Zhu and National Disability Insurance Agency (NDIS) - [2025] ARTA 233

Zhu and National Disability Insurance Agency (NDIS) [2025] ARTA 233 (20 March 2025)
Applicant/s:  Yu Fen Zhu
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/2721

Tribunal:Senior Member K. Parker
Place:Melbourne
Date:20 March 2025

Decision:The Tribunal affirms the Decision Under Review.

...............................[sgd].......................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILTY INSURANCE SCHEME – access decision – adult participant – claimed physical impairments – claimed impairments attributable to psychosocial disabilities – claimed conditions of osteoporosis, osteoarthritis of lumbar and cervical spine, chronic pain, and restricted movement – access to supports under My Aged Care support plan – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) met – whether disability requirements under s 24 met – whether early intervention requirements under s 25 met – whether one or more impairments are, or are likely to be, permanent – whether impairment/s have resulted in substantially reduced functional capacity in undertaking one or more of six prescribed activities – impact of 2024 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

The Applicant, Yu Fen Zhu (also known as Josephine Zhu), seeks review of an internal review decision by a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘NDIA’), confirming an earlier decision to refuse her request to access the National Disability Insurance Scheme (‘NDIS’).
The NDIA considers that Ms Zhu does not meet the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) because she does not meet either the “disability requirements” under s 24, or the “early intervention requirements” under s 25 of the NDIS Act.
Ms Zhu lodged an application for review with the Administrative Appeals Tribunal (‘AAT’) on 20 April 2023.[1] 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.
[1] T-Documents, T1. The ‘T-Documents’ are a set of documents lodged by the NDIA under s 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth).
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, Ms Zhu was self-represented and at the substantive hearing, assisted by a Mandarin interpreter. The NDIA was represented by Ms Krystyna Grinberg of counsel and an NDIA in-house lawyer.
For the reasons set out below, the Tribunal affirms the Decision Under Review referred to in paragraph [47].
ISSUES
The primary issue arising for consideration in this application is whether Ms Zhu meets the access criteria under s 21 of the NDIS Act. The NDIA accepts that Ms Zhu meets the “age requirements” under s 22, and the “residence requirements” under s 23 of the NDIS Act. Accordingly, the focus of this application is whether Ms Zhu 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 at paragraphs [16] and [161]). The NDIA contends that Ms Zhu does not meet either of those requirements.
As a first step, the Tribunal will need to decide whether Ms Zhu has any impairments which meet the requirements under subsection 24(1)(a) of the NDIS Act and if so, to identify any such impairments.
As a second step, the Tribunal will need to decide whether any one or more of Ms Zhu’s impairments are, or are likely to be, permanent under subsection 24(1)(b) and/or subsections 25(1)(a)(i) and/or (ii) of the NDIS Act.
The NDIA contends that Ms Zhu’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 Ms Zhu undertaking any 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 Ms Zhu can and cannot do and what she has difficulty doing. The Tribunal will need to make findings in relation to the degree of reduced functional capacity of Ms Zhu to undertake the Prescribed Activities, as a result of her permanent impairment/s.
If the Tribunal is satisfied that the criteria under subsections 24(1)(a), (b) and (c) are met, as a fourth step, the Tribunal will need to decide whether Ms Zhu’s impairment/s affect her capacity for social and economic participation under subsection 24(1)(d) of the NDIS Act.
As a fifth step, the Tribunal will need to decide whether Ms Zhu is likely to require NDIS supports under the NDIS for her lifetime under subsection 24(1)(e) of the NDIS Act.
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 Ms Zhu to otherwise exclude her from meeting the early intervention requirements under s 25.
LEGISLATIVE REGIME
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)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. Ms Zhu’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.
EVIDENCE, SUBSMISSIONS AND HEARING
On 23 May 2023, the NDIA lodged a set of documents, totalling 242 pages, with the Tribunal pursuant to s 37 of the AAT Act (‘T-Documents’).
On 7 August 2023, Ms Zhu sent a letter to the Tribunal and the NDIA, setting out her medical history and difficulties and listing the supports she required as a consequence of her impairment/s. Ms Zhu also attached a set of documents she sought to rely upon in this application.
There were some challenges encountered in the preparation of this matter for a substantive hearing. The Tribunal acknowledges that Ms Zhu was self-represented and that English for her, is a second language, which would have made her participation in this review process difficult. Ms Zhu was provided with an opportunity to lodge detailed written submissions and her evidence in preparation for the hearing. She did not (or was unable) do so. When addressing the early non-compliance issues with the parties, the Tribunal decided to switch around the usual order of lodgement of the parties’ respective submissions and evidence and required the NDIA to lodge its material first. The NDIA indicated its concerns about the paucity of available medical evidence. The Tribunal foreshadowed its inclination to approve requests made by the NDIA to issue summonses to produce documents comprising the medical reports and records relating to Ms Zhu. The NDIA proceeded to make those requests for summonses directed to Ms Zhu’s treating doctors and clinicians and the Tribunal issued them. Medical reports and clinical records were produced to the Tribunal by the “Back in Motion” clinic, Masada Private Hospital, Monash Health and North Road Medical.
On 5 December 2024, the NDIA lodged its Statement of Facts, Issues and Contentions (‘NDIA’s SFIC’).
On 6 February 2025, the NDIA sought to lodge a hearing tender bundle with the Tribunal. Upon providing a copy of the index to the bundle, the Tribunal noted that it contained the entire sets of summonsed medical records for Ms Zhu. The Tribunal requested that the NDIA review the voluminous medical records and upon selecting only those medical records and reports that it sought to rely upon in this proceeding, that it lodges a revised hearing tender bundle.[2]
[2] The Tribunal also requested that the duplicated T-Documents be removed.
On 10 February 2025, the NDIA lodged a revised hearing tender bundle, totalling 624 pages, with the Tribunal (‘HTB’). The Tribunal accepts the HTB into evidence in this proceeding and does not accept the earlier more voluminous hearing tender bundle into evidence in this proceeding.
The first two days of the in-person substantive hearing of this matter took place on 11 and 12 February 2025. At the conclusion of the hearing, the Tribunal gave leave to the NDIA to lodge further evidence in relation to the Commonwealth Home Support Programme, Home Care Packages, and other general service systems, as referred by the parties during the hearing. The Tribunal also issued a direction that Ms Zhu could lodge further submissions or evidence in reply to this additional material lodged by the NDIA.
On 14 February 2024, the NDIA lodged a supplementary hearing tender bundle (‘Supplementary HTB’) totalling 264 pages. The Supplementary HTB contained four publications issued by the Australian Government Department of Health and Aged Care, entitled:
(a)“Commonwealth Home Support Programme, Program Manual 2024-2025” (dated 2 December 2024);
(b)“Appendix G – Commonwealth Home Support Programme (CHSP) National Unit Price Ranges and reasonable client contributions” (downloaded on 13 February 2025);
(c)“Home Care Packages Program Manual for Care Recipients” (Version 1.4 – January 2023); and
(d)“Schedule of fees and charges for residential and home care from 1 January 2025”.
On 18 February 2025, Ms Zhu sent an email to the Tribunal making further submissions and additional evidence. In this email, Ms Zhu stated as follows:
(a)she struggled to attend the hearing on 11 and 12 February 2025 because she is “physically not fit and strong”;
(b)she has heart problems and she has been taking “medicines to control it”;
(c)her health has deteriorated and is getting worse after having had “3 major Femurs surgeries in Alfred Hospital”;
(d)her life has changed a lot and she needed equipment to move around;
(e)her neighbours had been helping her to go shopping, drive her to the doctors, cook and send meals to her, but they can only help her for a while, and not long term, which is why she needed help from the NDIS;
(f)she is getting old, “getting weak physically”, and her conditions are becoming worse day by day; and
(g)her medical problems started 20 years ago and the medical evidence, scans, and examinations are in the Tribunal’s folder.
In this email, Ms Zhu contended that Dr Kostos had said her conditions and sickness were not genuine, and that she could recover. Ms Zhu said she doubted this and she disagreed with what Dr Kostos had said during the hearing. Ms Zhu said Dr Kostos had only seen her for around 20 minutes, about nine months ago. She said that this could not be compared to the “many doctors, surgeries and examinations done by hospitals”. Ms Zhu also questioned whether Dr Kostos was qualified, as a Rheumatologist, to give an opinion about osteoporosis. Ms Zhu said that Dr Kostos had said that Ms Zhu was “lying” and that she believed that the NDIA has “paid Dr Kostos” and “he talk bad about me and try to win the case”.
Witnesses
The following witnesses were called to give evidence at the hearing:
(a)Ms Zhu; and
(b)Dr Kostos.
BACKGROUND
Ms Zhu’s age and living circumstances
Ms Zhu is 65 years old. She was aged 63 when she made her request to access the NDIS which is the subject of the Decision Under Review in this proceeding. For this reason, the Tribunal finds that Ms Zhu meets the “age requirements” under s 22 of the NDIS Act.
Ms Zhu was born in China[3] and immigrated to Australia. Ms Zhu was conferred Australian citizenship in 1997.[4] Ms Zhu lives in a four-bedroom suburban home in Melbourne with her husband. The Tribunal finds that Ms Zhu meets the “residence requirements” under s 23 of the NDIS Act.
[3] T-Documents, T24/141.
[4] Ibid, T24/139.
Ms Zhu says she is estranged from her husband, and that he lives upstairs while she lives downstairs. Ms Zhu says her husband does not assist her with respect to her claimed impairments and that he has his own health issues. Ms Zhu does not have any children. Ms Zhu receives the disability support pension (‘DSP’) at the “single rate”, which is her only source of income. Ms Zhu is not required to pay any rent or mortgage payments in respect of the house that she lives in with her husband.
Ms Zhu claims that she has a range of physical and psychological medical conditions. Ms Zhu says she needs support and has requested access as a participant in the NDIS to receive ongoing disability-related supports under the NDIS.
First Access Request – May 2022
In May 2022, Ms Zhu made her first request under s 18 of the NDIS Act, to access the NDIS (‘First Access Request’).
In support of the First Access Request, Dr Looi-Fen Ng, General Practitioner, North Road Medical Oakleigh, completed an NDIS “Access Request – Supporting Evidence Form” (‘First SEF’) on 17 May 2022, in respect of Ms Zhu.[5]
[5] T-Documents, T3.
On the First SEF, Dr Ng described Ms Zhu’s “primary impairment (i.e., the impairment with the most impact on daily life)” as being “osteoarthritis lumbar spine and cervical spine”. Dr Ng stated that Ms Zhu has had this condition since March 2017. Dr Ng stated this impairment is likely to be lifelong and the relevant treatment for this condition (that is, either current and/or past) is described by Dr Ng as comprising pain relief, exercises, and physiotherapy.
On the First SEF, Dr Ng lists Ms Zhu’s right-sided bursitis as another impairment that has a significant impact on Ms Zhu. Dr Ng stated that Ms Zhu has had this impairment since September 2021. Dr Ng stated that this impairment is not likely to be lifelong and she lists pain relief, exercises, heat packs, and topical anti-inflammatory gel, as relevant treatments.
On the First SEF, Dr Ng stated that Ms Zhu’s other impairments include “palpitations due to atrial premature beat”.
On the First SEF, Dr Ng stated/opined that:
(a)in respect of early intervention supports likely to benefit Ms Zhu by reducing her need for supports, physiotherapy will alleviate the impact on her functional capacity, improve her functional capacity, and prevent further deterioration;
(b)Ms Zhu does not require any assistance with “communication”, “social interaction”, or “learning”;
(c)when walking, Ms Zhu requires special equipment (that is, four-wheel walker, bathroom rails, and shower chair) and she requires home modifications and assistance from another person (that is, from a personal carer) when undertaking the activity of “mobility”;
(d)Ms Zhu requires special equipment for “self-care”, specifically, a “special chair for showering”; and
(e)Ms Zhu requires assistance from other persons with “self-management”, being that she needs assistance from a carer and guidance, for example, when paying bills.
First Access Decision
On 14 June 2022, a delegate of the CEO decided that Ms Zhu does not meet the access criteria under the NDIS Act (‘First Access Decision’).[6] Ms Zhu sought an internal review of this decision under s 100 of the NDIS Act.
[6] T-Documents, T5.
First Internal Review Decision
On 23 September 2022, a different delegate of the CEO confirmed the First Access Decision.[7]
[7] Ibid, T14.
Second Access Request – October 2022
On 25 October 2022, Ms Zhu made a second request under s 18 of the NDIS Act to access the NDIS (‘Second Access Request’).[8]
[8] Ibid, T16.
On the access request form, Ms Zhu described her main disability as not being able to walk properly. She described her other disabilities as not being able to go to see the doctor, go shopping, to do physical therapy, attend follow up appointments at the hospital, do housework, house maintenance, and gardening. Ms Zhu stated she needed help with showering and needed a four-wheel walker, wheelchair, “bathroom helping equipment” etc.[9]
[9] Ibid, T16/106.
A section of this form was completed, again, by Dr Ng (‘Second SEF’). Dr Ng stated she had been treating Ms Zhu for over 15 years.[10] Dr Ng stated on the Second SEF that Ms Zhu’s disability substantially impacted her functional capacity in the activities of “mobility”, “communication”, “socialising”, “learning”, and “self-care” (but not “self-management”).[11]
[10] Ibid, T16/109.
[11] T-Documents, T16/114–5.
First Statement of Lived Experience
Ms Zhu provided an unsigned statement of lived experience dated 28 October 2022 to the NDIA, attaching photographs of the wound from the surgery which was performed on her legs on 9 and 10 September 2022 (‘First SLE’).
Second Access Decision
On 29 November 2022, a delegate of the CEO refused Ms Zhu Second Access Request (‘Second Access Decision’). Ms Zhu sought an internal review of this decision under s 100 of the NDIS Act.
Decision Under Review
On 22 March 2023, a different delegate of the CEO (‘Reviewer’) confirmed the Second Access Decision (‘Decision Under Review’).[12] The Reviewer was satisfied that Ms Zhu met the “age requirements” under s 22 and the “residence requirements” under s 23, but not the “disability requirements” under s 24 or the “early intervention requirements” under s 25 of the NDIS Act.
[12] Ibid, T1H.

The Reviewer found that:
(a)Ms Zhu had a physical impairment arising from her conditions of “osteoporosis” and “osteoarthritis” of her lumbar and cervical spine; and
(b)Ms Zhu did not have a physical impairment arising from her “right trochanteric bursal effusion” and “bursitis”.
The Reviewer stated they were not satisfied that Ms Zhu’s physical impairment is, or is likely to be, “permanent”, primarily, because Ms Zhu had recently undergone surgery, and further treatment had been recommended for her, specifically, six-monthly injections and physiotherapy to improve her muscle strength.
Further, the Reviewer was not satisfied that Ms Zhu’s physical impairment resulted in her having a “substantially reduced functional capacity” in any one or more of the six prescribed activities under subsection 24(1)(c) (as addressed in further detail below), or that Ms Zhu met subsections 24(1)(d) or (e) of the NDIS Act.
The Reviewer was not satisfied that the early intervention requirements under s 25 are met because the Reviewer considered that:
(a)subsection 25(1)(a) is not met, because Ms Zhu’s physical impairment is not, or is not likely to be, permanent;
(b)subsection 25(1)(b) is not met, due to the “long-standing nature” of Ms Zhu’s impairment and that the supports required (not specified) are not “’early intervention’ in nature”; and
(c)subsection 25(1)(c) is not met.
Finally, in relation to the exclusion under s 25(3), the Reviewer found that the evidence in relation to the early interventions supports (not specified in her decision, other than a general reference to “clinical treatment”) does not indicate that they are most appropriately funded under the NDIS. The Reviewer stated that the supports are more appropriately funded through the health system or other government services.
Application for Review by the Administrative Appeals Tribunal – April 2023
On 20 April 2023 Ms Zhu sought review of the Decision Under Review by lodging an “Application for Review of Decision” form with the AAT. This form was signed by Ms Zhu on 13 April 2023.
Ms Zhu’s stated reason for seeking a review is set out below:[13]
Reason is: in 20/10/2011, I was diagnosed with Osteoporosis. Please refer to letter from Carnegie Malvern Medical Centre dated 19/9/2018 (Past History). Since then, I have been taking medicine for the Osteoporosis. On August a whole-body scan was done and discovered that I fractured both of my legs (Femurs). The doctor said that it’s difficult to explain how or why this happen because I did not fall down. The only reason is because I have long term Osteoporosis. I need to be very careful for the rest of my life [cannot] do heavy lifting and [cannot] fall down and fractured any parts of my body. Had three surgeries for both legs, one in August 2022 and two in September 2022. Attached a letter I wrote to Mr Hassan of NDIS. Please read this letter, it will tell you exactly why I need help from NDIS.
[13] T-Documents, T1/2.
Applicant’s Second Statement of Lived experience
The T-Documents included a statement of lived experience dated 13 April 2024 and signed by Ms Zhu (‘Second SLE’).[14] In Ms Zhu’s SLE, she stated as follows:[15]
[14] T-Documents, T1J/36.
[15] Ibid, T1J/36–7.
(a)Ms Zhu requires a wheelchair, four-wheel walker, and a cane, to go to the kitchen and toilet;
(b)Ms Zhu cannot sleep on a normal bed at home as it does not provide her with pain relief. Ms Zhu states the beds in the rehabilitation hospital are able to provide pain relief, but she cannot afford such a bed;
(c)other equipment, shower chairs and electric wheelchairs, are available but she does not possess them;
(d)“the community” does not provide her with help to visit a general practitioner, attend physical therapy, or attend a follow up appointment at the hospital;
(e)Ms Zhu has no transportation, and she states that it would pose a financial difficulty for her to “keep calling a taxi”;
(f)Ms Zhu has fractured both of her femurs which she says could have had serious consequences due to her osteoporosis. Ms Zhu says her osteoporosis is incurable. She states her bones are “very fragile”, “like glass”, and some bones may break at any time. She says the fractures of her ribs, finger, and feet, occurred in about October 2011;
(g)Ms Zhu states that if a fall is to occur and she hurts her lower back or neck, it could lead to “long term paralysis in bed, which I would need help in being taken care of”;
(h)following the surgery for her bilateral fractured femurs, Ms Zhu stated the consequences for her are “very serious” and that she is “very weak and always in a low (sic) of pain and it is almost torture for me”;
(i)every night, Ms Zhu must take sleeping tablets to help her sleep;
(j)Ms Zhu’s pre-existing heart condition is aggravated and her chest pain is often severe. She stated that her resting heart rate is about 100 beats per minute (or more if she is walking indoors). Ms Zhu stated her heart rate medication has doubled but it cannot completely help her. She stated that if she goes shopping for about ten minutes, she will “end up panting, dizzy, [tachycardic]” and feels like she is “about to collapse”. She stated that if there is no one around to help her and the consequences would be “unimaginable”;
(k)Ms Zhu’s “disability” is that she is unable to walk properly, go to see the doctor, go shopping, do physical therapy, attend follow up appointments at the hospital, do housework, house maintenance or gardening; and
(l)Ms Zhu stated she needs a four-wheel walker, wheel chair, “bathroom helping equipment and etc” and help to shower.
My Aged Care
At the end of the first hearing day, the Tribunal asked Ms Zhu if she had been assessed for a My Aged Care package. Ms Zhu answered in the affirmative and said she was assessed in 2024. Ms Zhu produced her “My Aged Care” support plan which was attached to a letter she received from the City of Monash on 26 June 2024. This referred to Ms Zhu having been assessed in person, at her home. This support plan included a summary of the assessment (‘Assessment Summary’) and the My Aged Care referrals for services and interventions, which were completed on her behalf under this support plan.
The Assessment Summary stated as follows:
(a)Ms Zhu needed personal care assistance, transport, occupational therapy, dietetics, continence assessment, social support, domestic assistance, home maintenance, meals, and an ACAS assessment;
(b)Ms Zhu’s mobility and physical health has declined;
(c)Ms Zhu used a wheelchair and “walker” to move, has heart issues and experiences pain in her legs;
(d)the “situation” report in the Assessment Summary stated that Ms Zhu has osteoporosis which has caused fractures in both of her legs and that she had had “ORIF” surgery;
(e)Ms Zhu suffered from neck and shoulder pain, heart problems, high blood pressure and eye problems;
(f)Ms Zhu has had her gall bladder removed and had reported a declining memory;
(g)Ms Zhu has been separated from her “ex-husband” since 2002, and has supportive neighbours who she heavily relies upon, which is unsustainable;
(h)Ms Zhu has received some services including “flexible respite, domestic assistance, and shopping through Mecwacare under the HACC PYP” (which is a reference to the Commonwealth Government - Home and Community Care Program for Younger People) and she now wished to be assessed for a home care package because she is over 65 years old;
(i)Ms Zhu used a walking stick or a two-wheel walking frame to transfer and mobilise;
(j)Ms Zhu can “hardly move around” and spent most of the day lying on a sofa;
(k)Ms Zhu has osteoporosis which caused fractures in both of her legs;
(l)Ms Zhu is no longer able to manage housework, shopping, or cooking;
(m)Ms Zhu does not have any family support, except for her sister who occasionally visits her;
(n)Ms Zhu’s neighbours helped her with transport, shopping, and meal preparation;
(o)sometimes Ms Zhu will call the Salvation Army Church, to have meals delivered to her home;
(p)Ms Zhu can shower by herself but needs close supervision due to a high risk of falling. The bathroom was described as being “upstairs” and that Ms Zhu required supervision going up and down her stairs;
(q)Ms Zhu needed help dressing and undressing;
(r)Ms Zhu reported experiencing incontinence;
(s)Ms Zhu felt lonely and isolated and is unable to go out for social activities; and
(t)Ms Zhu has increasing care needs and would benefit from an ACAS assessment and continence assessment.
Medical History
On 19 September 2018, Dr Amy Zhou, General Practitioner, issued a medical report in respect of Ms Zhu stating that she has a “past history” of “22/10/2011 Osteoporosis”.[16] This report also records that Mr Zhu’s current medications include “Prolia 60mg/mL Injection”.[17]
[16] T-Documents, T1A/4.
[17] Ibid, T1A/5.
On 14 November 2020, a DEXA – Bone Mineral Densitometry scan (‘Bone Scan’) was performed on Ms Zhu. The report concluded as follows (emphasis added):[18]
Average BMD within lumbar spine suggests osteopenia with mild increase in fracture risk, compared to study perform 13 July 2017 improved BDM by 5.1%.
L2 vertebral body shows a T-score of -2.9 suggesting mild osteoporosis and moderate increase in fracture risk.
Left hip shows osteopenia with mild increase in fracture risk, compared to study performed 13 July 17 reduced BMD by 8.4%
Left forearm shows osteopenia with mild increase in fracture risk, company to study performed 13 July 2017 improved BMD by 0.8%
[18] Ibid, T1B/6.
On 14 November 2020, an X-ray was taken of Ms Zhu’s cervical spine which revealed “cervical spondylosis”.[19]
[19] T-Documents, T1C/7.
On 24 November 2020, an ultrasound on Ms Zhu’s right shoulder revealed “tendinosis of the subscapularis and supraspinatus, without definite tear,” and that a steroid injection “might be considered”.
On 1 August 2022, a bone scan of Ms Zhu was undertaken.[20] In the scan report, it does not refer to Ms Zhu’s T-score at this time. However, the Tribunal notes the radiologist concluded that the (emphasis added), “findings are suspicious for insufficiency fractures in the right sixth rib and femora bilaterally. It is noted on the July 2017 BMD the patient is osteoporotic”.
[20] Ibid, T1E.
On 12 August 2022, The Alfred Hospital issued a medical discharge summary, stating that the principal diagnosis in respect of Ms Zhu was (emphasis added), “impending bilateral femoral fractures secondary to bisphosphonates”. The pharmacist noted that the six-monthly Prolia injections were to continue. The “ongoing” medical history is listed to include (emphasis added), “gallstones”, “osteoporosis”, “palpitations”, and “supraspinatus tear”.
In a letter to the NDIA dated 18 August 2022, in relation to the First Access Request, Ms Zhu stated that in 2006, she was diagnosed with “palpitations” and she still took medicine to control this.[21] In this letter, Ms Zhu further stated that in 2015, she was diagnosed with “osteoarthritis lumber(sic) spine and cervical spine” by Dr Zheng, Carnegie Malvern Medical Centre.
[21] Ibid, T7/68.
On 8 September 2022, Ms Zhu, in an email to the NDIA, referred to the operations on 5 August 2022, and the scheduled operation on 9 September 2022. Ms Zhu stated that after the operations, she would not be able to walk and “has to be on a wheelchair for quite some time”. Ms Zhu stated that during her rehabilitation she had nobody to take care of her, bathe her, purchase groceries for her, and to cook for her. Ms Zhu stated that her “ex-husband has contracted cancer and he has just received his operation and under recovery”. Ms Zhu stated that with aging and her condition, she was hopeful the Government could send someone to assist her with household chores, such as purchasing the groceries, do some cooking, cut the grass, and help with the upkeep of her home. Ms Zhu stated, “Now I am suffering excruciating pain and loss of hopelessness”.[22]
[22] T-Documents, T11/76.
On 9 November 2022, Mr Peter Rekas, Physiotherapist, authored a letter stating that he had assessed Ms Zhu on 5 November 2022 for “mobility, transfer and activities of daily living assessment under an EPC[23] plan formulated by her treating LMO, Dr [Amy] Zhou”.[24] Mr Rekas stated that Ms Zhu had presented with bilateral hip fractures requiring screws and internal fixation on 8 August 2022 and that she had a past history of osteoporosis, degenerative disc disease (predominately in the cervical spine), causing her neck pain and radiculopathy. Mr Rekas stated that Ms Zhu’s “weight-bearing” is poor, her tolerance is reduced due to pain and weakness, and that she required assistance by one person to shower, dress and to attend the toilet and to roll and sit up in bed.
[23] EPC is reference to an Enhanced Primary Care (‘EPC’) program.
[24] T-Documents, T1G/20.
Mr Rekas made the following “recommendations to assist for current physical status” in respect of Ms Zhu:[25]
[25] Ibid.
(a)outpatient rehabilitation, supervised by a physiotherapist;
(b)the provision of the following equipment:
(i)“wheely – walker”;
(ii)shower chair, shower rail and toilet chair;
(iii)bed rail;
(iv)wheelchair;
(v)mobility or motorised scooter;
(vi)postural, positional bed and couch; and
(c)home care services, preferably by a person who is Mandarin speaking, to assist Ms Zhu with ADLs and to go shopping by local Government bus or taxi.
On 6 April 2023, Dr Ng wrote a letter to the AAT in support of Ms Zhu’s access request, stating that:[26]
[26] HTB, Document H1.
(a)Ms Zhu has “confirmed osteoarthritis of the lumbar spine and cervical spine as well as osteoporosis” and “impending bilateral femoral atypical insufficiency fractures in August 2022”. Dr Ng described the insufficiency fractures as a “rare potential side-effect” of the six-monthly Prolia injections. Dr Ng stated that these fractures were detected on 1 August 2022 on a whole body bone scan upon Ms Zhu experiencing several months of worsening right and left thigh pain, with difficulty walking due to the pain. Dr Ng stated that Ms Zhu was also found to have “insufficiency fractures” involving her right sixth rib. Dr Ng confirmed that on 7 August 2022, surgery was performed on Ms Zhu in relation to her right femur and on 9 September 2022, in relation to her left femur;[27]
[27] T-Documents, T1I/33.
(b)the surgery was complicated by significant anaemia due to arterial bleeding from a branch of the inferior gluteal artery, leading to a 9cm sub-gluteal haematoma. This required left pelvic and gluteal artery embolisation, to treat the bleeding, and a blood transfusion;[28]
[28] Ibid.
(c)Mr Zhu underwent “post-operative rehabilitation” at Masada Private Hospital and participated in the Monash “rehabilitation in the home” program. Dr Ng stated that Ms Zhu still experienced ongoing right and left leg pain, which is worse after five minutes of standing and that she has difficulty walking for more than five minutes. Dr Ng opined that Ms Zhu needed to use a four-wheel walker to walk and to reduce her risk of falls and potential injury;[29]
(d)Ms Zhu had “right supraspinatus tendinosis”[30] which she considered to be due to the use of the four-wheel walker, by having to use her arms to alleviate some of the weight on her legs from bearing weight;[31]
(e)Ms Zhu’s condition is permanent given:
(i)the chronicity of her leg pain and her ongoing impairment with mobilising (that is, walking); and
(ii)because Ms Zhu has received all treatments possible (that is, surgery, physiotherapy, and analgesia);
(f)no further improvement was anticipated;
(g)Ms Zhu’s condition has a functional impact on her ability to perform all personal ADLs and to travel in the community; and
(h)Ms Zhu is unable to drive and is reliant upon public transport, which Ms Zhu found “very difficult” given her limited ability to walk.
[29] Ibid.
[30] Supraspinatus tendinosis is a condition involving tendon degeneration of one of the tendons of the rotator cuff in the should and is a common cause of shoulder pain.
[31] T-Documents, T1I/33–4.
Dr Ng stated that she gave her support for Ms Zhu to have access to the NDIS to assist her with receiving the following:[32]
(a)services of a support worker/carer; and
(b)physiotherapy treatment, to prevent further deterioration in her mobility/residual muscle strength and to enable her to participate in social activities.
[32] Ibid, T1I/34.
Dr Ng’s letter stated that Ms Zhu lived with her “husband”, Mr Kim Wong, that she had no children and that she migrated from Shanghai, China, to Australia in the 1990’s.[33]
[33] Ibid, T1I/35.
Ms Zhu’s oral evidence at the hearing
At the hearing of this matter, Ms Zhu gave evidence as follows:
(a)Ms Zhu was not aware about the NDIS until she went to the hospital “with broken legs”, after “no accident” or for “no reason”. She said the nurse “felt sympathy for her” and that she had assisted Ms Zhu to apply for the NDIS;
(b)Ms Zhu said she was asked why she had a fracture on her femur and that she later discovered that she has had osteoporosis since 2011;
(c)Ms Zhu said that because it was “serious osteoporosis”, she was given an operation on the second day;
(d)Ms Zhu believes her condition to be permanent. She said she went to her “GP” of 20 years and that he knows her. She said he believed that she had osteoporosis and that this condition was permanent, that it cannot get better and can only get worse;
(e)Ms Zhu said that the NDIA considers that Ms Zhu can do a lot of things on her own. She said that she needs to rely upon herself and has to do those things. She posed a rhetorical question: who else would help her to go shopping and to clean? She said she has to do those chores herself, and she will do them slowly;
(f)Ms Zhu said that when she was discharged from the hospital, she could not walk for ten days. She said she did not shower and had no one to purchase her milk and bread and necessities for her. Ms Zhu said that when a nurse came to her home to change her dressing, the nurse had made numerous telephone calls on her behalf to see if any organisation could assist her. Ms Zhu said she recovered very slowly. She said she needed support. She said her neighbour had sent “an aged care walker” for her to use;
(g)Ms Zhu said that Dr Kostos is a Rheumatologist and she does not think his area of speciality matches her condition of osteoporosis. She understood Dr Kostos to be saying that low bone density is not equivalent to osteoporosis. Ms Zhu said that her doctor, who has been her GP for 20 years, has said that she has osteoporosis. She said that Dr Kostos had only seen her for 10 to 20 minutes and then he wrote a report; and
(h)Ms Zhu said she has two general practitioners and both had provided medical reports. She said that one had supported that she has a permanent condition and the other supported that she has osteoporosis.
Neither of Ms Zhu’s general practitioners were called to give evidence at the hearing of this matter. In relation to the remark by Ms Zhu referred to in paragraph [71(h)], the Tribunal asked Ms Zhu to specify the reports to which she was referring.
Ms Zhu said the first report was a report by Dr Zhou dated 19 September 2018.[34] The Tribunal notes that this is a letter of referral to Cardio Vascular Services in Armadale for a “stress ECHO” for chest discomfort to “exclude cardiac causes”. The report has a heading of “past history” and a list of conditions including, “22/10/2011 Osteoporosis” and a reference to Ms Zhu being prescribed a Prolia injection. While this certainly indicates that Ms Zhu has had the condition of osteoporosis in the past (that is, at least, as of the year 2011), it does not confirm with any reliability that Dr Zhou has diagnosed Ms Zhu as currently having this condition.
[34] T-Documents, T1A/4–5.

Ms Zhu said the second report was a report by Dr Ng dated 28 December 2023 and the radiological report dated 2 January 2024. These documents do not provide a diagnosis of Ms Zhu having osteoporosis at the current time. The Tribunal notes the letter by Dr Ng which is dated 6 April 2023 referred to above at paragraph [68]. Dr Ng states that as of that date, Ms Zhu had osteoporosis. The Tribunal notes that Dr Ng does not provide any clinical explanation as to how she reached this conclusion or whether it was based on any recent bone density scan results. In fact, there are no references to the previous bone density scan results for Ms Zhu such as the reports for the scans undertaken in 2020 or 2022. Instead, the Tribunal prefers the evidence of Dr Kostos as detailed below, that bone density results for Ms Zhu from 2020 would indicate that she has “osteopenia”, which is a less serious medical condition than that of “osteoporosis”.
Independent medical examination by Dr Tony Kostos, Rheumatologist – May 2024
Dr Kostos’ First Report
In the context of this proceeding, the NDIA arranged for Ms Zhu (with her consent) to be medically examined by Dr Tony Kostos, Rheumatologist. The examination took place in-person on 14 May 2024 with the assistance of a professional Mandarin interpreter. Dr Kostos issued his report on 14 May 2024 (‘Dr Kostos’ First Report’).
In Dr Kostos’ First Report, he stated as follows:[35]
[35] HTB, H35.
(a)Ms Zhu had a fall in 2007 and fractured some lower lateral ribs on both sides of her chest;
(b)in 2010, Ms Zhu was diagnosed with vitamin D deficiency and osteoporosis, which was confirmed in 2011 by a bone mineral density scan. Ms Zhu commenced taking Fosamax, which she took for approximately five years, before changing to Prolia;
(c)a further bone scan performed in 2020, indicated that Mr Zhu is “osteopenic”, and not “osteoporotic”;
(d)during this time, Ms Zhu complained of pain throughout her entire spine, as well as both shoulders. Ms Zhu’s treatment involved oral medication (which Ms Zhu could not name), some injections to the region of both shoulders, and physiotherapy;
(e)Ms Zhu claimed that the injections helped her temporarily, as she claimed that she could not afford to continue physiotherapy on a regular basis;
(f)Ms Zhu has never undertaken a specific home-based exercise program;
(g)in March 2022, Ms Zhu developed pain in both upper thighs and investigations revealed “atypical stress fractures”, involving the intra-trochanteric region and upper femurs on both sides, resulting in surgery on 6 August 2022 and 9 September 2022. The surgery in September 2022 was complicated by an inferior gluteal artery bleed and required further surgery a couple of days later;
(h)following the surgery referred to above, Ms Zhu was transferred to Masada for a three week rehabilitation program. Subsequently, physiotherapists visited Ms Zhu’s home on a weekly basis for a three-month period. Ms Zhu was, reportedly, given a document listing exercises that she was to perform on a regular basis. Dr Kostos stated that Ms Zhu had “only exercised for five to ten minutes each day”;
(i)Ms Zhu claimed that in 2024 that she had been trying to walk around the house with a walking frame and that she usually managed approximately 20 minutes per day. Ms Zhu claimed that she spent the rest of the day “twenty hours lying down” in bed;
(j)Ms Zhu reported that her thigh pain was worse than it was before having the surgery. Ms Zhu had described her legs as “heavy”, which she had attributed to the “metal” rods inserted by the surgery;
(k)Ms Zhu’s medication regime consisted of six to eight tablets of Panadol per day, 15mg of Mobic per day, and 60mg of Prolia every six months. Ms Zhu claimed to be taking Aspirin and multivitamins;
(l)Ms Zhu was currently being treated for “hypertension”, “hypercholesterolemia”, “asthma” and “dry eyes”;
(m)Ms Zhu, and her husband, are unable to drive. She said that, sometimes, her neighbour will drive her to a “nearby Church” to collect food or her neighbour will collect it and bring it to her;
(n)Ms Zhu is confirmed to be living in the downstairs areas of her home, while her “estranged Husband” lives upstairs. Ms Zhu said her husband was not well, and that she cannot help him. Ms Zhu said she has a brother living in Sydney and sister living in Tasmania.[36] She said they cannot help her. Reportedly, they both have a history of osteoporosis; and
(o)“placement in assisted living accommodation or an aged care facility, has never been suggested” to Ms Zhu.
[36] At the hearing, Ms Zhu explained her sister has since moved to Victoria.
In Dr Kostos’ First Report, he stated that he was unable to test the level of Ms Zhu’s hip and knee flexion. Dr Kostos stated that Ms Zhu had resisted hip and knee flexion beyond 30 degrees, despite being able to sit on the edge of the examination couch with her hips and knees flexed at 90 degrees. Dr Kostos remarked in his report that Ms Zhu:
…strongly resisted attempts to assess her passive glenohumeral movements. However when distracted I noted that she had a good range of external rotation on both sides.
In Dr Kostos’ First Report, he opined that:
(a)Ms Zhu may have “osteoarthritis”, although her musculoskeletal examination was not consistent with this diagnosis and is more consistent with “chronic pain syndrome”;
(b)there is no evidence of “right shoulder subacromial bursitis” on the basis of the examination he was able to undertake of Ms Zhu;
(c)in 2022, Ms Zhu was diagnosed with stress fractures in relation to both hips. It is well recognised that atypical femoral fractures can occur in patients taking Prolia. Ms Zhu underwent “remedial surgery” to prevent full blown fractures occurring. The surgery appeared to have been successful;
(d)“despite a rehabilitation program and regular visits by Physiotherapists to her home and advice on a self-management program, Ms Zhu, by her own admission, did not really embrace the concept of self-management and instead was relying on other people to deal with her condition”;
(e)Ms Zhu does not have any specific issues related to her osteoporosis, osteoarthritis, or right shoulder bursitis, that “resulted in functional impairment”; and
(f)Ms Zhu had a “chronic pain state with inconsistencies on physical examination and is attempting to portray herself to be more disabled than she actually is”.
In Dr Kostos’ First Report, he referred to an assessment of Ms Zhu by Ms Natalie Agnoletto, Occupational Therapist (as detailed below at paragraph [106]), noting in respect of Ms Zhu that she had “low levels of community integration” and “significant catastrophising”. In this report, Ms Agnoletto classified Ms Zhu as a low falls risk, however, it was noted that Ms Zhu had a significant fear of falling and that she believed she had osteoarthritis in every joint of her body. Dr Kostos stated, in his report, that this is not the case and that there was no evidence to suggest that Ms Zhu has osteoarthritis in every joint in her body.
In Dr Kostos’ First Report, he stated that Ms Zhu has an impairment related to her surgeries, compounded by other issues as mentioned in his report. He stated that the treatment of Ms Zhu comprised “simple analgesia, an anti-inflammatory agent and Prolia injections six-monthly”, and that this treatment is unlikely to improve her symptoms. Dr Kostos does not consider that there are other treatments which would assist Ms Zhu. He stated that the Prolia injections may improve her bone density.
Dr Kostos opined that Ms Zhu’s impairment is likely to be permanent, given the continuation of her current circumstances. He described her prognosis to be “extremely poor”. Dr Kostos elaborated that “Given a continuation of Ms Zhu’s attitude to her condition, the situation will continue for the rest of her lifetime”.
In Dr Kostos’ First Report, he opined that early intervention for Ms Zhu is “not relevant at the present time” or that it would have an impact on her impairment. He “strongly” suggested that Ms Zhu be “assessed for assisted living or aged care accommodation” and that “this would provide her with a safe environment and encouragement to undertake activities”. Dr Kostos stated that this would also assist with socialisation, “if Ms Zhu so wishes”.
In Dr Kostos’ First Report, he stated that Ms Zhu did not require any additional aids, other than those which have already been provided. Ms Zhu says she used a walker to help her walk. At home, Ms Zhu gave evidence at the hearing that she kept a walker on the upstairs level of her home and another one on the downstairs level of her home.
Dr Kostos stated that “within the limit of his understanding”, Ms Zhu does not require any persons to assist her to undertake the Prescribed Activities. He stated that Ms Zhu requires assistance to collect food because she is unable to drive.
In Dr Kostos’ First Report, he stated that Ms Zhu “could be assessed by a Psychiatrist”.
In Dr Kostos’ First Report, he stated that Ms Zhu is capable of “self-care” and is not limited in the activity of “communication”. He stated that Ms Zhu is limited in social interactions. He said he is not sure whether Ms Zhu’s learning had been affected. In relation to mobility, Dr Kostos noted that Ms Zhu had presented with a walking frame. He also remarked “…but I suspect that this has become a symbol for her”. Dr Kostos stated that he was not able to comment about Ms Zhu’s capacity to undertake the activity of “self-management”.
Dr Kostos’ Second Report
The NDIA sought clarification from Dr Kostos about certain matters in Dr Kostos’ First Report. Dr Kostos issued a second medical report dated 18 December 2024 (‘Dr Kostos’ Second Report’).[37]
[37] HTB, H37.
In Dr Kostos’ Second Report, he clarified that the impairments resulting from the surgeries was a reference by him to those surgeries reinforcing Ms Zhu’s mistaken belief that she had suffered significant fractures. Dr Kostos stated that the “fractures were only stress fractures and were dealt with before they became a physical issue for her”.
In Dr Kostos’ Second Report, he clarified that the “other issues” referred to above in paragraph [80] were Ms Zhu’s presentation “where she clearly was presenting herself to be completely disabled” and he noted, again, the comment in Ms Agnoletto’s OT report about Ms Zhu having “significant catastrophising”.
In Dr Kostos’ Second Report, he explained that he had recommended Ms Zhu be referred to a Psychiatrist because “presentation such as she has, relate to psychological and social factors with the role of inherent personality traits, previous life experiences, attitudes and beliefs and the ability to cope with anxiety and stress becoming increasingly appreciated”. Dr Kostos said he is not a Psychiatrist and so he cannot comment on whether any treatment would be recommended or likely to improve Ms Zhu’s impairment. Dr Kostos opined that Ms Zhu continued to present herself as an “invalid as a result of her beliefs”, the impairments she has are unlikely to change, and her condition will be permanent.
In Dr Kostos’ Second Report, he explained that his reference to Ms Zhu’s current circumstances, as referred to in paragraph [81], relate to a number of factors as described in his report, and in particular, Ms Zhu’s living circumstances and the absence of any external support. Dr Kostos also referred to Ms Zhu’s perception that Australia “owes her because she has lived in Australia for a long time and paid taxes”.
In Dr Kostos’ Second Report, he responded to a question by the NDIA as to whether Ms Zhu’s impairment would be “appropriately managed” by a certain treatment, as listed below. Dr Kostos’ responses are set out below, immediately following the description of each treatment/service:
(a)Chronic Disease Management Plan (with a GP referral) – Dr Kostos stated that it is doubtful that this would help Ms Zhu, without a “significant change” in her attitude;
(b)mainstream health services – Dr Kostos notes that Ms Zhu was currently being managed by mainstream health services through her general practitioner;
(c)allied health multidisciplinary pain management clinic – Dr Kostos stated that he doubted whether this would make any significant difference, without a change in Ms Zhu’s attitude;
(d)“other appropriate service” – Dr Kostos indicated that this would not appropriately manage her impairment. He stated that Ms Zhu is not interested in a chronic disease management plan or participating in an allied health disciplinary pain management clinic. Dr Kostos stated that patients with “these beliefs, always fail to benefit from such programs”.
Dr Kostos’ evidence at the hearing
At the substantive hearing, Dr Kostos confirmed that his area of speciality is rheumatology. Dr Kostos was asked at the hearing whether the diagnosis and treatment of osteoporosis would fall within his area of practice. Dr Kostos answered in the affirmative by confirming that the condition of osteoporosis fell within the ambit of rheumatological conditions. He added that endocrinologists are also well qualified in “looking at osteoporosis”. He said an orthopaedic surgeon is “only interested after the fact”, in that they would only be interested in this condition if there had been fracture.
Dr Kostos said he completed his physician’s training in 1976. Dr Kostos said he is no longer treating patients and retired from practice in June 2024. He said he is “still working” and provides medico-legal services to a number of companies and organisations.
Dr Kostos gave evidence that bone density tests are standardised and they will produce what is known as a “T-score” for a patient. His evidence was as follows:
(a)if a person’s T-score is less than 1.5, this is considered “normal”;
(b)if their T-score is between 1.5 and 2.5, they are considered to have “osteopenia”; and
(c)if their T-score is more than 2.5, they are considered to have “osteoporosis”.
Dr Kostos confirmed that it is possible for a person with “osteoporosis” to change to having a condition of “osteopenia” and that this is what the treatment of Foamex or Prolia “is aimed at”. He said that if there is an improvement in the T-score, “they will put that down to the treatment”.
Dr Kostos explained, when giving evidence at the hearing, that “atypical stress fractures” are a well-recognised “unfortunate and rare” complication of taking the medication, Prolia. When asked to describe this type of fracture, he said it comprises a “fracture line which has not gone all the way through”. Dr Kostos said that if it is “left”, it can “go to a full blown fracture”.
Dr Kostos gave evidence that his findings, upon examination of Ms Zhu, were not consistent with her having the condition of shoulder bursitis. He also considered that Ms Zhu did not have any “objective” impairment in either of her shoulders. Dr Kostos said that when he distracted Ms Zhu, he had observed that she had a full range of external rotation of her shoulders. He said that Ms Zhu had “marked tenderness to skin touch” but that this was not a sign of shoulder pathology. When asked about the ultrasound of Ms Zhu’s shoulder, Dr Kostos said, “don’t worry about looking at the ultrasound” and that he could “diagnose bursitis on examination” and would arrange for the patient to have injections.
Dr Kostos told the Tribunal that his examination of Ms Zhu lasted for between 30 and 45 minutes and there a professional interpreter was involved. He suggested that this was evident from the length of his hand written notes that he took during the examination which he had with him at the hearing and he consulted, before answering this question.
Dr Kostos said he “would diagnose” Ms Zhu with a “pain syndrome”. Dr Kostos gave evidence that he did not ask Ms Zhu during the examination whether she had attended a pain management program. He said he was aware that she had attended a rehabilitation program at Masada. Dr Kostos stated that a pain syndrome has both “psychological and social factors” and would be influenced by a person’s ability to “cope with anxiety and stress” depending upon their “attitudes and belief”. Dr Kostos said he had formed an opinion that Ms Zhu sought to portray herself as being more disabled than she was, and that she had “different ideas about the nature of her pain”. He commented about Ms Zhu’s view about the weight of the metal rods which had been inserted in her legs, as being heavy. Dr Kostos stated that the rods are “extremely light”. Dr Kostos remarked that Ms Zhu felt that she was “entitled” to access the NDIS because she had paid Australian taxes. Ms Zhu denied that she had said this to Dr Kostos. It is irrelevant to the Tribunal’s decision.
Dr Kostos highlighted that Ms Zhu’s T-scores were not consistent with a person who has “osteoporosis”, which Ms Zhu believed that she had.
Dr Kostos was asked to state what examination he performed to exclude the possibility of Ms Zhu’s impairments arising from osteoarthritis. He said that he had excluded shoulder osteoarthritis. He said her elbows and wrists were assessed by him to be “normal”. Dr Kostos said Ms Zhu did not have any swelling on the distal interphalangeal joints of the fingers which he said can be an indicator of a person having a “constitutional tendency to develop osteoarthritis”. He referred to observing Ms Zhu to have range of motion in the hips and knees of 90 degrees when Ms Zhu was sitting on the examination couch, in the context of Ms Zhu being resistant to allowing him to guide her movements beyond 30 degrees when she was being examined by him.
Dr Kostos confirmed his view that he does not think there is anything that can be done for Ms Zhu which will change her current situation. He said he considers her impairments to be stable due to “non-physical factors”. Dr Kostos highlighted that she lived downstairs in her home and her husband lived upstairs. He said that she had low levels of community integration suggestive of there being “depression and other psychiatric issues”. He had recommended that she be assessed by a psychiatrist. He also confirmed that he had also suggested that consideration be given to Ms Zhu accessing “assisted living aged care accommodation” because she had no family assistance and she could not drive (and her neighbour drove her to collect food). He said these are “concerning circumstances” and so it might be worth considering this type of accommodation for Ms Zhu.
Ms Grinberg put to Dr Kostos that Ms Zhu had given evidence at the hearing, that she is able to walk 300 metres to her local IGA to buy milk and bread and to walk home with some rest breaks. Dr Kostos indicated this was inconsistent with her presentation to him during the examination. Dr Kostos said that Ms Zhu had told him that she walks around the house with the use of her walking frame. Ms Grinberg also put to Dr Kostos that Ms Zhu had given evidence that she is able to walk, using her walking frame, to the train station, which is 300 to 600 metres away, and then walk from Flinders Street station to the Tribunal at 15 William Street, Melbourne. Dr Kostos said that this reinforced his opinion that Ms Zhu’s presentation was aimed at “exaggerating her disability”.
At the hearing, Ms Zhu tendered a radiological report dated 2 January 2024 which showed the results of an X-ray performed on her pelvis and both femora. The following findings are recorded in the report, “Postoperative changes are present. Alignment acceptable. Good bony union”.[38] Dr Kostos described the finding of “good bony union” in this report, as being an important feature. He considered this to be reliable evidence that Ms Zhu’s bone density has improved and the insufficiency fractures have been treated.
[38] Exhibit A2.
Independent functional capacity report by OT, Ms Natalie Agnoletto

The NDIA, with the consent of Ms Zhu, arranged for an Ms Agnoletto to conduct a functional capacity assessment on Ms Zhu on 13 December 2023. Ms Agnoletto issued her functional capacity report in respect of Ms Zhu on 12 January 2024 (‘Ms Agnoletto’s Report’).[39] The observations of Ms Agnoletto will be referred to below as relevant to the issues under consideration.
CONSIDERATION
[39] HTB, Document H33.
Whether Ms Zhu 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 (‘Davis’), Mortimer CJ of the Federal Court of Australia made the following judicial observation (emphasis added):[40]
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.
[40] 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.
The NDIA informed the Tribunal at the outset of the hearing that it understood Ms Zhu to be seeking access to the NDIS based on her physical impairments arising from the claimed conditions of “osteoporosis”, “osteoarthritis” and “bursitis”.
In relation to subsection 24(1)(a), the NDIA accepts that Ms Zhu has a disability in relation to a physical impairment as result of “bursitis” and “osteoarthritis of the lumbar and cervical spine”. However, in relation to “osteoporosis”, the NDIA does not accept that Ms Zhu has this condition but instead that she has the less serious bone condition of “osteopenia”. Ms Grinberg said, as a general proposition, that “osteopenia” is a categorisation which is given to a person based on the testing of their bone density. This proposition was supported by Dr Kostos. The Tribunal finds that Dr Kostos’ area of medical specialisation as a rheumatologist, makes him suitably qualified to give expert evidence about the diagnosis and treatment of osteoporosis. Specifically, Dr Kostos gave evidence at the hearing, which the Tribunal accepts, that the condition of osteoporosis fell within the gambit of rheumatological conditions.
Ms Zhu does not consider that a rheumatologist would be qualified to provide medical opinions about osteoporosis or that Dr Kostos’ opinions should be preferred over the opinions of her general practitioners, who have been treating her for 20 years, that she currently has osteoporosis. The Tribunal does not accept Ms Zhu’s contention because the Tribunal could not identify any clinical justification provided by Dr Ng for the conclusion in her “6 April 2023” letter that Ms Zhu had, at that time, the condition of osteoporosis. Instead, the Tribunal accepts Dr Kostos’ evidence that there is an objective measure for whether a person has either osteoporosis or osteopenia being their T-score arising from a bone density scan. Based on the bone density scan performed on Ms Zhu in 2020 which referred to Ms Zhu’s bone density mass, for the most part, they have concluded that Ms Zhu has the less serious medical condition of “osteopenia”, rather than “osteoporosis”.
The evidence before the Tribunal in this matter has revealed that Ms Zhu has not, until the hearing of this application, previously been aware that the fractures in the femur bones in her legs were “insufficiency fractures” or “stress fractures”, as distinct from “complete fractures”. Further, Ms Zhu was not previously aware, until the hearing of this application, that the insufficiency fractures were caused as a rare side-effect of her having the Prolia injections. Until now, Ms Zhu has been under the impression that the insufficiency fractures occurred as the result of her belief that she still has osteoporosis. Unfortunately, this has caused her to have an unfounded fear that she may cause herself damage if she exerts herself physically. As a consequence, from her own reports she spends most of her time lying in bed during the day. It would appear from the medical evidence that there is no proper medical basis for Ms Zhu to continue to be fearful about this, and to continue to lead such a sedentary lifestyle.
Based on the X-ray scan of Ms Zhu’s cervical and thoracic spine dated 16 August 2023, the Tribunal finds that Ms Zhu has the condition of “osteoarthritis” of her cervical and thoracic spine. However, based on the results of the physical examination performed by Dr Kostos, the Tribunal is not satisfied that there is clear medical evidence that Ms Zhu has a resulting physical impairment arising for her osteoarthritis at the present time. Instead, the Tribunal finds that any physical impairment that Ms Zhu has at the present time arises from a “pain syndrome” which Dr Kostos believes Ms Zhu to have (see further below).
While an ultrasound contained a conclusion that there was “heterogeneity of the supraspinatus and subscapularis with bursal effusion, impingement” of Ms Zhu’s right shoulder, the Tribunal accepts the evidence of Dr Kostos that upon examination of Ms Zhu, in his medical opinion, she does not have any impairment arising from bursitis or tendinosis in her shoulders. The Tribunal accepts Dr Kostos’ evidence that he is capable of making a diagnosis of the condition of shoulder bursitis upon physical examination of a patient and upon his examination of Ms Zhu, he could not reach this conclusion. Consistent with Dr Kostos’s medical opinion about this, the Tribunal observed Ms Zhu on both days of the hearing at the Tribunal to be dextrous in relation to her movement of her arms and she displayed being able to use her upper limbs including her shoulders with relative ease. The Tribunal is not satisfied that Ms Zhu currently has any physical impairment/s in respect of the use of her upper limbs and prefers Dr Kostos’ opinion in this regard to the opinions proffered by Dr Ng, based on Dr Kostos’ area of specialisation and his physical examination of Ms Zhu.
The Tribunal accepts the medical opinion of Dr Kostos that it is likely that Ms Zhu is suffering from a type of “pain syndrome” and that there is a psychological and social component to this condition. It would appear that, until now, Ms Zhu’s response towards her surgery has been adversely impacted by her misunderstanding about the precise nature of her underlying medical conditions, what has been the cause of them, the treatment she has had for them, and her understanding of the medical issues which remain a problem for her.
The Tribunal concludes that Ms Zhu has:
(a)a physical impairment arising from a “pain syndrome” (‘Ms Zhu’s Physical Impairment’); and
(b)an impairment which is attributable to a psychosocial disability being the psychological component of a “pain syndrome” (‘Ms Zhu’s Psychosocial Impairment’).
Accordingly, the Tribunal concludes that Ms Zhu meets the first mandatory criterion under subsection 24(1)(a) of the NDIS Act, by reason of having Ms Zhu’s Physical Impairment and Ms Zhu’s Psychosocial Impairment.
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 Ms Zhu’s Physical Impairment or Ms Zhu’s Psychosocial Impairment 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:[41]
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).
[41] 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”.
In the context of impairments caused where the underlying condition is a pain syndrome, the Tribunal considers that the following evidence is relevant to a consideration as to whether Ms Zhu’s Physical Impairment and/or Ms Zhu’s Psychosocial Impairment are, or are likely to be, permanent. Ms Grinberg contended that the Tribunal cannot be satisfied that Ms Zhu’s impairments are, or are likely to be, permanent. Ms Grinberg submitted that after the surgery on Ms Zhu’s left and right femur, there had a been a lack of engagement by Ms Zhu in rehabilitation and in particular, physiotherapy. Ms Grinberg stated there was also a need for Ms Zhu to consult with psychological or psychiatric services.
During closing submissions, Ms Grinberg highlighted that Ms Zhu has had access to certain supports and services since June 2024 (under her My Aged Care support plan), but she has not considered it necessary for her to access those services. Ms Grinberg invited the Tribunal to consider what other services were reasonably available to Ms Zhu, including subsidised services (and not only free services).
Ms Grinberg highlighted that another issue arising in this hearing was Ms Zhu’s lack of engagement in rehabilitation therapy. Specifically, Ms Grinberg contended that despite having five “free sessions” available to her per year, under the Medicare Benefits Scheme, which she could use for physiotherapy, she has only accessed physiotherapy at the “Back in Motion” clinic, “very rarely”. In particular, Ms Grinberg highlighted that during the period December 2023 to July 2024, Ms Zhu did not access this service at all. Ms Grinberg said that when Ms Zhu accessed physiotherapy in 2024, part of her reason for doing so was to request a letter of support for her NDIS application. Ms Grinberg also highlighted the inconsistencies in Ms Zhu’s stated reasons for not accessing physiotherapy. Ms Grinberg said that Ms Zhu said she could not afford it. She said that when Ms Zhu was offered a reduced consultation fee, she had indicated that it was her preference to return to the “Back to Motion” clinic in Malvern, because she said there was a Mandarin speaking physiotherapist at that clinic. Ms Grinberg suggested that this is inconsistent with Ms Zhu being content to see Dr Ng (her general practitioner for some time), who does not speak Mandarin. It appeared to the Tribunal that Ms Grinberg was suggesting that Ms Zhu’s stated reasons for not following up with physiotherapy sessions which were available to her in recent times, were not genuine or truthful. The Tribunal agrees that Ms Zhu’s evidence about her reasons for not accessing physiotherapy services more than she did during this period were inconsistent and the Tribunal does not accept that there was a valid reason for why she did not do so. It is apparent that she had lacked to engage appropriately in the physiotherapy services which had been recommended by her treating doctors, despite those services being available and accessible to her.
Further, Ms Grinberg said that Ms Zhu had given evidence that she only went to physiotherapy when she was experiencing pain. Ms Grinberg suggested that the low frequency at which she has attended physiotherapy over the last two years, might indicate that her pain must not be at such an extent that she needed to see a physiotherapist.
Ms Grinberg pointed out that there was some additional significant new evidence at the hearing about Ms Zhu’s mobility. Ms Grinberg said it is apparent that Ms Zhu is able to travel some distance independently to be able to navigate distances between 300 and 500 metres to complete her shopping and to return home again. She said Ms Zhu is also able to navigate the public transport system and that she was able to travel independently:
(a)from her home to the Tribunal to attend the hearing by train and by walking between the train station and the Tribunal at 15 William Street, Melbourne; and
(b)between the train station near her home back to her home again.
The Tribunal is satisfied on the evidence given by Ms Zhu at the hearing that her capacity for walking and to take public transport, would indicate that her physical impairment has improved significantly since the time of the surgeries in August and September 2022. If required to, Ms Zhu, by her own evidence, is able to travel reasonable distances either by walking or using public transport at the current time. The Tribunal notes that in Ms Agnoletto’s Report, she had recorded that Ms Zhu reported that she experiences an “average day” about 80 or 90 per cent of the time and that on an “average day” she is able to shower and may go for a walk with her neighbour or sister and may go to the shops if required.[42]
[42] HTB, Document H33/8–9.
The Tribunal accepts Ms Zhu’s evidence that she experiences pain which she is mobilising. The Tribunal considers that it is likely that Ms Zhu’s experience of this pain is as she has described it. However, the Tribunal finds that there is no physiological reason for why Ms Zhu should be experiencing pain to the degree that she does, based on the objective medical evidence and radiological reports before the Tribunal and the results of Dr Kostos’ physical examination of Ms Zhu. The Tribunal has found that it is likely that Ms Zhu has a “pain syndrome”, as opined by Dr Kostos, which has not been treated and which is adversely impacting upon her, significantly, both physically and psychologically.
Ms Grinberg highlighted that in Ms Agnoletto’s Report, she remarked that “physical therapy is normally crucial for rehabilitation” as it “can improve strength, flexibility and mobility in the legs”. Ms Agnoletto qualified her answer to a question asked by the NDIA at the hearing, about whether she considered there to be “no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy” Ms Zhu’s impairments, by saying that this question is more appropriate for Ms Zhu’s specialists to answer and is beyond her scope of expertise.[43] However, Ms Agnoletto stated that she considered it reasonable to suggest that “if Ms Zhu followed a tailored and consistent exercise plan, her balance issues, mobility deficits and fear of falling may be remedied”.[44]
[43] HTB, Document H33/20.
[44] Ibid, Document H33/25.

Ms Agnoletto also noted the medical recommendation from Dr Ng that Ms Zhu should have weekly to fortnightly physiotherapy for four to six months.[45] Ms Agnoletto also noted the remarks in the discharge report issued by Ramsay Health Care dated 5 October 2022 which stated as follows:
[Ms Zhu’s] progress as Masada has been limited due to poor participation in therapy. She declines very often. She was not engaging much with therapy despite encouragement ++++. She is quite often pain focussed and extremely anxious about her osteoporosis.
[45] Ibid.
Further, in Ms Agnoletto’s Report, she noted:
(a)the physiotherapy discharge report dated 12 January 2023, which stated that Ms Zhu remained “resistant to any passive movement of her left hip and knee at discharge”;[46] and
(b)the progress note dated 21 October 2022, which stated that Ms Zhu had a “fear of exercises”, “spontaneous fractures”, and that while Ms Zhu had “responded well to education and gentle reassurance”, the “best way to support bone health issue” is to “gradually build up more muscles and maintain walking”.
[46] Ibid.
In Ms Agnoletto’s report, she stated that she “highly recommended that Ms Zhu be assessed again for physiotherapy treatment to prevent any further deterioration in her mobility and remaining muscle strength”.[47] Ms Agnoletto stated that “exercise training may also assist in improve(sic) Ms Zhu’s mood and outlook”.[48] Ms Agnoletto recommended an exercise physiology assessment, to determine Ms Zhu’s long-term exercise physiology needs.[49]
[47] Ibid.
[48] HTB, Document H33/19.
[49] Ibid, Document H33/20.
In Ms Agnoletto’s report, she stated that she had administered a Pain Catastrophising Scale (‘PCS’) test on Ms Zhu during the assessment. Ms Agnoletto stated that Ms Zhu had scored 35 out of 52 which indicated “significant pain catastrophising”.[50] Ms Agnoletto stated as follows:[51]
…Pain catastrophising involves magnifying the threat of pain and feeling helpless in managing it, which is not inherently self-limiting, however can exacerbate pain experiences. With psychological intervention, such as Cognitive Behavioural Therapy (CBT), Ms Zhu may be able to learn coping strategies to prevent it from becoming self-limiting. Early intervention is key in addressing and modifying pain catastrophising behaviours.
Ms Zhu was noted to suffer from global weakness. She advised that prior to August 2022, she was very active (able to mow the lawn) and independent. This indicates that over the past 16 months Ms Zhu has likely suffered significant deconditioning impacting her functional capacity…
[50] Ibid, Document H33/31.
[51] Ibid.
Ms Grinberg referred the Tribunal to the comments in the “Physiotherapy Discharge Summary” issued by Ms Melissa Parker, Physiotherapist, at Monash Health when Ms Zhu was discharged on 12 January 2023, as follows:[52]
Follow Up Required: Ongoing physiotherapy to continue to work on strength and tolerance for weight-bearing through the left leg, to enable progressing to walking either with stick or unaided, and offload the dependence on her ULs to support herself when walking…
[52] HTB, 616–7.
Ms Grinberg also referred the Tribunal to a document entitled “Review of Team Care Arrangements – MBS Item No. 732” completed in respect of Ms Zhu. The table on this document indicates that one of the goals for Ms Zhu was for her to have a clear understanding about her medical conditions which could be achieved through “patient education” to be provided by her general practitioner, orthopaedic surgeon, The Alfred Hospital and Mr Peter Rekas, Physiotherapist. Another goal listed in this table was for Ms Zhu to maintain physical activity, with the required treatment and services recommended as being the development of an exercise program suitable to her needs to be carried about by her treating general practitioner, physiotherapist, and occupational therapist. A further goal listed in this table was to improve Ms Zhu’s quality of life through further treatment which was described as “joint specific therapies” and to “consider options for surgical intervention”, to be actioned by her general practitioner, rheumatologist, orthopaedic surgeon, and physiotherapist. The final goal listed in this table was to “ensure” Ms Zhu’s “mental well-being”, with the required treatment and services listed as “management of psychological disease”, to be actioned by a “psychologist, counsellor/social worker, and support groups”.[53]
[53] HTB, 623.
Ms Zhu relies upon the opinion of Dr Ng that Ms Zhu’s Physical Impairment is permanent because she has received all possible treatment. Ms Grinberg contends that the opinion of Dr Ng is inconsistent with weight of the evidence before the Tribunal and in particular, the evidence before the Tribunal recommending that Ms Zhu:
(a)engage in further physical therapy;
(b)engage in psychological assessment and treatment;
(c)be assessed by an occupational therapist; and
(d)consult with a pain specialist.
The NDIA contends that Ms Zhu has not engaged in these further treatments and therefore, it is not open to the Tribunal to conclude that Ms Zhu’s impairment/s are, or are likely to be, permanent. The Tribunal accepts this contention.
The Tribunal is unable to make a finding on the evidence before it, as required by Rule 5.4 of the Access Rules, that there are “no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy” Ms Zhu’s Physical Impairment or Ms Zhu’s Psychosocial Impairment. Instead, the Tribunal finds that if Ms Zhu was to engage in a publicly-funded pain management program through a public hospital, which is supervised by a specialist pain management specialist who is coordinating the provision of coordinated physical therapy (in the form of physiotherapy in conjunction with an exercise program), psychological therapy, and occupational therapy, it is likely that such treatment will remedy Ms Zhu’s Physical Impairment and Ms Zhu’s Psychosocial Impairment, arising from her underlying condition of having a “pain syndrome”. Ms Zhu underwent her surgeries in August 2022. This is only two-and-a-half years ago and during this time, the Tribunal finds that Ms Zhu has not fulsomely participated in an appropriate post-surgical rehabilitation program or taken the initiative to follow up with physiotherapy sessions and home-based physical exercises which have been provided to her. Nor has Ms Zhu engaged in a pain management program following the onset of the unexplained chronic pain she was suffering.
The Tribunal acknowledges that part of the reason for this may have been that Ms Zhu has miscomprehended the nature of her underlying medical conditions and has not understood that she sustained the insufficiency fractures as a rare side-effect of Prolia. The Tribunal expects that this situation has not been assisted by Ms Zhu having a general practitioner who does not speak Mandarin, as it would make effective communication between them a challenge. Ms Zhu is not at all fluent in English and would struggle if discussing medical information. However, Ms Zhu’s miscomprehension about these matters do not constitute a valid reason for the Tribunal to find that it is satisfied that there are “no known, available, and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy” Ms Zhu’s Physical Impairment or Ms Zhu’s Psychosocial Impairment. Objectively, such treatments exist and are available to Ms Zhu through the public health system. Ms Zhu has not, as yet received those treatments.
For these reasons, the Tribunal concludes that neither Ms Zhu’s Physical Impairment, or Ms Zhu’s Psychosocial Impairment, are, or are likely to be, permanent.
The Tribunal concludes that Ms Zhu does not meet the mandatory criterion under subsection 24(1)(b) of the NDIS Act.
Subsection 24(1)(c) – Substantially reduced functional capacity
Ms Grinberg contended that it is not possible for the Tribunal to make an assessment as to Ms Zhu’s reduction in functional capacity because the conditions underlying her impairment/s have not been “fully treated” for the Tribunal to be able to assess Ms Zhu’s functional capacity. In the alternative, Ms Grinberg contended that Ms Zhu’s impairment/s have not resulted in a substantial reduction in Ms Zhu’s functional capacity to undertake any one or more of the Prescribed Activities.
The Tribunal has already concluded that one of the mandatory criterion under subsection 24(1)(b) of the NDIS Act have not been met by Ms Zhu. For this reason alone, the Tribunal concludes that Ms Zhu does not meet the disability requirements under s 24 of the NDIS Act. If the Tribunal is found to be wrong about this, the Tribunal also concludes that Ms Zhu does not meet the further mandatory criterion under subsection 24(1)(c) on the basis that the Tribunal finds that neither Ms Zhu’s Physical Impairment, nor Ms Zhu’s Psychosocial Impairment, have resulted in a substantially reduced functional capacity in Ms Zhu undertaking any one or more of the Prescribed Activities, for the reasons set out below.
Based on Ms Zhu’s own evidence, she is able to walk for a reasonable distance, that is, from her home to her local train station. She is able to alight the train. She was able to walk from Flinders Street station to 15 William Street, Melbourne, which she did alone on the second day of the hearing. Ms Zhu is assisted by using a walker. Dr Kostos doubts whether Ms Zhu requires this equipment. Ms Zhu considers that she does. Whether Ms Zhu requires it or not, the Tribunal considers that a walker is a “commonly used item” able to be purchased at a pharmacy. The Tribunal is satisfied that Ms Zhu is able to mobilise within her home, within her local neighbourhood and when required, that she can use public transport, provided she does not need to walk lengthy distances.
At the hearing, Ms Zhu said when she has a shower, she is required to use the upstairs bathroom in her house, because the downstairs bathroom does not fit a shower chair in it. Ms Zhu gave evidence that to reach the upstairs bathroom she is required to travel up (and down) about 10 stairs. Ms Zhu said she will take the stairs to go upstairs for a shower once a week in winter and about twice a week in summer. Ms Zhu said she does so by using the handrail on the stairs and that she keeps a walker upstairs for her use as well as keeping one downstairs for her use. The Tribunal finds that Ms Zhu is capable of climbing up and down the stairs independently.
At the hearing, Ms Zhu was observed to transfer into and out of the Tribunal chair with ease. During the functional capacity assessment, Ms Agnoletto stated in her report that she observed Ms Zhu to sit on her couch, get up from her couch and to transfer into and out of her bed. Ms Agnoletto reported that Ms Zhu had told her she could lift up items of up to 5 kilograms in weight. Ms Agnoletto reported that Ms Zhu was observed to be able to negotiate inclines and declines cautiously.
Ms Agnoletto reported in her report that Ms Zhu was able to prepare basic meals for herself and used meal boxes with pre-prepared meals in them, which Ms Zhu would heat up. Ms Agnoletto considered that some cleaning tasks went beyond Ms Zhu’s capacity due to her fears, pain, poor balance and because she did not consider she was able to bend, kneel, squat or crouch. Dr Kostos confirmed that Ms Zhu has a significant fear of falling because of her belief that she has osteoarthritis. For the purpose of the present exercise, the Tribunal will assess Ms Zhu’s functional capacity on the basis of Ms Zhu’s belief as to what she can and cannot do (putting aside the question about whether she can receive treatment to change her self-limiting attitudes and beliefs).
Ms Zhu’s evidence at the hearing was that she engages in social interaction with her neighbour, who she is close to, and her sister who lives for part of the year in Victoria (and the other part of the year in China). Ms Zhu gave evidence that she has a nephew but she does not socialise with him because she said he has his own life and family. Ms Zhu says she does not talk with her husband and is not aware as to his current state of health. She said he had cancer, diabetes, and that last year he had a heart operation. She described him as being very sick. She said that he lives upstairs. She said sometimes, he used the kitchen which is in the downstairs of the house. She said he will take his meals upstairs to eat them there. Ms Zhu says that she experiences discomfort when sitting for long periods, and this makes it difficult for her to socialise.
Ms Agnoletto reported that Ms Zhu would be able to learn new strategies in relation to undertaking care tasks if she was open to it. The Tribunal notes Ms Zhu’s evidence that she used to be a teacher when she lived in China. There was no evidence before the Tribunal of any reliable cognitive testing which has been carried out by a neuropsychologist which indicated that Ms Zhu has any established learning deficits.
There was also limited evidence before the Tribunal indicating that Ms Zhu lacked decision-making capacity or impaired judgment typical for a person of Ms Zhu’s age (being 65). To the contrary, by Ms Zhu’s own evidence, she is resourceful. As Ms Grinberg pointed out at the hearing, Ms Zhu gave evidence that she has been able to navigate:
(a)how to apply for, and obtain, a free public transport card, and a half price taxi card;
(b)how to arrange for the My Aged Care assessment to take place while this proceeding has been on foot; and
(c)how she has engaged some (albeit limited) services in the past, from Mecwacare, to assist her.
Ms Zhu’s husband is reported to manage the finances in the home. However, the reason for this is that reportedly, Ms Zhu has not yet learnt how to use a computer or online banking services, rather than it being as a result of any observed or proven reduction in her capacity for learning or decision-making.
The Tribunal finds there is some reduction in functional capacity arising from Ms Zhu’s Physical Impairment and Ms Zhu’s Psychosocial Impairment in her undertaking the activities of mobility, self-care, and self-management. The Tribunal is not satisfied that there is any reduction in functional capacity in Ms Zhu undertaking the activities of communication, learning, or social interaction, as a result of those impairments.
The Tribunal is not satisfied that the level of reduction in functional capacity arising from Ms Zhu’s Physical Impairment and Ms Zhu’s Psychosocial Impairment in her undertaking the activities of mobility, self-care, and self-management has reached the threshold of it being substantial. The evidence revealed that Ms Zhu is able to undertake most of the tasks making up each of those activities, as set out above. Further, Ms Agnoletto has reported that:[54]
(a)Ms Zhu has no difficulties with feeding herself and can cook basic meals, such as instant noodles;
(b)Ms Zhu is independent in brushing her teeth and hair;
(c)Ms Zhu can dress herself independently and will sit down when she dresses;
(d)Ms Zhu is continent and is able to go to the toilet independently;
(e)Ms Zhu occasionally goes shopping with her neighbour; and
(f)Ms Zhu is able to walk reasonable distances and is able to catch public transport to travel places if she was inclined to do so.
[54] HTB, Document H33.
For this reason, the Tribunal concludes that Ms Zhu does not meet the mandatory criterion under subsection 24(1)(c) of the NDIS Act.
Conclusion regarding s 24
Although the Tribunal has found that Ms Zhu meets subsection 24(1)(a), she is also required to meet the remaining four mandatory criteria under subsection 24(1) of the NDIS Act. The Tribunal has concluded that Ms Zhu 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 Ms Zhu does not meet the “disability requirements” under s 24 of the NDIS Act because, taken separately, or in combination, she 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 Ms Zhu meets the early intervention requirements under s 25
Ms Zhu made her access request to the NDIA prior to the legislative amendments on 3 October 2024. The Tribunal must decide whether Ms Zhu 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.
For the same reasons as set out above when addressing the criterion under subsection 24(1)(b), the Tribunal is not satisfied that Ms Zhu’s Physical Impairment, or Ms Zhu’s Psychosocial Impairment are, or are likely to be, permanent. For this reason, the Tribunal concludes that Ms Zhu does not meet either subsection 25(1)(a)(i) or (ii) and she does not meet subsection 25(1)(a)(iii) because she 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 Ms Zhu’s case.

Accordingly, the Tribunal concludes that Ms Zhu does not meet the “early intervention requirements” under s 25 of the NDIS Act.
CONCLUSION
The Tribunal has concluded that Ms Zhu does not meet the “disability requirements” under s 24 of the NDIS Act. The Tribunal has also concluded that Ms Zhu does not meet the “early intervention requirements” under s 25 of the NDIS Act.
For these reasons, the Tribunal concludes that Ms Zhu does not meet the access criteria under s 21 of the NDIS Act. This means Ms Zhu will not be granted access as a participant in the NDIS.
The Tribunal affirms the Decision Under Review.

1. I certify that the preceding 167 (one-hundred-and-sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

..............................[sgd]...............................
Associate
Dated: 20 March 2025

Dates of hearing:
11 & 12 February 2025

Date last submission lodged: 18 February 2025

Applicant: In person

Counsel for the Respondent: Ms Krystyna Grinberg

Solicitors for the Respondent: In-house NDIA lawyer

Dates of hearing:	11 & 12 February 2025
Date last submission lodged:	18 February 2025
Applicant:	In person
Counsel for the Respondent:	Ms Krystyna Grinberg
Solicitors for the Respondent:	In-house NDIA lawyer