-up outpatient appointment scheduled to occur in the weeks after the hearing.
In the circumstances as outlined in paragraph [76], the Tribunal finds Mr Xie’s psychosocial and cognitive impairments have had minimal treatment. Mr Xie has not been entirely compliant with his prescribed medication regime, saw a psychiatrist only once in January 2024, has had no counselling since January 2024, and has never engaged with a psychologist for assessment and treatment. There is no clinical evidence before the Tribunal which suggests there are no known, available and appropriate evidence-based treatments that would be likely to remedy Mr Xie’s psychosocial and cognitive impairments.
Mr Xie’s evidence is to the effect that consulting a psychiatrist, or attending counselling or psychology sessions, is beyond his financial means. For the same reasons outlined at paragraph [62], the Tribunal is not persuaded on the material before it that Mr Xie’s financial circumstances are such that those treatments are not available to him. Mr Xie could also approach Dr Liu, or an alternative GP, in relation to a mental health treatment plan so that he can receive a Medicare rebate for up to 5 psychology sessions over 12 months.
The outcome of the CMHS referral, and the follow-up outpatient appointment, is currently unknown. The effectiveness of Mr Xie’s new medication regime is unclear on the material and given the change to his medication regime only occurred a few weeks prior to the hearing, it is too soon for the effectiveness of that in treating Mr Xie’s impairments to be determined.
For these reasons, the Tribunal is not satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy Mr Xie’s psychosocial and cognitive impairments.[132] The Tribunal also considers those impairments require medical treatment and review before a determination can be made about whether those impairments are, or are likely to be, permanent.[133] The Tribunal is therefore not satisfied Mr Xie’s psychosocial or cognitive impairments are, or are likely to be, permanent. Accordingly, the requirement in s 24(1)(b) is not met in relation to Mr Xie’s psychosocial or cognitive impairments.
[132] r 5.4 of the Access Rules.
[133] r 5.6 of the Access Rules.
Sensory impairment (hearing loss)
Mr Xie contends his sensory impairment (hearing loss) is permanent within the meaning of s 24(1)(b).[134]
[134] Mr Xie’s written closing submissions.
The Respondent submits it is open to the Tribunal to be satisfied that Mr Xie’s sensorineural hearing loss is likely to be a permanent impairment and meets the criteria in s 24(1)(b).
With respect to the disability requirements, the Access Guideline states:
‘If you give us evidence you have been diagnosed with a condition on List B, we’ll likely decide your disability is permanent.’[135]
[135] Access Guideline, 7.
List B within the Access Guidelines lists conditions that are likely to result in a permanent impairment.[136] Sensorineural hearing loss is included on List B.[137]
[136] Access Guidelines, 38.
[137] Access Guideline, 38.
Mr Xie gave evidence he has made a work injury claim regarding his sensorineural hearing loss; his solicitors have organised for him to see a specialist; he has had one appointment with that specialist to date, and a further appointment has been scheduled in June 2025. The Respondent contends that as those appointments have been arranged by Mr Xie’s solicitors and the underlying cause is sensorineural hearing loss in the context of work as a welder, it appears unlikely such appointments relate, at least directly, for treatment of that condition or an assessment relating to further treatment.[138] The Tribunal agrees with that contention.
[138] Respondent’s written closing submissions, [75].
On the material before the Tribunal, the Tribunal is satisfied Mr Xie’s sensory impairment (hearing loss) is, or is likely to be, permanent. It follows that Mr Xie’s sensory impairment (hearing loss) meets the requirement in s 24(1)(b).
The requirements in s 24(1) are cumulative. In circumstances where the Tribunal has determined that Mr Xie’s sensory impairment (pain), psychosocial impairments, and cognitive impairments do not meet the requirements in s 24(1)(b), those impairments will not be considered further.
Mr Xie’s sensory impairment (hearing loss) will hereafter be referred to as his ‘permanent impairment’.
Does Mr Xie’s impairment result in substantially reduced functional capacity?
Section 24(1)(c) requires that Mr Xie’s permanent impairment results in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and/or self-management.
Rule 5.8 of the Access Rules provides that:
5.8An 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 Tribunal must first consider whether Mr Xie’s circumstances are within those set out in r 5.8 of the Access Rules. If they are, he will be deemed to have a substantially reduced functional capacity.[139] If they are not, the Tribunal must consider whether Mr Xie’s functional capacity is nevertheless substantially reduced in any of the prescribed activities.[140]
[139] Mulligan, [76].
[140] Mulligan, [76].
The Access Guideline provides non-exclusive content to the range of tasks and actions that comprise each of the activities prescribed in s 24(1)(c).
When considering whether it is satisfied the requirement in s 24(1)(c) is met, the Tribunal must make a functional, practical assessment of what Mr Xie can and cannot do.[141] That assessment involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[142]
[141] Mulligan, [56].
[142] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
Attached to Mr Dwinovan’s letter dated September 2024 are records of Mr Xie’s auditory testing.[143] The Respondent submits, and the Tribunal is similarly satisfied, that based on those records Mr Xie has a hearing loss greater than 65 decibels in his better ear based on a pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz.[144]
[143] E1, 206, 207.
[144] E1, 206; Respondent’s written closing submissions, [101].
Relevant to this application, the Access Guideline provides:
What if you have a hearing impairment?
Some hearing impairments may lead to a substantially reduced functional capacity.
We’ll generally decide you have a substantially reduced functional capacity if your hearing loss is at least 65 decibels in your better ear. This is based on a pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz.
We may also decide you have a substantially reduced functional capacity if your hearing loss is less than 65 decibels in your better ear. We may decide this if either:
·you also have another permanent impairment, such as a vision or cognitive impairment
·you give us evidence your speech detection and speech discrimination outcomes are significantly poorer than expected.
The Respondent contends Mr Xie’s permanent impairment does not result in substantially reduced functional capacity to undertake any of the prescribed activities.[145]
[145] Respondent’s written closing submissions, [86].
The Respondent submits:
a) The Access Guideline as reproduced at paragraph [95] is not written in absolute terms and it is consistent with the Guidelines to find a person with the described hearing loss nonetheless does not have a substantially reduced functional capacity.[146]
b) In any event, should it be considered that policy would support the Tribunal finding a substantially reduced functional capacity unless departed from, the Respondent submits there are cogent reasons to depart from the Guidelines given the relevant evidence in this matter.
[146] Respondent’s written closing submissions, [104].
The Tribunal agrees that the Access Guideline’s wording, specifically “[w]e’ll generally decide”, is not written in absolute terms.
It is important to acknowledge that the Tribunal does accept Mr Xie lives with pain, psychosocial and cognitive impairments in addition to his permanent impairment. The Tribunal broadly accepts that those impairments bear upon his functional capacity to undertake one or more of the activities prescribed in s 24(1)(c). However, in circumstances where those impairments do not meet the requirement in s 24(1)(b), the Tribunal must exclude those from its consideration of whether the requirement in s 24(1)(c) is met. The Tribunal can only consider if Mr Xie’s permanent impairment (i.e. his hearing loss) results in substantially reduced functional capacity to undertake 1 or more of the activities prescribed in s 24(1)(c), when deciding if it is satisfied the requirement in s 24(1)(c) is met.
Communication
With respect to the activity of communication, the Access Guideline provides:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.[147]
[147] Access Guideline, 8.
Mr Dwinovan, who diagnosed Mr Xie’s permanent impairment, reported that speech discrimination tests reveal good auditory discrimination in both ears with appropriate levels of amplification.[148]
[148] E1, 205.
Mr Fong indicated Mr Xie requires assistive technology and assistance from other persons to communicate.[149] Mr Fong described the type of assistance Mr Xie requires as ‘prompting due to hearing loss secondary to disability’.[150]
[149] E1, 92.
[150] E1, 92.
Ms Yu reported:
a) During her face-to-face meeting with Mr Xie, Mr Xie required her to repeat questions most of the time.[151]
b) Mr Xie’s WHODAS 2.0 score of 62.5% for Understanding and Communication indicates significant difficulties.[152] In looking at Mr Xie’s actual standardised test record, where Ms Yu has recorded ‘critical points’, no reference is made to Mr Xie’s permanent impairment.[153]
c) Mr Xie’s Daily Living Activity Efficiency Form indicates that he feels overwhelmed when communicating with stakeholders, either via verbal communication, telephone or emails.[154] In looking at Mr Xie’s actual standardised test record, none of the challenges Mr Xie reported relevant to him feeling overwhelmed when communicating with stakeholders relate to his permanent impairment.[155]
d) Mr Xie’s ABAS score of 1 out of 19 in communication indicates an extremely low level compared to his peers.[156] In reporting on Mr Xie’s ABAS score, Ms Yu stated Mr Xie cannot hear clearly via telephone, especially when fatigued.[157] Ms Yu recommended Mr Xie communicate with others in a quiet environment and is better to have 1:1 communication.[158]
e) Mr Xie’s hearing difficulties make it challenging to understand shop clerks.[159]
f) Mr Xie’s hearing difficulties, particularly in noisy environments, make it hard for him to clearly understand what others are saying.[160]
g) Mr Xie is generally independent when engaging in casual, leisure-style communication.[161]
[151] E1, 257.
[152] E1, 280
[153] E1, 298.
[154] E1, 280.
[155] E1, 301.
[156] E1, 280.
[157] E1, 281.
[158] E1, 281.
[159] E1, 289.
[160] E1, 290.
[161] E1, 291.
At the hearing, Mr Xie’s oral evidence was as follows:
a) He is not currently fitted with hearing aids. He was not wearing hearing aids at the hearing.
b) In cross-examination, Counsel for the Respondent stated that there was mention in the evidence Mr Xie had trouble hearing shop clerks and difficulties in noisy environments. Mr Xie was asked whether there was anything he wanted to add to that evidence with respect to the impact of his hearing loss. Mr Xie gave evidence that the way his hearing loss affects him is that he really struggles in noisy environments and needs to turn the television up at home. He gave further evidence to the effect that sometimes his need to turn the volume up on the television disturbs his wife, which affects his relationship with her.
The hearing was held over 2 days. During the hearing, the Tribunal observed Mr Xie make oral opening submissions, respond to questions put to him in a way that reflected he had understood the question asked of him, and participate in discussions. Neither Mr Xie or the interpreter reported any difficulty understanding each other, nor was Mr Xie routinely asking people to repeat themselves.
Whilst there is other evidence before the Tribunal, including from Mr Xie, that relates to Mr Xie’s ability to participate effectively or completely in the activity of communication, or to perform tasks or actions required to undertake the activity of communication, that evidence attributes any challenges Mr Xie may experience to impairments other than his permanent impairment.
The Tribunal accepts Mr Xie’s evidence that he is not currently fitted with hearing aids and was not wearing hearing aids at the hearing. Mr Dwinovan’s evidence, which the Tribunal also accepts, is that he will be fitting Mr Xie with binaural receiver-in-the-canal hearing aids, which he considers will be beneficial for Mr Xie.[162]
[162] E1, 205.
The Tribunal accepts that Mr Xie’s permanent impairment can sometimes result in him being unable to hear what is said to him on the telephone or in a noisy environment, and in those very specific situations he will not clearly understand what is said to him. However, the Tribunal finds that his ability to speak, write, express himself, understand others and be understood by others is not otherwise impacted by his permanent impairment. The Tribunal finds that there is no task that comprises the activity of communication that Mr Xie cannot do because of his permanent impairments. It follows that if it is the case Mr Xie cannot do specific tasks within the activity of communication, this does not result from his permanent impairment.
The Tribunal finds Mr Xie’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Mr Xie’s permanent impairment results in substantially reduced functional capacity to undertake the activity of communication.
Social interaction
The Access Guideline suggests the activity of social interaction is comprised of the following, non-exclusive content:
Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.[163]
[163] Access Guideline, 8.
Associate Professor Liu reported that Mr Xie’s conversation skills remain intact.[164]
[164] E1, 171.
Mr Fong opined Mr Xie needs assistance from other persons with social interaction.[165] Mr Fong reported Mr Xie relies heavily on his wife to make conversations, communicate with friends and maintain relationships.[166] Mr Fong does not state which of Mr Xie’s impairments he would attribute this to.
[165] E1, 92.
[166] E1, 92.
Ms Yu reported:
a) Mr Xie’s hearing difficulties make it challenging to understand shop clerks.[167]
b) Mr Xie’s hearing difficulties, particularly in noisy environments, make it hard for him to clearly understand what others are saying.[168]
c) Mr Xie’s reduced concentration, fatigue, hearing and emotional regulation issues significantly impact on Mr Xie’s engagement in community activities and socialisation.[169]
d) She recommended Mr Xie have a mentor with him while socialising with others, and one of the reasons why included to clarify and repeat information when Mr Xie cannot hear properly.[170]
[167] E1, 289.
[168] E1, 290.
[169] E1, 291.
[170] E1, 291.
Whilst there is other evidence before the Tribunal, including from Mr Xie, that relates to Mr Xie’s ability to participate effectively or completely in the activity of social interaction, or to perform tasks or actions required to undertake the activity of social interaction, that evidence attributes any challenges Mr Xie may experience to impairments other than his permanent impairment.
The Tribunal has already accepted that Mr Xie’s permanent impairment can sometimes result in him being unable to hear what is said to him on the telephone or in a noisy environment, and in those specific situations he will not clearly understand what is said to him. The Tribunal accepts that this would be frustrating for Mr Xie when he is interacting with the community and may to some extent reduce his inclination to interact with the community. The Tribunal also accepts that he may prefer to engage with friends and family other than by telephone, to maintain those relationships. However, this does not mean that Mr Xie cannot interact with the community or make and maintain friendships and other connections.
The Tribunal is not persuaded on the material before it that there is any task that comprises the activity of social interaction that Mr Xie cannot do because of his permanent impairment.
The Tribunal finds Mr Xie’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Mr Xie’s permanent impairment results in substantially reduced functional capacity to undertake the activity of social interaction.
Learning, Mobility, Self-care and Self-management
The Access Guideline suggests these activities are comprised of the following, non-exclusive content:
Learning – how you learn, understand and remember new things, and practise and use new skills.[171]
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.[172]
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.[173]
Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[174]
[171] Access Guideline, 8.
[172] Access Guideline, 8.
[173] Access Guideline, 8.
[174] Access Guideline, 8.
There is no evidence before the Tribunal which suggests Mr Xie’s permanent impairment bears upon his ability to participate effectively or completely in the activities of learning, mobility, self-care and/or self-management; or to perform tasks or actions required to undertake or participate effectively or completely in those activities. The Tribunal is not persuaded on the material before it that there are any tasks that comprises the activities of learning, mobility, self-care or self-management that Mr Xie cannot do because of his permanent impairment. It follows that if it is the case Mr Xie cannot do specific tasks that comprise those activities, this does not result from his permanent impairment.
The Tribunal finds Mr Xie’s circumstances are not captured by those described in r 5.8 of the Access Rules. Nor is the Tribunal satisfied Mr Xie’s permanent impairment results in substantially reduced functional capacity to undertake the activities of learning, mobility, self-care or self-management.
In circumstances where Mr Xie’s permanent impairment does not result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), the Tribunal is not satisfied the requirement in s 24(1)(c) is met. It follows that Mr Xie does not meet the disability requirements in s 24.
Does Mr Xie meet the early intervention requirements?
Subject to paragraph [123], and for the reasons outlined in relation to ss 24(1)(a) and 24(1)(b), the Tribunal is not satisfied Mr Xie:
a)has 1 or more identified intellectual, cognitive, neurological, sensory or physical impairment that are, or are likely to be, permanent; or
b)has 1 or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent.
For the reasons outlined above in relation to ss 24(1)(a) and 24(1)(b), the Tribunal is satisfied Mr Xie has a sensory impairment (hearing loss) that is, or is likely to be, permanent. Accordingly, the requirement in s 25(1)(a) is met.
Section 25(1)(b) requires that the Tribunal is satisfied that provision of early intervention supports for Mr Xie is likely to benefit him by reducing his future needs for supports in relation to disability. Rule 6.9 of the Access Rules provides that in deciding whether provision of early intervention supports is likely to benefit Mr Xie in that way, it is expected the Tribunal will consider:
a) the likely trajectory and impact of his impairments over time.
b) the potential benefits of early intervention on the impact of the impairments on his functional capacity and in reducing his future needs for supports.
c) evidence from a range of sources, such as information provided by his family members or carers.
Evidence before the Tribunal in relation to Mr Xie’s hearing loss is extremely limited.
Mr Dwinovan opined that Mr Xie would benefit from binaural receiver-in-the-canal hearing aids.[175]
[175] E1, 205.
Ms Yu recommended Mr Xie have a mentor with him while socialising with others to assist with communication, provide emotional support, and support public engagement.[176] One way Ms Lu suggested a mentor could assist Mr Xie with communication would be to clarify or repeat information when Mr Xie cannot hear properly.[177] Other suggestions Ms Yu made as to what a mentor would do to assist Mr Xie with communication, provide emotional support, and support public engagement are clearly directed at supporting his reduced functional capacity resulting from impairments other than his hearing loss.
[176] E1, 291.
[177] E1, 291.
Mr Xie gave oral evidence that he had trialled hearing aids, and they worked beautifully. In cross-examination, Counsel for the Respondent asked Mr Xie whether it is fair to say that the only support he is aware he would be seeking for hearing loss is a hearing aid. Mr Xie responded ‘I’m not sure. I will leave that decision to my doctor and my lawyer. I don’t know whether I just need a hearing aid or whether I need anything else. I’ll leave that decision to them.’ Mr Xie confirmed with respect to the lawyer he had referred to, he was speaking about a work injury claim he has made for hearing loss.
On the material before it, the Tribunal is not persuaded Mr Xie requires any support for his sensory impairment (hearing loss), other than hearing aids.
There is no evidence before the Tribunal in relation to the likely trajectory and impact of Mr Xie’s hearing loss over time; and the potential benefits of early intervention on the impact of the hearing loss on his functional capacity and in reducing his future needs for supports.
On the material before it, the Tribunal is not satisfied that provision of early intervention supports for Mr Xie is likely to benefit Mr Xie by reducing his future needs for supports in relation to disability. The Tribunal is therefore not satisfied that the requirement in s 25(1)(b) is met. It follows that Mr Xie does not meet the early intervention requirements in s 25.
In circumstances where Mr Xie does not meet the disability requirements in s 24 or the early intervention requirements in s 25, he does not meet the access criteria to become a participant of the NDIS
DECISION
The Tribunal affirms the decision under review.
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