Yusuf and National Disability Insurance Agency (NDIS)

[2025] ARTA 2262

Yusuf and National Disability Insurance Agency (NDIS) [2025] ARTA 2262 (20 October 2025)

Applicant/s:  Cuneyt Yusuf

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/2046

Tribunal: General Member A. Williams

Place:Hobart

Date:20 October 2025

Decision:The Tribunal affirms the decision under review pursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

.............................[SGD].................................

A. Williams

Catchwords

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access request – - whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” under s 24 – Applicant has disability arising from physical, psychosocial and intellectual impairments – issues – whether conditions are permanent - whether impairments have resulted in substantially reduced functional capacity in the areas of communication, learning, social interaction, mobility, self-care and self-management – whether applicant requires lifetime NDIS support – whether applicant meets early intervention criteria - decision under review affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Cases

Beezley v Repatriation Commission [2015] FCAFC165
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
G v Minister for Immigration and Border Protection [2018] FCA 1229

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

Secondary Materials

Becoming a Participant - Applying to the NDIS Guidelines (‘the Access Guidelines’)

Statement of Reasons

Introduction

1. This application is about whether the Applicant, Mr. Cuneyt Yusef, should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). Mr. Yusuf seeks review of a decision made on 2 March 2023 by a “reviewer” under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘reviewable decision’).[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (‘NDIA’), dated 23 February 2023 not to grant access to Mr. Yusuf as a participant in the NDIS.

   [1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).

2. The Administrative Review Tribunal’s (the ‘Tribunal’) jurisdiction arises under 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with

   
   

   s 103 of the NDIS Act.

3. For the reasons set out below, the Tribunal is not satisfied that Mr. Yusuf meets the access requirements under s 21 of the NDIS Act.

   Background

4. Mr. Yusef Yusuf is a 48-year-old man who lives in the Inner Western suburbs of Sydney. He lives in a social housing property with his brother.

5. Mr. Yusuf has the following diagnosed medical conditions:

   ·Major depressive illness;

   ·Post-traumatic stress disorder (PTSD);

   ·Obesity;

   ·Anxiety disorders;

   ·Chronic pain (back and knees);

   ·Diabetes Mellitus Type II (uncontrolled);

   ·Irritable bowel syndrome;

   ·Retinopathy;

   ·Decompensated congestive cardiac failure; and

   ·Toe amputation.[2]

6. Arising out of these various medical conditions Mr. Yusuf experiences the following symptoms:

   ·Severe lethargy;

   ·Disturbed sleeping patters;

   ·Low self-esteem;

   ·Negative self-image;

   ·Lack of concentration;

   ·Feeling sad almost all the time;

   ·Feelings of worthlessness;

   ·Feeling anxious all the time;

   ·Difficulty with decision making;

   ·Decreased motivation;

   ·Social withdrawal;

   ·Concern for the future;

   ·Depressed mood; and

   ·Feelings of isolation.

   REQUEST FOR ACCESS TO THE NDIS

7. In 2022 Mr. Yusuf applied to the NDIA seeking to be granted access to the NDIS.

8. The Respondent provide its decision on 23 February 2023 after assessing Mr. Yusuf’s eligibility to access the scheme. It advised that Mr. Yusuf had not met the eligibility criteria to be granted access to the scheme (the ‘initial decision’).

9. Upon receiving the Agency’s decision, Mr. Yusuf requested the Respondent conduct an internal review of the initial decision.

10. The Respondent conducted its internal review and on 2 March 2023 advised that it had confirmed the initial decision to find Mr. Yusuf was not eligible to gain access to the scheme. (the reviewable decision).

    Decision under review and application for review to this Tribunal

11. As noted in paragraph 13 above, the reviewable decision is the decision by the Respondent on 2 March 2023 that Mr. Yusuf had not established that he met the eligibility criteria to be granted access to the scheme.

12. On 30 March 2023 Mr. Yusuf applied to the then Administrative Appeals Tribunal (AAT) for the AAT to conduct an independent review of the reviewable decision.

13. In his application for review, Mr. Yusuf noted the following as the reason why he considered the reviewable decision was wrong:

    I believe the agency did not consider the evidence to provide me with access to the NDIS to receive reasonable and necessary supports.

    APPLICANT’S EVIDENCE

    14.As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process (the T Documents). Of potential relevance to this decision are the following reports and other documents:

    ·Tribunal application dated 30 March 2023.

    ·Internal review decision dated of 2 March 3023

    ·Letter application not received dated 9 July 2023.

    ·Letter Dr Mehdi Monfarad dated 23 July 2019.

    ·Letter Internal Review Decision 19 November 2019.

    ·Letter from Seyed Hosseinipour (Clinical Consultant) dated 7 April 2020

    ·Report from Zahra Shahidi (Dietician) dated 10 April 2020.

    ·Report from Dr Mehdi Monfarad dated 11 October 2022.

    ·Letter Zaya Toma (Appeals Manager) dated 7 November 2022.

    ·Letter from Dr Mehdi Khalinghimonfared dated 15 November 2022.

    ·Letter from Dr Seyed Hosseinipour dated 28 November 2023.

    Documents filed with the Tribunal

14. The following additional documents were lodged with the Tribunal on Mr. Yusef’s behalf:

    ·Response to Respondent’s targeted questions from Dr Seyed Hosseinipour dated 28 August 2023.

    ·Job Capacity Assessment report for application for Disability Support Pension dated 20 June 2011.

    ·Report from Dr Albert Shafransky (Consultant Cardiologist) dated 14 March 2024.

    ·Mr. Yusuf’s Statement of Lived Experience (SOLE) dated 7 September 2023.

    ·Letter in response to NDIA targeted questions from Dr Seyed Hosseinipour (Psychologist) dated 28 August 2023.

    ·Functional Capacity Assessment report prepared by Glen Dwyer (OT) dated 20 October 2023 (submitted by the Respondent).

    ·Letter in response to NDIA targeted questions from Dr Sengordon Ramachandra dated 9 January 2024.

    ·Picture of Mr. Yusuf’s 4-wheel walker submitted 13 March 2024.

    ·Colour photos of Mr. Yusef’s legs received 18 July 2024.

    ·Job Capacity Assessment Report dated June 2011.

    ·Letter from Dr Albert Shafransky to Mr. Yusuf’s GP dated 14 March 2024.

    ·Mr. Yusuf’s statement dated 20 September 2024.

    ·Mr. Yusuf’s response to the Agency’s Statement of Facts Issues and Contentions (SFIC) received 3 October 2025.

    ·Hospital discharge summary dated 25 July 2025.

    ·Further hospital discharge summary dated 24 August 2025.

    ·Letter from Dr Allan Gregor dated 25 September 2025

    ·Medical article (various authors) ‘Fatigue across different chronic kidney disease populations: experiences and needs of patients’ in Clinical Kidney Journal 18 April 2025.

    ·Medical article (various authors) Physical functional performance and prognosis in patients with heart failure: a systematic review and meta-analysis: BMC Cardiovascular Disorders. 2020

15. As noted above, on 7 September 2023, Mr. Yusuf provided a Statement of Lived Experience.

16. In that Statement he wrote the following:

    My routine:

    I sometimes struggle to wake up in the morning because I often feel very tired and have trouble sleeping at night. I start my day by taking the medicines prescribed to me by my doctors. These help me manage my physical conditions and mental health.

    I try to have a healthy breakfast that suits my dietary needs and the recommendations from my healthcare team.

    In the morning, I might have appointments with my specialists.

    I try to have a meal for lunch that takes into account my dietary requirements and personal preferences. I consider my conditions like type 2 diabetes and IBS when choosing what to eat.

    I take some time in the afternoon to focus on self-care and rest. This helps me manage my chronic pain, obesity, and my mental well-being.

    I try to engage in social activities during the afternoon, but I often feel feelings of isolation and withdrawal.

    I eat dinner but due to needing support, I struggle to meet my dietary needs arising out of my conditions.

    Before bed, I take any prescribed medications that I need to take in the evening.

    The impairments for which I seek access into the NDIS are:

    Physical mobility impairment: I experience difficulty in moving around and performing daily activities due to various physical conditions contained in doctors’ reports in the T-Docs.

    Mental health impairment: I struggle with severe PTSD, anxiety, and depression, which impact my daily life.

    My various conditions are all interlinked so I am not entirely sure which ones should be the ones I seek access to the NDIS for. I believe independent experts arranged by the NDIA should assess me to ascertain this.

    The diagnoses and diagnosing healthcare professionals are as follows:

    Physical conditions: I was diagnosed with conditions such as chronic pain, obesity, chronic back and knee pain, sleep apnoea, and diabetic retinopathy. The diagnoses were made by my healthcare providers over the years.

    Mental health conditions: I was diagnosed with severe PTSD, anxiety, and depression by my psychologist, Seyed Hosseinipour.

    I have explored different types of treatment for my conditions:

    Physical conditions: I have undergone medicaƟon management, received specialist care, and sought pain management therapies. While these treatments provide some relief, they haven't completely resolved my physical difficulties.

    Mental health conditions: I have been attending regular counselling sessions with my psychologist and have been prescribed medications to manage my symptoms. Although these treatments have helped to some extent, I continue to experience ongoing challenges.

    Current treating providers:

    ·Dr Mehdi Khalighimonfared - GP

    ·Seyed Hosseinipour - Psychologist

    ·Zahra Ghavam Shahidi - DieƟƟan

    ·Dublin Street Specialists Smithfield – Kidney Specialist (the Applicant cannot recall the specialist’s name).

    Activities I experience difficulties participating in:

    Mobility: I struggle with tasks like doing shopping at the supermarket, housework (cooking, cleaning, yard maintenance), lifting and carrying things, driving, and using public transport due to my mobility issues.

    Communication: I don't have specific issues with oral communication or hearing but at times my anxiety and depression impacts how I communicate with other people.

    Learning: I have difficulty learning new things and acquiring new skills and often feel my anxiety and depression impacts me with my learning.

    Social Interaction: I have a limited social circle, and social acƟviƟes are challenging for me due to feelings of isolation and social withdrawal.

    Self-Care: I require assistance with acƟviƟes like cooking, cleaning, and washing due to my various physical limitations. As I do not have support, my ability to self-care is very little.

    Self-Management: I struggle with managing my own money, paying bills, managing a bank account, and handling my medication independently.

17. On 20 September 2024 Mr. Yusef provided a further statement:

    Since my mother passed away in June 2024, I have faced immense challenges in managing my daily life. I struggle to wake up in the morning due to chronic exhaustion and difficulty sleeping at night.

    My routine begins with taking the medications prescribed by my doctors to manage my physical conditions and mental health, including chronic pain, obesity, type 2 diabetes, IBS, severe PTSD, congestive heart failure and renal failure. I try to follow the dietary recommendations provided by my healthcare team, but I often struggle to prepare meals due to my impairments. Throughout each day I am constantly feeling fatigued, I find myself needing to rest frequently, which disrupts my flow and often leaves me feeling overwhelmed.

    In the mornings, I might have appointments with specialists, though managing these can be exhausting. I try to eat a healthy breakfast and consider my conditions like diabetes and IBS when choosing my meals. For lunch, I drink a powder for my kidneys, but beyond this, I struggle to maintain a balanced diet, especially after my mother’s passing, as she used to prepare my meals. I can only make basic food like toast and instant coffee, and I often rely on purchasing food, as I am unable to cook anything else.

    Mobility is a significant challenge. I move very slowly, needing to rest every six minutes while walking with my walker. My mother used to help push me in the walker when we went out, but now I manage on my own. I have relied on my walker since 2020. My GP accompanied me to the shop to help me choose a suitable one. It is with me 24/7, whether I’m in the community, at shops, or visiting friends. I am heavily reliant on it and use it throughout my house, including the toilet and shower area, as well as in the other living spaces, such as the front porch, lounge and kitchen. I can drive short distances within a 10 km radius, but this is tiring, and shopping is difficult. I can only carry small amounts of groceries, using my walker’s handles to transport two bags at most. My brother (NDIS participant) helps with some tasks, but I can’t do heavy cleaning or housework on my own and rely on his cleaner for support.

    In the afternoons, I try to focus on self-care and rest to manage my severe fatigue, chronic pain and mental health, but my feelings of isolation and withdrawal often prevent me from engaging in social activities. Social interaction has become limited, with most of my interactions occurring when people approach me while I’m sitting on my walker in public spaces. I can’t attend social events as I used to, and my communication has become harder due to frustration and severe fatigue. I struggle to hold conversations, especially over the phone, which affects my ability to seek help or make decisions, such as what groceries to buy. From my perspective, fatigue is not just physical exhaustion; it affects my entire being, my mental clarity and emotional stability.

    Evening meals are difficult. I no longer have support to meet my dietary needs, which worsens my physical conditions. Before bed, I take my prescribed medications, but sleep remains difficult, especially since losing my mother, which has made everything more difficult.

    I struggle with intellectual difficulties that impact my daily life. I cannot write down what someone is telling me and need assistance to interpret my mail. Reading medication instructions is not possible for me; I require help with them. I have overdosed four or five times because I made a mistake due to my difficulty in reading and understanding the instructions. I am unable to interpret recipes for cooking. I rely on simple meals.

    My physical impairments impact many aspects of my life. I face significant difficulty moving around, performing daily activities like shopping, cooking, cleaning, and even managing personal care. I can’t shave myself due to difficulty holding the razor and use a barber for this. Bathing is also a challenge. I use a shower chair and an extendable shower head as I can’t safely get in and out of the bathtub. I can only bathe every second day, which leaves me feeling unclean and frustrated.

    My mental health also affects my daily life. I experience severe PTSD, anxiety, and depression, which further limit my ability to engage in social activities and self-care. I feel overwhelmed when trying to manage tasks, leading to heightened frustration and fatigue. Managing my finances, paying bills, and handling medications independently are all areas where I struggle. My brother assists when possible but without Mum’s support, I often feel lost and unsure of how to manage.
    I’ve explored various treatments for my physical and mental health, including pain management therapies, counselling, and medications. These treatments haven’t resolved my difficulties, and I continue to face ongoing challenges in my daily life.
    Overall, since Mum’s passing, I’ve felt isolated and unable to learn new skills, such as cooking or managing the household. I’m unable to fully care for myself, and each day is a struggle to cope with both my physical and emotional limitations.

    Agency’s evidence

18. The Agency provided a report prepared by Mr. Glen Dwyer (Occupational Therapist) acting as an Independent Medical Expert dated 20 October 2023.

19. Mr. Dwyer’s report is quite lengthy, so I do not propose to provide a summary here. Much of Mr. Dwyer’s findings will be addressed when I record his oral evidence to the Tribunal.

    The Parties’ submissions

20. During the conduct of the Tribunal’s pre-hearing procedure, both parties filed with the Tribunal a Statements of Issues (SOI) and Statements of Facts, Issues and Contentions (SFIC).

21. The purpose of both an SOI and a SFIC is to provide an outline of that party’s case, what they consider to be the relevant facts, what may be the relevant parts of the Act and related Rules the Tribunal should consider and to identify where the parties disagree on these points.

22. These are updated on a regular basis to take account of new evidence and other material provided by the parties.

23. The most recent or relevant of these documents will be referred to throughout this decision.

    Mr. Yusuf’s position

24. Mr. Yusuf outlined his position in a SFIC dated 3 October 2025 which in turn was in response to the Agency’s SFIC of 9 September 2025.

25. That document addressed the key section 24 eligibility criteria as outlined below:

    Permanent Impairments

    Psychosocial conditions

    ·The Applicant experiences a range of psychosocial impairments, including severe lethargy, disturbed sleeping patterns, low self-esteem, negative self-image, lack of concentration, and persistent feelings of sadness, worthlessness, anxiety, and isolation.

    ·The Applicant submitted that, as highlighted by the Respondent, Dr. Hosseinipour noted in August 2023 that the Applicant’s mental health is a "lifelong issue that requires consistent physical care and psychological counselling and therapy," indicating the likely permanent nature of the Applicant's impairments. The doctor is expressing interventions of a maintenance nature rather than something that would lead towards “approaching a removal or cure of the impairment”.[3]

    [3] NDIA v Davis [2022] FCA 1002, 136.

    ·The Applicant contended that reliance on older evidence to suggest the need for further treatment or assessment to understand the stability of the impairments is inappropriate when more recent evidence does not support this assertion. Even if the Tribunal were to doubt this point, it is submitted that the Applicant, living on a fixed Disability Support Pension (DSP) income, cannot afford the suggested 26 psychology sessions annually. According to NDIA v Davis [2022] FCA 1002, financial constraints are a relevant consideration in determining whether treatment is "available." Here, as in Davis, the inability to afford ongoing treatment due to income limitations supports the assertion that there are no available treatments for the Applicant to explore.

    ·It therefore submitted that the Tribunal should find the Applicant’s psychosocial impairments are likely to be permanent.

    Intellectual conditions

    ·The Applicant also has a diagnosed intellectual disability, as evidenced by Centrelink records, indicating an IQ score in the 63-71 range. This qualifies the Applicant as having a mild intellectual disability, which, when combined with other functional impairments, has a cumulative impact on his daily functioning.

    Physical Impairments

    ·In terms of his physical impairments, Mr. Yusuf deals with chronic back and knee pain, severe fatigue, and mobility challenges that require reliance on a walker. In Dr Nguyen’s letter dated 1 August 2024, the doctor stated that the Applicant had a toe amputated in 2020, which has fully healed and for which no further treatments are planned. The Applicant complains of gait and balance issues related to the toe.

    ·Mr. Yusuf lives with Congestive Heart Failure (CHF) and stage 4 chronic kidney disease (CKD), as evidenced by the records of his treating cardiologist and nephrologist and hospital summaries. The Applicant's GP, after reviewing his file and records, described his physical impairments as “chronic irreversible medical conditions,” listing impairments of limited mobility, Peripheral neuropathy, chronic leg ulcers and low motivation. When the GP was asked if reliance on a walker would remain, the answer was possibly yes and stated, “considerable risk” of “irreversible damage done”.

    ·In July and September 2025, Mr. Yusuf attended hospital for complications relating to his heart failure and chronic kidney disease. Mr. Yusuf held that this demonstrates an escalation in the presentation of his conditions and provides clear evidence of their unstable and deteriorating nature. Chronic kidney disease is medically recognised as progressive and incurable, with studies confirming that fatigue is present in more than 90 percent of patients and often persists for over six months despite treatment attempts.

    ·Mr. Yusuf also submitted that congestive heart failure is a lifelong, degenerative condition that produces lasting impairments, including severe fatigue, exercise intolerance, pain, and mobility limitations, all of which worsen over time.

    Substantial reduction in functional capacity

    The Four wheeled walker

    In this regard the Mr. Yusuf held that:

    ·According to Dr. Ramachandra, in his letter dated 09/01/2024 that Mr. Yusuf has irreversible damage, indicating that even with psychological or dietary intervention, the Applicant would “possibly” remain reliant on a four-wheeled walker. The Applicant’s most recent statement confirms ongoing reliance on the four-wheeled walker, using it both at home and in the community.

    ·The Tribunal should consider the reasoning in Beaumont and National Disability Insurance Agency [2024] AATA 891 (‘Beaumont’), which drew on Foster to conclude that “assistive technology or equipment does not, to our minds, necessarily need to be prescribed or purchased, for example, at significant cost.” Therefore, the Tribunal need not be convinced that the Applicant’s four-wheeled walker was formally prescribed.

    ·Notwithstanding that, the evidence before the Tribunal indicates that the Applicant’s walker was indeed prescribed or recommended. The Applicant’s GP assisted him in selecting his walker, and more recently, Dr. Ramachandra did not dispute the appropriateness of the four-wheeled walker for the Applicant’s use.

    ·Additionally, as noted in Beaumont, a four-wheeled walker is not a commonly used item, supporting its categorisation as specialised equipment for the Applicant in accordance with the NDIS rules guiding decision-makers when deciding on substantially reduced functional capacity. The Applicant’s statement indicates reliance on the walker to participate in various tasks, including shopping, navigating home, and socialising in the community.

    ·The Applicant’s statement indicates that without the walker, he would be unable to achieve safe access to mobility activities.

    ·Therefore, the Applicant submitted that in accordance with Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016, the Applicant has a mobility impairment that “results in substantially reduced functional capacity of a person to undertake” mobility activities, rendering him unable to participate effectively or completely without his four-wheeled walker.

    Other Equipment

    ·Mr. Yusuf submitted that the equipment recommended by the Respondent’s Occupational Therapist, Mr. Dwyer, are not common by any standard and particularly unusual for a 48-year-old man such as Mr. Yusuf. Those recommendations included items that are not in general use, such as a perching stool, bath seat, leg lifter, dressing stick, sock aid, long-handle toe washer, and long-handle sponge. As observed in Beaumont, “commonly used items are not defined in the Act or Rules [and] should be interpreted using a plain reading of the text. Glasses are commonly used items because they are routinely used by a wide range and large number of people.”[4] They therefore argue that it is for the Tribunal to conclude that the items Mr. Dwyer recommended are not commonly used and therefore should be considered assistive technology as envisaged by the rules and legislation to determine substantially reduced functional capacity.

    [4] Beaumont and National Disability Insurance Agency [2024] AATA 891, 117.

    Reliance on Madelaine and NDIA

    ·In regard to the Respondent’s reliance on Madelaine, it is submitted that the perspective outlined in Beaumont at paragraph 145 should be preferred: “The apparent baseline used in that case was remarkably low and hard to reconcile with the objectives and purposes of the Act, including that people with disability have their dignity respected. Notably, the word ‘crawling’ has since been removed from the Guidelines.

    Section 24(1)(e) need for lifetime support

    ·The Applicant submitted that the "Safe and Supported at Home" program, community mental health programs, crisis response teams, and other forms of household help cannot meet Mr. Yusuf’s needs. The Applicant also submitted that the recommendation of these programs, which were made by the Respondent, overlooks the NDIS's unique purpose. It is submitted these alternate services address temporary, crisis-based, or condition-specific needs rather than the type of ongoing, integrated support that individuals with complex disabilities often require.

    Early Intervention criteria (section 25)

    ·The Applicant submitted that this criterion should be considered by the Tribunal if it is satisfied that Mr. Yusuf has permanent impairments for which capacity-building support is appropriate, as recommended by Mr. Dwyer of “Intensive Occupational Therapy.” Specifically, the following interventions were mentioned:

    1.    Support to improve and maximise independent living skills.

    2.    Teaching practical anxiety-reducing strategies, such as relaxation and breathing techniques.

    3.    Developing increased confidence through skill acquisition.

    4.    Equipment prescription and demonstration of safe use.

    5.    Support and guidance for managing symptom flare-ups.

    6.    Functional education on energy conservation techniques, fatigue management, and the pacing/grading of activity.

    ·Additionally, the Applicant’s GP has recommended a dietitian, exercise physiologist, and occupational therapist to support the Applicant’s mobility and encourage weight loss.[5]

    [5] Dr Gregor letter dated 25.09.25 

    ·The Applicant submitted that targeted interventions can reduce the speed of deterioration, maintain independence, and help stabilise the impact of the impairments. They held that as Mr. Yusuf may ultimately require NDIS support at some point given the incurable nature of his conditions, suitable early structured allied health intervention could reduce the need for immediate NDIS access or delay the time when higher levels of funded support become necessary.

    The Agency’s position

1. In its SFIC dated 9 September 2025, the Agency outlined its position with respect to Mr. Yusuf’s application for access to the scheme and what sections 24 and 25 criteria remained in issue.

2. In this regard the Agency submitted that the two primary issues were:

   ·Whether Mr. Yusuf meets the disability requirements in s 24, such that sub-section 21(1)(c)(i) is met.

   ·Whether Mr. Yusuf meets the early intervention requirements in s 25, such that sub-section 21(1)(c)(ii) is met.

3. The Agency noted that Mr. Yusuf is seeking access to the scheme for the following impairments:

   ·Chronic back pain.

   ·Decompensated cardio failure.

   ·Post traumatic stress disorder (PTSD).

   ·Toe amputation.

   ·Femoral Artery Bypass.

   ·Anxiety.

   ·Depression.

   ·Type II diabetes/Diabetic retinopathy.

   ·Obesity.

   ·Chronic pain.

   ·Severe fatigue.

   ·Gait and balance issues.

   ·Chronic kidney disease.

   ·Chronic leg ulcers.

   ·Irritable bowel syndrome.

   ·Sleep apnoea.

   ·Mild intellectual disability.

   Disability requirements – section 24(1)(a)

   Psychosocial Impairments

4. The Agency submitted that Mr. Yusuf has psychosocial impairments arising from post-traumatic stress disorder (PTSD), anxiety and depression.

   Physical impairments

5. The physical impairments Mr. Yusuf is seeking access to the scheme are:

   ·heart failure

   ·pulmonary sarcoidosis

   ·chronic kidney disease

   ·diabetes complications

   ·peripheral neuropathy

   ·back and knee pain

   ·chronic leg ulcers.

6. The Agency outlined the evidence Mr. Yusuf had submitted in support of those conditions:

   ·Dr Shafransky (cardiologist) provided a letter dated 14 March 2024, which indicates the Applicant presented to hospital with symptoms of heart failure. The letter indicates the Applicant has minor coronary artery disease and patent coronary artery stent.

   ·The letter from Dr Natfaji (nephrologist), dated 12 January 2024, indicates the Applicant has an impairment relating to his kidney function.

   ·A further letter from Dr Natfaji dated 8 March 2024, indicates that the Applicant presented to hospital on 2 occasions between 3 and 6 March with increasing shortness of breath, with mildly elevated blood pressure. Dr Natfaji states that the Applicant was anaemic.

   ·Biochemistry notes from Australian Clinical labs, dated 6 October 2022, indicates the Applicant has a renal impairment, with a history of diabetes.

   ·A letter from Dr Nguyen, dated 1 August 2024, states that the Applicant has ongoing balance issues affecting his gait, resulting from the amputation of his toe.

7. On the basis of this evidence, the Respondent advised that it accepts that the Applicant has physical impairments related to heart failure, kidney disease, diabetes (type II), balance issues resulting from a toe amputation, and back and knee pain, such that he has a physical impairment for the purpose of s 24(1)(a) of the NDIS Act.

8. Regarding the Applicant’s leg ulceration, the Respondent notes the evidence from Dr Nguyen, dated 24 October 2023, that the Applicant was admitted to hospital from 11-23 October 2023 with sepsis secondary to infected lower limb wounds. However, the Respondent relies on the letter from Dr Natfaji, dated 8 March 2024, which states that the Applicant’s lower limbs have improved significantly, with no evidence of active infection. The Respondent maintains that the Applicant does not currently experience a loss of or damage to function in his lower limbs resulting from leg ulceration.

9. The Respondent maintained that there is insufficient evidence to find that impairments attributable to irritable bowel syndrome, sleep apnoea, and obesity, can be identified with precision. Further, regarding the Applicant’s obesity, the Respondent relies on the Tribunal’s decision in Schwass[6] in which the Tribunal found there was no evidence that obesity resulted in any loss of or damage to the body’s function, such that it is not an impairment that is contemplated by s24(1)(a).

   [6] Schwass and National Disability Agency [2019]AATA 28 [37]

   Intellectual impairment

10. In paragraphs 22 to 27 of its SFIC, the Agency noted that there was insufficient evidence to identify the nature and possible severity of any intellectual disability and therefore there is insufficient evidence for the Tribunal to be positively satisfied that the Applicant has an intellectual disability resulting in impairments.

    Permanency (section 24(1)(b)

11. The Respondent submitted that there was insufficient evidence for the Tribunal to accept that any of the Applicant’s impairments are permanent for the purposes of s 24(1)(b) of the Act, unless otherwise specified.

12. In this regard, the Agency referred to the Federal Court’s decision in National Disability Insurance Agency v Davis [2022] FCA 1002, [60] (Davis) and how it assists in understanding r 5.4, which states that an impairment is, or is likely to be permanent, only if there are no known, available and appropriate evidence-based treatments that would be likely to remedy the Applicant's impairments.

    The submission also provided guidance from Davis as to how to interpret certain relevant terms in section 24(1)(b):

    a)The word, “remedy” should be understood to mean more than just relieve or improve and should be understood to mean “something approaching a removal or cure of the impairment”.

    b)The word “known” connotes a treatment which can be identified by Australian medical practitioners as suitable treatment for the person’s particular impairment.

    c)The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo.

    d)The word “available” should be understood as meaning available to a particular individual and “should be understood as directed at what treatments an individual can, in reality, access”.

    Psychological impairments

13. Paragraphs 30 to 40 of the Respondent’s SFIC address the issue of permanency as it relates to these conditions and whether there are there are known, available and evidence- based treatments that would likely remedy the Applicant’s impairments.

14. The Respondent noted that the Applicant’s reply referred to ‘more recent evidence’ addressing this, he had not identified what this more recent evidence was.

15. It noted that Mr. Yusuf had raised the issue of financial barriers to him accessing additional psychotherapy and made the following observations in response:

    ·There was insufficient evidence in support of the contention that treatment is unavailable to him due to financial reasons.

    ·It noted that under current health care funding arrangements eligible patients can claim a Medicare benefit for up to 10 individual and 10 group mental health treatment services per calendar year. Mr. Yusuf claims that he uses five Medicare funded psychological counselling sessions per year. This evidence suggests that psychological interventions are available but are not being fully utilised by him.

    ·Despite the Applicant’s admission that he uses five Medicare funded psychological counselling sessions per year, there is no medical evidence detailing his engagement in recommended psychology, and reasons detailing why the Applicant has not engaged in the maximum frequency of treatment available to him. The evidence does not specify the expected outcomes of treatment, how outcomes will be measured, nor whether there has been any progress made towards treatment goals. The Respondent maintains that the evidence before the Tribunal does not address the type of pharmacological, psychotherapy or other interventions that have been prescribed, and the Applicant’s engagement with each, such that it can be satisfied that there is no treatment that is likely to remedy the Applicant’s impairments.

    ·In addition to the above, the Respondent notes Dr Ramachandra’s opinion that the “amount of motivation to attend nonpharmacological therapies and psychological therapies would be very low”. The Respondent submits the Applicant’s refusal to engage in prescribed treatment does not mean that the treatment is not available.

16. In summary, the Agency submitted that the Tribunal could not be positively satisfied that there are no known, available and evidence-based treatments that would be likely to remedy the Applicant's impairments as per rule 5.4.

17. Even if the Tribunal is satisfied that the recommended psychology sessions are not “available” to the Applicant, the Respondent relies on the RSFIC to submit that there is limited evidence that the Applicant has met his weight reduction targets, which have been clinically assessed as influencing the Applicant’s anxiety and depression. The Respondent acknowledges the evidence of Dr Natfaji, dated 8 March 2024, that the Applicant has lost 18 kilograms of weight over the last 4 months. However, the Respondent submits there is no evidence detailing the impact that this has had on his psychosocial impairments, and it follows that the Tribunal cannot be satisfied that all recommendations made to treat the impairments have been undertaken, such that s 24(1)(b) is not met.

    Physical impairments

18. The Agency advised that it accepted that the Applicant’s impairments relating to gait and balance issues arising from a toe amputation are permanent.

19. Mr. Yusuf, for his part, submits that he has permanent impairments relating to chronic back and knee pain, severe fatigue, mobility challenges, gait and balance issues, congestive heart failure and chronic kidney disease.

20. The Agency noted the following excerpt from Davis: “whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.” In this regard, the Agency submitted that the focus should be on the permanence of the person’s impairments, rather than the conditions themselves.

21. The Agency submitted in relation to Mr. Yusuf’s heart failure and chronic renal disease, that there was insufficient evidence for the Tribunal to be satisfied that there are no known, available and evidence-based treatments that would likely remedy the impairments.

22. The Agency referred to the letter of Dr Nguyen, dated 12 January 2024 and that of Dr Shafransky dated 14 March 2024 and noted that in each case there was no indication outcome of prescribed treatment, or proposed further treatment.

23. Arising out of this evidence, the Agency submitted that there is insufficient evidence for the Tribunal to be positively satisfied that all known, available and appropriate treatments that are likely to remedy the impairments have been identified and undertaken.

    Intellectual impairment

24. The agency noted that the Guidelines state that if there is evidence that a person has been diagnosed with a condition on “List B”, the Agency will likely decide that their disability is from an impairment that is likely to be permanent. List B details conditions that are likely to result in a permanent impairment, which includes reference to “intellectual disability.

25. NDIS guidelines state that if there is evidence that a person has been diagnosed with a condition on “List A”, the Agency is likely to decide that a person meets the disability requirements. List A includes “intellectual disability diagnosed and assessed as moderate, severe or profound in accordance with current DSM criteria”. The Respondent submits that there is no evidence for the Tribunal to be positively satisfied that the Applicant has a moderate, severe or profound intellectual impairment which satisfies a diagnosis in List A.

26. To the Respondent’s knowledge, no clinical evidence has been submitted detailing the diagnosis (pursuant to DSM V or at all) or treatment of the Applicant’s intellectual disability. Despite references to clinical reports contained within the evidence from Centrelink, the Respondent submits there is insufficient evidence for the Tribunal to be positively satisfied that the Applicant has an intellectual disability resulting in impairments.

27. Should the Tribunal find that the Applicant has a disability attributable to the claimed mild intellectual disability, the Respondent accepts s 24(1)(b) is met.

    Substantial reduction in functional capacity (section 24(1)(c)

28. The Agency submitted that the evidence before the Tribunal does not demonstrate that Mr. Yusuf has a substantial reduction in functional capacity due to his psychosocial, physical or intellectual impairments.

29. The Agency noted that Mr. Yusuf:

    ·Can prepare basic food like toast and coffee.

    ·Can drive short distances within a 10km radius.

    ·Can walk with the assistance of a four-wheeled walker.

    ·Can carry small amounts of groceries.

    ·Can engage in most self-care activities, including bathing and toileting using a shower chair and extendable shower head

30. Having regard to the above, and the bundle of tasks that make up each activity in s 24(1)(c), the Agency maintained that Mr. Yusuf’s impairments do not result in a substantial reduction in his functional capacity. It submitted that the independent functional capacity assessment report by Mr. Dwyer, dated 20 October 2023, remains the most probative evidence going to the Mr. Yusuf’s functional capacity and the Tribunal ought to place greater weight on this evidence.

31. The Agency noted that appointments had been arranged for Mr. Dwyer to conduct an updated functional assessment on 20 March 2025, 28 April 2025 and 29 July 2025. However, Mr. Yusuf did not attend these appointments for various reasons and consequently there is no updated functional capacity assessment report.

32. The Respondent notes that the Mr. Yusuf’s mother assisted him and had an important presence in his life. It follows that the recent passing of the Applicant’s mother has had an adverse impact on his day-to-day life. However, there is no evidence to suggest that his functional capacity itself has deteriorated since Mr. Dwyer’s report.

33. The Agency submitted Mr. Yusuf’s mobility could reasonably be expected to have improved since Mr. Dwyer’s report, on the basis that since the report, evidence indicates the Applicant has lost 18 kilograms of weight and the ulceration on his legs has significantly improved with no evidence of active infection. This is in circumstances where Mr. Dwyer opined that his mobility was restricted by “the chronic pain he experiences in his lower back and the symptoms he experiences in both legs together with the effects of his chronic heart failure, obesity and fatigue”. Though for completeness, the Agency noted that there is no updated evidence detailing the relationship between improvements in his health status and flow on effects to his functional capacity.

34. Regarding Mr. Yusuf’s submission that the use of a four wheeled walker satisfies the deeming provision in rule 5.8, the Respondent maintains its position detailed in the SFIC. Further, it does not automatically follow that “a person’s reliance on an item of assistive technology means that they have a substantially reduced functional capacity to perform an activity specified by section 24(1)(c)”.36 It is necessary to consider how extensively the Applicant relies on his four wheeled walker to undertake specific tasks and activities.

35. The Agency referred to evidence provided by Dr Ramachandra, that Mr. Yusuf may “possibly” require a four-wheeled walker for impairments related to diabetes related complications, heart attacks, decompensated cardiac failure, pulmonary sarcoidosis, peripheral neuropathy, and leg ulcers. The Respondent submits that the impact of the Applicant’s weight loss and absence of active infection on his legs, suggest the Applicant’s reliance on a four-wheeled walker may have decreased or changed.

    Early intervention criteria (section 25(1)

36. The Agency maintained its earlier position that Mr. Yusuf does not meet the early intervention criteria.

37. It noted that the Applicant submits that the early intervention criteria should be considered if the Tribunal were to be satisfied that he has permanent impairments for which capacity- building supports are appropriate

38. The Respondent in reply stated that the Applicant’s reliance on Mr. Dwyer’s report is misguided, in so far as he contends the report recommends supports that are likely to benefit a person as contemplated in s 25(1)(c). For completeness, Mr. Dwyer’s report does not make recommendations for specific early intervention supports. Rather, Mr. Dwyer’s report supports further occupational therapy advice and recommendation.

    LEGISLATIVE FRAMEWORK

39. Section 21(1) of the NDIS Act provides that a person satisfies the access criteria if they meet:

    ·the “age requirements” under s 22;

    and, at the time of considering the access request;

    ·the “residence requirements” under s 23 of the NDIS Act; and the “disability requirements” under s 24 (as set out in paragraph [34] below) or the “early intervention requirements” under s 25 (as set out in paragraph [36] below).

    66.The disability requirements are contained in section 24 of the NDIS Act and provide as follows:

    (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 NDIS 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).

    67.The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met in order for access to be granted to the scheme.

40. The early intervention requirements are contained in section 25 of the NDIS Act and provide as follows:

    1.A person meets the early intervention requirementsif:

    (a)the person:

    (i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;

    (ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent;

    (iii)is a child who has developmentaldelay; 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.

    69.Likewise, the requirements of s 25 of the NDIS Act are cumulative and all criteria must be met.

    70.Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).

    Access Rules

1. With respect to subsection 24(1)(b) of the Act, concerning the permanency of an impairment, the Access Rules provide:

   5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if those 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 those 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.

   72.The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines (‘the Access Guidelines’).

   73.There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[7] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[8], the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[9] which Mortimer J (as his Honour then was) held:

   ‘Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it…’

   ‘Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr.s Richards meets the disability requirements or the early intervention requirements…’ [10]

   [7] G v Minister for Home Affairs [2019] FCAFC 79 [18].

   [8] [1979] 24 ALR 577 [590].

   [9] [2018] FCA 1229.

   [10] Ibid [171].

2. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr. Yusef the disability requirements or the early intervention requirements.

3. Whether Mr. Yusuf meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’,[11] with a relatively high degree of precision and be positively satisfied.

   [11] National Disability Insurance Agency v Davis [2022] FCA 1002 [42].

4. The Tribunal notes that in Mulligan[12], Mortimer J (as he then was) held that the legislation as it relates to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[13] The Full Court of the Federal Court of Australia in Foster[14]also outlined that the legislation requires a functional, practical assessment of what a person can and cannot do.[15]

   [12] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’) at [55].

   [13] Mulligan at [55].

   [14] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).

   [15] Foster at [44].

5. In this case a functional assessment of Mr. Yusuf’s level of function was conducted by an Independent Medical Expert (IME), Mr. Glen Dwyer who is an Occupational Therapist who subsequently completed a report dated 20 October 2024 on Mr. Yusuf’s functional capacities across the six domains outlined in s 34(1)(c).

6. While two follow up appointments were made in 2025 for Mr. Dwyer to conduct an updated assessment of Mr. Yusuf on both occasions these assessments could not be performed as Mr. Yusuf was not at home when Mr. Dwyer attended. For that reason, no subsequent report was prepared.

   What does the Tribunal need to decide?

7. Taking account of those eligibility criteria, the Respondent has acknowledged Mr. Yusuf meets, the various matters to be determined by the Tribunal are the following:

   ·Do Mr. Yusuf’s medical condition of constitute an impairment within the meaning of s24(1)(a) of the Act.

   ·Are Mr. Yusuf’s impairments permanent within the meaning of s24(1)(b) of the Act?

   ·Does Mr. Yusuf have a substantially reduced functional capacity in any of the six domains listed in s24(1)(c) of the Act?

   ·Do Mr. Yusuf’s impairments affect his capacity for social and economic participation?

   ·Is Mr. Yusuf likely to require support under the National Disability Insurance Scheme for his lifetime?

   ·Is Mr. Yusuf eligible for admission to the NDIS under the early intervention criteria in section 25 of the NDIS Act?

   The hearing

8. The hearing of Mr. Yusuf’s case took place over two days on 7 and 8 October 2025. Mr. Yusuf was represented by Mr. William Robin of the Multicultural Disability Advocacy Association and the Agency was represented by Ms Michelle Campbell of Counsel.

9. Mr. Yusuf gave evidence on his own behalf.

10. Mr. Dwyer gave evidence on behalf of the Respondent.

11. The Joint Tender Bundle provided by the parties was entered into evidence.

    Mr. Yusuf’s evidence

12. Mr. Yusuf provided the following information in response to questions from Mr. Robin:

    ·He last saw his kidney specialist about 3 months ago. His specialist told him that he will require either a kidney transplant or regular dialysis for the rest of his life.

    ·He has previously had dialysis, most recently about 3 months ago. His kidney function has fluctuated over this time and has been told that currently he does not require dialysis.

    ·He will require a home dialysis machine which will cost between $30,000 and $40,000 which he can’t afford. He has been told there is no room for him to have dialysis in the hospital.

    ·He last saw his cardiologist about 3 months ago and the cardiologist has told him he will need to keep seeing him. Again, he can’t afford to do this.

    ·He said that he had been seeing a psychologist, however, is no longer doing so. While he enjoyed having someone to talk to, he did not feel he gained much from the psychology sessions.

    ·Mr. Robin referring to Mr. Yusuf’s GP’s letter of 9 January 2024 where the GP noted that Mr. Yusuf had low motivation to attend therapy appointments relying more on his medications. Mr. Yusuf said this was because he was constantly tired and had poor mobility he couldn’t get to these appointments.

    ·He said that his mother who acted as his carer had died, and he needed another carer who could help him get to his appointments and provide help around the home and he had basically given up. His brother sometimes can drive him to his appointments.  

    ·He described some of his current medications. He gets these in a webster pack however he still forgets sometimes to take his medications. He said this might happen two to three times each week. He told the Tribunal that one of his medications for his chronic kidney disease cost $250 per script.

13. Mr. Yusuf also answered a series of questions from Ms Campbell on behalf of the Agency:

    ·He confirmed that he is currently living in a public housing property in Canley Vale with his brother.

    ·He confirmed that he has been prescribed Ozempic but could not recall when he started taking this medication.

    ·Asked by Ms Campbell what was the reason for his last hospital admission in July, he said there was a problem with his potassium levels and his medications have been adjusted.

    ·Asked about what he used to assist him to mobilise about his home and elsewhere, he said that he uses a walking stick.

    ·His leg ulcers have improved but he did have a recurrence some weeks ago, so the ulcers do fluctuate. These take about a month or so to heal.

    ·He confirmed that last year he had lost about 18 kilograms and this he thought was due to a change in his medication to reduce his fluid retention. However, he also said that he believed his specialists don’t understand how much of his fluid intake was related to the weather and the need to drink more in warmer weather. He agreed that he had only recently started taking Ozempic however was unsure if it will be beneficial.

    ·Asked if he recalled doing a job capacity assessment with Centrelink some years ago, he said he did not remember doing this.

    ·He agreed that he was unable to do any heavy domestic tasks like cleaning and laundry and his brother looks after these tasks. His brother also has a cleaner funded through his NDIS package who does some of these chores.

    ·He agreed that his walking capacity was about 6 minutes, although this varies.

    ·Asked about his Statement of Lived Experience he thought he may have had someone help him prepare this but was not sure whom. He said that he may have told whoever did assist him what to write. He confirmed that he can neither read nor write.

    ·He last saw his psychologist about 6 months ago. Before that he saw them every two weeks or so. Asked if he thought the sessions were helpful, he replied that it was “half and half”.

    ·Responding to questions about his efforts to eat health meals he said that he tries however he agreed that he rarely did so and ate junk food.

    ·He agreed that he can cook and agreed that he would leave pans on the stove to help him do so.

    ·He still drives his car occasionally.

    ·He has not had any social interaction for some time and the last time he saw friends was about 9 months ago. In the past they would come and visit him but not lately. He can talk with them on the phone.

    ·Asked why that was, Ms Yusuf said it was due to a combination of his anxiety, depression and poor mobility.

    ·Asked about his relationship with his cousins, Mr. Yusuf said that they were “write offs”.

14. Mr. Robin asked Mr. Yusuf several follow up questions:

    ·Asked again about any benefit he gained from his psychology sessions, he said that he liked having someone to talk to but ended “back at square one” after it was over.

    ·He confirmed that he was only able to prepare a health meal once a week or fortnight.

    Mr. Dwyer’s Evidence

15. Mr. Dwyer provided his evidence in the afternoon. He provided the following information:

    ·He confirmed the date he conducted his initial assessment and his subsequent report.

    ·He had gone again on two occasions to conduct a follow up assessment however on both occasions he was not there. The first time there was somebody else at home who merely told him that Mr. Yusuf was not at home.

    ·Mr. Dwyer confirmed that he has had the benefit of sighting more recent medical evidence prepared after he conducted his assessment in 2024.

    ·Asked if this newer material had any bearing on his opinion on Mr. Yusuf’s functional capacity, Mr. Dwyer said that the general description of Mr. Yusuf’s level of function outlined in this material was broadly consistent with his original assessment.

    ·He confirmed that at the time he conducted his assessment, Mr. Yusof had leg ulcers which could be related to his other health conditions. He noted that in general someone with open wounds such as ulcers would have reduced mobility than someone without that condition. Ulcers can be treated with improved self-care; diet weight loss and psychology support and he expected that as these healed Mr. Yusuf’s mobility should improve.

    ·He agreed that Ozempic which Mr. Yusuf is now taking can be effective for weight loss and diabetes management.

    ·Asked if there could be potential benefits in terms of a person’s experience of chronic pain from reduced weight, Mr. Dwyer said that he would defer to specialist medical opinion on that issue but in general terms he agreed losing weight can result in a reduction in a person’s chronic pain symptoms.

    ·In terms of Mr. Yusuf’s cognitive capacity, Mr. Dwyer said that there was nothing in the medical evidence which would indicate a cognitive deficit and that certain aspects of Mr. Yusuf’s daily life such as acting as an advocate for his brother further suggested that he has no real cognitive issues. He said that while Mr. Yusuf had not specifically told him that he was illiterate, he did say he experienced difficulties at school. Overall, he considered he was quite functional in this area and that he has good verbal skills.

    ·Asked about the recent death of Mr. Yusuf’s mother and its potential impact on Mr. Yusuf, Mr. Dwyer was cautious in his response saying that would best be answered by a psychologist. He agreed that it could have an impact but also noted protective factors such as the family bonds.

    ·Asked about Mr. Yusuf’s functional capacity in his current home, Mr. Dwyer said that it was difficult for him to offer an opinion in the absence of observing him in that environment.

    ·He agreed that at the time he conducted his assessment, Mr. Yusuf was using a four-wheel walker. Asked what his view was if Mr. Yusuf was primarily using a walking stick, h4e said that there may be practical reasons such as the layout of his new home that led to that change. However, in general terms he considered a walking stick was a lower order mobility aid that a four-wheel walker and he would regard the change as a positive marker. He considered that based upon the more recent material, Mr. Yusuf’s walking tolerance has not changed.

    ·Asked about Mr. Yusuf’s evidence that he has not seen his friends for some nine months, Mr. Dwyer again said it was difficult for him to comment on the reasons for this. At the time he did his assessment, he noted that Mr. Yusuf at that time had two close friends who were both nurses and due to that background, he considered they would have a better insight into Mr. Yusuf’s medical conditions and difficulties.

    ·Asked about Mr. Yusuf’s capacity to cook for himself, Mr. Dwyer agreed that he could and was impressed at the time of Mr. Yusuf’s understanding of the need to eat health meals. He agreed that Mr. Yusuf has issues with prolonged standing however a perching stool could assist him to operate effectively in the kitchen.

    ·Asked what he would recommend in terms of additional supports for Mr. Yusuf, Mr. Dwyer said he could benefit from a range of therapies including physiotherapy, hydrotherapy, support from a dietician and exercise physiology. He agreed that some of these could be provided through a chronic health management plan prepared by his GP.

16. Mr. Dwyer then answered a series of questions put to him by Mr. Robin as follows:

    ·Mr. Robin asked Mr. Dwyer how many subsidised allied health therapist sessions was allowed under a chronic health management plan. M Dwyer said he was not entirely sure but indicated it was likely 5 or 6 sessions.

    ·He said when questioned about the change in mobility aid to a walking stick and asked why he considered it a positive change, Mr. Dwyer said that a walking stick only has a single point of contact, and its use indicates a higher degree of balance.

    ·He agreed that Mr. Yusuf’s need for the walker may have been related to the leg ulcers he had at the time.

    ·Asked again about Mr. Yusuf’s statement that he can neither read nor write, Mr. Dwyer said he had not assessed these two capacities however his overall observation was that Mr. Yusuf would manage his affairs such as paying his bills and if he is illiterate, it is not seriously affecting his ability to get on with his life.

    ·He also agreed that he had not identified chronic pain as a significant factor in Mr. Yusuf’s presentation.

    ·Asked about the potential benefits of some occupational therapy support for Mr. Yusuf, Mr. Dwyer said that he believed it would be beneficial for him. Asked what the number of OT hours he may require he said this would be difficult to calculate however he did say he would probably require a minimum of 5 hours per annum.

    Parties’ closing submissions

17. Both Mr. Robin and Ms Campbell made oral final submissions after the evidence had been completed.

18. I do not propose to provide a detailed account of those submissions but will provide a summary of the broad themes in each.

    Mr. Robin’s closing submissions

19. Mr. Robin’s submissions were the following:

    ·In terms of Mr. Yusuf’s impairments, he has several, with the most recent being a diagnosis made on 15 April 2025 of stage 4 kidney disease as recorded in Dr Gregor’s letter of 25 September 2025. Constant fatigue is a factor with this condition. He noted that the article he provided on kidney disease noted that fatigue was a persistent factor in 90% of those included in the study. Mr. Robin noted that Mr. Yusuf is at stage 4 of 5 of chronic kidney disease and this should lead the Tribunal to conclude that this condition is therefore permanent.

    ·He submitted that the Tribunal should not place great weight on Mr. Dwyer’s evidence on the role of Ozempic in weight loss as he was not the most appropriate person to provide such evidence.

    ·Mr. Yusuf’s evidence about his psychology sessions was that he did not consider he gained much benefit from this other than having someone to talk to. Mr. Robin submitted this indicated his degree of social isolation.

    ·In terms of the identified need for Mr. Yusuf to access a range of allied health therapies such as Occupational Therapy, Physiotherapy, Exercise Physiology and with a dietician, he could only access a maximum of 5 sessions per year under a chronic health management plan and this would mean he could only access a small fraction of what he actually requires. By way of example, he noted that the dietician has recommended a total of 20 sessions.

    ·Mr. Yusuf has problems with motivation arising out of his comorbid conditions and this was evidence by the difficulties involved in having him attend the hearing the day before. He gave evidence that he has difficulty in remembering to take his medications.

    ·Addressing whether Mr. Yusuf’s mobility has improved, he said that this may not represent an improvement in this domain and could be the outcome of a range of factors including the layout of his current property.

    ·Mr. Yusuf has had two hospital admissions in recent months, and this further demonstrates the permanency of his mobility impairment.

    ·He submitted that Mr. Yusuf’s primary reduction in functional capacity were in the domains of mobility, self-care and to a lesser extent, self-management where there is evidence, he can reasonably function.

    ·In addition, his lack of social interaction in over nine months indicates his psychosocial impairments are affecting his capacity.

    ·Mr. Robin also addressed the criteria for early intervention support under section 25.

    ·He submitted that the evidence favours a finding that his impairments are permanent. In addition, some of his conditions such as his stage 4 chronic kidney disease is relatively recent in origin.

    ·In terms of interventions that could assist, and benefit Mr. Yusuf Mr. Dwyer has identified several that he believes would assist him improve his functional capacity. Mr. Dwyer in his evidence indicated that the five sessions Mr. Yusuf could access through the public health system would not be sufficient. Because of this limitation the NDIS was the most appropriate service provider to fund these interventions.

    ·He further submitted that the evidence indicated that these interventions would reduce his need for NDIS support in the future.

    ·In this regard he referred to Mr. Yusuf’s evidence that he was only able to prepare one or two health meals every two weeks, and this could be remedied by the 20 sessions recommended by the Dietician.

    ·Additionally, the 10 subsidised psychology sessions available through the Medicare system are insufficient and submitted that 26 sessions would be required.

    ·Taken overall, he submitted that the evidence before the Tribunal indicated that the recommended allied health interventions would prove beneficial for Mr. Yusuf.

    Ms Campbell’s closing submissions

1. Ms Campbell provided the following closing submissions:

   ·Ms Campbell submitted that the case for the applicant was undermined by the lack of supporting medical evidence (particularly more recent evidence) as well as inconsistencies in Mr. Yusuf’ evidence.

   ·In particular there are no updated reports since his recent hospital admissions and neither his psychologist, cardiologist nor his Nephrologist Dr Natfaji has provided updates on their previous reports.

   ·Mr. Yusuf in his evidence to the Tribunal that he requires dialysis and may require a kidney transplant, however no medical evidence had been submitted to substantiate this. This she submitted is relevant to the question of whether his chronic kidney disease is permanent as it was likely a kidney transplant would potentially resolve that condition.

   ·Ms Campbell confirmed that the Agency’s position was that apart from the amputation of his toe, there was insufficient evidence to establish that his other impairments are permanent.

   ·Mr. Yusuf in his evidence said that he had been told that there was not room for him to have dialysis in the hospital and then said he would require dialysis in his home. He also said that his kidney functions tests indicate that this is fluctuating up and down and he has been advised that he does not currently require dialysis. Ms Campbell cited this as an example of his inconsistent statements.

   ·Mr. Yusuf is also continuing to see his various specialists despite also saying that he cannot afford to do so.

   ·She noted that Mr. Robin in his submission had said that Mr. Yusuf would require at least 26 psychology sessions. She noted that Mr. Yusuf has not utilised the 10 subsidised sessions through a mental health care plan, and it was not known what benefits he may have if he continues with such treatment.

   ·Of particular importance is the continued taking of Ozempic both for treatment of his diabetes and secondary role in weight loss. Mr. Yusuf has only just recommenced taking this medication, however when he last used it, he lost 18 kilograms and there was no reason to suppose it would not be effective this time.

   ·Ms Campbell also noted that there has been no updated evidence on Mr. Yusuf’s functional capacity since 2023 when Mr. Dwyer last assessed this.

   ·Referring to the information concerning his use of mobility aids it appears that he relied upon the four-wheel walker since 2020 but more recently he has been using a walking stick. She submitted that the evidence indicates that it was the leg ulcers Mr. Yusuf had over that period that reduced his mobility however at present his ulcers have resolved.

   ·Addressing the domains of functional capacity, she noted that Mr. Dwyer in his evidence said that had not seen any indication that Mr. Yusuf has any cognitive issues or concerns.

   ·She noted that when he gave evidence the day before he did not exhibit and signs of fatigue while also noting that Mr. Yusuf described the day he was having as ‘bad’.

   ·Referring to Mr. Yusuf’s back injury she noted that he had not attended the Centrelink appointment to have this condition assessed.[16] She submitted that there was little medical evidence addressing this condition.

   [16] JTB 257

   ·Mr. Dwyer in his evidence had suggested that Mr. Yusuf could benefit from attending a chronic pain management clinic and that this could prove highly beneficial in conjunction with weight loss achieved through using Ozempic.

   ·The dietician Ms Ghavamshahidi in her report stated that if Mr. Yusuf was able to lose weight this may improve both his physical and mental health.[17]

   [17] JTB 92.

   ·In addition to resulting weight loss, using Ozempic may reduce his ulceration, and it was noted that the development of ulcers is a factor in worsening mobility.

   ·Turning to the functional capacity criteria, Ms Campbell stated that while the Agency accepts that Mr. Yusuf has some reduction in functional capacity it cannot be said to be a substantial reduction.

   ·In this regard the best evidence on Mr. Yusuf’s functional capacity is Mr. Dwyer’s report. Mr. Dwyer’s evidence after reading the more recent medical evidence was that Mr. Yusuf’s overall capacity is broadly the same as when he last assessed him.

   ·Mr. Dwyer considers that Mr. Yusuf’s mobility levels have improved based upon his change of mobility assistance to a walking stick which he considered a positive marker.

   ·Mr. Dwyer also considered there was scope for further improvement in his mobility through his continued medical treatment including the use of Ozempic.

   ·Overall, Mr. Dwyer he considered that Mr. Yusuf was independent with his mobility with the assistance of aids such as his walking stick and the installation of grab rails to assist with bathroom and toilet transfers. Ms Campbell noted that as Mr. Yusuf loves in a social housing property under Housing NSW’s policies, he is entitled to have these minor modifications added to his property.

   ·He is able to manage his self-care. While he is unable to perform heavy cleaning tasks, his brother can assist with this, and the brother also has access to a cleaner through his own NDIS plan. He remains able to drive and can do his grocery shopping.

   ·He is also independent in his self-management skills which is largely a measure of cognitive capacity.

   ·While Mr. Yusuf’s evidence was that he could neither read or write, Mr. Dwyer considers that he can manage such daily tasks as managing his finances and paying bills.

   ·Mr. Yusuf said he has not seen friends socially for 9 months however he can communicate with them via email or by phone. Ms Campbell said that while Mr. Yusuf appears to have had a falling out with his cousins, that is not related to his disability.

   ·While Mr. Yusuf clearly could benefit from several community-based supports, these are available to him through other service delivery systems.

   ·Taking account of the available evidence, Ms Campbell said that the Tribunal could not be comfortable in reaching a finding that he has a substantial reduction in functional capacity.

   ·Responding to Mr. Robin’s submission that the Tribunal could find that Mr. Yusuf meets the early intervention criteria in section 25, Ms Campbell reiterated that the Agency’s position that there was insufficient evidence to establish that his impairments are permanent.

   Consideration

2. The issues before the Tribunal are the following:

   • Are any of Mr. Yusuf’s various impairments permanent?
   • Does Mr. Yusuf have a substantial reduction in functional capacity in any of the six domains?
   • Will he, or is it likely that he will require NDIS support for his lifetime?
   • Does he meet the early intervention criteria listed in s 25 of the NDIS Act?

3. I will address each of these questions in turn.

   Are Mr. Yusuf’s impairments permanent?

4. Before commencing my assessment, I consider it relevant to outline all of Mr. Yusuf’s physical, neurological and psychosocial conditions that he relies upon to be granted access to the NDIS and then identify those that I consider are most relevant here.

5. As best I can determine Mr. Yusuf has the following physical conditions and resulting impairments:

   ·Chronic back pain.

   ·Congestive heart failure.

   ·Toe amputation.

   ·Femoral Artery Bypass.

   ·Type II diabetes/Diabetic retinopathy.

   ·Obesity.

   ·Severe fatigue.

   ·Gait and balance issues.

   ·Chronic kidney disease.

   ·Chronic leg ulcers.

   ·Irritable bowel syndrome.

   ·Sleep apnoea.

6. In terms of his intellectual conditions these consist of:

   ·Intellectual Disability (IQ score between 63-71)

7. In terms of his psychosocial conditions these are the following:

   ·Post Traumatic Stress Disorder (PTSD).

   ·Severe anxiety disorder.

   ·Major Depressive Disorder.

8. As can readily be seen Mr. Yusuf has an extensive list of such conditions. It is also clear from the medical and other evidence that his conditions and resulting impairments interact with each other in complex ways. For example, the evidence indicates that the onset of Mr. Yusuf’s leg ulcers appears to be related to his type 2 diabetes.

9. Based upon what the parties have submitted in their SFIC’s, what was addressed in the evidence during the hearing and what was referred to in the closing submissions, I consider the following conditions and impairments should be the focus of my assessment:

   Physical Conditions

   ·Congestive heart failure.

   ·Type II diabetes/Diabetic retinopathy.

   ·Chronic kidney disease

   ·Toe amputation (and resulting balance and gait issues).

   ·Chronic back pain.

   Psychosocial Conditions

   ·Post Traumatic Stress Disorder (PTSD).

   ·Severe Anxiety Disorder.

   ·Major Depressive Disorder.

   Intellectual conditions

   ·Intellectual disability.

10. Mr. Yusuf’s representatives contend that the following physical conditions are permanent:[18]

    ·Congestive heart failure.

    ·Type II diabetes/Diabetic retinopathy.

    ·Chronic kidney disease

    ·Toe amputation (and resulting balance and gait issues).

    ·Chronic back pain.

    [18] Applicants SFIC JTB 7-8

11. They further contend that the following psychosocial conditions are permanent:[19]

    ·Post Traumatic Stress Disorder (PTSD).

    ·Severe Anxiety Disorder.

    ·Major Depressive Disorder.

    [19] Ibid JTB 7

12. Lastly, they contend that the following intellectual conditions are permanent:[20]

    ·Intellectual disability

    [20] Ibid JTB 8

13. The Agency contends that only Mr. Yusuf’s toe amputation results in a permanent impairment.[21]

    [21] Respondent’s closing submission (see paragraph 129)

14. I will firstly address Mr. Yusuf’s intellectual impairments.

15. There is not a great deal of evidence addressing this condition and what evidence there is now more than a decade old.

16. That evidence consists of a Centrelink Job Capacity Assessment Report dated 20 June 2011(Centrelink Assessment Report). On the second page of that report the following is recorded:

    Condition: Intellectual Disability Type: Permanent

    This condition is: Verified by medical evidence, Fully Diagnosed; Fully Treated; Fully Stabilised.

    Remarks:

    ‘Learning difficulty’ as listed in the treating doctor’s report provided by Dr Truong dated 21 March 2011.

    WAIS-IV report by registered psychologist (20/06/11) found that Mr. Yusuf’s cognitive ability is in the extremely low range (the Full-Scale IQ score of between 63-71)

    Past treatment: underwent testing while he was at school. The school recommended transfer to a specialised school and he remained in a mainstream high school instead. Current treatment: nil. Future treatment: nil

    The condition is considered to be fully diagnosed, treated and stabilised. Dr Truong (21/03/11) indicated this condition is expected to remain unchanged for the next two years.[22]

    [22] JTB 257

17. The Agency’s Applying to the NDIS Operational Guidelines (Operational Guidelines) as they relate to the disability and permanency requirements state:

    ·If you give us evidence you have been diagnosed with one or more conditions on List A, we’ll likely decide you meet the disability requirements.

    ·If you give us evidence you have been diagnosed with a condition on List B, we’ll likely decide your disability is from an impairment that’s likely to be permanent.

18. Both List A and List B can be found in the Appendices to the Operational Guidelines.

19. List A lists conditions that are likely to meet the disability requirements. Of relevance here is Item 1: Intellectual disability diagnosed and assessed as moderate, severe or profound in accordance with current DSM criteria.

20. List B lists conditions that are likely to result in a permanent impairment. Of relevance here is ‘conditions primarily resulting in intellectual or learning impairment: Intellectual disability’.

21. The Agency contended the following regarding the evidence of intellectual disability:

    ·The report is over 13 years old, and the identity of the psychologist is not stated.

    ·There is no evidence for the Tribunal to be positively satisfied that the Applicant has a moderate, severe or profound intellectual impairment which satisfies a diagnosis in List A.

    ·The Respondent notes the independent evidence of Mr. Dwyer, dated 20 October 2023, that on his own report, the Applicant was diagnosed with an intellectual disability as a child.

    ·To the Respondent’s knowledge, no clinical evidence has been submitted detailing the diagnosis (pursuant to DSM V or at all) or treatment of the Applicant’s intellectual disability. Despite references to clinical reports contained within the evidence from Centrelink, the Respondent submits there is insufficient evidence for the Tribunal to be positively satisfied that the Applicant has an intellectual disability resulting in impairments.[23]

    [23] Respondents final SFIC paras 25-27 JTB 46

22. I note that the assessment was conducted by a relevant psychologist (with an address provided) The assessment tool used by that psychologist was the Wechsler Adult Intelligence Scale (WAIS-IV).

23. The WAIS-IV comprises a series of tests comprising the Verbal Comprehension Index (VCI), the Perceptual Reasoning Index (PRI), Working Memory Index (WMI) and Processing Speed Index (PSI). Once those tests are administered a composite score (Full-Scale Intelligence Quotient is then tallied providing an overall measure of intellectual performance.

24. I note that the Australian and New Zealand Language Adapted Edition (WAIS®-IV A&NZ Language Adapted Edition) is considered a highly regarded and frequently used in cognitive assessment and measuring intellectual performance.

25. While I certainly agree that the provision of a more recent WAIS-IV would have been preferable, I do not consider that the age of the report should lead me not to give this any weight. As already acknowledged by the Agency in its Operational Guidelines, evidence that a person has an intellectual disability is likely to result in a finding they have a permanent impairment.

26. Given the test was conducted by a registered psychologist and the methodology used, I accept that it is sufficient independent evidence that Mr. Yusuf has an intellectual disability.

27. I note that Mr. Dwyer in his evidence stated that he did not consider that Mr. Yusuf exhibited any significant signs of cognitive impairment.

28. However, I note that conclusion was based upon a relatively brief (2 hour-long) engagement with Mr. Yusuf some two years ago. I consider that his observations do not have the same rigour and level of detail that a WAIS-IV assessment would provide.

29. While I note that the Centrelink document provides an IQ score outcome in the extremely low range (the Full-Scale IQ score of between 63-71) however it does not, as required by List A, grade the level of intellectual disability as moderate, severe or profound in accordance with current DSM criteria. I consider that a more recent assessment would be required to identify the degree of such intellectual disability.

30. For that reason, I do not consider the Centrelink Assessment Report in the absence of supporting material could lead me to find that Ms Yusuf meets the disability requirements in section 24.

31. However, I do accept that this evidence as well as Mr. Yusuf’s and Mr. Dwyer’s evidence should lead me in accordance with the Operational Guidelines to find that Mr. Yusuf’s intellectual disability is permanent.

32. I therefore find that Mr. Yusuf’ has an intellectual disability and this condition is permanent.

    Psychosocial impairments

33. Mr. Robin on behalf of Mr. Yusuf relied upon the response to targeted questions provided by Sayed Hosseinipour, Mr. Yusuf’s treating psychologist in a letter dated 28 August 2023.

    Cuneyt's medical history reveals several chronic conditions that have contributed to his mental health problems. He has been suffering from post-traumatic stress disorder (PTSD), severe anxiety disorder, and depressive mood as a result of long-term physical and psychological issues. Additionally, he has been diagnosed with chronic irritable bowel syndrome for ten years, chronic PTSD for five years, excessive overweight, chronic severe sleep apnoea, and acute and severe kidney failure

    The symptoms experienced by Cuneyt are described as severe and frequent, significantly impairing his physical, social, and psychological functioning. He has reported various symptoms consistent with PTSD, depression, and anxiety, including severe lethargy, disturbed sleeping patterns, low self-esteem, negative self-image, lack of concentration, persistent sadness, and feelings of worthlessness.

    The assessor strongly believes that focusing on Cuneyt's treatment and well-being is in his best interest. They express the opinion that his deteriorated physical and mental health is a lifelong issue that requires consistent physical care and psychological counselling and therapy. In conclusion, Cuneyt Yusuf has been dealing with a range of mental health and physical problems, including PTSD, severe anxiety disorder, and depressive mood. These issues have had a profound impact on his overall functioning and well-being. It is crucial to prioritize Cuneyt's treatment and well-being in order to support his long-term mental health

34. In an earlier letter dated 7 April 2020 Mr. Hosseinipour advised what he considered would be an appropriate level of long-term treatment:

    I have no doubt that it is in his best interest to focus on his treatment and wellbeing. In my professional opinion, I strongly believe that his deteriorated mental health will improve under regular and consistent psychological counselling and therapy. Therefore, his paid sessions need to increase from 10 Medicare Bulkbill sessions to 26 sessions

35. The Agency’s position on this is that it has not been established that all known, available and appropriate treatments that are likely to remedy the psychosocial impairments have been identified and undertaken.

36. In support of that contention, it submitted the following:

    ·Mr. Robin in his submission had said that based upon his psychologist’s recommendation, Mr. Yusuf would require at least 26 psychology sessions. However, Mr. Yusuf has not utilised the full 10 subsidised sessions through a mental health care plan, and it was not known what benefits he may have if he continues with such treatment.

    ·While Mr. Yusuf has asserted that he cannot afford the out-of-pocket component of psychology sessions, there was insufficient evidence in support of the contention that treatment is unavailable to him due to financial reasons.

    ·Despite the Applicant’s admission that he uses five Medicare funded psychological counselling sessions per year, there is no medical evidence detailing his engagement in recommended psychology, and reasons detailing why the Applicant has not engaged in the maximum frequency of treatment available to him. The evidence does not specify the expected outcomes of treatment, how outcomes will be measured, nor whether there has been any progress made towards treatment goals.

    ·The Respondent maintains that the evidence before the Tribunal does not address the type of pharmacological, psychotherapy or other interventions that have been prescribed, and the Applicant’s engagement with each, such that it can be satisfied that there is no treatment that is likely to remedy the Applicant’s impairments.

    ·Even if the Tribunal was satisfied that the recommended psychology sessions are not “available” to the Applicant, the Respondent submits that there is limited evidence that the Applicant has met his weight reduction targets, which have been clinically assessed as influencing the Applicant’s anxiety and depression. The Respondent acknowledges the evidence of Dr Natfaji, dated 8 March 2024, that the Applicant has lost 18 kilograms of weight over the last 4 months. However, the Respondent submits there is no evidence detailing the impact that this has had on his psychosocial impairments, and it follows that the Tribunal cannot be satisfied that all recommendations made to treat the impairments have been undertaken, such that s 24(1)(b) is not met.

    ·On the basis of the above, The Agency maintains that the Tribunal cannot be positively satisfied that there are no known, available and evidence-based treatments that would be likely to remedy the Applicant's impairments (rule 5.4).

1. In assessing this, I note that Mr. Hosseinipour in his 2020 letter indicated that he strongly believed that Mr. Yusuf’s deteriorated mental health will improve under regular and consistent psychological counselling and therapy.

2. However, it is not clear from what he wrote whether he considers such consistent therapy would result in a resolution of his symptoms or rather better equip Mr. Yusuf to manage the impact on his quality of life of those symptoms.

3. I agree with the Respondent that the current evidence lacks such crucial detail, and I also note that the most recent letter from Mr. Hosseinipour is more than 2 years old. The letter in which he recommends 26 sessions of psychotherapy is now more than five-years old.

4. Mr. Hosseinipour’s letter indicates that he expects with regular and consistent counselling Mr. Yusuf’s mental health will improve.

5. It is not clear from the available evidence what the nature of that improvement will be.

6. On the basis of the above considerations, I am not satisfied that there are no known, available and evidence-based treatments that would be likely to remedy the Applicant's impairments.

7. Therefore, on the available evidence I cannot find that Mr. Yusuf’s psychosocial conditions are permanent.

   Physical Impairments

8. As I identified in paragraph 142, Mr. Yusuf’s advocate contended that the following physical conditions and resulting impairments are permanent:

   ·Congestive heart failure.

   ·Type II diabetes/Diabetic retinopathy.

   ·Chronic kidney disease

   ·Toe amputation (and resulting balance and gait issues).

   ·Chronic back pain.

9. I have already noted that the Agency accepts that Mr. Yusuf’s amputated toe and ensuing gait and balance issues is permanent. I shall therefore address each of the remaining physical conditions in turn.

10. The Applicant through his advocate relied on the following evidence in support of its assertion that Mr. Yusuf’s physical impairments are permanent:

    ·Dr Sengordan Ramachandra (GP) in his letter responding to targeted questions from the Agency stated: ‘Based on my assessment in July 2023, and upon checking available correspondence, Yusuf has complex and chronic irreversible medical conditions, diabetes related complications, heart attacks and decompensated cardia failure, pulmonary sarcoidosis, peripheral neuropathy and chronic difficult to heal leg ulcers.’

    ·Addressing the more recent diagnosis of chronic kidney disease in his closing submission Mr. Robin noted that Mr. Yusuf is at stage 4 of 5 of chronic kidney disease and this should lead the Tribunal to conclude that this condition is therefore permanent.

    ·Mr. Yusuf has had two hospital admissions in recent months, and this further demonstrates the permanency of his mobility impairment.

11. In the Applicant’s Reply to the Respondent’s SFIC it is stated:

    ·It is submitted that the assertion by the Applicant's GP, who is well-positioned to assess the totality of the Applicant's impairments be given substantial weight. The GP's assessment the Applicant is living with “chronic irreversible conditions” should satisfy the Tribunal the Applicant’s impairments, particularly those highlighted by this assessment, are likely to be permanent.

12. The Respondent’s position is that overall, there is insufficient evidence that would satisfy the Tribunal that Mr. Yusuf’s physical impairments are permanent referring to the following evidence in support of that contention:

    ·Dr Nguyen’s letter of 12 January 2024, details the treatment prescribed from his nephrologist, including “targeting renin angiotensin pathway, smoking cessation and reducing oral potassium intake”. The purpose of this treatment was to stabilise fluid management and maintain stable kidney function. In Dr Natfaji’s subsequent report, dated 8 March 2024, the Applicant’s treatment schedule was partly adjusted, and a follow-up appointment was recommended every 4 months. However, there is no recent evidence detailing the Applicant’s review appointment, outcome of prescribed treatment, or proposed further treatment.

    ·The cardiologist, Dr Shafransky indicates that the Applicant is currently undergoing treatment related to impairments resulting from heart failure. In his letter dated 14 March 2024, Dr Shafransky recommended a follow-up appointment in June 2024. There is no evidence that the Applicant attended a follow-up appointment, nor clinical evidence going to the status of the claimed impairments resulting from heart failure, including the outcome of existing treatment or further prescribed treatment.

    ·Mr. Yusuf’s evidence on the likely need for ongoing dialysis was contradictory and there is no independent evidence from his treating specialist that this will be required on an ongoing basis.

    ·There is little evidence addressing his back injury in general and its permanency in particular.

    ·Of particular importance is the continued taking of Ozempic both for treatment of his diabetes and secondary role in weight loss. Mr. Yusuf has only just recommenced taking this medication, however when he last used it, he lost 18 kilograms and there was no reason to suppose it would not be effective this time. Therefore, it was not yet clear how sustained taking of Ozempic may positively benefit his diabetes, chronic kidney disease and his back pain.

13. I shall now address the question of permanency as it relates to the evidence before me.

14. Mr. Yusuf’s contention that his physical impairments are permanent largely relies on Dr Ramachandran comments as outlined in paragraph 178 above.

15. However, I do not consider such an assertion, in the absence of other evidence which gives further detail on why and how the doctor has reached this view, is sufficient.

16. This may include such details as:

    ·What medications and therapies has the Applicant trialled.

    ·Their response to such medications and therapies.

    ·Identifying other medications or therapies that may prove beneficial.

17. I also note that the letter from Dr Ramachandran predates the date Mr. Yusuf’s chronic kidney disease was formally diagnosed, namely in April this year and therefore consider that his views on permanency cannot apply to a condition that had not yet been diagnosed.

18. As to the Applicant’s contention that the Tribunal could find that Mr. Yusuf’s chronic kidney disease is permanent based on that diagnosis being assessed as being Stage 4 (of 5), I do not consider that in itself is conclusive in the absence of medical evidence from the relevant specialist confirming this. While that submission may in fact be correct, it requires a suitably qualified and experienced medical practitioner to provide this information. No such material was provided.

19. Finally, Mr. Robin submitted that I could determine that Mr. Yusuf’s mobility was impairment based upon the fact he has had two recent hospital admissions. Again, I do not accept that submission as it lacks any real evidentiary backing.

20. Taking account of the above analysis I do not consider that it has been established that Mr. Yusuf’s Congestive heart failure, Type II diabetes, Chronic Kidney Disease and chronic back pain are permanent impairments.

21. However, I consider that the evidence establishes that Mr. Yusuf’s toe amputation and intellectual disability are permanent impairments.

22. Section 24(1)(b) is therefore satisfied as it relates to these two impairments.

    Does Mr. Yusuf have a substantial reduction in functional capacity?

23. Based upon the parties’ submissions I consider that the following domains are those where it is asserted that Mr. Yusuf has a substantial reduction in functional capacity:

    ·Mobility

    ·Self-Care.

    ·Self-management.

    ·Social interaction.

24. Before commencing my consideration of Mr. Yusuf’s functional capacity, it is important to again note that in order to find that Mr. Yusuf is eligible for entry into the NDIS, it needs to be established that he meets all of the criteria listed in section 24 of the NDIS Act.

25. Apart from issues such as confirming that he has a disability and has a need for NDIS support for his lifetime, this includes which of his conditions are permanent. In this regard I have concluded that his toe amputation and an intellectual disability are permanent impairments.

26. If I, then go on to find that he has a substantial reduction in functional capacity and requires lifetime support he can be granted access to the scheme but only in relation to those two impairments I have found are permanent.

    Mobility

27. I consider that there is some evidence that Mr. Yusuf’s mobility has improved since Mr. Dwyer conducted his assessment in 2023. At the hearing, Mr. Yusuf used a walking stick, whereas at the time of the assessment he used a four-wheel walker. He confirmed in his evidence at the hearing that he now uses the walking stick to mobilise.

28. Mr. Dwyer in his evidence certainly considered the change to a walking stick was a sign of improvement in his overall mobility.

29. Mr. Yusuf is now being prescribed Ozempic both to address his diabetes symptoms and with the goal of reducing his weight. The last time he was taking this medication, he is recorded to have lost 18 kilograms.

30. I am satisfied that over time Mr. Yusuf has good prospects of again losing weight and this should have a positive impact on both his mobility and his chronic pain symptoms.

31. At the present time his leg ulcers are in remission, and I accept Mr. Dwyer’s evidence that leg ulcers reduce Mr. Yusuf’s mobility.

32. I acknowledge that Mr. Yusuf would benefit from the installation of various mobility aids such as grab rails in the toilet and shower in his social housing property. These are considered to be minor property modifications and can be installed by his housing provider in line with its policies.

33. The overall picture of Mr. Yusuf at this time is that while he certainly has reduced mobility, it does not rise to the level of a substantial reduction in this domain and there is a strong indication that further improvement may yet occur.

34. I find therefore that Mr. Yusuf does not have a substantial reduction in the domain of mobility.

    Self-care

35. Based upon Mr Yusuf’s own evidence and that of Mr Dwyer, I consider that he can manage his self-care, albeit at times with some assistance. While he is unable to perform heavy cleaning tasks, his brother can assist with this, and the brother also has access to a cleaner through his own NDIS plan. He remains able to drive and can manage his grocery shopping.

36. He can shower himself while using a shower chair and he can dress himself.

37. Mr Yusuf can do some simple meal preparation although, based upon what he told the Tribunal, there are time where he lacks motivation to prepare health meals.

38. Mr Dwyer recommended some simple assistive technology that could assist him in cooking such as a perching stool

39. Taking account of this evidence, I do not consider that he has a substantial reduction in the domain of self-care.

    Self-management

40. The evidence concerning Mr Yusuf’s capacity for self-management is in my view, somewhat mixed.

41. Firstly, there was Mr Yusuf’s statement that he cannot read and write. While there is no independent evidence which confirms this, I have no reason to doubt Mr Yusuf on this.

42. Clearly if this is the case, this presents enormous issues for Mr. Yusuf in his day-to-day life in navigating many activities that most people would take for granted.

43. It is also clear that while she was alive, he was reliant on his mother for many activities including reminding him to take medications and when his appointments were.

44. He also gave evidence that he regularly forgets to take his medications sometime two to three times each week.

45. Mr Dwyer for his part considered that Mr Yusuf was functional in this domain citing his verbal ability and his role in advocating for his brother. I have however indicated my view that based upon the short amount of time he spent with Mr Yusuf Mr Dwyer’s evidence does not carry a great deal of weight. I also note that Mr Dwyer did not appear to have administered any of the usual cognitive assessment tools such as the Mini-Mental State Examination (MMSE) or the Montreal Cognitive Assessment (MOCA). I consider the conduct of such assessments may have provided a better indication of Mr Yusuf’s cognitive abilities rather than reliance on observations only.

46. I again return to the Centrelink Job Assessment Record where the outcome of his WAIS-IV test was recorded. The low scores and the historical record of being tested while at school recorded in that document would strongly indicate that Mr Yusuf would have deficiencies in self-management and has had so since childhood.

47. However, as I noted earlier, I have not been provided with the breakdown of those WAIS-IV scores which could better establish the domains of verbal comprehension, perceptual reasoning, working memory and processing speed which would better identify which domains he has the most difficulty with

48. Overall, while there are some clear markers that indicate to me a lack of functional capacity in Mr Yusuf there is insufficient evidence for me to reach a concluded view on this domain.

49. Taking account of this limited evidence, I do not consider that it has been established that he has a substantial reduction in the domain of self-management.

    .

    Social Interaction

50. In terms of their written or oral closing submissions both parties provided me with little guidance on this domain

51. Mr Robin merely asserted that his lack of social interaction in over nine months indicates his psychosocial impairments are affecting his capacity without identifying the degree of that impairment.

52. Ms Campbell for her part noted that while Mr Yusuf had not seen friends socially for 9 months, he can communicate with them via email or by phone. She also said that while Mr. Yusuf appears to have had a falling out with his cousins, that is not related to his disability.

53. Mr Dwyer when asked about the lack of social interaction in the past 9 months, he said it was difficult for him to comment on the reasons for this. At the time he did his assessment, he noted that Mr. Yusuf at that time had two close friends who were both nurses and due to that background, he considered they would have a better insight into Mr. Yusuf’s medical conditions and difficulties. I again note that it does not appear that Mr Dwyer conducted any assessments or questionnaires that may have shed greater light on Myr Yusuf’s ability to socially interact,

54. In my view the domain of social interaction is often overlooked in such cases and is not addressed with the rigour that it should. In my view while the use of the telephone email and social media can be a useful adjunct to genuine personal interaction it cannot replace this vital part of human experience.

55. The fact that Mr Yusuf has not had this opportunity for whatever reason is a great concern. There may be any number of reasons for this including his reduced mobility, the symptoms of his psychosocial conditions and the recent death of his mother. However as with many aspects of this case, there is insufficient evidence for me to adequately identify the level of impairment Mr Yusuf may have in this domain.

56. Taking account of the limited evidence, I am unable to find that he has a substantial reduction in the domain of social interaction.

    Is Mr. Yusuf likely to require NDIS support for his lifetime?

57. In order to assess this criterion, I must first find that an Applicant has a permanent impairment and that they have a substantial reduction in functional capacity in one or more of the six domains listed in section 24(1)(c) of the NDIS Act.

58. While I have found that Mr. Yusuf’s toe amputation and his intellectual disability are permanent, I have not found he has a substantial reduction in functional capacity.

59. In the absence of my finding that Mr Yusuf has a substantially reduced capacity in any of the six domains, I cannot logically find that he likely requires lifetime support Because of that finding on functional capacity, it is not necessary for me to assess his need for lifetime NDIS support.

    Does MHRQ meet the early interventions criteria in section 25?

60. The relevant criteria to be found eligible for early intervention support are:

    ·A person has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent: (section 25(1)(a)(i))

    ·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: (section 25(1)(b))

    ·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. (section 25(1)(c))

61. As with section 24(1) of the NDIS Act an aspiring applicant must meet all three criteria I have listed above.

62. As I have found that Mr. Yusuf’s toe amputation and intellectual disability is permanent, I find that section 25(1)(a)(i) has been satisfied.

63. Before addressing sections 25(1)(b) and (c) I note that my consideration of these is necessarily limited to the two conditions for which I have stablished permanency.

64. Mr. Yusuf’s advocate’s submissions as they relate to possible early intervention are:

    ·The evidence favours a finding that his impairments are permanent. In addition, some of his conditions such as his stage 4 chronic kidney disease is relatively recent in origin.

    ·In terms of interventions that could assist, and benefit Mr. Yusuf, Mr. Dwyer had identified several that he believes would assist him improve his functional capacity. Mr. Dwyer in his evidence indicated that the five sessions Mr. Yusuf could access through the public health system would not be sufficient. Because of this limitation the NDIS was the most appropriate service provider to fund these interventions.

    ·The evidence before the Tribunal indicated that these interventions would reduce his need for NDIS support in the future.

    ·In this regard Mr. Yusuf’s evidence was that he was only able to prepare one or two health meals every two weeks, and this could be remedied by the 20 sessions recommended by the Dietician.

    ·Additionally, the 10 subsidised psychology sessions available through the Medicare system are insufficient and 26 sessions would be required.

    ·Taken overall, the evidence before the Tribunal indicated that the recommended allied health interventions would prove beneficial for Mr. Yusuf.

65. The Agency’s submission on Mr. Yusuf’s eligibility for early intervention largely relied upon its contention that it had not been established that his conditions are permanent.

66. The Respondent’s assertion is not quite accurate, as it had conceded that the impairments arising from Mr. Yusuf’s toe amputation was permanent.

67. I note that there is little evidence for me to find that early interventions would reduce the future needs of supports or the various criteria listed in section 25(1)(c)

68. While Mr. Dwyer has helpfully provided a list of additional supports, he considers may assist Mr. Yusuf in a range of daily living he does not address the matters I am required to be satisfied of in sections 25(1)(b) and (c).

69. A further consideration is that both Mr. Yusuf’s toe amputation and intellectual disability are not recent developments and to my mind are not readily amenable to early intervention. Also, as I have previously mentioned, while I am satisfied that Mr. Yusuf has an intellectual disability and that it is permanent, I do not have the benefit of the full report which would identify the domains and the respective scores where Mr. Yusuf requires the most assistance.

1. It may be that if a new WAIS-IV assessment was conducted, this could provide this important information which would then assist in identifying what early intervention supports would then meet the requirements in sections 25(1) (b) and (c).

2. However, in the absence of more detailed evidence addressing these criteria I cannot be satisfied that Mr. Yusuf meets the criteria for early intervention.

3. I therefore conclude that Mr. Yusuf does not meet the early intervention criteria in the Act.

   Conclusion

4. As I am not satisfied that Mr. Yusuf has sustained a substantial reduction in functional capacity within the meaning of the legislation, he does not currently meet the requirements for access to the NDIS. Accordingly, I am obliged to affirm the decision under review.

   Decision

5. The Tribunal affirms the decision under reviewpursuant to paragraph 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

I certify that the preceding two hundred and one
(201) paragraphs are a true copy of the
reasons for the decision herein
of General Member A. Williams

Associate

Dated: 17October 2025

Dates of hearing:

7 and 8 October 2025

Applicant’s advocate:

Mr. William Robin of the Multicultural Disability Advocacy

 Association

Counsel for the Respondent:

Solicitors for the Respondent:

Ms Michelle Jenkins

Mr. Nicholas Jordan: NDIS In-house lawyer

.

.

I certify that the preceding 181 (one hundred and ninety-) paragraphs are a true copy of the reasons for the decision herein of General Member A. Williams
........................................................................
Associate
Dated: 17 October 2025
Date(s) of hearing:     7 and 8 October 2025
Applicant:       Cuneyt Yusuf
Respondent:    National Disability Insurance Agency