YXVG and Chief Executive Office of the National Disability Insurance Agency (NDIS)

YXVG and Chief Executive Office of the National Disability Insurance Agency (NDIS) [2025] ARTA 238 (14 March 2025)
Applicant/s:  YXVG
Respondent:  Chief Executive Office of the National Disability Insurance Agency
Tribunal Number:                2022/10620

Tribunal:Senior Member K Parker
Place:Melbourne
Date:14 March 2025

Decision:The Tribunal affirms the Decision Under Review.

...............[SGD]...............
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access decision – claimed physical and cognitive impairments – claimed impairments attributable to psychosocial disabilities –significant history of childhood trauma including sexual abuse – substance abuse disorder – claimed conditions of complex post-traumatic stress disorder, “anxiety and depression”, attention-deficit hyperactivity disorder, anti-social personality disorder, cardiomyopathy, longstanding all-body pain and swelling in the applicant’s legs – whether access criteria met under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) – whether disability requirements met under s 24 – whether early intervention requirements met under s 25 of the NDIS Act – whether impairments are, or are likely to be, permanent – impact of recent legislative changes to NDIS Act – Decision Under Review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
Cases
Kelly v National Disability Insurance Agency [2024] FCA 1462
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
Other
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS – Pre-legislation changes (last updated on 14 October 2024) Applying to the NDIS | NDIS
Statement of Reasons
INTRODUCTION

This application is about whether the Applicant, YXVG, should be granted access as a participant in the National Disability Insurance Scheme (‘NDIS’). The NDIS is administered by the National Disability Insurance Agency (‘NDIA’) under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and its associated rules.
YXVG seeks review of an internal review decision by a delegate of the Chief Executive Officer (‘CEO’) of the NDIA made on 19 December 2022 under subsection 100(6) of the NDIS Act (‘Decision Under Review’),[1] which confirmed an earlier decision made on 28 October 2022, not to grant access to YXVG as a participant in the NDIS (‘Original Access Decision’).[2]
[1] T-Documents, T2.
[2] Ibid, T6.
YXVG lodged an application for review with the Administrative Appeals Tribunal (‘AAT’) on 29 December 2022.[3] On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’) following the abolition of the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the AAT that were not finalised before 14 October 2024 are to be continued and finalised by this Tribunal. Anything done in relation to this proceeding before 14 October 2024 is taken to have been done by this Tribunal. Neither party disputed that this Tribunal has authority to deal with the present application.
[3] Ibid, T1.
The Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth), operating in conjunction with s 103 of the NDIS Act.
In this proceeding before the Tribunal and at the substantive hearing, YXVG was self-represented. The NDIA was represented by Sparke Helmore Lawyers and by Mr Joshua Lessing of counsel.
For the reasons set out below, the Tribunal affirms the Decision Under Review because it is not satisfied that YXVG meets the access criteria under s 21 of the NDIS Act.
ISSUES
The primary issue arising for consideration in this application is whether YXVG meets the access criteria under s 21 of the NDIS Act. The NDIA accepts that YXVG meets the “age requirements” under s 22 and the “residence requirements” under s 23 of the NDIS Act.[4] Accordingly, the focus of this application will be whether YXVG meets either the “disability requirements” under s 24 of the NDIS Act or the “early intervention requirements” under s 25 of the NDIS Act (based on the wording of those provisions before the legislative changes took effect on 3 October 2024 – see below). The NDIA contends that YXVG does not meet either of those sets of requirements.[5]
[4] NDIA’s SFIC, [3.2] and Transcript, P-4.
[5] Ibid, [3.3] – [3.5].
The NDIA has always accepted that YXVG has several impairments arising from various medical conditions, however, its view about the types of impairments which YXVG is suffering from and the conditions to which it attributes those impairments, has changed over the course of this proceeding before the Tribunal (see paragraph [48] onwards).
As a first step, the Tribunal will need to decide whether YXVG has any impairments which meet the requirements under subsection 24(1)(a) of the NDIS Act and if so, to identify any such impairments.
The NDIA contended that YXVG’s “conditions” are not permanent or are not likely to be permanent. To meet s 24 or s 25 of the NDIS Act, YXVG must have one or more impairments which are permanent or likely to be permanent (as well as those impairments meeting the other remaining criteria under those provisions).
As a second step, the Tribunal will need to decide whether any one or more of YXVG’s impairments are, or are likely to be, permanent under subsection 24(1)(b) and/or subsections 25(1)(a)(i) and (ii) of the NDIS Act.
The NDIA also contends that YXVG’s level of impairment does not meet the required threshold under subsection 24(1)(c) of the NDIS Act because it does not result in substantially reduced functional capacity in undertaking one or more of the six prescribed activities under subsection 24(1)(c), namely, communication, social interaction, learning, mobility, self-care and/or self-management (to be referred to collectively as the ‘Prescribed Activities’).
As a third step, the Tribunal will need to consider what YXVG can and cannot do and what he has difficulty doing, and make findings in relation to the degree of reduced functional capacity of YXVG to undertake each of the Prescribed Activities, as a result of his impairment/s which are, or are likely to be, permanent.
If the Tribunal is satisfied that the criteria under subsection 24(1)(a), (b) and (c) are met, as a fourth step, the Tribunal will need to decide whether YXVG’s impairment/s affect his capacity for social and economic participation under subsection 24(1)(d) of the NDIS Act.[6]
[6] Ibid, [5.3].
If the Tribunal is satisfied that the criteria under subsection 24(1)(a), (b), (c) and (d) are met, as a fifth step, the Tribunal will need to decide whether YXVG is likely to require NDIS supports under the NDIS for his lifetime under subsection 24(1)(e) of the NDIS Act.[7]
[7] Ibid, [5.3].
The NDIA contends that the provision of early intervention supports to YXVG are not likely to benefit him and that he does not meet the early intervention requirements under s 25.[8]
[8] Ibid, [5.2] & [5.3].
If the Tribunal concludes that the mandatory criterion under subsection 25(1)(a) has been met (in this case, relating to whether any impairment/s are, or are likely to be permanent), it will also need to decide:
(a)whether the remaining two mandatory criteria under subsection 25(1)(b) and (c) of the NDIS Act have been met; and
(b)whether the circumstances prescribed in subsection 25(3) of the NDIS Act apply to YXVG to otherwise exclude YXVG from meeting the early intervention requirements.
LEGISLATIVE REGIME
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(c)the “age requirements” under s 22;
and, at the time of considering the access request;
(d)the “residence requirements” under s 23 of the NDIS Act; and
(e)the “disability requirements” under s 24 or the “early intervention requirements” under s 25.
The NDIS Act was amended by the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024. Some of the amendments impact upon the provisions which deal with eligibility to access the NDIS. However, those amendments apply to access requests made after the date of effect of these legislative changes, that is, after 3 October 2024. YXVG’s access request was made before 3 October 2024 so this Tribunal will apply the access provisions as they existed prior to the NDIS Act legislative amendments which took effect on 3 October 2024.
The applicable rules dealing with eligibility to be granted access as a participant in the NDIS are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Access Rules’).
The NDIA has issued guidelines relating to requests for access to the NDIS made before 3 October 2024, namely, National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024) (‘Access Guidelines’). The Tribunal must consider and apply this policy guidance unless it is inconsistent with the NDIS Act and the Access Rules.
YXVG’S FAMILY BACKGROUND AND LIVING CIRCUMSTANCES
YXVG is a 42-year-old man. He currently lives with his eldest child (who is a single parent) (‘Daughter’) and her two pre-school aged children (that is, YXVG’s two grandchildren),[9] in a high-rise apartment in an inner suburb of Melbourne (‘Apartment’). YXVG gave evidence at the hearing that Daughter is working full time.[10] YXVG told the Tribunal on the first day of the hearing that he is in the process of finding a home. He said he is making a private rental application and that he is also on the “public housing” waiting list. He said that “Launch Housing” is in the process of assisting him to submit a priority application for “a priority listing”.[11]
[9] Transcript, P-24.
[10] Ibid, P-24.
[11] Ibid, P-58.
YXVG undertakes about 10 hours per week of work (as a rough estimate)[12] in a friend’s “burger shop”[13] in an outer suburb of Melbourne. He said he is slowly renovating it after there was a fire.[14] He said he does “just everything to help him out” and does so slowly.[15] YXVG gave evidence that he will work at this shop either one, two or three days per week.[16] He said he is not paid for this work and his friend will pick him up and take him to do “half the stuff” that he has to do. YXVG said it is “more of a friendship”.[17] Otherwise, he is in receipt of disability support pension (‘DSP’). YXVG previously worked in several occupations including as a carpenter, mechanic, maintenance worker and interstate truck driver. He has ceased paid employment of this type. At the hearing, YXVG gave evidence that he used to be the logistics manager and assistant manager of a trucking company.[18] YXVG gave evidence that when he was younger, he used to play football, cricket, and basketball.[19]
[12] Ibid, P-132.
[13] Ibid.
[14] Ibid, P-132.
[15] Ibid, P-134.
[16] Ibid, P-166.
[17] Ibid.
[18] Ibid, P-20.
[19] Ibid, P-22.
YXVG has had a longstanding history of trauma and was sexually abused as a child over a significant period. He started drinking alcohol at the age of 12 and became a heavy drinker. He also developed a drug problem and remains a current regular user of methamphetamine. He says he has reduced his drug usage in recent times. YXVG’s evidence at the hearing, is that he currently consumes about one point (that is, 0.1g) of methamphetamine once or twice a week or during some weeks, not at all.
YXVG gave evidence that he has seven children. He said that his second (adult) child will sometimes visit him and stay with them at the Apartment. Otherwise, YXVG keeps in touch with his second child by telephone. YXVG says his third (adult) child was, at the time of the hearing, staying temporarily with him and Daughter, at the Apartment. YXVG is estranged from his fourth child. YXVG said he has a good relationship with his fifth child and speaks to her on the phone. YXVG’s sixth and seventh children are the younger siblings of and live with his fifth child.[20]
[20] Ibid, P-58.
YXVG was in a de facto relationship with someone (who is not the mother of any of his children). YXVG said that this relationship ended in June 2023 after he was incarcerated between July 2023 and October 2023 resulting from an incident involving his former de facto partner and an earlier drink-driving offence.[21] YXVG says that he no longer wants to have anything to do with his former de facto partner. YXVG has not re-partnered.
EVIDENCE, SUBSMISSIONS AND HEARING
[21] Ibid, P-23.
Evidence & Hearing
On 11 January 2023, the NDIA lodged a set of documents, totalling 163 pages, with the Tribunal pursuant to s 37 of the AAT Act (‘T-Documents’).
On 5 September 2024, the NDIA lodged a joint hearing tender bundle, totalling 223 pages, with the Tribunal (‘HTB’).
The first two days of the substantive hearing of this matter took place on 23 and 24 September 2024. Summonsed documents were, belatedly, produced to the Tribunal comprising YXVG’s medical records. There was insufficient time for the parties to consider those documents prior to the hearing. It was also identified that there remained gaps in the evidence.
On 24 September 2024, the NDIA lodged a supplementary hearing tender bundle (‘Supplementary HTB’) totalling 714 pages. The Supplementary HTB contained:
(a)additional medical and clinical reports, records, and hospital discharge summaries;
(b)a medical report sought to be relied upon by YXVG (that is, Dr K’s letter dated 10 November 2022);
(a)updated NDIS Operational Guidelines (as the guidelines before the Tribunal were out of date); and
(b)new evidence (which is relevant to the NDIA’s assertion in its SFIC that early intervention for YXVG, would be more appropriately funded through another general service system, rather than under the NDIS), comprising:[22]
(i)the Victorian State-wide Equipment Program, otherwise, known as “SWEP”;
(ii)Victorian Department of Health, Victorian Aids and Equipment Program Guidelines;
(iii)Victorian Department of Health, Access to Mental Health Community Support Service Program;
(iv)various publications issued by the Victorian Department of Health about programs or information relating to “Alcohol and other drug”, “Drug Help”, “DirectLine Alcohol & Drug Counselling and referral in Victoria”; and
(v)additional NDIS guidelines entitled: “NDIS Guidelines – Mainstream and Community Supports Overview” and “NDIS Guidelines – Mainstream and Community Supports Interfaces”.
[22] Ibid, P-52 & P-53.
The Tribunal listed this matter for a resumed hearing on 29 November 2024 to complete the hearing process and to address the new evidence which had been tendered by both parties.
At the hearing on 29 November 2024, further evidence was received into evidence including:
(a)the Interim Guidelines for the Victorian Home and Community Care Program issued in November 2023;[23]
(b)medical report by Dr S to replace his incomplete report lodged by YXVG at any earlier stage in the proceeding; and
(c)the Schedule of Fees for the Home and Community Care Program for Younger People (‘HACC PYP’).[24]
[23] Exhibit THD1.
[24] Exhibit THD2.
Submissions
YXVG was given an opportunity to lodge written submissions before the hearing. He did not do so. Instead, he made oral submissions at the hearing of this matter which the Tribunal has considered. YXVG also lodged a number of additional documents with the Tribunal.
On 9 May 2024, the NDIA lodged its Statement of Facts, Issues and Contentions (‘NDIA’s SFIC’) and made oral submissions at substantive hearing which the Tribunal has considered.
Witnesses
The following witnesses were called to give evidence at the hearing:
(a)YXVG;
(b)Mr AB, treating Occupational Therapist;
(c)Mr AJ, independent medical expert, Forensic Psychiatrist; and
(d)Mr J, treating Psychologist.
MEDICAL HISTORY
YXVG was diagnosed with cardiomyopathy in 2022. YXVG gave evidence that being diagnosed with this condition caused him great distress. There is a history of heart disease in YXVG’s family. YXVG gave evidence that on his father’s side of the family, specifically, his grandfather and great uncles, “all had severe heart failure” and “most of them died of heart attacks in their 60s”.[25]
[25] Transcript, P-41.
YXVG believes that he developed cardiomyopathy as a result of receiving a Moderna vaccine for COVID-19, because before having this vaccine, he said he did not have trouble with his heart. The NDIA considers YXVG’s cardiomyopathy to be related to his use of methamphetamine. YXVG refutes this proposition. He said he was previously admitted to hospital for this condition in Adelaide when he was 27 years old and not on any drugs. On the last day of the hearing, YXVG said that he had tachycardia and bradycardia which had caused his symptoms and conditions.[26] However, there is no medical evidence before the Tribunal of YXVG having been diagnosed with those conditions.[27]
[26] Ibid, P-126 & P-127.
[27] YXVG tendered a general article about those conditions.
YXVG gave evidence that he retains a lot of fluid in his legs which impacts his ability to walk. YXVG said he takes medication for this condition[28] which controls it “to a point”. The medical records brought to the attention of the Tribunal on the last day of the hearing, indicate that YXVG is taking Furosemide medication which appeared to be adequately controlling the swelling in his legs.[29] On this basis, the Tribunal does not consider that YXVG has any impairment arising from the swelling in his legs.
[28] Transcript, P-188.
[29] Supplementary HTB, pages 250, 290, 327, 334.
YXVG has received treatment from/been seen by the following health practitioners who have prepared reports about his medical conditions:
(a)Dr P, treating General Practitioner (who completed the supporting medical evidence section of YXVG’s request for access form submitted to the NDIA, as detailed below);
(b)Mr J; and
(c)Dr RB, Cardiology Registrar (who also completed the supporting medical evidence section of YXVG’s request for access form).
YXVG has also been assessed by Dr AJ (at the request of the NDIA) who prepared a report dated 14 August 2023 (‘Dr AJ’s Report’). He diagnosed YXVG with:
(a)“complex post-traumatic stress disorder” (‘Complex PTSD’);
(b)“anti-social personality disorder”;
(c)“crystal methamphetamine abuse”;
(d)“premature ejaculation” and “erectile dysfunction”.[30]
[30] At the commencement of the hearing, YXVG confirmed that he does not claim that these two conditions give rise to impairments upon which he seeks to rely in this proceeding requesting access to the NDIS. For this reason, the Tribunal has disregarded these two conditions when making this decision.
During this assessment, Dr AJ stated that YXVG had informed him that he had used methamphetamine on 100 days over the previous year (that is, from August 2022 to August 2023).
Supporting medical evidence provided with YXVG’s Access Request
The Tribunal notes two sections of an “NDIS Access Form” completed by Dr RB on 28 September 2022 (‘First SEF’)[31] and by Dr P on 7 October 2024 (‘Second SEF’).[32]
[31] T-Documents, T4.
[32] Ibid, T5.
On the First SEF, Dr RB cites YWVG’s “main disability” as being “severe cardiomyopathy” and when prompted to indicate whether he has any other disabilities, Dr RB ticked the “No” box. He states that YWVG’s functional capacity has been affected by this disability for “2-3 months ongoing”. When asked whether the impairment was time limited and/or degenerative in nature, Dr RB ticked the “Yes – time limited” box and added a notation that this was “pending progress”. Dr RB states that this impairment is being treated and he listed the current treatments/interventions as including daily tablets (the type of pharmaceutical was not specified). When asked to describe the expected result from this treatment, Dr RB stated that “possible improvement in function pending progress”.

On the First SEF, when prompted to list past treatments, Dr RB stated that YXVG had received “heart therapy” for “2-3 months” with stated “minimal improvement”. When asked whether there were any available treatments/interventions likely to substantially relieve YXVG’s symptoms, Dr RB ticked the “No” box. Dr RB indicated that there were early intervention supports which were likely to reduce YXVG’s future support needs, but when prompted to describe what they were (as well as the recommended frequency/duration and expected results), Dr RB left this part of the form blank.
On the First SEF, Dr RB was asked to indicate if YXVG had undergone any of the assessments listed on page 17 of the form, to which he answered “No”. When Dr RB was asked how YXVG’s impairment impacts upon his functional capacity, he indicated as follows:
(a)Mobility – “yes” – “Limited 2 breathlessness”. Dr RB indicated that he requires an electric bed and a mobility scooter;
(b)Self Care and Self-Management – “yes” – “limited 2 fatigue & breathlessness”; and
(c)Communication, Socialising and Learning – no indication of impairment provided.
On the Second SEF, Dr P cited YWVG’s “main disability” as being “1. Heart failure from cardiomyopathy. 2. PTSD, Depression” and when prompted to indicate whether YWVG has any other disabilities, Dr P ticked the “No” box. When prompted to state how long YWVG’s functional capacity has been affected by this disability, Dr P does not provide any answer. When asked whether the impairment was time limited and/or degenerative in nature, Dr P ticked the “Yes – time limited” box. Dr P states that this impairment is being treated and he listed the current treatments/interventions as follows: “since August 2022. Discharged from RMH. Still treated at RMH”.[33] When asked to describe the expected result from this treatment, Dr P stated he was “uncertain”.
[33] A reference to “RMH” is a reference to The Royal Melbourne Hospital.
When prompted to list past treatments, Dr P referred to YXVG having been diagnosed with:
(a)“attention deficit hyperactivity disorder” (‘ADHD’);
(b)PTSD;
(c)“paranoid personality disorder”; and
(d)depression, by Dr K, Psychiatrist.
Dr P states that YXVG was prescribed the medications, Seroquel and dexamphetamine. When asked whether there were any available treatments/interventions which would substantially relieve YXVG’s impairment, Dr P stated that it would manage it, but that a “big chunk” of his impairment would prevail. He stated that YXVG would need to remain on “heart failure treatment” lifelong.
On the Second SEF, Dr P indicated that there were early intervention supports which were likely to reduce YXVG’s future support needs. When prompted to describe what they were, Dr P stated that he required a support person, transport, companionship, and mobility aids. Dr P stated that he should have this intervention for as long as he needed it and should be assessed periodically (and initially, after one year). When prompted to state the expected result from this intervention, Dr P stated it was to make it easier for YXVG to live without stressors.
On the First SEF, Dr P was asked to indicate if YXVG had undergone the assessments listed on page 17 of the form, to which he answered “No”. When Dr P was asked whether YXVG’s impairment impacted upon his functional capacity, he ticked the boxes for all domains (that is mobility, communication, socialising, learning, self-care and self-management), but did not provide any particulars, when prompted to do so, as to how those activities were affected by YXVG’s impairments.
In relation to mobility, Dr P recommended that YXVG “avoid steps” and that he should use a mobility scooter.
In relation to communication, Dr P recommended that:
(a)YXVG be “placed with assisted living”, which he regarded as being suitable. He also recommended that YXVG be provided with a mobility scooter and carer support for “transportation to clinics etc”, and to assist YXVG with communication; and
(b)home and/or environment modifications, assistive equipment and technology, and assistance from other persons for social interaction. Dr P did not provide any particulars on the form about such modifications, equipment, technology, or assistance he was recommending for YXVG.
Dr P stated that YXVG has a “severe psychosocial and physical condition” which “would last his lifetime”. Dr P stated that YXVG should be supported by the NDIS. Dr P stated, in respect of YXVG’s education and skills, that he is not able to “do meaningful employment”. Dr P stated that YXVG has “severe to moderate” shortness of breath and a lack of confidence from mental and physical conditions.
CONSIDERATION
Whether YXVG meets the disability requirements under s 24
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self care;
(vi)      self management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
Subsection 24(1)(a) – Disability
The first criterion, under subsection 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have 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.”
In National Disability Insurance Agency v Davis, Mortimer CJ of the Federal Court of Australia made the following judicial observation (emphasis added):[34]
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[34] National Disability Insurance Agency v Davis [2022] FCA 1002, [69] (‘Davis’).
The Access Guidelines provide the following guidance to decision-makers considering this criterion under subsection 24(1)(a) of the NDIS Act (footnotes omitted):
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident, or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
On 29 March 2023, YXVG sent an email to the Registry of the Tribunal listing his medical conditions as follows:
(a)heart failure, with reduced ejection fraction (‘EF’) rate of 7 per cent;
(b)severe and Complex PTSD;
(c)severe and complex depression, anxiety, and borderline personality disorder;
(d)psychosocial impairment;
(e)acute myocarditis; and
(f)cardiomyopathy.
Before the hearing commenced, the NDIA informed the Tribunal that in respect of subsection 24(1)(a) of the NDIS Act, the NDIA accepted that YXVG has:
(a)impairments to which a psychosocial disability is attributable, as a result of his conditions of Complex PTSD and “depression and anxiety”; and
(b)physical impairments, arising from his condition of cardiomyopathy.
At the commencement of the hearing, the NDIA informed the Tribunal that:
(a)it accepted that:[35]
(i)based on the opinion of Dr AJ, YXVG has a cognitive impairment arising from his diagnoses of “anti-social personality disorder” and “polysubstance abuse diagnosis”, which impairs his judgement and decision-making;[36]
(ii)based on the opinion of Dr AJ, YXVG has an impairment in relation to his ability to interact appropriately with others and to sustain relationships (that is a “social interaction type impairment”) which is a result of his anti-social personality disorder and Complex PTSD (from his history of trauma). The Tribunal takes this to be a reference to an impairment attributable to a psychosocial disability resulting from the conditions referred to above; and
(iii)YXVG has physical impairments, primarily, “breathlessness, fatigue and dizziness” which the evidence indicates are attributable to cardiomyopathy (and possibly other factors such as potentially smoking cigarettes and “crystal methamphetamine abuse”).
[35] Transcript, P-9.
[36] Ibid, P-6 & P-7.
At the commencement of the hearing, YXVG agreed with this outline given by Mr Lessing of the impairments which YXVG was relying upon in this matter.[37] Later on in the hearing, he refuted that there was any negative impact upon him, by reason of smoking cigarettes. YXVG claimed that according to the hospitals, there is “nothing wrong with his lungs” and “it is like” he has “never smoked a cigarette in his life”.
[37] Ibid, P-17.
YXVG stated that he has ADHD for which he was prescribed medicine.[38] He informed the Tribunal he has ceased taking this medication.[39] Dr K had diagnosed YXVG as having ADHD. Mr J doubted this diagnosis because he said that it was not present during YXVG’s childhood and because he considered it impossible to tease out the symptoms of ADHD from symptoms associated with substance abuse and therefore, ADHD could not be comfortably diagnosed in this context. The Tribunal prefers the evidence of Mr J in this regard and is not satisfied at this stage that YXVG has the condition of ADHD.
[38] Ibid, P-16.
[39] Ibid, P-16.
At the hearing, YXVG gave evidence that he had a lung test at the RMH about eight months prior. He said he failed one of those tests and passed the other. When asked whether he agreed that his breathlessness might be the result of lung issues, he said he had “no idea”. He said that he understood from what “they” told him that his lungs are “okay”. He said he did not know what it meant by having failed one of those lung tests and that he was still awaiting a follow up.[40]
[40] Ibid, P-51.
The Tribunal asked YXVG about references appearing in the medical records to him suffering from “chronic back pain”.[41] He said that he still has chronic back pain because he has always done physically demanding work, and that he has “chronic leg pain” too. YXVG was asked whether the reported aching in his leg had interfered with his ability to squat and get down. He confirmed that it does. YXVG was asked twice if he knew which condition might be causing the leg issues. He said he was unaware of any conditions.
[41] Ibid, P-20.
YXVG gave evidence that he experienced a lot of physical pain or restriction in his thighs and calves on both legs, and it radiates up and down both of his legs.[42] He said, “they have put me on new medication to try to lessen that”. He was unable to recall the name of the medication and that it had only just been prescribed it.[43] YXVG said that he also has:
(a)pain in his feet and it felt like he has spurs in his left foot/feet;[44] and
(b)pain in his middle to lower spine, which he said started in his early 20s and has worsened with age.[45]
[42] Ibid, P-22.
[43] Ibid, P-21.
[44] Ibid, P-22.
[45] Ibid, P-22.
YXVG attributed his back pain to past work, playing sports, and “getting old”.[46] On the last day of the hearing, YXVG said he also experienced chronic pain in his elbow.[47]
[46] Ibid, P-22.
[47] Ibid, P-189.
On the first day of the hearing, the Tribunal referred YXVG to the reference by Dr P in his report dated 28 April 2023 of YXVG having been diagnosed with “paranoid personality disorder in 2021” and asked YXVG if he agreed with this diagnosis. He said he did not. The Tribunal also asked YXVG if he agreed with the diagnosis referred to in this same report of “borderline personality disorder”. He said he did agree with it, to a point, and referred to it as having been diagnosed in 2009. He denied the further description of symptoms by Dr P as stated in this report, namely, that YXVG becomes “angry, irritable, dramatic” and that his interpersonal relationships do not last long. YXVG pointed out that one of his previous relationships had lasted 13 and a half years and he had had three children with that person.
There was no evidence before the Tribunal of any cognitive assessments or tests having been performed on YXVG by any doctor, neuropsychologist, Dr AJ, or at a hospital. YXVG said he had done them “when he was a kid”, but not “at this time”.
In Dr P’s Report dated 28 April 2023, Dr P stated that it was highly unlikely that YXVG would learn anything new. When this was put to YXVG, he said that he “100 per cent” disagreed with this proposition. Dr P also stated that he could not see any issues with self-care but doubted that YXVG could cook a good meal given his “non-adherence and ADHD diagnosis”. YXVG responded to this by stating he was “actually a good cook” and that he also prepares meals for his grandchildren.
Mr Lessing asked YXVG whether he had trouble organising himself and his grandchildren. He answered, “No. At that time, yes. Now, no”.
The Tribunal is not satisfied that there is sufficient clinical or medical evidence before it to establish that YXVG has any cognitive impairment. Throughout the hearing, YXVG demonstrated adequate cognitive function and there are no cognitive assessment results available to suggest otherwise. YXVG does not accept he is unable to learn things and his decision-making capacity is at a level at which he can organise both himself and his grandchildren. While there is evidence that YXVG’s judgment might be affected by his conditions of anti-social personality disorder and polysubstance abuse, the Tribunal considers that those conditions would affect YXVG’s psychosocial function, rather than to impair his cognitive function. The Tribunal does not accept the opinions of Dr AJ about YXVG’s cognitive impairment, as they were unsupported by any cognitive testing and assessment of YXVG and were also refuted by YXVG. Those conclusions are inconsistent with YXVG’s ability to self-manage virtually all aspects of daily living in a way that is typical of a person with the same degree of education, and age, as YXVG.
Considering the above, the Tribunal concludes that YXVG has the following impairments:
(a)physical impairments (to be referred to a ‘YXVG’s physical impairments’) as a result of cardiomyopathy (causing symptoms of breathlessness, fatigue, and dizziness), suspected lung damage[48] resulting from smoking cigarettes, unexplained pain in his back, legs and left foot, and polysubstance abuse; and
(a)impairments attributable to psychosocial disabilities (to be referred to as ‘YXVG’s Psychosocial Impairments’) arising from his conditions of Complex PTSD, polysubstance abuse, anti-social personality disorder, and symptoms of “anxiety and depression”.
[48] Noting the remarks of Dr MH as set out in paragraph [102] which is consistent with the evidence of YXVG that he had undertaken two lung tests and had failed one of them.
The impairments referred to in the above paragraph, will be referred to collectively in this decision as ‘YXVG’s Impairments’.
The Tribunal concludes that YXVG meets the first mandatory criterion under subsection 24(1)(a) of the NDIS Act.
Subsection 24(1)(b) – Permanency
The second mandatory criterion under subsection 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent.” The word “permanent” is not defined in the NDIS Act or in the Access Rules. The meaning of this term was considered in Davis. At [87], Mortimer CJ of the Federal Court of Australia, held as follows (emphasis added):
The usual approach to construction, in the absence of a contrary intention, means the Court should construe a term consistently throughout a single legislative scheme, assuming Parliament intended it to have the same meaning wherever it was used. The term “permanent” is also used in s 25, dealing with threshold criteria for early intervention supports. I agree with the respondent’s submissions that ascribing the term the meaning of “irreversible” does not sit easily with the context and purpose of the early intervention threshold requirements. The reference to “permanent basis” in s 29(b) is another example where ascribing the meaning of “irreversible” would not fit easily with the context and purpose of the provision. Section 29 relates to a person ceasing to be a participant as a result of entering a residential care service, or being provided with home care, “on a permanent basis”. A meaning commensurate with “enduring” is more compatible.
Accordingly, the Tribunal will consider whether any of YXVG’s impairments are, or are likely to be, permanent, in that they are “enduring” rather than focussing on whether they are “irreversible”.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment.”
Rule 5.5 of the Access Rules provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 of the Access Rules provides that 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.” This rule also provides that:[49]
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).
[49] The Tribunal notes that in Davis at [64] – [75] that Mortimer CJ raised a question about the validity of Rules 5.4 and 5.6 being exclusionary in effect. No submission was made by either party in this application as to the validity of these two rules. As an aside, the Tribunal notes that this issue was considered recently in Kelly v National Disability Insurance Agency [2024] FCA 1462 and McEvoy J is of the view that Rule 5.4 is valid.

Rule 5.7 of the Access Rules provides that 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.”
Whether YXVG’s physical impairment/s are permanent
The Tribunal has found that YXVG’s physical impairments arise (in part) from his diagnosed heart condition of cardiomyopathy.
During cross-examination, Mr Lessing highlighted that Dr RB had referred to YXVG being on a waitlist for heart surgery and a pacemaker. At the commencement of the hearing, the Tribunal asked YXVG to confirm whether this foreshadowed heart surgery was still going ahead.[50] YXVG explained that his heart EF rate was now “up at” 40 per cent, which he described as being a “fair” rate. However, YXVG added that what used to take him two days to do, will now take him “10” [days]. YXVG confirmed that the proposed heart surgery was no longer required.
[50] Transcript, P-19.
In relation to the previous recommendation about the insertion of a pacemaker, during cross-examination, YXVG said that “they” had told him to take the tablets and “to see what happens”.[51] The Tribunal understands this to mean that the insertion of a pacemaker is not presently under consideration as a treatment for YXVG.
[51] Ibid, P-32.
Mr Lessing referred YXVG to the medical reports which indicate that his cardiomyopathy was secondary to methamphetamine use. YXVG said he “begged to differ”.[52] Mr Lessing referred YXVG to a RMH clinical note by Dr RN, Resident, Coronary Care Unit Department, on 1 August 2022,[53] which stated, “Issues: #? Amphetamine-related cardiomyopathy”. YXVG said he disagreed with this. As mentioned above, YXVG gave evidence that he had the same “conditions” when he was 27 years old, when he was admitted to Flinders Medical Centre in Adelaide. He said that, at that time, he was driving a truck, and he did “not touch drugs”. YXVG said, at that time, he had symptoms including “shortness of breath, blood pressure” and that was how his licence was cancelled. He agreed he was smoking 150 cigarettes per day at this time.[54]
[52] Ibid, P-26.
[53] Supplementary HTB, p.534.
[54] Transcript, P-38.
In this same clinical note dated 1 August 2022, as highlighted by Mr Lessing at the hearing, it stated as follows (emphasis added):
TTE report chased
- Dilated CM with severe systolic dysfunction, EF: 7 %
Consistent with CTPA findings
Explained the significance of what this means to [YXVG]. [YXVG] understandably quite upset with this news. [YXVG] said quit amphetamine altogether - mostly smoked, has injected previously. Explained that serious diagnosis but with cessation of drugs and compliance with medications, we are hopeful heart function could recover.
Shortness of breath is [YXVG’s] main concern.
The Tribunal prefers the opinion of Dr RN (as highlighted in bold in the paragraph above), over the opinion provided by Dr P who stated he was “uncertain” about what could be an expected result from the treatment YXVG was receiving at the RMH (when completing the Second SEF). The Tribunal considers that physicians within the Cardiology Unit at the RMH, including Dr RN and the other physicians referred to below, including Dr MH, have a greater degree of specialisation, than Dr P, in relation to heart conditions and the optimal treatment of them.
The Tribunal notes there is a further clinical note on the same day by Dr RN stating the diagnosis was “re-explained” to YXVG, and that it was explained to YXVG that he needed to “cease ice”. The clinical note recorded that YXVG had a “history of depression” and that he had used “ice” in this setting. The note states that YXVG had “cut down” from daily use, to using it once every two to three days, and then ceased altogether with no withdrawal symptoms. The note records that at his “peak”, YXVG had smoked 3.5 grams daily. The note also indicates that YXVG smoked 10 cigarettes a day.[55] The note records that YXVG was not “on active management for depression” and that he had been on anti-depressants but did not tolerate them well. The clinical note referred to “infrequent work” (six of the last 12 days). The note stated that YXVG was keen to cease drugs altogether.[56]
[55] Supplementary HTB, page 535.
[56] Ibid, page 536.
A clinical note for the following day, on 2 August 2022, referred to YXVG having an EF rate of 7% and that he had “likely drug induced cardiomyopathy”.[57]
[57] Ibid.
On 7 August 2022, upon discharge from the RMH, the discharge summary set out the “discharge management plan” for YXVG at that time, and included the following:
(a)YXVG should follow up with the cardiomyopathy clinic;
(b)consideration should be given to YXVG undergoing an outpatient coronary assessment; and
(c)a transthoracic echocardiogram (‘TTE’) should be repeated in three months.
On this discharge summary, Dr BP, Consultant, stated as follows (emphasis added):[58]
Discussed diagnosis of likely drug-induced cardiomyopathy with [YXVG] multiple times during admission, and he was understanding of the importance of abstaining from ongoing substance use. He was motivated to adhere to new medication regimen and undertake the advised cardiology follow-up.
[58] Ibid, page 527.
YXVG accepted, during cross-examination, that he had been consistently advised that he should cease taking drugs and that if he complied with taking the heart medication, that his heart would improve.[59] YXVG was asked about the effect on him when he smoked cigarettes. He gave evidence that, “sometimes”, he will become “breathless and weak”.[60]
[59] Transcript, P-39.
[60] Ibid, P-45.
The Tribunal notes that YXVG’s treating doctors have prescribed heart medication for his condition of cardiomyopathy. YXVG gave evidence that he has taken his heart medication every day since being released from hospital in mid-August 2025.[61] The Tribunal accepts this evidence. Particularly in light of YXVG’s family history of heart disease, the Tribunal finds that YXVG is likely to remain compliant with taking his heart medication into the future.
[61] Ibid, P-47.
On 19 September 2022, Dr JY, Cardiology Registrar, RMH Outpatient Cardiomyopathy Clinic, issued a medical report about YXVG (‘Dr JY’s Report’). It records that YXVG’s EF had increased from what it was previously to 30 per cent. Dr JY noted that YXVG had “moderate to severe biventricular dysfunction”. In Dr JY’s Report, Dr JY stated that YXVG has been “well”, since his discharge from hospital. Dr JY also stated as follows (emphasis added):[62]
[YXVG’S] exercise tolerance has returned to baseline and he is able to walk as far as he wants. He has had no chest pain. He does intermittently experience palpitations which last a few seconds. He has had intermittent episodes of dizziness especially when exerting himself at work/in the garden. He has had no episodes of syncope. He denies any further peripheral oedema, orthopnoea or paroxysmal nocturnal dyspnoea. [YXVG’s] main concern is significant fatigue, which has significantly impacted his ability to perform his usual duties at work. He is currently seeing a psychologist who is working on a health care plan.
On examination, [YXVG] appeared euvolaemic. His blood pressure was 95/60mmHg, his heart rate was around 80bpm and regular. His JVP was not elevated. His heart sounds were dual with a soft systolic murmur. His chest was clear and his legs were soft and non-tender with no peripheral oedema. He weighed 81kg today (92kg on admission to RMH). [YXVG] remains compliant with his medications.
Overall, [YXVG] remains stable post discharge from hospital with NYHA I-II symptoms but is struggling with fatigue and struggling to come to terms with his new diagnosis. I have increased his Bisoprolol from 2.5 to 5mg daily.
[62] Supplementary HTB, page 250.
At the hearing, YXVG denied working in the garden, as referred to in Dr JY’s Report. He then gave evidence that he would mow the lawns but doubted he would have been doing this particular task at the time of DR JY’s Report, because he said he could “barely walk” and “would not have been pushing around a lawn mower”.[63] YXVG was asked about the notation suggesting that he had told Dr JY he could walk “as far as he wanted”. YXVG said he did not accept that this was an accurate history. He said at that time he would not do so, or at least “not without breathlessness”. He cast doubt on the reporting by Dr JY, who he described being a friend of one of his family members, and he made a point about this hospital having mixed him up with another patient previously.
[63] Transcript, P-48.
At the hearing, YXVG gave evidence, when asked by Mr Lessing, that he was not using methamphetamine as much as was reported by Dr AJ and/or Mr B in their reports. He said he has always been “open and honest about it” and he has “nothing to hide”. He said he uses methamphetamine to “manage his mental health”. He gave evidence that occasionally he might feel like “jumping in front of a tram”. He added that he does not feel this way as much as he used to. He said he “would not be” using methamphetamine as frequently as once a week.[64] He described his usage as “very, very sporadic” and that he had not “touched it” for “probably 10 days”, and that it “doesn’t faze me anymore.” He said that he does not let the “drug control his life” and that he “controls the drug”.
[64] Ibid, P-33.
At the hearing, YXVG said the reason he is so open about his drug use is that he wants help to get off them altogether. He said the reason he started on them, was due to the “issues with the justice system itself” which he considers “should have dealt with all of these issues and offered him help and support”.
When YXVG was asked by the Tribunal whether he had been to a “Narcotics Anonymous” program, he said he had done all the drug and alcohol counselling or the drug and alcohol treatment programs and had taken useful things from them. On the last day of the hearing, YXVG said he had finished one such program five weeks prior.[65] YXVG confirmed that he had undertaken four sessions with a drug and alcohol counsellor in late-2023, and eight sessions through “Corrections” between March and May 2024.[66]
[65] Ibid, P-129.
[66] Ibid, P-168.
When YXVG was asked whether he had attended group meetings on a regular basis, YXVG said he had not been made aware of them. He said he knew about “Alcoholics Anonymous” but told the Tribunal he was not aware of “Narcotics Anonymous” and that he would “not know where to go”.[67] YXVG confirmed that he has a mobile telephone with internet access. The Tribunal asked whether he had ever endeavoured to look up whether he could attend regular meetings to help him in relation to the substances he was taking. YXVG responded, “That’s where [Mr J] sort of – trust issues I have a lot with, you know, I feel more comfortable with [Mr J], like, he knows the whole ins and outs of everything and a lot of it – I give him credit for getting me back on track.”
[67] Ibid, P-35.
The Tribunal asked YXVG whether he considered that he was “back on track”. YXVG said he did and commented that he has “a goal in his own mind”. YXVG confirmed that he is taking one point (that is, 0.1g) of methamphetamine once or twice per week, or not at all. When asked if he was working towards eliminating his intake altogether, YXVG confirmed that he was.
Mr Lessing asked YXVG whether he is still smoking cigarettes. He confirmed that he is and would smoke “maybe” 10 cigarettes per day.[68] YXVG added that he used to smoke 150 cigarettes per day, because he enjoyed it.
[68] Ibid, P-36.
At the hearing, YXVG confirmed that he had an angiogram on 15 August 2022, which had concluded that he has minor coronary artery disease. Mr Lessing asked YXVG to confirm whether he had stopped “using”, at the time of the angiogram. He said that he had. Mr Lessing put to YXVG that his condition had improved at this time. YXVG refuted this and indicated he was still walking around clutching his chest after walking and that his capacity was at about 40 per cent. YXVG agreed to a further proposition put to him that his ventricular function had improved and explained that he could (now) do “things”, that he could not do back at that time.[69]
[69] Transcript, P-50.
In an RMH clinical progress note dated 19 July 2023, Dr MH, Registrar,[70] Outpatient Cardiomyopathy Clinic, stated as follows (emphasis added):[71]
[70] Actual name omitted.
[71] Supplementary HTB, page 133.
Improving cardiac function but ongoing breathlessness -> long discussion that ongoing smoking and methamphetamine use is severely detrimental to his health not just cardiac but also respiratory and its likely he has multifactorial breathlessness.
Plan:
Chase ?MRI that occurred at Monash 2 months ago -> Have checked no MRI.
Increase entresto
Suggest lung function tests given the methamphetamines and ongoing smoking + disproportional dyspnoea to improving cardiac function previously.
Cont other HF therapy
STOP methamphetamines and smoking
In an RMH clinical progress note dated 31 July 2024, Dr SJ, Consultant, Cardiomyopathy Clinic, referred to the following:
(a)a cardiovascular medical resonance (‘CMR’) scan had been performed on YXVG with findings being consistent with (emphasis added) “dilated cardiomyopathy of non-ischaemic aetiology. Methamphetamine inducted cardiomyopathy is a possible aetiology.”
(b)YXVG had been admitted to Box Hill in early-2023 with decompensated HF (that is, heart failure);
(c)YXVG’s EF was 30 per cent;
(d)YXVG had “moderate” left ventricle dysfunction of 38 per cent;
(e)a spirometry test was performed in August 2023 showing results “within normal limits” but that the values were noted as being “interpreted with caution”, due to YXVG’s inability to perform repeat testing;
(f)methamphetamine use was noted as being 0.5 grams per week and YXVG was smoking 10-15 cigarettes per day;
(g)alcohol consumption had decreased from five standard drinks to two standard drinks.
YXVG gave evidence that since August 2022, he has reduced his methamphetamine intake and his heart function has improved. He gave evidence that that a “percentage” of his “day-to-day function” had improved.[72] As mentioned above, YXVG explained that his PTSD was triggered (in terms of his use of methamphetamine), by him coming into contact with the perpetrator of the sexual abuse he was exposed to as a child, while he was incarcerated. YXVG gave evidence that the longest time he had abstained from taking drugs was 13 to 14 weeks. He said when he ceased taking them, he will experience “withdrawals” for about three days.
[72] Transcript, P-44.
The Tribunal finds that YXVG’s primary physical impairment arises from the symptoms arising from his cardiomyopathy and suspected lung damage, causing him to become fatigued upon physical exertion, short of breath and to have some swelling in the legs. The Tribunal finds that on the balance of probabilities, and primarily based on the hospital records from the RMH Cardiology Unit, as detailed above, that YXVG’s condition of cardiology has arisen because of his significant history of having used methamphetamine and from his history of smoking cigarettes. The Tribunal notes YXVG’s treating doctors have repeatedly advised YXVG that he should cease using methamphetamine and stop smoking. The Tribunal notes, in particular, the medical opinion of Dr RN as set out in paragraph [85] above that YXVG’s heart function should recover should he cease using methamphetamine and remain compliant with his heart medication. The Tribunal also notes the medical opinion of Dr MH as set out in paragraph [102] to stop taking methamphetamines and smoking cigarettes.
By YXVG’s own evidence, since taking the heart medication and reducing his usage of methamphetamine and smoking of cigarettes, his general condition has improved, and his physical capacity has increased since he was first admitted to hospital for cardiomyopathy in 2022. While the Tribunal acknowledges that YXVG still struggles with fatigue and shortness of breath to some degree, the Tribunal notes that YXVG’s EF rate has substantially improved. He no longer requires surgical intervention. He is able to undertake physical work in his friend’s shop for about 10 hours per week and to make the trips to an outer suburb of Melbourne to do so.
The Tribunal considers that YXVG’s heart function is likely to continue to improve and his physical capacity will improve further if he remains compliant with his heart medication regime and if he succeeds in further reducing or eliminating altogether his intake of methamphetamine and smoking cigarettes. Consequently, the Tribunal finds that it is likely that YXVG’s physical impairments arising from his cardiomyopathy are likely to be remedied should he cease using methamphetamine and continue taking his heart medication.
For this reason, the Tribunal concludes that Rule 5.4 of the Access Rules is applicable in respect of YXVG’s physical impairments resulting from his cardiomyopathy and suspected lung damage in that, these impairments cannot be considered permanent, or likely to be permanent, because there are “known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment.” In this case, those treatments are to continue taking the heart medication, cease altogether taking any methamphetamine and to cease altogether smoking cigarettes. Until this has occurred, it is not open to the Tribunal to conclude that YXVG’s physical impairments arising from his cardiomyopathy and suspected lung damage, are, or are likely to be, permanent.
The Tribunal will consider next whether YXVG’s physical impairments arising (in part) from his condition of polysubstance abuse are, or are likely to be, permanent. The Tribunal considers that it is positive that YXVG has now built a strong relationship of trust with Mr J and is receiving regular psychological therapy and treatments. However, the Tribunal considers that the psychological therapy and treatment of YXVG by Mr SJ is far from complete. It has been effective treatment to date and should continue.
The Tribunal acknowledges YXVG’s evidence that he has undertaken drug counselling and other programs previously through the justice system. However, the Tribunal notes that there was no evidence before it that YXVG has fully engaged in such programs and counselling services available within the community outside of the setting of needing to comply with a Corrections order or direction. YXVG has not attended regular Narcotics Anonymous group meetings to support him to cease altogether his use of methamphetamine. The Tribunal does not accept that YXVG’s trust issues is a sufficient justification as to why these types of treatments have not been accessed by YXVG to date. The Tribunal’s decision about this is not influenced by YXVG’s evidence that he has not been aware of such group meetings until now. Now that they have been brought to his attention because of this proceeding, YXVG can search for and attend them as a form of treatment to assist him to recover from his polysubstance abuse disorder.
For these reasons, the Tribunal is satisfied that should YXVG complete the treatments referred to in the above two paragraphs, he is likely to be able to cease altogether taking methamphetamine. In turn, this will open the option of YXVG being able to commence trialling psychotropic medication for his Complex PTSD and symptoms of “anxiety and depression” once the methamphetamine has cleared out of his system. The Tribunal finds that the likely recovery of YXVG from his polysubstance abuse disorder and cessation altogether of using methamphetamine and smoking cigarettes, is likely to provide an effective remedy for his condition of cardiomyopathy.
For this reason, the Tribunal is not satisfied that at this stage, YXVG’s physical impairments, arising (in part) from his condition of polysubstance abuse are, or are likely to be, permanent. The Tribunal considers YXVG’s outlook in this regard to be positive.

Finally, in relation to YXVG’s physical impairments arising from the longstanding unexplained pain in his back, legs and left foot, there was insufficient evidence before the Tribunal about the genesis of this pain or to identify any conditions underlying it and contributing to the physical impairments specific to those parts of YXVG’s body. The Tribunal notes YXVG’s evidence on the last day of the hearing that he was taking medication for his chronic pain affecting his whole body but that it was mainly affecting his legs. He said it felt like someone was “jamming screwdrivers” into his feet.[73] However, at the present time, the Tribunal was not referred to any medical evidence which would enable the Tribunal to know if there are any other available treatments which exist for any such conditions. The Tribunal considers that the underlying conditions or genesis of this pain require medical exploration before any conclusion can be made as to whether YXVG’s physical impairments arising from the unexplained pain in his back, legs and left foot is, or is likely to be permanent.
[73] Ibid, P-131.
The Tribunal concludes that none of YXVG’s physical impairments as a result of cardiomyopathy, suspected lung damage resulting from smoking cigarettes, unexplained pain in his back, legs and left foot and polysubstance abuse (causing symptoms of breathlessness, fatigue, and dizziness), meet the mandatory criterion under subsection 24(1)(b) of the NDIS Act.
Whether YXVG’s Psychosocial Impairment/s are permanent
The Tribunal has found that YXVG has impairments attributable to psychosocial disabilities arising from his conditions of Complex PTSD, polysubstance abuse, anti-social personality disorder, and symptoms of “anxiety and depression”. The Tribunal must consider whether any one or more of YXVG’s Psychosocial Impairments are, or are likely to be, permanent.
The Tribunal acknowledges that YXVG has suffered from serious psychosocial conditions for the last 30 years. His conditions of Complex PTSD, polysubstance abuse, anti-social personality disorder and symptoms of “anxiety and depression”, underlying YXVG’s Psychosocial Impairments arise from a significant history of childhood abuse, including sexual assault by a primary carer. To this day, he uses illicit substances as a coping mechanism, which is likely to be acting to exacerbate his other mental health conditions. For one thing, whilst he is taking methamphetamine, YXVG’s treating doctors have advised him that psychotropic medication is unlikely to be effective and for this reason, he does not take it presently.
YXVG gave evidence during cross-examination that he has not received electroconvulsive therapy, when asked about this by Mr Lessing. He said he was given transcranial magnetic stimulation (‘TMS’) by Barwon Health when he was 15 years old and did not know if it was effective. He confirmed he had been seeing Dr K for two years and that he had recommended Ritalin for YXVG’s ADHD. He said he took this medication for probably four months and then had to stop taking it due to the issues with his heart.[74] YXVG said that Dr K had told him to keep working “hand in hand” with Mr J. YXVG was asked if he has had eye movement desensitisation and reprocessing therapy (‘EMDR’) and he responded that he had “no idea”.[75]
[74] Ibid, P-61.
[75] Ibid, P-61.
On the first day of the hearing, the Tribunal asked YXVG whether he would like to comment on the statement by Dr P in his letter dated 28 April 2023, indicating that YXVG’s adherence to “pysch medications and psychological treatments” were “scattered and most non-adherent”.[76] YXVG agreed that was the case at that time. However, YXVG commenced seeing Mr J for psychological therapy in about 2019. Once YXVG got through the recent period of incarceration in August 2023, it is apparent from the evidence, that he has started to make some real gains in terms of his mental health. By his own evidence, YXVG has significantly reduced the quantity and frequency of using methamphetamine.
[76] Ibid, P-54.
At the hearing, YXVG said that he is currently seeing Mr J about once every six weeks. YXVG described Mr J as having helped him to “rebuild his life”.[77] When asked who was paying for this, YXVG said he was on a Mental Health Care Plan. Such a plan forms part of the basis which a person may access certain medical sessions or treatments under the Medicare Benefits Scheme. YXVG said he is “bulk-billed” for these sessions. YXVG confirmed he can get up to 10 sessions per year under this arrangement. YXVG gave evidence that he needs to see Mr J more often than he does, and that Mr J is “probably the best person to ask anything about [him]”.
[77] Ibid, P-169.
Mr J issued a report stating that the NDIA and an organisation by the name of “Centre Against Sexual Assault” (‘CASA’) can provide additional services which would benefit YXVG’s recovery. Mr J gave evidence on the last day of the hearing that CASA is a “specialist agency that deals with people with – who have been sexually abused. They provide counselling services. They do provide some therapy as well, and also a referral service for specialists, psychologists and psychiatrists. It – it’s – that provides specialist sexual assault and trauma counselling.”[78] The Tribunal understood Dr J as suggesting that YXVG had been referred back to CASA for specialist sexual assault counselling. It was not clear from Mr J’s evidence who might have made this referral or whether YXVG may have “self-referred”.[79] YXVG intervened and told the Tribunal that he had engaged with CASA about the “stuff that happened to me when I was a kid”.[80]
[78] Ibid, P-145.
[79] Ibid.
[80] Ibid, P-146.
On the last day of the hearing, Mr J said he was qualified to treat someone with PTSD and that he used cognitive behavioural therapy.[81] He referred to “desensitisation techniques” (by exposing a person to the trauma and developing coping mechanisms and strategies) and “distraction techniques” to reduce anxiety.[82]
[81] Ibid, P-148.
[82] Ibid, P-148 & P-149.
On the last day of the hearing, YXVG gave evidence that he has seen two psychiatrists, Dr K and Dr AW. He said he had eight sessions through a “Corrections program” with Dr AW and saw her in July 2023. He said he saw Dr K under a Mental Health Care Plan, between 2020 and 2022.[83]
[83] Ibid, P-130.
On the first day of the hearing, the Tribunal asked YXVG about his housing situation. As mentioned above, YXVG is receiving assistance to secure public housing accommodation and he is also making private rental applications to find a home for himself. The Tribunal asked YXVG whether he thought it would help him in respect of his PTSD symptoms and his drug usage if he is provided with future stable accommodation. He answered “Yes”. On the last day of the hearing, YXVG gave evidence that the Apartment he was living in with his Daughter and grandchildren was a public housing property, but it was becoming crowded as Daughter is pregnant. The Tribunal notes that at least for now, YXVG is currently living in reasonably stable accommodation, even if he intends to move once he finds his own place. He is surrounded by his children and grandchildren.
Mr J opined in his report dated 25 April 2023 (‘Mr J’s Report’) that YXVG continued to experience PTSD symptoms of hypervigilance, avoidance, startled response, trust issues, flashbacks, nightmares and occasional suicidal ideation, depression and anxiety, stress, and grief, associated with his condition of PTSD. On the last day of the hearing, Mr J confirmed that he was referring to “symptoms of” depression and anxiety (rather than standalone conditions), and that the symptoms arose from YXVG’s PTSD and from his grief, loss, feeling helpless, being homeless, and having issues with his previous partners.[84]
[84] Ibid, P-157 & P-158.
In Mr J’s Report, he stated that the focus of his treatment with YXVG had been on dealing with his past traumas, in particular:
(a)his past sexual abuse and perceived loss of identity;
(b)dealing with grief;
(c)the disconnection with family members and friends; and
(d)YXVG’s oppressive thoughts and behaviours, rumination, social withdrawal, anger, and thoughts of being mistreated and victimised.
In Mr J’s Report, he stated that the psychological treatments had been, to some degree, successful in an alleviation of YXVG’s impairments, however, he opined that YXVG’s psychological impairments were long-standing, enduring, and likely to persist. The Tribunal does not accept this evidence because Mr J does not address the broader setting of YXVG continuing to use a psychostimulant, methamphetamine, such that he still does.
Mr J stated in this report that additional support was required to work with YXVG to further his recovery. Mr Lessing asked Mr J about this statement at the hearing during cross-examination. Mr J said that the reference to “additional support” was a reference to psychiatric intervention, NDIS, and CASA. He said his sessions with YXVG were limited to 10 per year under Medicare. He explained he was seeking extra support from “anywhere – psychiatrists – anybody” that could help YXVG.[85] He said that 10 sessions a year is not enough to engage in psychotherapy or counselling or psychological interventions.[86]
[85] Ibid, P-155.
[86] Ibid.
In Mr J’s Report, he stated that he expected the outcome of the treatment would lessen YXVG’s depressive symptoms, anxiety, apprehension, avoidance behaviours and build trust in others. Mr J stated that it was hard to predict YXVG’s diagnosis in respect of his PTSD symptoms.
On the last day of the hearing, during cross-examination, Mr J confirmed he expected that YXVG would make progress and that he had been making progress.[87] He elaborated that YXVG has learned a lot of different strategies and coping mechanisms and has been improving. He said he was happy with YXVG’s progress. He described it as ongoing progress and that he did not see an end date. He said, “it’s something that doesn’t get cured overnight” and that it “doesn’t go away”. He said it is something that has to be monitored and treated.[88] Mr J confirmed that the aim of Mr J’s treatment of YXVG is to improve his impairments which will have a flow-on effect to increasing his capacity for social interaction.[89]
[87] Ibid, P-159.
[88] Ibid, P-160.
[89] Ibid.
The Tribunal asked YXVG at the hearing, which psychotropic medications he had taken in the past, noting that in Mr J’s Report, Mr J stated that they had provided “no psychological benefit”.[90] YXVG said he had taken Avanza in 2012 for eight months, and Effexor in 2012 for the same period. When YXVG was asked if he was using methamphetamine at that time, he said he was using it “sporadically”. He said a doctor at Barwon Prison had put him on Avanza. He said he had started those trials after he had seen the perpetrator of the sexual abuse against him as a child, while he was in prison (which he had caused a decline in his mental health). YXVG said that to his knowledge he has not trialled any other psychotropic medication.
[90] Ibid, P-59.
At the hearing, YXVG was asked why he had not trialled any other medication after being out in the community, given his significant mental health issues. YXVG response was notable. He gave evidence as follows (emphasis added):
Not one bit, I personally think if – now compared to five, six years ago, my mental health was shocking then, I’ve managed to pretty much I see rebuild it, working with [Mr J], you know – yes.
During closing submissions, the NDIA contended that, “for the purposes of section 24(1)(b), impairments attributable to the conditions of chronic post-traumatic stress disorder, substance abuse disorder and antisocial personality disorder are not permanent”. Mr Lessing referred to Dr AJ describing YXVG’s history as “one indicating methamphetamine use for the last 11 years and continued abuse of around 100 days per year”. Mr Lessing acknowledged that YXVG has reduced his usage of methamphetamine but that at the time he saw Dr AJ (that is, on 4 July 2023), there was “still a significant amount of use occurring.”[91]
[91] Ibid, P-196.
Mr Lessing highlighted to the Tribunal during closing submissions that:
(a)Dr AJ had outlined numerous treatments for Complex PTSD;
(b)Dr AJ has highlighted that YXVG’s continued use of methamphetamine was “significant to the prognosis” of both Complex PTSD and “anti-social personality disorder”;[92]
(c)Dr AJ has noted that YXVG needed to seek out and instigate treatment in a drug education and rehabilitation program and YXVG had indicated this was not in his immediate plans.[93]
[92] Dr AJ’s Report, pages 4 and 8.
[93] Ibid, page 8.
Mr Lessing acknowledged there was some evidence before the Tribunal of some engagement by YXVG in drug and alcohol counselling, being the four sessions in late-2023 and a further eight sessions in early-2024.[94] Mr Lessing notes during his closing submissions that Dr AJ has stated that although there is no specific treatment for anti-social personality disorder, with abstention, there is a possibility of improvement, through the development of more mature psychological defence mechanisms.[95] The Tribunal accepts Dr AJ’s evidence in this regard.
[94] Transcript, P-197.
[95] Ibid.
During closing submissions, Mr Lessing also highlighted that Dr AJ had given oral evidence at the hearing that ordinarily, what is seen in anti-personality disorder[sic] is that as people age, and approach the age of 50, those elements of their personality, cease to be as dominant or driving, because the individual realises that, effectively, it is not assisting them to live a functional and fulfilling life. Dr AJ said that for this to occur, there has to be abstention from methamphetamine use.
Mr Lessing drew the Tribunal’s attention to Dr AJ’s evidence that psychostimulants will aggravate and multiply the underlying personality characteristics, and if those underlying personality characteristics include impulsivity and recklessness, this will cause that to explode, and sometimes in very traumatic ways with reckless behaviour or violent behaviour.[96] Dr AJ also gave evidence that even intermittent methamphetamine abuse will prevent medications from working, and it will also interfere with group therapies and EMDR therapy.[97]
[96] Ibid, P-91.
[97] Ibid.
During closing submissions, Mr Lessing highlighted Dr AJ’s evidence at the hearing that Dr AJ endorsed that YXVG should re-trial anti-depressants, in conjunction with other therapies, noting the YXVG had trialled anti-depressants during a period of incarceration some time ago.[98] Dr AJ said the doses required by YXVG are likely to be higher than the doses recommended by the manufacturer, so YXVG should do so under the guidance of a consultant psychiatrist. Dr AJ had recommended that this could be done in conjunction with the use of “alpha-blockers” to prevent any emerging nightmares, which he said can emerge when such treatment commences.
[98] Ibid, P-94.
Mr Lessing submitted that Dr AJ had endorsed the participation by YXVG in EMDR therapy.
Mr Lessing suggested that Mr J is “excellent” at the work he is doing at the moment, but it might be more appropriate for a clinical psychologist to be working with YXVG in relation to his PTSD. The Tribunal is disinclined to weigh in on this debate. It was apparent that Mr J appeared to have a wealth of experience, and importantly has gained the trust of YXVG (who describes Mr J as having helped him rebuild his life) and is achieving results with him. It would not seem appropriate that this treatment by Mr J of YXVG in relation to his PTSD should cease.
Mr Lessing also highlighted that Mr J had:
(a)endorsed TMS as a treatment for YXVG (which needs to be administered by a psychiatrist); and
(b)that YXVG should participate in more frequent drug and alcohol counselling (for instance, weekly meetings with Narcotics Anonymous);
and that Mr J had opined that the time frame for such treatments is about two years.
In relation to YXVG’s symptoms of “anxiety and depression”, Mr Lessing highlighted that Dr AJ had given evidence that for individuals who had been abusing psychostimulants, it is not uncommon for them to experience a “rebound depressive phase” afterwards and sometimes the rebound in severe. He gave evidence that depressive illness after using psychostimulants may lead to suicide, suicidal ideation, and attempted suicide, as well as resulting in fatigue and dizziness.[99]
[99] Ibid, P-102 & P-103.
Mr Lessing highlighted that both Dr AJ and Mr J opined that ongoing psychiatric intervention was indicated for YXVG. Mr Lessing submitted this is consistent with the further opinion given by Dr S, in his medical report in respect of YXVG, that he needed to re-engage with a psychiatrist.[100]
[100] Dr S’s Report, [6.3] & [6.4].
Mr Lessing contended, in summary, that there are various treatments available for psychosocial impairments, in particular, those arising from Complex PTSD and substance abuse. Mr Lessing contended that even with anti-social personality disorder there is a prospect of “organic reduction”.[101] Mr Lessing says, “the first step” is the “complete abstention of substance abuse”, based on the opinions of Dr AJ.
[101] Transcript, P-199.
In consideration of the evidence, the Tribunal agrees with Mr Lessing’s contentions. The Tribunal considers that there are a number of available treatments which YXVG can undertake to progress his current positive trajectory in tackling the conditions underlying YXVG’s Psychosocial Impairments. The Tribunal is satisfied that it is not possible at the present time to conclude that YXVG’s Psychosocial Impairments are, or are likely to be permanent, despite the extremely complex and longstanding history which gave rise to those conditions. The available treatments which YXVG can and should pursue include the following:
(a)participation in an intensive non-residential drug and alcohol rehabilitation program;
(b)continue to see Mr J for 10 sessions per year funded under Medicare to receive further continuing psychological therapy from him;
(c)re-engage with CASA to gain access to supplementary counselling and services from psychologists/psychiatrists complementary to the therapy being provided by Mr J or to explore accessing further psychology session under the HACC PYP program;
(d)attend weekly group meetings with Narcotics Anonymous, in conjunction with Mr J focussing his therapy with YXVG to build his capacity to engage effectively in those group sessions;
(e)once YXVG has achieved complete abstinence from taking methamphetamine, trial psychotropic medication under the guidance of a psychiatrist and/or his general practitioner; and
(f)undergo EMDR therapy.
The Tribunal finds that these treatments are available for YXVG to access either through Medicare Benefits Scheme, CASA, HACC PYP and/or community-based drug and alcohol programs or can be funded by him privately.
For these reasons, the Tribunal is not satisfied that YXVG’s Psychosocial Impairments are not, or are not likely to be, permanent.
Based on the findings referred to in paragraphs [114] and [146], the Tribunal concludes that YXVG does not meet the criterion under subsection 24(1)(b) of the NDIS Act.
Subsection 24(1)(c) – Substantially reduced functional capacity
YXVG can walk but reports experiencing difficulties when doing so. In reference to a former house that YXVG lived (House O), Mr Lessing asked how far away the closest shops were to the house. He said they were 600 metres away. He said he had attempted to walk to the nearest train station, which was about 500 metres away, with his daughter, and it took him about 45 minutes to do so. Ms Lessing put to YXVG that if the address for House O was put into Google maps, it showed that the distance between House O and the train station referred to by YXVG was 850 metres. YXVG said this was “probably close enough”.[102]
[102] Ibid, P-27.

At the hearing, YXVG said he can, independently, go down the elevator in his Apartment and walk around the corner to the shops which he said will take him about 10 to 15 minutes (when it should take five minutes).[103] YXVG confirmed he can walk without walking aids, such as a walking stick or a “walker”. He referred to using handrails and stopping to rest if he gets short of breath. When asked whether he would use a mobility scooter if he had one, he said he probably would. He said that “they did suggest that”. He referred to Mr J and that he saw this in Mr J’s Report.[104]
[103] Ibid, P-31.
[104] Ibid, P-32.
At the hearing, Mr Lessing asked YXVG whether a walker with a seat would help him. YXVG answered no and that he would feel embarrassed using it and would “rather jump off a flaming bridge”.[105] YXVG said that he is 42 years old and that even if he was 80, he would still feel the same way.[106] He confirmed he would be prepared to use a mobility scooter and said he would “still feel like an old man” doing so.[107] He said the difference between this and a walker is that he could put his grandson on it and take him down to the shops. The Tribunal asked YXVG at the hearing if he could pick up his grandchildren. He said it was difficult, but he could do so.[108]
[105] Ibid, P-32.
[106] Ibid.
[107] Ibid.
[108] Ibid, P-42.
The Tribunal finds that YXVG can walk a fair distance without assistance from another person and without the need to use any walking aids.
At the hearing, YXVG gave evidence that he does not have a driver’s licence and it was suspended under drink-driving orders.[109] YXVG gave evidence that he caught a tram to the Tribunal to attend the hearing. He confirmed the tram stop was near the Apartment. He confirmed he caught a lift down from his Apartment to catch the tram and that he was able to “jump on the tram”. He confirmed he got off at the tram stop at Flinders Street.[110] Mr J gave evidence that when he had in-person sessions with YXVG, YXVG would travel to an outer suburb of Melbourne to see him and when YXVG did so, he would be alone.
[109] Ibid, P-23.
[110] Ibid, P-24.
YXVG was asked at the hearing whether he has been able to undertake any work. He answered as follows “I’ve done a little bit of the things that I manage, like, as I said, something that used to take me a day will now take me 10 days”.[111] When asked to explain what types of things he had been doing, YXVG said that his “mate’s shop caught fire”. He said he put a sheet of plaster up on the roof and it took him the best part of a day. He said it used to take him 10 minutes. He explained he will physically exert himself and “put his body through hell” to try to satisfy himself if it was the right way of putting it up. He said if he was sitting around all day, he would feel useless and he would rather be dead. He says he is not someone who sits around all day. He said it would “do [his] head in”. He said he cannot “physically not be doing something”.[112]
[111] Ibid, P-29.
[112] Ibid, P-29.
On the last day of the hearing, YXVG gave evidence that when he worked in his friend’s burger shop (in an outer suburb of Melbourne), he would catch the train to get there, and his friend collected him from the train station.[113]
[113] Ibid, P-134.
The Tribunal asked YXVG if he thought he could do work sitting at a desk and work with objects in a seated position. He said he had tried to do this, but his “functionality” is about 35 per cent of what it was before he became sick.[114] When asked what his functionality was when he was seen by Mr B, YXVG said it was 20 per cent.
[114] Ibid, P-29.
YXVG was asked what else he had been doing, other than the work in his friend’s shop. YXVG said he helped to look after his grandchildren, and then added that everything takes a toll on him.[115]
[115] Ibid, P-30.
YXVG gave evidence that he can:
(a)prepare something to eat. In fact, YXVG described himself as “a good cook” and that he prepares food for his grandchildren too;[116]
(b)go to the toilet. He said the toilet in the Apartment has handrails installed;[117]
(c)take a shower every day or couple of days. He said the Apartment has a seat in the shower, which he said helps;[118]
(d)dress himself;[119]
(e)brush his teeth;
(f)shave, regularly;
(g)eat his food without requiring any assistance; and
(h)get in and out of bed.
[116] Ibid, P-28 & P-55.
[117] Ibid, P-28.
[118] Ibid.
[119] Ibid.
The Tribunal finds that YXVG experiences some limitations in the Prescribed Activity of mobility but overall, he was rather mobile and active.
YXVG gave evidence at the hearing that he manages his own money.[120] His financial and administrative responsibilities are minimal, and he relies upon the DSP as his sole source of income.[121]
[120] Ibid, P-47.
[121] Ibid, P-49.
On the first day of the hearing, YXVG was asked whether he had trouble organising himself or his grandchildren. He said that previously he did, but not at the moment.[122]
[122] Ibid, P-55.
YXVG gave evidence that he can manage his own medication.
YXVG gave evidence that years ago that he applied for compensation from the Victims of Crimes Assistance program and was awarded a lump sum. He added that while he was incarcerated, the lawyers retained the whole amount for their fees.[123]
[123] Ibid, P-33.
During cross-examination, YXVG confirmed that there was a place nearby his Apartment where he can buy groceries and that if he needs to top up his fridge, that he can go to this place to get them. He explained that he goes down the elevator and walks around the corner. He said, “the shop will take you 5 minutes, generally – takes me about 10-15 minutes now.”[124] He confirmed that he can make this trip by himself.
[124] Ibid, P-31.
Based on a consideration as to the tasks that YXVG can do and those he is unable to do or can only do with difficulty, the Tribunal accepts that YXVG only has a reduction in capacity in undertaking the Prescribed Activity of mobility. The Tribunal is not persuaded that he has a reduced capacity in respect of the remaining five Prescribed Activities. However, at the present time, the Tribunal finds that the level of YXVG’s capacity to undertake the Prescribed Activity of mobility, does not reach the required threshold of being a substantially reduced functional capacity in one or more of the Prescribed Activities.
For this reason, the Tribunal concludes that YXVG does not meet the criterion under subsection 24(1)(c) of the NDIS Act.
Conclusion regarding s 24
Although the Tribunal has found that YXVG meets subsection 24(1)(a), he is also required to meet the remaining four mandatory criteria under subsection 24(1) of the NDIS Act. The Tribunal has concluded that YXVG does not meet the mandatory criteria under subsections 24(1)(b) and (c). It is not necessary for the Tribunal to proceed to a consideration of the other mandatory criteria under subsections 24(1)(d) and (e).
The Tribunal concludes that YXVG does not meet the “disability requirements” under s 24 of the NDIS Act because, taken separately, or in combination, he does not meet the mandatory criterion under subsection 24(1)(b), nor the mandatory criterion under subsection 24(1)(c) of the NDIS Act.
Whether YXVG meets the early intervention requirements under s 25
YXVG made his access request to the NDIA prior to the legislative amendments on 3 October 2024. The Tribunal must decide whether YXVG meets the early intervention requirements under s 25, based on the wording of this provision as it existed prior to the legislative amendments on 3 October 2024.
Prior to the legislative amendments, s 25 of the NDIS Act provided as follows:
Early intervention requirements
(1)       A person meets the early intervention requirements if:
(a)       the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii)      is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii)       preventing the deterioration of such functional capacity; or
(iii)      improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note:   In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a)       as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
At the commencement of the hearing, Mr Lessing contended that there did not seem to be evidence to indicate that early intervention is appropriate for YXVG. He referred to Dr AJ’s opinion that the time for early intervention had passed. Mr Lessing contended that it has not been established that the requirements under s 25 are met.[125]
[125] Ibid, P-11.
The Tribunal asked YXVG at the commencement of the hearing what supports he was hoping to receive through the NDIS. YXVG gave evidence that he was hoping to receive assistance to get his life back on track to live a meaningful life. He said that his treating doctors had told him to apply for the “disability pensions”, which he has done. YXVG said he would rather go back into truck driving or the construction or mechanics industry, earning income to support his family, rather than going to a doctor’s appointment every year. He said it has “taken a big mental toll on him” to “run around, do[ing] all these different things”.
YXVG gave evidence that it would make a lot of difference to him to get his driver’s licence back. He explained that mobility-wise, his body gets worn out and he gets short of breath and tired.[126] He confirmed that he would like to have support worker assistance, more sessions with Mr J and things that make his life a bit easier and lessen the impact of the physical exertion on his body. When asked if there were any other interventions he was seeking, YXVG said he could not think of anymore but that he was open to suggestions.[127]
[126] Ibid, P-30.
[127] Ibid, P-31.
At the hearing, Ms Lessing contended that s 25 of the NDIS Act is not engaged in YXVG’s case, because he is not in the “early trajectory of the impairment”. The Tribunal notes that the wording in Rule 6.9(a) of the Access Rules does not align precisely with the Ms Lessing’s contention. Rule 6.9 is prescriptive about which matters the Tribunal is expected to take into account when making its assessments under subsection 25(1)(b) and (c) of the NDIS Act.
The Tribunal notes that Rule 6.9(a) states that it is expected that the CEO (or this Tribunal on review) “would consider the likely trajectory and impact of a person’s impairment over time”. It says no more than this, about the trajectory of the impairment. Rule 6.9(b) provides that the Tribunal will also need to consider the potential benefits of early intervention on the impact of the impairment on the person’s functional capacity, and in reducing their future needs for supports. Finally, Rule 6.9(c) expects that the Tribunal will consider evidence from a range of sources, such as information provided by the person with the disability or their family members or carers, and in some cases, expert opinions.
For the same reasons as set out above when addressing the criterion under subsection 24(1)(b), the Tribunal is not satisfied that YXVG’s Impairments are, or are likely to be, permanent. For this reason, the Tribunal concludes that YXVG does not meet either subsection 25(1)(a)(i) or (ii) and he does not meet subsection 25(1)(a)(iii) because he is an adult participant. It is not necessary for the Tribunal to consider the remaining criteria under subsection 25(1) of the NDIS Act. Nor does the Tribunal need to consider whether the circumstances set out in subsection 25(3) apply in YXVG’s case.
Accordingly, the Tribunal concludes that YXVG does not meet the “early intervention requirements” under s 25 of the NDIS Act.
CONCLUSION
The Tribunal has concluded that YXVG does not meet the “disability requirements” under s 24 of the NDIS Act. The Tribunal has also concluded that YXVG does not meet the “early intervention requirements” under s 25 of the NDIS Act.
For these reasons, the Tribunal concludes that YXVG does not meet the access criteria under s 21 of the NDIS Act. This means YXVG will not be granted access as a participant in the NDIS.
The Tribunal affirms the Decision Under Review.

Dates of hearing: 23 & 24 September 2024, 29 November 2024

Applicant: In person

Counsel for the Respondent: Ms Joshua Lessing

Solicitors for the Respondent: Sparke Helmore Lawyers

[2025] ARTA 238

14 March 2025

Key Legal Topics

Areas of Law

Administrative Law

Disability Law

Legal Concepts

Jurisdiction

Substantive Fairness

Disability Requirements

Early Intervention Requirements

Permanent Impairments

Dates of hearing:	23 & 24 September 2024, 29 November 2024
Applicant:	In person
Counsel for the Respondent:	Ms Joshua Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers