Zhao and National Disability Insurance Agency (NDIS)
[2025] ARTA 594
•22 May 2025
Zhao and National Disability Insurance Agency (NDIS) [2025] ARTA 594 (22 May 2025)
Applicant/s: Rui Zhao
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9884
Tribunal:Senior Member J Collins
Place:Brisbane
Date:22 May 2025
Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.
.................[SGD]..................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – knee pain – shoulder pain – depression – whether applicant meets disability requirements – NDIS Act s24(1)(b)- whether impairment likely to be permanent - NDIS Act s24(1)(c) – whether impairments substantially reduce functional capacity- social interaction - mobility – self-care – My Aged Care – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024(Cth) sections 12, 101(1), 103, 105
National Disability Insurance Scheme Act 2013 (Cth) sections 21, 24, 27, 29
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATARooney and National Disability Insurance Agency [2021] AATA 3523
PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66
Madelaine v National Disability Insurance Agency [2020] AATA 4025
Kilgallin v National Disability Insurance Agency [2017] AATA 186
Garcia Albiol v National Disability Insurance Agency [2024] AATA 496
Moxham v National Disability Insurance Agency [2025] ARTSecondary Materials
NDIS – Applying to the NDIS access guidelines, as of 11 March 2025.
Statement of Reasons
Mr Rui Zhao is a 65-year-old man. He seeks access to the National Disability Insurance Scheme (‘the scheme’) so that he can receive supports on the basis of impairments due to multiple conditions.
Mr Zhao’s application for access was refused at first instance by the Agency and again upon internal review. [1]
[1] T1B, T2.
Mr Zhao subsequently applied to the Administrative Appeals Tribunal (‘AAT’) on 14 December 2023 for review of the Agency’s internal review decision (‘the decision under review’).[2] In his application to the AAT he stated:
‘I disagree with the decision of the NDIS. I was injured at work in 2002 resulting in permanent impairment to my left upper extremity and left lower extremity. My daily life has been seriously affected. I really need the NDIS to provide me with services such as shopping, cleaning, shower, going out and physiotherapy. I currently live in public housing property and receiving disability support pension from Centrelink. I am single and have no one to take care of me and I desperately need these services’
[2] T1; section 103 of the NDIS Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
At the hearing Mr Zhao was assisted by an interpreter and by an advocate, Mr William Robin. The Agency was represented by Ms Rao of counsel instructed by Maddox Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Mr Zhao does not meet the disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth) (‘NDIS Act’) or the early intervention requirements under section 25 of the NDIS Act. Mr Zhao therefore does not meet the access criteria under section 21 of the NDIS Act and cannot be granted access to the scheme.
ISSUES
Access to the scheme requires Mr Zhao to satisfy that he meet the ‘access criteria’ under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
When a person meets the access criteria
(1) A person meets the access criteriaif:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
(2) For the purposes of paragraph (1)(c), the CEO must separately consider and decide:
(a) whether or not the prospective participantmeets the disability requirements; and
(b) whether or not the prospective participantmeets the early intervention requirements.
(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a) the CEO does not do a thing referred to in paragraph 20(1)(a) or (b) within the period applicable under section 20; or
(b) if subsection 26(2) applies--the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection.
Note: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
There was no contention by the Agency that Mr Zhao did not meet the age requirements[3] or the residence requirements.[4]
[3] Subsection 21(1)(a) of the NDIS Act.
[4] Subsection 21(1)(b) of the NDIS Act.
The issue before the Tribunal was therefore whether Mr Zhao met the disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
1. A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require 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).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
1.A person meets the early intervention requirementsif:
(a)the person:
(i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; 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 developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
…………………………………………………………………………………………
Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (‘the Access Guidelines’).[5]
[5] ourguidelines.ndis.gov.au: Applying to the NDIS.
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[6] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[7] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[8] where Mortimer J held:
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …[9]
[6] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[7] [1979] 24 ALR 577 at [590].
[8] [2018] FCA 1229.
[9] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Zhao meets the disability requirements or the early interventions requirements.
Whether Mr Zhao meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[10] with a relatively high degree of precision and be positively satisfied.[11]
[10] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[11] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
MS ZHAO’S POSITION
Ms Zhao seeks access to the scheme on the basis of the following:
(a)physical impairments as a consequence of chronic left knee and left shoulder pain following a patella fracture in 2002, and
(b)psychological impairments as a consequence of depression.
Ms Zhao identifies the following physical impairments:
· pain and stiffness in his left knee and shoulder;
· a reduced range of motion and muscle weakness in his left shoulder and left knee which contributes to reduced standing and walking tolerance;
· pain in the right side of his body as a result of relying heavily on the right side of his body.
Mr Zhao identifies the following psychosocial impairments;
· loss of appetite;
· insomnia;
· feelings of sadness and hopelessness; and
· tiredness and lack of energy.
On the basis of access to the scheme Mr Zhao seeks the following supports:
· Assistance with shopping, showering, cleaning and cooking;
· Physiotherapy, chiropractic treatment and exercise treatments.
THE AGENCY’S POSITION
The Agency accepts that Mr Zhao has disability attributable to both physical and psychosocial impairments pursuant to subsection 24(1)(a) of the NDIS Act as referred to in [19] - [21].
In respect of the physical impairments the Agency contends that ‘full medical treatment’ has not been explored in relation to Mr Zhao’s left knee and shoulder.[12] Further, that Mr Zhao requires medical treatment and review before a determination can be made about whether his impairment is permanent or likely to be permanent for the purposes of section 24(1)(b) of the NDIS Act. In this regard the Agency relies on Rule 5.6 of the Access Rules.[13]
[12] Respondent’s closing submissions
[13] Respondent’s closing submissions
In respect of Mr Zhao’s psychosocial impairments the Agency accepts these impairments are permanent for the purposes of subsection 24(1)(b) of the NDIS Act.
With regard to subsection 24(1)(c) of the NDIS Act and in respect of both physical and psychosocial impairments the Agency contends that:
· There is no evidence that Mr Zhao has reduced or substantially reduced functional capacity in the activities of communication, learning, social interaction, or self-management; and
· That whilst Mr Zhao’s functional capacity in the activities of self-care and mobility is reduced, the evidence does not support a finding that Mr Zhao meets the threshold of a ‘substantially’ reduced functional capacity for self-care or mobility.
With regard to subsection 24(1)(d) of the NDIS Act the Agency accepts that Mr Zhao’s impairments affect his capacity for social and economic participation.
With regard to subsection 24(1)(e ) of the NDIS Act the Agency contends that there is insufficient to establish that Mr Zhao is likely to require support under the NDIS for his lifetime.
The Agency further contends that the evidence is insufficient to establish that the provision of ‘early intervention support’ is likely to benefit Ms Zhao within the meaning of subsections 25(b) and (c) of the NDIS Act. Further that the supports requested by Mr Zhao are more appropriately provided through another service system, My Aged Care, in accordance with subsection 25(3) of the NDIS Act.
THE EVIDENCE
I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 20 and 21 May 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.
Evidence about Mr Zhao
Mr Zhao has the following diagnoses which the Agency accepts:
(a)Historical fracture of his patella;
(b)Chronic pain in his left knee and shoulder; and
(c)Depression.
Mr Zhao lives alone and has no family or other informal supports.
In January 2002 he had a workplace injury. At that time he sustained a fractured patella and ligament and soft tissue injuries to his left knee.[14] Following this injury he developed stiffness and weakness in his left knee. He has since required a walking stick to assist with walking. As a result of using a walking stick with his left arm he has developed chronic left shoulder pain.[15] He has subsequently also developed pain in the right side of his body.
[14] TB484
[15] TB 751
Mr Zhao has been unemployed since 2002. He is now on a disability pension.
Following his knee injury Mr Zhao received weekly physiotherapy treatment through workers compensation insurance until 2018[16] He has also had chiropractic treatment which included ten Enhanced Primary Care treatments.[17] His left leg however remains affected by stiffness, pain and muscle wasting. He has now used a walking stick to mobilise for many years.
[16] TB 747
[17] TB 753
In his application to the Tribunal dated 24 July 2020, his treating general practitioner Dr Ricky Lam stated that Mr Zhao had chronic left knee and left shoulder pain together with depression. Dr Lam stated however that Mr Zhao did not require assistance with his mobility, social interaction, learning, mobility, self-care or self-management.[18] Dr Lam also stated that early intervention supports were unlikely to remedy Mr Zhao’s future support needs.[19]
[18] T6
[19] T9
In May 2023 his treating psychologist, Ms Grace Sham, stated that Mr Zhao struggled to do housework, and physical chores such as cooking and cleaning. He also struggled with showering and found it difficult and painful to walk to the shopping centre, or to attend medical appointments.[20] Ms Sham considered that Mr Zhao would benefit from an electric wheelchair, transport assistance, taxi vouchers and support to assist with shopping, showering and cleaning.
[20] T9
Mr Zhao states that would like access to the scheme so that he can receive assistance with shopping, showering, cooking, cleaning and transport. He would also like to have treatment with a psychologist and exercise physiologist.[21]
[21] TB 745
In an undated report Dr Anita Vytheeswaran, chiropractor stated;
‘While chiropractic treatments, including adjustments, mobilisations, exercise, and
massage, have significantly improved Mr. Zhao's well-being and functional capacity, they are not a cure for his injuries. These interventions help him function more independently and reduce overall pain levels.’In a report dated 26 January 2025 his general practitioner Dr Lam states,
Mr Zhao’s conditions have been unchanged for years…. Mr Zhao takes Panadol for his body aches. He reported massage and physiotherapy giving him temporary relief but could not cure his conditions. ………Mr Zhao has tried physiotherapy under Workcover in past and received chiropractor treatment…….He does not need to see a pain clinic. Interdisciplinary pain program is unlikely to improve his functional capacity. He can control his pain with physical therapy and simple analgesics’
Mr Zhao contends that his impairments affect his mobility and self-care and his ability to interact socially. He explains that he struggles with overwhelming sadness, regret and self-doubt. His symptoms make it difficult for him to ‘reach out to others, further reinforcing my sense of loneliness’. He also suffers from fatigue.
Mr Zhao gave oral evidence at the hearing at well as written statements. I am satisfied that his evidence was honest and truthful. His evidence can be summarised as follows:
· Some years ago Mr Zhao sustained a workplace injury. He subsequently received a significant compensation award in relation to this injury;
· Mr Zhao is divorced. He states that his ex-wife deceived and defrauded him of his compensation award. He has had no recourse to the loss of this money. Others in his local community are aware of these events and his misfortune. He feels ashamed and embarrassed because of this event. This has caused him to isolate and withdraw, from his local community;
· His left knee is weak when he walks and he cannot stretch it straight. The muscles on left leg are also smaller than the muscles on his right leg;
· His left shoulder is also weak with muscle wastage. He is unable to lift his left arm;
· In the past he has had physiotherapy, hydrotherapy and physical exercise training as treatments for his left knee. He currently takes Panadol for treatment of his pain;
· He has seen more than ten medical specialists over the years, none have suggested surgery for his left knee;
· Because of the weakness of his left knee and shoulder he relies heavily on the right side of his body. This has caused him to develop pain on the right side of his body. He now has treatment from a chiropractor for the right side of his body. Through Medicare he is able to receive 5 treatments with a chiropractor per year. His chiropractor has advised him that weekly treatment would be preferable;
· Ms Zhao is on a disability pension. He has no savings and is unable to fund additional treatment from a chiropractor;
· He considers that the damage to the left side of his body is permanent. He is therefore seeking treatment to preserve the ‘energy’ he has on the right side of his body and to reduce the pain that he experiences on his right side;
· He was last reviewed by a medical specialist in or about 2017 or 2018;
· Mr Zhao explains that showering is probably the most difficult task for him. This is because he cannot lift his left arm. He must rely on his right arm to shower, which he confirmed is his dominant arm;
· Relying on his right arm Mr Zhao is able to undress and dress himself for showering. He is also able to use soap and shampoo to wash his body and his hair. He can brush his teeth with his right hand and cut his toenails. He finds it difficult to cut the fingernails on his right hand but manages to do this with extra time;
· Mr Zhao showers approximately once a fortnight. This is generally before he leaves his house to go shopping. He will also shower if he has an ‘in-person’ appointment with his doctor or any other in person. Showering generally takes Mr Zhao approximately 30 minutes;
· Mr Zhao is able to use public transport which includes trains and buses. He travels on a bus to visit his general practitioner. If he becomes lost he is able to use his phone for directions and to ask others in the community for assistance and directions;
· Mr Zhao goes to the supermarket fortnightly. To transport groceries he uses a portable shopping trolley with two wheels. He ensures that his trolley is not too heavy so that it can be pulled by him. To get to the supermarket he walks to the train station and catches a train. It takes him approximately 35 minutes to walk to the train station and he estimates that this journey would take an abled bodied person approximately ten minutes. The supermarket is located very close to the train station where he disembarks;
· On his way home from the supermarket he will attend at the Bankstown sports club and generally have three or four glasses of VB beer. Whilst at the sports club he does not speak to anyone. He explains that this is because he has ’low self-image’ and feels that he is ‘looked down on’;
· Mr Zhao states that he has no friends or family that he interacts with. He does however talk to his psychologist;
· Mr Zhao explained that he has serious depression which is treated with an anti-depressant. The dosage of his anti-depressant has recently been increased by his general practitioner. He is due for review of this increased dosage in a few weeks by his general practitioner. He considers that the increased dosage of his antidepressant has helped with the symptoms of his depression. This includes the stabilisation of his mood and the prevention of thoughts of anger;
· My Zhao would like to go to church regularly. He does not however want to attend his local church. This is because other people who attend his local church are aware that he has been de-frauded by his ex-wife. He feels ashamed and embarrassed and does not want to see these people. He explains that he does not want to be ‘the centre of their gossip’ and that he considers that he is perceived by these people as ‘a joke’. Mr Zhao explains that for this reason he has ‘chosen to withdraw’ and ‘distance’ himself;
· He also does not like to go outside of his home and into his local community. Again this is because the local people in his community know I that he has ‘been cheated’ by his ex-wife. He stated ‘I don’t want to talk about it because I find it so shameful’;
· Mr Zhao eats one meal each day. Generally he will cook a large quantity of vegetables which he eats over a period of several days. He is able to re-heat his food using a microwave;
· When he cooks he must take frequent rests. He can only stand for 10 minutes to prepare a meal. He explains that he does not undertake this task whilst seated at a table as he is worried he might spill some water;
· Mr Zhao takes 4 different medications. He manages these with a dosette box which he fills up himself;
· Mr Zhao always uses a walking stick when he accesses the community. When he is at home he does not use a walking stick, but will often rely on furniture for support;
· Mr Zhao is able to independently complete bed, toilet and chair transfers;
· Mr Zhao independently obtains his prescriptions from a pharmacy;
· Mr Zhao is unable to use his left arm to raise his cigarette to his mouth;
· Bending down is difficult for Mr Zhao and he often uses his walking stick to support him;
· Dr Lam does not recommend that he take stronger pain medication. He explains that Dr Lam has advised him that he is already on ‘enough’ medication and his focus should be on getting some physical treatment for his right hand side;
· The treatment that he receives from his chiropractor relates to the right side of his body;
· He considers that if he can improve his right hand side he will feel better;
· He has been hospitalised following a suicide attempt;
· He does not call or text people on his mobile phone as ‘he has no friends’;
· He does however have one friend that he sees three or four times a year ;[22]. He last saw this friend about 2 months ago.
[22] BOD 747
Evidence of Ms Chau Wun Chan
Ms Chan is an occupational therapist. She assessed Mr Zhao and provided two reports to the Tribunal dated 15 September 2023[23] and 20 June 2024.[24] Ms Chan’s reports in relation to Ms Zhao can be summarised as follows:
[23] T13
[24] A6
·He has low motivation for social and leisure activities;
·He can use cutlery to feed himself independently;
·He can independently shower, brush his teeth and hair, shave, dress his upper and lower body in a seated position;
·He struggles to wash his hair and requires minimal assistance with this task;
·He can toilet independently and uses a walking stick for toilet transfers;
·He can transfer in and out of a chair and a bed using a walking stick or holding on to furniture;
·He can walk and uses a walking stick;
·He can also climb up and down stairs uses a walking stick and banister;
·He can shop for small items, also heat and serve prepared meals;
·He can do personal laundry but requires assistance with heavier items such as bedding and towels;
·He can drive, use a taxi or travel independently on public transport;
·He independently manages his own medications. He also manages his own finances and budget.[25]
[25] T13
Mr Zhao was assessed by the WHODAS tool as having a moderate level of overall disability.[26] An assessment by the CANS scale indicated a score of level 2 which indicated that he can be left alone for almost all week and needs support at least once each week.
[26] T13
Ms Chan recommended low costs consumable such as a non-slip bathmat, shower stool and adaptive self-care aids. She also recommended assistance with housekeeping, meal preparation, grocery shopping, transport and access to the community and appointments. She also considered that Ms Zhao would benefit from occupational therapy and physiotherapy.
Ms Chan considers that Mr Zhao left knee and left should injuries are permanent. Further that there is no treatment available to improve his condition.
SECTION 24: THE DISABILITY REQUIREMENTS.
Does Mr Zhao have a disability which is attributable one or more intellectual, cognitive, neurological, sensory or physical impairments – subsection 24(1)(a) of the NDIS Act?
Mr Zhao contends and the Agency accepts that he has physical impairments as a consequence of chronic left knee and shoulder pain. His impairments are referred to in [20].
Having considered the evidence I consider the Agency’s concession to be reasonable and proper.
Does Mr Zhao have one or more impairments to which a psychosocial disability is attributable? – subsection 24(1)(a) of the NDIS Act
Mr Zhao contends and the Agency accepts that Mr Zhao has a psychosocial impairment due to depression.
Having considered the evidence I consider the Agency’s concession to be reasonable and proper. Mr Zhao is prescribed antidepression medication. He has also in the past been hospitalised for psychiatric treatment.
Conclusion
I am satisfied that Mr Zhao has a disability that is attributable to physical impairments due to chronic left knee and shoulder pain as a consequence of a patella fracture.
I am also satisfied that Mr Zhao has a disability that is attributable to a psychosocial impairment due to depression.
Subsection 24(1)(a) of the NDIS Act is satisfied.
Subsection 24(1)(c): Do Mr Zhao’ impairments result in a ‘substantially reduced functional capacity’ for him to engage in the activities of communication, social interaction, learning, mobility, self-care and self-management?
Mr Zhao does not contend that his impairments substantially reduced his functional capacity in relation to self-management, communication or learning.
The Tribunals task is therefore to consider whether Mr Zhao’ functional capacity to undertake self-care, mobility and social interaction is ‘substantially reduced’.
The Tribunal’s task
The Tribunal’s task in determining whether Mr Zhao’s functional capacity is substantially reduced is twofold.
The ‘first task’ is to consider whether Mr Zhao’s circumstances are captured within the deeming effect of rule 5.8 of the Access Rules. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must proceed to a ‘second task’. The second task requires the Tribunal, on the evidence available, to determine whether Mr Zhao’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially’ reduced.
The first task: Whether Mr Zhao can rely on the deeming effect of rule 5.8 of the Access Rules to establish that he has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(Tribunal emphasis added)
Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Mr Zhao can participate ‘effectively or completely’ on the basis that he is unaided by assistive technology, equipment or home modifications other than ‘commonly used items’.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’). In Rooney the Tribunal identified the indicia in respect of what are to be considered ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·relatively simple to use; and
·relatively inexpensive.
Mr Zhao’s evidence is that he relies on a walking stick when accessing the community. I am satisfied that a walking stick is within the category of commonly used items for the purpose of Rule 5.8(a) of the NDIS rules. I am also satisfied that Mr Zhao remains unassisted by the deeming operation of either Rule 5.8(b) or 5.8(c) of the NDIS Rules. This is on the basis that no evidence was provided to support a contention that Mr Zhao usually requires assistance (including physical assistance, guidance, supervision or prompting) from others to undertake tasks that form the relevant activities under subsection 24(1)(c) of the NDIS Act.
Furthermore, there is no evidence before the Tribunal to suggest that Mr Zhao relies on any assistive technology (AT) in respect of any of the activities referred to in subsection 24(1)(c) of the NDIS Act.
Conclusion
Mr Zhao cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.
The second task: Does Mr Zhao have a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?
The fact that Mr Zhao does not satisfy the requirements of rule 5.8 does not disqualify him from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether Mr Zhao has a ‘substantially reduced functional capacity’ for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held: [27]
As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
[27] Mulligan at [77].
Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held:[28]
The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
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... No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
[28] Mulligan at [55]–[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[29]
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
[29] Foster at [64]–[65].
Therefore, the Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Mr Zhao can and cannot do with respect to his self-care, mobility and social interaction for the purposes of subsection 24(1)(c). This assessment requires consideration of the ‘bundle of tasks’ and actions that comprise any given activity being considered.[30]
[30] Ibid.
Previously in the decision of Garcia Albiol v NDIA[31] I considered the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. That decision has not been appealed and has in fact been adopted in this Tribunal.[32]
[31] [2024] AATA 496.
[32] Moxham v NDIA [2025].
My view of a ‘high threshold’ for reduced functional capacity remains unchanged.
The Tribunal’s consideration of Mr Zhao’s functional capacity relates specifically to his ‘daily life activities’. Relevantly, the current Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
Social interaction
The Operational Guidelines describe social interaction as follows:
Socialising – how you make and keep friends or interact with the community……..We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine the Tribunal held, ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[33]
[33] Madelaine at [87].
In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[34]
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.
[34] [2017] AATA 186 at [18].
Mr Zhao states that he is embarrassed and ashamed that he has been deceived by his ex-wife and has lost a significant amount of money. The fact that this is known in his local community has caused him to withdraw from going out in his local community. He states that he does not want to be the centre of gossip and he feels that he is considered as ‘a joke’ by those who are aware of his circumstances.
For this reason he also does not attend his local church. He would however like to attend a church that is some distance from where he lives. This is on the basis that at a Church which is not local to him, those that attend that Church would be unaware of his marital and financial misfortune.
I accept that Mr Zhao has experienced significant pain and distress in relation to the breakdown of his marriage and the loss of his money. This is understandable. His decision to withdraw from former friends and his local community, including his local church, is however based on his shame and embarrassment. It is not based on the fact that he is unable to socialise or interact with others.
I am satisfied that if Mr Zhao were to reside in a different geographic location, where he was not known to those living near to him, he would feel comfortable accessing this local community and engaging with others. Mr Zhao provided oral evidence that he is able to engage with others at train stations when lost or requesting directions. I am therefore satisfied that Mr Zhao does have the functional capacity to interact with others in environments outside of his local community and with people who are unaware of his financial misfortune.
As stated in Madelaine the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am therefore satisfied that Mr Zhao does have the skills to interact with others. I am also satisfied that his barrier to socialisation is confined to his local community and that this is on the basis of the shame and embarrassment he experiences when confronted by others who are aware of his history.
Conclusion
I am satisfied based on the evidence that Mr Zhao’s functional capacity to interact socially is not substantially reduced.
Mobility
The Operational Guidelines describe mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[35]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.
[35] Madelaine at [104]–[105].
Mr Zhao’s evidence is that he mobilises around his home without a walking stick. He uses a walking stick however to mobilise in the community. He can dress and shower himself. He can complete toilet, chair and bed transfers independently.
He can access public transport including trains and buses. He can walk to and from his local train station, albeit with extra time and the assistance of his walking stick. He can mobilise around a supermarket and transport groceries using a shopping trolley to his home.
Whilst he cannot raise his left arm he can use his right arm. This is significant in the context that he is right hand dominant.
Conclusion
I am satisfied based on the evidence that Mr Zhao’s functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced.
Self-care
The Operational Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Mr Zhao is able to shower and toilet himself, shampoo his hair and shave himself, prepare meals, use cutlery, dress and undress himself, cut his fingernails and his toenails, obtain prescription medication from a pharmacy, manage his own medications and make appointments with his doctor and chiropractor.
Conclusion
I am satisfied based on the evidence that Mr Zhao’s functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced.
Conclusion – subsection 24(1)(c) of the NDIS Act
Subsection 24(1)(c) of the NDIS Act is not satisfied.
Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criterion under subsection 24(1) of the NDIS Act.
Section 25 NDIS Act: The Early Intervention Requirements
Mr Zhao contends that he satisfies the early intervention requirements of section 25 of the NDIS Act.
I am not however satisfied that the provision of early intervention supports are likely to benefit Mr Zhao by reducing his future needs for supports in relation to his disability. My considerations are as follows:
· Mr Zhao’s injury to his left knee and shoulder occurred approximately 23 years ago. He received treatment through a workers insurance scheme until 2018;
· Mr Zhao concedes that there are no further treatments options available to him in respect of his left knee and shoulder;
· I am persuaded by the report of Dr Ricky Lam who refers to Mr Zhao’s left knee and shoulder problems and states ‘Mr Zhao’s conditions have been unchanged for years.’ In relation to the right side of his body Dr Lam states ‘He has been reporting pain in his right arm and leg probably due to ageing and deconditioning’. In June 2023 Dr Lam also stated that early intervention supports were not likely to reduce Mr Zhao’s future support needs.[36]
[36] TB 720
I accept the Agency’s submission that Mr Zhao does not meet the early intervention requirements on the basis of a failure to satisfy section 25(1)(b) of the NDIS Act.
Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied I am not required to consider the remaining criterion under subsection 25(1) of the NDIS Act.
CONCLUSION
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements Mr Zhao will not be granted access to the scheme.
I do note however that as Mr Zhao is over 65 years of age he has the opportunity to apply for the Commonwealth My Aged Care Program Home Package and an ACAT assessment in order to assess his needs with a view to obtaining supports that may be beneficial to him.
Decision
Date(s) of hearing: 19 and 20 March 2025 Advocate for the Applicant: Mr William Robin Solicitors for the Respondent: Maddox Lawyers Counsel for the Respondent: Ms Aditi Rao The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth)
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