Amgad and National Disability Insurance Agency (NDIS) [2025] ARTA 1451 | Case summary

Amgad and National Disability Insurance Agency (NDIS) [2025] ARTA 1451 | Case summary | Zoe

[28]

The issue for the Tribunal's determination is whether Mr Jamal Amgad should be granted access as a participant to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports for his lifetime.
In December 2022, the National Disability Insurance Agency (the Agency) determined to refuse Mr Amgad access to the NDIS, and he applied to the Administrative Appeals Tribunal to independently review the merits of the Agency's decision. In October 2024, the Administrative Review Tribunal (ART) was established to replace the AAT and the AAT was abolished. Mr Amgad's AAT Application was automatically transferred to the ART[1].
Mr Amgad is 61 years of age and resides in suburban Sydney. He arrived in Australia as a refugee[2] in about 2002[3] and is now an Australian citizen. He is divorced or separated and has children whom he now does not see, causing him much sadness[4]. He has no family in Australia. He worked as a lawyer in his home country[5]. In his early years in Australia, he volunteered with community organisations[6]. He has not worked in either voluntary or paid employment for many years because of his ill-health[7] and receives a disability support pension[8].
Mr Amgad lives with medical conditions which impair his psychological and physical functioning. These conditions include schizophrenia, post-traumatic stress disorder and rheumatoid arthritis[9].
This decision, in its essence, is about whether the psychosocial and physical impairments that arise from Mr Amgad's medical conditions are of such nature and extent he meets the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the National disability Insurance Scheme Act 2013 (the Act). To be given access to the NDIS, Mr Amgad must also meet the age and residence requirements in sections 22 and 23 of the Act, however it is readily accepted that he does so.
To assist in determining these issues, the Tribunal held a two-day hearing in March 2025. On Day Two of the hearing, the Agency conceded Mr Amgad meets the disability requirements, and accordingly the access criteria, in relation to his psychosocial impairments arising from the conditions of schizophrenia, anxiety, depression and post-traumatic stress disorder. The Agency stated it had reached this position considering the additional oral evidence Mr Amgad had presented on Day One of the hearing regarding the impact of his psychosocial impairments on his capacity to undertake social interaction. It confirmed this position in post-hearing written submissions dated 19 March 2025[10]. The Tribunal agrees, based on its assessment of the documentary and oral evidence before it that this concession is rightly made. On this basis alone, the Tribunal sets aside the internal review decision and substitutes it with a decision that Mr Amgad meets the criteria for access to the NDIS.
The Agency did not, however, concede its position in respect of Mr Amgad's physical impairments and continues to argue Mr Amgad does not meet the access criteria because of them. Mr Amgad continues to argue that he does, as is his right.
This decision record is therefore substantially about whether Mr Amgad meets the access criteria in respect of those physical impairments, in addition to his psychosocial impairments as well as several significant procedural issues that arose in this case. However, the Tribunal also sets out Mr Amgad's psychosocial impairments and why the Tribunal is satisfied that Mr Amgad meets the disability requirements and the access criteria in relation to those impairments. This is because the law requires the Tribunal to consider Mr Amgad's permanent impairments as a whole in deciding whether they collectively give rise to substantially reduced functional capacity in one or more of six daily activity areas (the section 24(1)(c) requirement). The Tribunal sets out below its reasons for not accepting the Agency's submission that the Agency's concession regarding Mr Amgad's psychosocial impairments makes it unnecessary for the Tribunal to consider his physical impairments in reaching its decision under sections 21 to 25 of the Act.
For the reasons set out below, the Tribunal has determined Mr Amgad's physical impairment, whist permanent, does not when considered in conjunction with his permanent psychosocial impairment result in substantially reduced functional capacity in any one of the six activity areas stated in section 24(1)(c) of the disability requirements. It has also determined Mr Amgad does not satisfy the early intervention requirements in section 25 of the Act in respect of his physical impairment.
In summary, the Tribunal has determined Mr Amgad meets the access criteria in relation to his psychosocial impairment and the decision under review is set aside.

[35]

The Tribunal must apply the relevant jurisprudence of the courts in access matters.
The courts have said that the purpose of the access criteria and section 24(1) is to impose a series of "components and thresholds" [14] to gaining access to the NDIS.
Given Mr Amgad must satisfy every component in section 24(1), the Tribunal's approach is to consider whether each is in turn satisfied before progressing to the next. If he fails to satisfy one, then he cannot meet the disability requirements, and the Tribunal must turn its attention to whether he meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.
The courts emphasise that the central concept in an access matter is "Impairment"[15]. It is not the name of a person's disability or their medical diagnoses or conditions[16]. Impairment involves the loss of or damage to a physical, sensory or mental function[17].
The courts have said "permanent" means "enduring"[18]. An impairment may endure even if it fluctuates, or may fluctuate during a person's lifetime, in its intensity and impact [19].
The Tribunal must engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, an applicant and their supports to determine the permanency and severity of the applicant's impairments and the impact on their ability to undertake specified, multi-faceted life activities[20].
When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a high degree of precision, a functional, practical assessment of what Mr Amgad can and cannot do.[21] That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas.[22] It would be incorrect to ask this question only in relation to one or a few of such tasks[23].
The term "substantially" in this context carries a "high threshold"[24]. Whether this high threshold is met should be considered with reference to the purpose of the NDIS, including that it was not intended to provide support to every person with disability and ensuring the financial sustainability of the scheme[25].
It is for Mr Amgad to provide the Tribunal with sufficient evidence and information to persuade it that he meets the access criteria[26], and for the Agency to assist the Tribunal to make the correct or preferable decision[27].
I discuss relevant jurisprudence concerning the Access Rules below.

[37]

On 13 September 2022, Mr Amgad made a request to the Agency to access the NDIS (the access request). On 3 October 2022, the Agency refused the access request[31] (the access decision). Mr Amgad then applied to the Agency for an internal review of that decision on 31 October 2022, and on 16 December 2022, the Agency again determined not to grant him access (the internal review decision)[32].
Mr Amgad had made an earlier request for access that was also refused, on 4 August 2022, and the Agency confirmed its refusal decision on 12 September 2022. He made the access request the following day. Mr Amgad includes the first internal review decision of the Agency amongst his documents[33] and briefly refers to his first request and negative outcome in his submissions to the Tribunal[34]. The first request provides a context in which some of Mr Amgad's documents now before the Tribunal were created[35] and it is helpful for the Tribunal to have considered it as background information to the current proceedings. It is not under review in these proceedings, however.
In the internal review decision, the Agency accepted only that Mr Amgad had permanent physical impairments arising from Rheumatoid Arthritis and this affected his capacity for social and economic participation. It did accept he had psychosocial impairments resulting from schizophrenia, post-traumatic stress disorder (PTSD), anxiety and depression, but did not accept those resultant impairments were permanent. The Agency reasoned that Mr Amgad had provided insufficient information about the treatment he had received for those impairments. The Agency did not accept Mr Amgad's impairments arising from rheumatoid arthritis resulted in substantially reduced functional capacity in any one of the six activity areas. For this reason, the Agency also did not accept he required lifetime support from the NDIS.
On 20 December 2022, Mr Amgad applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision. His application had been progressing unsuccessfully through alternative dispute resolution until July 2024, when it was constituted to a General Member of the AAT for hearing and final determination. It was then re-constituted to me on 26 February 2024 pursuant to section 43 of the ART Act upon that Member becoming unavailable. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[36].

[40]

On 6 and 7 March 2025, the Tribunal conducted a two-day hearing, with the Agency and Tribunal using MS Teams video conferencing and Mr Amgad appearing by telephone. The Tribunal encouraged Mr Amgad to appear by video and permitted him to have his camera off, so that he might have the reassurance of seeing everyone without being seen himself. However, he reaffirmed his preference to appear by phone and this was granted throughout the two days as an appropriate disability-related procedural adjustment. Mr Amgad represented himself and did not have a support person present. The Agency were represented by Ms Nicole Maddocks as counsel and instructed by Sparke Helmore Lawyers.
The Tribunal heard evidence from Mr Amgad for a substantial part of Day One of the hearing, allowing him the time to present his case to the Tribunal given he was self-represented and without a disability advocate. Ms Melissa Sale, the occupational therapist who conducted an independent functional assessment of Mr Amgad at the Agency's instruction and prepared a report dated 31 December 2023, also gave evidence on Day One. Mr Amgad confirmed at the hearing that he endorsed the assessment and findings of Ms Sale in her report and took no issue with her evidence in the hearing. The Tribunal observed that both witnesses spoke openly and honestly and without exaggeration.
Prior to the hearing, on 21 February 2025, the Agency requested Mr Amgad make Dr Colin Chu, his former GP of many years, and Mr William Lee, his physiotherapist, available for cross-examination. Mr Amgad communicated on 27 February 2025 that he did not object to their cross-examination provided the Agency pay the costs of their appearance. The Agency did not press the issue further and neither party made arrangements for their appearance.
On 20 February 2025, the Agency provided the Tribunal and Mr Amgad with a Statement of Facts Issues and Contentions (SFIC) outlining the key arguments and evidence in their case. Mr Amgad did not file pre-hearing submissions addressing the issues of substance in his case. He did file brief submissions on procedural issues, and these are addressed below. Both parties presented oral submissions at the end of the hearing. Although Mr Amgad did not have the benefit of legal representation, he was a lawyer in his home country and represented himself admirably despite his impairments.
The Tribunal fulfilled its obligations under section 68(3) of the ART Act and engaged an interpreter in the Arabic language, who assisted Mr Amgad throughout the hearing. Although Mr Amgad had not requested an interpreter, he had written to the Tribunal worried about not being understood given his heavily accented English and English being his second language. The Tribunal also found Mr Amgad's written communications to be difficult to understand and revealing his anxiety about participating in a hearing. In all the circumstances the Tribunal determined an interpreter was required to enable Mr Amgad to effectively communicate in the proceedings. This decision was verified at the hearing and the Tribunal is grateful for the interpreter's valuable assistance.
On 15 January 2025, the Tribunal issued a direction requiring the Agency and Mr Amgad to discuss the documents to be put into evidence and for the Agency to compile and submit an agreed Joint Hearing Bundle by 24 February 2025.
On 28 January 2025, the Tribunal issued at the Agency's request a summons to The Sydney Clinic. Mr Amgad objected to this summons on 31 January 2025[37]. This objection became in substance obsolete upon the Sydney Clinic advising that it held no records for Mr Amgad. The Tribunal nonetheless notes Mr Amgad's anxiety about the late nature of the request and the volume of documents he might have been expected to read.
On 26 February 2025, the Agency informed the Tribunal they had been unable to obtain Mr Amgad's agreement to a Joint Hearing Bundle.
On 27 February 2025, Mr Amgad gave the Tribunal and the Agency, by way of three emails, 28 PDFs of documents that he sought to rely upon. This included a medical certificate from Dr Caristo dated 22 February 2025[38]. Dr Caristo states Mr Amgad was experiencing distress at being asked to review the Agency's hearing bundle within the time available, given his limited English comprehension capabilities and lack of legal representation. She states Mr Amgad had advised her he would like a decision from the Tribunal based on his documents. I address this request from Mr Amgad below.
On 4 March 2025, the Agency filed with the Tribunal a Respondent's Hearing Bundle (RHB) of approximately 1500 pages. This included 664 pages of medical, hospital and clinical records returned under summonses (summons documents) issued to the following of Mr Amgad's treating professionals by the Tribunal in April 2023 at the Agency's request:
- Five Dock Physio
- Concord Family Doctors
- Concord Hospital, New South Wales Department of Health.
The Tribunal understands from the submissions of the Agency on Day Two of the hearing that the Respondent included the summons documents in the RHB under the heading "Respondent's material" for the Applicant's benefit should he wish to refer the Tribunal to them. It appeared to the Tribunal that Mr Amgad was unaware the Agency had included them for this reason. Noting the summonses were issued at the request of the Respondent for the purpose of assisting the Tribunal in its decision making, and the documents were made available to the Respondent two years prior to the hearing, the Tribunal was challenged by their voluminous presentation just prior to the hearing. The Tribunal queries the appropriateness of the Respondent's inclusion in its RTB under the heading "Applicant's material" a complete copy of a report it was aware Mr Amgad objected to being taken into evidence, without further submissions. The Tribunal addresses this report and Mr Amgad's objections to it, below.
On 7 March 2025, the Agency provided the Tribunal and Mr Amgad with a Supplementary Tender Bundle (STB), indexing and compiling into one paginated PDF, the documents submitted by Mr Amgad. The STB includes in its index all the 28 documents Mr Amgad submitted on 27 March 2025 and reconciles them against the documents in the Respondent's Bundle. The STB for simplicity omits documents already included in full in the RTB. It identifies but omits from the body of the bundle the Respondent's submissions from May 2024 created during and solely for the purposes of alternative dispute resolution. Pursuant to sections 88(1) and (2) of the ART Act, such documents are inadmissible in the proceeding as the consent of both parties to their admission was not provided. Their exclusion from the STB is therefore appropriate.
In general terms, both hearing bundles include the documents held by the Agency at the time of and relevant to the Tribunal Application including the internal review decision and the reports and records from the Applicant on which that decision was based (the T-Docs), as well as reports, records, communications and submissions prepared or obtained by each party for this Tribunal proceeding.
On 19 March 2025, The Agency provided the Tribunal and Mr Amgad with post-hearing submissions on two discrete legal issues. The first of these concerns the Tribunal's powers under section 105 of the ART Act and the second concerns whether a walking stick is a commonly used item within the meaning of Rule 5.8 of the Access Rules. The Tribunal addresses these issues further below.

[43]

In the Tribunal's view, on the information before it, although one reason for the disclosure of Dr Chew's report to the Tribunal was for the purposes of ADR, this was not "the sole reason". It is therefore not rendered inadmissible in this proceeding by the operation of section 88 of the ART Act. Further, an interlocutory hearing had been held before a Senior Member of the AAT, on 29 May 2024, to determine an application by Mr Amgad to have the document removed from the Tribunal file. The application was refused, and the AAT made directions on 30 May 2024 progressing the matter to a hearing to be scheduled between December 2024 and March 2025. The Senior Member's directions included a direction to Mr Amgad to obtain a further psychiatric report and provide a copy to the Agency and the AAT by 30 September 2024.
Finally, and importantly, it was evident to this Tribunal that the controversy had in no way subsided by the final hearing. It was fuelling Mr Amgad's anxiety around the hearing which in the ordinary course is a fundamental mechanism of procedural fairness in assisting parties, particularly an applicant, to present their case, and had led to Mr Amgad requesting a determination on the papers. Accordingly, against this background and for all these reasons it was essential for the Tribunal to address the objection and hear from the parties on the matter. It is also important for the Tribunal to note that both parties subsequently terminated their arrangements with the solicitors acting for them at the time Dr Chew's report was commissioned. Neither earlier representative was therefore involved in this proceeding since its constitution to the Tribunal for final hearing.
Given the intensity of the feelings expressed by Mr Amgad at the opening of the hearing on the issue of Dr Chew's report, and to reduce the risk of the issue preventing the hearing from commencing, the Tribunal deferred hearing submissions on its admissibility until the commencement of Day Two. Immediately following completion of those submissions, the Agency informed the Tribunal and Mr Amgad that it had conceded Mr Amgad met the access criteria in respect of his psychosocial impairments. As Dr Chew's report is mostly focused on Mr Amgad's psychosocial impairments, it was not necessary for the Tribunal to rule on the matter in the hearing and the Tribunal reserved its decision on the issue. For the reasons below, the Tribunal has determined that it is necessary to rule on the admissibility of the report and now turns to the parties' submissions in detail.
The substance of Mr Amgad's objection to its tender is three-fold. He argues he was misled by the Agency's previous legal representatives into making it available and that if accepted into evidence, it should be given little or no weight as Dr Chew spent only 15 minutes assessing him through video conferencing. He argues that the Agency should have remedied these circumstances by funding a further independent psychiatric assessment and report. To this end, Mr Amgad obtained a quote from psychiatrist Dr Chenyan Gao, Sydney Central Psychiatrists, who itemises a five-session assessment program to prepare a medical report[39]. These are essentially the same reasons as Mr Amgad outlines in his submissions to the AAT in the interlocutory proceedings in May 2024[40], which are included in the RTB with Mr Amgad's consent.
The Agency submitted that it became aware of Dr Chew's report on receipt of a report from one of Mr Amgad's treating psychologists, Mr Carlos Camacho, dated 8 November 2023, which refers to and quotes Dr Chew's report[41]. The Agency submits Dr Chew's report is highly relevant to the proceedings as the only report from an independent expert psychiatrist before the Tribunal and that it is necessary to properly understand Mr Camacho's evidence.
I note that it is outside the Tribunal's function in determining the application and conducting a hearing to investigate how a document came into the hands of another party prior to the hearing taking place and during the confidential ADR process. I note the allegations by Mr Amgad are serious and the individuals allegedly involved in them were no longer involved in the proceedings at the time of the hearing to be able to reply to them. I also note, however, that whilst the Tribunal cannot investigate these matters, the Tribunal observes both parties in their accounts spoke honestly at the hearing as to how they experienced and interpreted the relevant events and exchanges.
The Tribunal has determined that in circumstances where the Tribunal has previously ruled Dr Chew's report is to remain on the Tribunal file, and the contents of that report are directly relevant to the proceedings, the Tribunal must have regard to it. The Tribunal is persuaded that Dr Chew's report is relevant for the reasons submitted by the Agency. It also finds it is relevant for additional reasons, which I detail immediately below and further into this decision when discussing Mr Amgad's physical impairments.
Equally, for the reasons below, the Tribunal observes Dr Chew's report, to the extent the Tribunal gives weight to it, to support Mr Amgad's claims to meet the access criteria. In so concluding, the Tribunal places weight on the following passage which appears in Dr Chew's concluding opinion:

[46]

The Tribunal also notes that in reaching this conclusion, in addition to his own observations, Dr Chew gives credence to two NSW Health progress notes from psychiatric specialists, from 2018 and likely 2019, which observe Mr Amgad as experiencing psychosis, formal thought disorder, persecutory delusions and the prescription of olanzapine, as well as Dr Canatali's notation of diagnoses of schizophrenia and PTSD and her assessment of their impact on Mr Amgad's functional capacity. Dr Chew also makes observations about Mr Amgad's physical impairments, which I consider further below.
The crux of Mr Amgad's concern about Dr Chew's report is a concluding passage in which Dr Chew opines Mr Amgad's psychosocial impairment "cannot be deemed permanent as it does not appear that he has had adequate treatment", being psychiatric treatment.
Dr Chew was engaged, as his report states, to conduct a psychiatric assessment and produce a psychiatric report. However, in the Tribunal's opinion, the passage of concern is entirely a purported legal opinion. This is not only outside the area of expertise for which he was engaged, it reveals both erroneous and incomplete considerations of the factual matters to be determined when assessing the permanency of an impairment for the purposes of section 24(1)(b) as the test is expressed in the Access Rules and correctly applied. For this reason also, the Tribunal therefore gives this aspect of his opinion no weight.
I have detailed further below in this decision record the relevant provisions of the Access Rules the Tribunal must apply in considering whether the criteria in section 24(1)(b) regarding permanency are met. I discuss these in some detail in my consideration of Mr Amgad's physical impairments. However, I also outline them here for the purposes of highlighting the difficulties the Tribunal has with the Respondent's reliance until Day Two of the hearing on this aspect of Dr Chew's report in the context of Mr Amgad's undisputed psychosocial conditions.
The Agency submits in its Statement of Facts Issues and Contentions that this opinion from Dr Chew "demonstrates that he (Mr Amgad) has not undertaken all known, available and appropriate treatments"[42] and as such, Mr Amgad's psychosocial impairments do not meet the requirement of permanency. In the Tribunal's view, that is an incomplete statement of the test the Tribunal must apply.
Rule 5.4 of the Access Rules states that "an impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment". (Tribunal emphasis) This phrase must be considered in its entirety. The courts have interpreted "remedy" in Rule 5.4 to mean "something approaching a removal or cure of the impairment"[43], "appropriate" as connoting "a treatment which has a capacity to "remedy" the impairment"[44] and "available" as requiring consideration of "what treatments an individual can, in reality, access"[45]. There is no legal requirement that the treatment be "adequate", which was the question Dr Chew in error turned his mind to.
Further, on the Tribunal's reading of Dr Chew's report, he did not as part of his psychiatric assessment address whether the psychiatric treatment he recommended Mr Amgad undertake would be likely to be remedy the impairment. In the Tribunal's opinion, it would have been within his expertise to have done so. This aspect of Rule 5.4 makes clear, in the Tribunal's view, that there are circumstances in which a person's impairment arising from conditions such as schizophrenia and other psychiatric conditions will meet the legal requirement of permanence where they have had little to no treatment.
This discussion is important because the Agency's continued reliance on the above passage of Dr Chew's Report appears to the Tribunal to have profoundly shaped Mr Amgad's participation in the proceedings. The Tribunal has a responsibility to be alive to an applicant's disability and how it may impact their participation in the proceedings at hand. The Tribunal has amongst its statutory objectives to be fair and just, and accessible and responsive to the diverse needs of the parties to proceedings[46]. It has, further, a statutory duty to as far as practicable, conduct each proceeding in a way that is accessible for the parties, taking into account their needs[47] and must ensure each party has a reasonable opportunity to present their case[48]. In this case, the Tribunal considered it should be alive to the possibility that Mr Amgad's psychosocial impairments were causing him to fixate on the issues surrounding Dr Chew's report and fear direct engagement with the Agency, in turn impairing his judgment about how best to present his case.
Accordingly, it is to the Tribunal's further procedural adjustments that I now turn.

[54]

In this Tribunal's view, the Tribunal should take a cautious approach in considering whether to proceed to a determination without a hearing where the applicant claims to want to forgo the hearing with the respondent government party for fear of being harmed by that experience. In so saying, that is to make no comment about the legitimacy of those fears. This is particularly so where the applicant has disability and language barriers to participating in a hearing. In this Tribunal's view, whilst it cannot refuse a request for a determination on the papers where the statutory criteria is otherwise met, if an applicant is fearful of a hearing, the Tribunal should make best endeavours to address those fears and make the hearing as accessible as possible and encourage an applicant to avail themselves of the procedural opportunity a hearing offers to more fully present their case.
At the commencement of the hearing, Mr Amgad told the Tribunal that he wanted to speak to his case for 30 minutes and then leave the hearing so that the Tribunal could make a decision based only on his documents. He declined to answer any questions from the Agency. At this stage, the Tribunal had before it two substantially different bundles of documents from both parties.
The Tribunal indicated to Mr Amgad that it could make a decision on only the documents before it if it has the consent of both parties, but to be procedurally fair that would mean consideration of the Agency's documents as well as his. Mr Amgad told the Tribunal he objected to any of the Agency's documents being accepted into evidence. Although the Tribunal understands Mr Amgad was not aware of it, this would have meant excluding key documents in the Agency's document bundle in support of his case. The Tribunal was not assured Mr Amgad understood the importance of the Tribunal having sufficient information before it in order to be positively satisfied the relevant statutory criteria are met, and the significance of participating in a full and fairly conducted hearing to that end.
In the Tribunal's view, the procedural adjustment Mr Amgad was seeking was not open to the Tribunal under the ART Act. In its essence, Mr Amgad was asking the Tribunal to commit to holding a partial hearing in which only he would give evidence, without cross examination, and only his documents would be before the Tribunal. In the Tribunal's view, such an approach would not be procedurally fair to the Respondent and would have placed the Tribunal in breach of its obligations under section 55 of the ART Act to ensure each party is given a reasonable opportunity to present their case.
Further, the Tribunal was in doubt, based on the information it had at the commencement of the hearing, that the proceeding could at that point in time be adequately determined in the absence of the parties to the proceeding, as sections 106(1) and (2) of the ART Act require. This is because the Tribunal had before it a significant dispute about which papers the Tribunal should base its decision upon. It appeared to the Tribunal that at least those issues would have to be heard rather than determined with the assistance of further written submissions from both parties, as the Agency had proposed as a possible way forward. In some not insignificant part, this was due to Mr Amgad's limited English literacy and the Tribunal's concerns that his own written evidence was very difficult to understand. Whereas the Tribunal has a statutory responsibility to provide an interpreter in a hearing , it does not have a statutory responsibility to engage a translator to assist a party with written submissions. The Tribunal therefore considered that any steps by the Tribunal to resolve the dispute by further written submissions would be procedurally unfair to Mr Amgad and also not of assistance to the Tribunal. Equally, it appeared to the Tribunal that given the level of Mr Amgad's distress upon commencement, attempting to address the inflammatory issue of Dr Chew's report at the outset would be counterproductive.
In order to make constructive progress in the hearing, the Tribunal made a procedural adjustment of asking the Agency to forgo the opportunity to make an opening statement and to permit Mr Amgad to make his and then take some questions from the Tribunal in the hope he would feel sufficiently safe and settled to remain in the hearing and continue to cross-examination. In the event that he left the hearing, the Tribunal would receive submissions from the Agency on the weight, if any, that could be given to any of his testimony.
Fortunately, this approach did enable Mr Amgad to settle, and he was able to in the Tribunal's view participate effectively in the hearing through to completion. The Tribunal observed that he was able to draw on his previous experience as a lawyer in at times impressively putting forward his case. The Tribunal continued to encourage Mr Amgad to take breaks throughout the hearing and adjusted the timing and order of events, as Mr Amgad continued to experience moments of distress, fatigue and physical discomfort. The Tribunal also acknowledges the assistance to the Tribunal of Ms Maddox by virtue of her patient and non-adversarial approach throughout.

[60]

As is noted above, it is necessary to define Mr Amgad's impairments with some precision.
Before embarking on that task, the Tribunal observes that Mr Amgad has had largely enduring relationships with the practitioners whose reports and records are before the Tribunal. Although none were called to give oral evidence to the Tribunal, the longstanding nature of these relationships causes the Tribunal to attribute weight to their written materials. In summary I note the following treating relationships:
- Dr Colin Chu, Mr Amgad's treating GP from January 2011[52] until recently, or some 13 to14 years.
- Dr Rose Catali, Mr Amgad's psychologist since 2016[53] or 2017[54]
- Professor Les Barnsely, Mr Amgad's rheumatologist from approximately 2009 until approximately 2023.
Mr Amgad claims to meet the access criteria because of impairments arising from schizophrenia, PTSD, depression, anxiety, RA, OA and other degenerative disorders of the body[55].
As stated above, the Tribunal accepts Mr Amgad has a psychosocial impairment arising from the psychiatric conditions of schizophrenia, PTSD, severe anxiety and depression. The Tribunal has persuasive information from Dr Cantali, Dr Chu, Dr Chew, Mr Camacho, records from Concord Hospital and Mr Amgad as to the diagnoses, impairment, its permanency, impact (including negative economic and social) and resultant substantial reduction in Mr Amgad's function capacity in the domain of social interaction. Based on the evidence before the Tribunal, it finds that impairment to be:
- impaired emotional regulation[56] and judgment[57]
- reduced motivation, anxiety, agitation and hypervigilance[58]
- impaired concentration, memory and recall[59]
- paranoia [60] and delusions, especially concerning government, injustice and betrayal
Mr Amgad claims to have physical impairments arising from the medical conditions of rheumatoid arthritis (RA), osteoarthritis (OA), degenerative spinal disc disease, right facet arthropathy and cervical radiculopathy. He claims to experience resultant shoulder, knee, back and hand pain[61].
The Agency does not dispute the medical diagnoses. It agrees that in addition to his psychosocial impairments, Mr Amgad has a disability attributable to a physical impairment. This was also the Agency's position in the internal review decision.
The Agency does have a view, however, as to the specific parts of Mr Amgad's body these medical conditions affect. It states Mr Amgad's RA affects his hands, his OA affects his hands, right knee and left shoulder and his degenerative disc disease affects his cervical spine and right ankle. This is stated in its SOFIC, but no citation is provided to reference the evidence from which these conclusions are drawn.
The position of the Agency on the relevant question of law, being how the Tribunal should define the impairment or impairments is unclear. The Tribunal found the Agency at times conflated Mr Amgad's medical conditions with the concept of impairment, contrary to the jurisprudence summarised above.
The Tribunal notes that facet arthropathy is a degenerative condition affecting the lower back. Cervical radiculopathy is a condition that causes pain, weakness and numbness in the arm or hand due to degeneration of the spine and a compressed nerve. RA is an autoimmune disease that causes inflammation and degeneration in the joints and organs. It affects the whole body but may fluctuate as to the areas it impairs at any time and may go into remission. OA is also a degenerative disease, but it is a mechanical one and arises for example from joint dysfunction or injury to a joint.
The Tribunal has before it diagnostic information about Mr Amgad's relevant physical conditions referencing the period of approximately 1988 up to and including 2024. For clarity and simplicity, I present the key information below, noting the reports and records in which that information is contained, in chronological order.
In July 2017, Mr Amgad's treating rheumatologist, Professor Les Barnsley, Department of Rheumatology, Concord Hospital prepared a short note stating Mr Amgad has swelling, tenderness and pain in his ankles[62]. He wrote a longer letter to Dr Chu[63] noting that Mr Amgad's primary diagnosis is "RA (erosive) on MRI scan". He states:

[62]

In August 2017, Mr Amgad's then treating physiotherapist, Michael Sawan, reports of treating Mr Amgad for pain and reduced movement and strength in his left shoulder originating from a dislocation. Mr Sawan states his shoulder flexion is 105 degrees (from 180) and his horizontal flexion is 1/10 of the normal range of motion. He states Mr Amgad's shoulder impairment is causing pain in his cervical spine. Mr Sawan reports Mr Amgad experiences lower back pain, right knee pain and reduced knee flexion and extension. He reports Mr Amgad has RA that limits his hand movement and strength[65].
In Mr Amgad's January 2018 application for a Disability Support Pension, Dr Chu notes that Mr Amgad "has inflammatory arthritis which affects his hands primarily. An MRI of his hands in 2011 demonstrated synovitis and erosions"[66]. He notes that the RA began in 2007 and was diagnosed in 2011. He identifies longstanding joint symptoms and that the condition is expected to fluctuate. In addition, he notes "some ankle involvement which limits walking distance to 200 to 400 m".
In June 2018, Mr Amgad presented to Concord Repatriation General Hospital (Concord Hospital) Emergency with severe neck and back pain and difficulty moving his neck. The discharge summary and report states Mr Amgad is "well known to Professor Barnsley with erosive RA involving the c-spine". Mr Amgad had reported he had been using a neck brace with some symptomatic relief but had been advised by his doctor and physio to stop using it[67].
In October 2019, Professor Barnsley wrote to Dr Chu that he suspects the pain in Mr Amgad's right ankle is the result of an osteochondral lesion rather than a flare of his rheumatoid[68].
In a letter dated February 2020 to rheumatologist Dr Barnsley, Dr Chu notes Mr Amgad's 1988 patellar (knee) fracture resulting from a car accident[69], his diagnosis of PTSD which he links to Mr Amgad's refugee status, his diagnosis in 2009 with RA and diagnoses of cervical and lumbar disc herniation, to which he does not attach a date.
In April 2020, Professor Barnsley, confirms his suspicions regarding Mr Amgad's right ankle in writing to Dr Moulos at Concord Family. He refers to an MRI performed in February 2020 after Mr Amgad was allegedly assaulted and grabbed by the throat. That MRI revealed degenerative foraminal lesions, narrowing and osteophyte formations in his cervical spine[70]. Dr Barnsley notes he does not believe these degenerative markers are related to the recent assault as they are not traumatic lesions[71]. He adds "I am suspicious that the has a significant soft tissue injury and I have asked him to speak to you about having some exercise-based treatment, ideally with an exercise physiologist under the Medicare program"[72].
In August 2020, Professor Barnsley wrote to Dr Chu following a telehealth consultation with Mr Amgad. He notes that Mr Amgad's joints, other than his ankle for which he was awaiting surgery, "are not too bad". He continues that "the only place he has had persistent pain has been in the middle three fingers of the right hand. He has noticed some occasional swelling of the index finger but apart from this his joints have been quiescent"[73].
In September 2020, Dr Chu, completed a Supporting Evidence Form as part of Mr Amgad's first access request. There, he identifies RA as Mr Amgad's primary impairment. He identifies "osteoarthritis spine - cervical disc herniation" and 'obstructive sleep apnoea' as "other impairments"[74] and notes Mr Amgad's loss of hand dexterity and function[75]. He notes Mr Amgad experienced physical persecution in his home country[76]. He states Mr Amgad requires assistance with social interaction, preparing food and home maintenance[77]. He reiterates these views in a subsequent Supporting Evidence Form dated 5 February 2021
In October 2020, Dr Chu stated Mr Amgad had diagnosed RA and degenerative disc disease of the four levels of his cervical spine, osteoarthritis of his left shoulder following previous dislocations, and degenerative disease involving his right ankle[78].
In November 2020, Dr Chu elaborated stating the RA affects both wrists and hands, his neck and his knees. His knee impairments are compounded by a patellar fracture in 1989 resulting in osteoarthritis.
In February 2021, in a post-review report to Dr Chu, Professor Barnsley notes Mr Amgad's persistent problems with pain in his hands due to RA. In the examination on that day there was some tenderness in his finger joints and his elbows and shoulders were stated to be "ok".
In April 2021, Dr Chu states that Mr Amgad's MRI demonstrates right facet arthropathy and severe bilateral narrowing in his cervical spine leading to numbness in both hands and pain in his paravertebral (neck) muscles. He states Mr Amgad has rheumatoid arthritis which particularly affects his hand joints. He refers to an osteochondrial lesion on Mr Amgad's right ankle being repaired in October 2020. He concludes, "Mr Amgad is hence permanently disabled as a result of his rheumatological conditions"[79].
In April 2022, in a letter post periodic review from Concord Hospital Rheumatology to Dr Chu, Dr Katherine Nguyen notes Mr Amgad's diagnosis of RA, and OA of finger joints. She notes Mr Amgad reported mild stiffness in some of his fingers, no pain in his wrist, elbows, knees or feet but mild pain in his shoulder and ankles[80]. She notes the existence of MRIs demonstrating joint erosion but is not more specific.
In July 2022, Dr Chu prepared a similar report to that from April 2021 in which he repeats the above observations in relation to Mr Amgad's cervical spine and related impairments of hand numbness and neck pain and stiffness. He notes Mr Amgad's historical injuries to his right knee and left shoulder causing pain and impairment. He notes Mr Amgad's background of RA, especially affecting his hand joints and that Mr Amgad has lost a significant amount of hand dexterity. The RA has also caused Mr Amgad to be able to walk no more than 100 metres due to his involved joints.
In August 2022, Mr Amgad's physiotherapist, William Lee, provided a report in relation to Mr Amgad's attendance that day for ongoing neck and shoulder discomfort.
Also in August 2022, Michael Sawan produced a report similar to his previous. He confirms Mr Amgad's regular attendance at treatment for pain and limited movement in his left shoulder. Mr Sawan adds that lower back and knee pain and reduced mobility in his right knee limit Mr Amgad's walking ability and prevent him from kneeling and lunging[81].
In a letter from Dr Natasha Ung, Rheumatology at Concord, dated March 2023 to Dr Chu, Dr Ung noted the continued effect of the RA on Mr Amgad's hands and wrists and possibly the small joints of the feet[82].
In May 2023, Mr Amgad gave a written statement to the Tribunal and the Agency, in which he states he has been taking medication prescribed by his rheumatologist for eight years and he takes that mediation several times a day[83]
In September 2023, Mr Amgad reported to Dr Chew that he suffers from pain, loss of mobility and restricted function in a number of joints[84]. Dr Chew observed Mr Amgad as displaying pain behaviour during their consultation, having to change positions and get up[85].
In a Concord Hospital mental health assessment report dated 21 August 2024, Mr Amgad is noted as being diagnosed with seropositive RA in 2011 and has been medicated with methotrexate long term. He is noted as being diagnosed with OA of his finger joints and an osteochondral lesion on his right ankle[86]
In a brief statement created for this proceeding dated 26 September 2024, Mr Amgad states that in winter his RA is worse and affects all his joints[87].
Mr Amgad details the impact of the above conditions on his daily living in his statement to the Tribunal dated 4 May 2023 and provided further detail in this regard in his oral evidence. The Tribunal details that evidence further in its assessment of his claims against section 24(1)(c) of the NDIS Act, below.
At the hearing, Mr Amgad stated that he commenced trialling in 2024 a new medication by fortnightly injection - Umira 40g - for his RA under the supervision of a new rheumatologist at Concord Hospital as Professor Barnsley had retired. This is because the RA is getting worse. The new medication is also thought to have reduced risks of organ damage which is a potential side effect of methotrexate long term. The Tribunal observed several comments by Mr Amgad over the years in the documents returned by Concord Hospital that he is concerned about the potentially harmful side effects of methotrexate.
Mr Amgad confirmed he experiences stiffness with his joints and discs. He has a lot of problems, in his neck, back, ankle, shoulder and legs.
Considering the above evidence as a whole, the Tribunal makes the following findings of fact:

[69]

In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence and relevantly states:
- we need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
- We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
- Even when your condition or diagnosis is permanent, we'll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
- Generally, we'll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
- Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy it.
- Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
  - known - the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
  - available to you - we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
  - appropriate for you and your impairment - we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
  - evidence-based - there's proof the treatment is likely to be effective.
- When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
- If you're still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
- In some situations, it may be clear your impairment is likely to be permanent while you're still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it's clear you are likely to have a permanent impairment.
List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. The Tribunal notes that RA is one such condition.

[73]

In relation to Mr Amgad's treatment for RA, the Tribunal understands there is no dispute from the Agency that Mr Amgad's treatment is ongoing and substantial and there are no known, available and appropriate treatments that can come close to removing or curing the medical condition or its resultant impairments.
The Agency submits however that "in relation to the balance of Mr Amgad's physical impairments there is an absence of medical evidence before the tribunal to be positively satisfied he has engaged in all known, available and appropriate treatments"[94]. The position of the Agency has not changed in this regard since the internal review decision[95].
The Tribunal respectfully concludes it is not assisted by this submission for several reasons.
Firstly, the submission does not correlate with the facts of Mr Amgad's medical conditions and consequential impairments as the Tribunal has found them. The Tribunal has found that RA is a factor in all of Mr Amgad's physical impairments. The Access Guidelines are just that, meaning they are guidance only and the categorisations in List B assist decision makers by presenting a clear position for situations that are unambiguous and positively meet the criteria in Rules 5.4, 5.6 and 5.7. When the facts are more complex, however, as they are in this case as Mr Amgad's impairments cannot wholly be attributed to RA, even those in his hands where the evidence of RA is most emphatic, the Tribunal should whilst giving weight to the Agency's policy position on RA, progress to consider the impairments as the Tribunal has found them against each of Rules 5.4 to 5.7.
Secondly, the submission does not capture consideration of whether the envisaged treatment is "likely to remedy the impairment" and reflects an incomplete and incorrect view of the law. This is discussed above and unnecessary to repeat here.
Thirdly, the Respondent invites the Tribunal to rely on a passage in Mr William Lee's September 2022 report in which he states that his treatment of combined manual therapy and stretching has been used with good effects and he recommends Mr Amgad's physiotherapy be ongoing.
The Tribunal has some difficulty attributing the meaning to Mr Lee's statement the Agency proposes. Whilst the Tribunal accepts Mr Lee is recommending Mr Amgad continue with a treatment that is known - physiotherapy - and is appropriate - as it has been safely administered and the results have been positive - Mr Lee's statement cannot in the Tribunal's view reasonably be construed as an opinion as to the prospects of his treatment remedying the impairment. Mr Lee also does not comment on the availability of his treatment to Mr Amgad. Without diminishing the onus Mr Amgad bears to positively satisfy the Tribunal he meets all relevant statutory criteria, the Tribunal is not assisted by a submission that Mr Amgad's physical impairments are likely to be close to cured by available treatment without directing the Tribunal to tangible evidence of what that treatment could be and how it would be available to and appropriate for Mr Amgad.
The Tribunal now turns to address the evidence before it about the treatment Mr Amgad has received of his physical impairment, other than his rheumatology treatment which is addressed above. There is no contest between the parties, and the Tribunal accepts, that such treatment is confined to physiotherapy.
The earliest information before the Tribunal is of Mr Amgad's physiotherapist, Mr Sawan, who states in his August 2017 report[96] that he first treated Mr Amgad's physical impairments in September 2015. Mr Sawan states Mr Amgad had been seeing another physiotherapist before coming to him. Mr Sawan observed in August 2017 that Mr Amgad could lift 2kg in weight, had pain in his spine, left shoulder, lower back and right knee. He is unable to kneel or lunge and can walk no more than 100 metres without resting.
In May 2018, Dr Chu referred Mr Amgad to Mr Sawan under the Enhanced Primary Care Program[97], now known as a Chronic Disease Management Plan. This document is included in the RTB and unaccompanied by submission from the Agency. The Chronic Disease Management Plan Program is aimed at the management of chronic, that is, persistent, diseases.
In November 2019, physiotherapist Kelly Jones writes to Dr Chu after Mr Amgad's initial consultation for concerns with lifting and neck movement. She notes reduced cervical and thoracic range of motion as well as shoulder range of motion. She concludes Mr Amgad "will require rehabilitation to improve his cervical and thoracic range of motion, as well as shoulder range of motion, functional movement patterning and strengthening to assist with offloading his neck"[98].
In April 2020, Professor Barnsley states to Dr Chu, after examining Mr Amgad following an alleged assault involving injury to his neck, "I am suspicious that the has a significant soft tissue injury and I have asked him to speak to you about having some exercise-based treatment, ideally with an exercise physiologist under the Medicare program"[99].
In May 2020, Dr Chu notes Mr Amgad is requesting a Care Plan for a private physio review near Five Dock. The referral appears to relate to Mr Amgad experiencing back pain from a recent assault and resultant soft tissue injury[100].
In October 2020, Dr Chu opines Mr Amgad requires physiotherapy on a weekly basis in order to adequately treat his physical impairment and maintain his independence[101].
In April 2021, Rachel De Claro, Support Coordinator, states in her letter of support for Mr Amgad's first access request that Mr Amgad has been on the Disability Support Pension since 2007.
In July 2022, Dr Chu writes that Mr Amgad is having regular physiotherapy[102]. He states in September 2022 that Mr Amgad requires regular physiotherapy to prevent deterioration of functional capacity[103].
In August 2022, Mr Sawan writes, by and large, the same letter as he authored in August 2017. The Tribunal is therefore unclear whether Mr Amgad continued to receive treatment from Mr Sawan after commencing treatment with Mr Lee.
In September 2022, Mr William Lee writes that he has been treating Mr Amgad since 2019 for ongoing issues in his neck and shoulders. Mr Lee notes, as stated above, the positive effects of the combined manual therapy and stretching with which he was treated and that he would benefit from ongoing physiotherapy. Consultation records obtained under summons date from 30 June 2020 to 13 October 2022 and suggest that Mr Amgad attended at least four appointments with Mr Lee within a 12-month period in about 2020 and 2022.
In November 2023, Mr Camacho writes about Mr Amgad's attempts to find a psychiatrist who bulk bills as his financial situation does not enable him to afford a consulting psychiatrist. Mr Camacho notes Mr Amgad's exemplary compliance with his treatment regime[104].
In his May 2023 Statement, Mr Amgad confirms he receives the Disability Support Pension. He sees the physiotherapist through the five free Medicare sessions. He cannot afford more sessions and so he endures pain. He reiterated these claims at the hearing.
In his oral evidence, Mr Amgad said he attends several different therapists at Five Dock Physio. He stated that occasionally the practitioners there would give him a treatment free of charge. The physiotherapists have told him that the number of treatments subsidised by Medicare is insufficient for his needs.
Counsel for the Agency drew the Tribunal's attention to Mr Amgad's inability to recall the last time he went to the physiotherapist. The Tribunal draws no adverse conclusions from this evidence. The Tribunal understood Mr Amgad to be a precise person, to whom it is important to be exact and honest. Mr Amgad stated on several occasions in the hearing that he could not remember when events occurred. He makes this comment frequently in his May 2023 statement. The Tribunal understands Mr Amgad has a tendency to say he cannot recall when something happened because he cannot remember the precise date. In reaching this conclusion, the Tribunal also references its finding as to his impaired memory and recall of information and details.
Considering the above evidence as a whole, the Tribunal makes the following findings of fact:

[78]

Section 24(1)(c) requires that Mr Amgad's impairments result in substantially reduced functional capacity to undertake one or more of the following life activities: communication, social interaction, learning, mobility, self-care or self-management. He need only establish he experiences substantially reduced functional capacity in one life activity area[105] .
Given the cumulative nature of section 24, the Tribunal must answer this question only with respect to the impairments it has found to be permanent or likely to be permanent, in satisfaction of section 24(1)(b). The Tribunal notes in this matter that all of Mr Amgad's impairments have been found to be permanent.
The Access Guideline provides further content to the range of tasks and actions that comprise each life activity area.
As stated above, although the Tribunal is satisfied that Mr Amgad has substantially reduced functional capacity in social interaction due to his permanent psychosocial impairments alone it must still assess Mr Amgad's claims against the criteria in section 24(1)(c) with reference to all his permanent impairments.
Based on the evidence of Dr Cantali[106], Mr Camacho, Dr Chew[107], Ms Sale and Mr Amgad, the Tribunal considers that the impact of Mr Amgad's psychosocial impairments includes and is limited to the activity areas of communication, social interaction, learning, self-care and self-management. It considers the impact of Mr Amgad's physical impairment includes and is limited to the activity areas of mobility and self-care. The Access Guideline confirms that self-management concerns cognitive and mental ability, rather than physical ability, to perform tasks. There is no medical evidence before the Tribunal that Mr Amgad's physical impairments impact his functional capacity in communication, social interaction, learning and self-management.
The Tribunal acknowledges that whilst there is evidence before it that Mr Amgad has some reduction in his functional capacity in the activity areas of communication, learning and self-management, that evidence is limited. For that reason, and because his physical impairments do not impact them, the Tribunal assesses and determines the impacts of his psychosocial impairments on those activity areas in a summary fashion here.
The Tribunal accepts based on the documents and oral evidence before it that by reason of his psychosocial impairments, in particular delusions, what Mr Amgad is saying can be difficult to follow. He may get in trouble with police and other arms of government. His psychosocial impairments can cause him to have difficulty interpreting information and he may lack some insight into his condition of schizophrenia and how it manifests. He has limitations to his concentration, memory and recall and his lack of focus can cause him to be unable to complete a task and lose track of the passage of time. However, the evidence is overwhelmingly that Mr Amgad is an intelligent person who despite his impairment has gained knowledge and insight into important aspects of his life, including his RA, his engagements with the NSW Department of Housing and these Tribunal proceedings, and continues to manage them. Despite being highly agitated at the commencement of the hearing, Mr Amgad made himself understood and his engagement still reflected a sophisticated understanding of the process he was in and the role of Agency and Tribunal. He engaged well with the interpreter. An August 2024 mental health assessment report notes Mr Amgad as "able to safety plan, future focused and externally motivated to gain NDIS funding"[108] He has been able to determine and put in place systems to manage his daily life such as arranging to pay his household bills by direct debit and internet banking[109] and placing his medication on the kitchen benchtop. He attends his medical appointments with SMS reminders[110] and can proactively attend the hospital or his GP if his condition is bad[111]. Based on this information, and in the absence of further persuasive information to the contrary, the Tribunal is not satisfied Mr Amgad has substantially reduced functional capacity in the activities of communication, learning and self-management. The Tribunal agrees with the Agency in this regard.
The Tribunal proceeds to assess Mr Amgad's functional capacity in the activity areas of mobility and self-care.
Rule 5.8 of the Access Rules is the only rule that applies to the assessment under section 24(1)(c). The courts have determined Rule 5.8 is a "deeming provision"[112]. It deems the applicant to meet the requirements of section 24(1)(c) if one of the three alternative scenarios stated therein applies[113]. Rule 5.8 states:

[83]

In practice, the application of Rule 5.8 arises where there is evidence before the Tribunal the applicant uses, or is recommended to be using assistive technology, equipment - other than commonly used items such as glasses - home modifications, or receives or is recommended to be receiving, assistance from others to participate in the activity.
There is no dispute between the parties and the Tribunal also accepts, that Mr Amgad uses a single prong walking stick to carry out tasks within the activity area of mobility. The Tribunal addresses that evidence in detail below. There is also undisputed evidence in the report of Ms Sale that a number of hand-held items of low-cost assistive technology are recommended to Mr Amgad to assist with his difficulties with hand strength and dexterity and joint mobility in carrying out tasks of self-care. Similarly, that Mr Amgad has home modifications that were implemented by the NSW Department of Housing in the form of handrails in his bathroom in his current home. Mr Amgad told the Tribunal he was motivated to pursue NDIS access in relation to his physical impairments because his unsafe and wobbly shower screen had not been fixed by the Department of Housing. The Tribunal agrees with the Agency that to fix the shower screen would be a home repair rather than a home modification. However, the Tribunal also notes that Ms Sale recommends the shower screen be removed altogether to improve ease of access to the shower recess.
Out of this, an issue of law arises as to whether a walking stick is "equipment" and, if so, a "commonly used item". The Tribunal notes that the exception of a commonly used item applies only to equipment. It does not apply to home modifications or items of AT that are not equipment.
The Tribunal is assisted by the Agency's post hearing written submissions on this issue as well as their submissions at the hearing. Those submissions direct the Tribunal's consideration to differing positions of this Tribunal and the former AAT on the questions of whether a walking stick is only an item of "assistive technology" and therefore to which the exception of "commonly used items" does not apply; whether it is "equipment", and, if so, whether it is a "commonly used item" of equipment. The Agency contends the latter is the correct position to follow. The Agency noted that neither assistive technology nor equipment are defined in the Rules[117]. The Tribunal has considered those submissions in detail, including the relevant AAT and ART decisions referenced within them.
The Tribunal notes the Agency adopts the World Health Organisation in its Operational Guideline on Assistive Technology (AT Guideline). It notes the current version of AT Guideline is dated December 2023 and unchanged from the version considered in the 2024 and 2025 Tribunal decisions to which this Tribunal is referred to. That definition states:

[102]

Ms Sale did not make a recommendation for a walking stick. She does however conclude that Mr Amgad's use of the stick is appropriate and suitable for him given his observed level of mobility[139]
Ms Sale stated at the hearing that she did not recommend further equipment or modifications to assist with mobility because they were not needed. As Mr Amgad was mobilising reasonably safely and independently with his walking stick, certainly around all internal and external areas his home, he did not present as needing more stable mobility items such as a four-wheel walker or walking frame. She did not observe any significant wincing or grimacing pain behaviours when he was performing transfers or moving about his home.
She noted that Mr Amgad did not need to rest or lay down during the two hours of her assessment.
Dr Chu, in his supporting evidence form to Mr Amgad's September 2022 access request, has marked "mobility" as an activity for which Mr Amgad does not require assistance. There are three pro-forma check boxes for marking "yes" if the prospective participants requires "special equipment", "assistive technology" or "home modifications". These boxes are blank as is the space for him to detail the assistance required[140]. In November 2020, Dr Chu notes Mr Amgad as being able to walk 200 metres before needing a rest break[141]. In 2018, he writes in support of Mr Amgad's disability support pension that he has some ankle involvement which limits his walking distance to 200 to 400metres[142]
Mr Sawan noted in August 2017 that Mr Amgad is unable to walk more than 100 metres without resting, he is unable to kneel or lunge and his hands have limited movement and strength. Mr Amgad is unable to mow the lawn and perform some daily tasks. Mr Sawan did not give evidence. Although it is not stated whether these limitations are reported or observed Mr Sawan is specific about the degrees of movement in Mr Amgad's joints and the conclusions are consistent with other evidence.
Dr Cantali does not positively identify Mr Amgad as having diminished functional capacity in the domain of mobility in her various reports and forms. She positively states he has "no issue" with his mobility in September 2022[143].
There are a number of reports amongst the summonsed material from Concord hospital indicating that Mr Amgad is not fully compliant with his RA medication. The Tribunal understands his non-compliance is at least in part due to his concerns about the side effects of that medication. In a report dated 29 March 2022, Dr Katherine Nguyen notes that Mr Amgad reported that he had self-reduced his medication and that the behaviour is repeated and the subject of ongoing discussion with him. She states:

[106]

In considering whether Mr Amgad's circumstances positively satisfy the deeming provision the Tribunal notes the view of the ART in Foster, that "the purpose of the Rule .... is to enable the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule".
In the Tribunal's view, the circumstances of Mr Amgad's mobility are not such a clear case.
The Tribunal also notes that the Agency's Access Guideline envisages that equipment is prescribed by the prospective participant's doctor, allied health professional or other medical professional for Rule 5.8(a) to be satisfied.
The information before the Tribunal directed to the specific question asked of it by Rule 5.8, being an assessment of whether Mr Amgad is unable to effectively or completely participate in the activity of mobility, or perform the required tasks of mobility, without his walking stick in particular, but also without the grab rails already installed and proposed by Ms Sale, is limited. Ms Sale's assessment is, as noted above, conducted with acceptance that Mr Amgad is using the walking stick. Whilst Ms Sale confirms the walking stick is appropriate and suitable for him, and her evidence in this regard assists and is given weight to by the Tribunal, her assessment is nonetheless not directed to answering the question posed by Rule 5.8. Ms Sale did not specifically direct her attention to determining what Mr Amgad could or could not do without the walking stick.
The Tribunal places weight on the evidence of Dr Chu, who at several opportune points in time does not positively indicate Mr Amgad has a need for supports for his mobility.
The Tribunal places weight on the decision by Mr Amgad to prescribe himself the walking stick, the discouragement of his GP of many years to his continuous use, and the absence of any commentary on the issue in the reports from his physiotherapists. It places weight on the records of Concord hospital noting an ongoing issue of non-compliance by Mr Amgad with this RA medication and the consequential negative impact upon Mr Amgad's RA symptoms. From this, it draws a conclusion that the impacts of his RA may be improved with improved compliance as well as notes a degree of conscious rejection of the professional advice of his treating practitioners.
Whilst it acknowledges Mr Amgad's claims that his physical impairments have worsened since Ms Sale's assessment as well as his claims to fall often, the Tribunal finds it does not have sufficient evidence to make any meaningful findings as the frequency, circumstances in which Mr Amgad has fallen and causes thereof. Ms Sale does not address claims of falls in her report and the Tribunal does not have information before it that could explain how Mr Amgad has progressed from a no falls risk, in 2020, to his claimed present day experience of falling often, with no records to support. Similarly, the evidence is not sufficient for the Tribunal to reach any meaningful conclusions in response to Mr Amgad's claims the impact of his impairments has worsened. The Tribunal generally found Mr Amgad's evidence at hearing to be consistent with his claims as stated in his May 2023 statement.
Whilst the Tribunal accepts Mr Amgad has a loss of functional capacity across all tasks comprising the activity of mobility, the evidence is unclear as to the degree to which Mr Amgad relies upon his walking stick in effectively or completely performing those tasks. The Tribunal accepts the evidence in relation to the task of standing is more persuasive. However, the extent of his reliance upon his walking stick for the task of mobilising and transferring to and from standing is unclear.
Mr Amgad did not make Dr Chu, Mr Lee, Mr Sawan or Ms Cantale available as witnesses. Had he done so, this may have assisted the Tribunal to resolve some of these anomalies and gaps in the evidence.
Accordingly, on the evidence before it, the Tribunal is not satisfied that the terms of Rule 5.8 are met in relation to the activity of mobility. The Tribunal does not accept Mr Amgad is unable to effectively or completely participate in the activity or the tasks in the activity, without his walking stick and his current and recommended grab rails.
Equally having regard to the above evidence and analysis, the Tribunal is not satisfied that Mr Amgad's functional capacity in the activity area of mobility is substantially reduced.
In so concluding, the Tribunal also places weight on Ms Sale's oral evidence that she did not consider any more stable support such as a four-wheel walker was needed by Mr Amgad at this time.

Amgad and National Disability Insurance Agency (NDIS) [2025] ARTA 1451 (15 August 2025)

At a glance

Court

Decision date

Source

Judgment (165 paragraphs)

Amgad and National Disability Insurance Agency (NDIS) [2025] ARTA 1451 (15 August 2025)

Legislation Cited (10)

Cases Cited (1)