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

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

Beezley v Repatriation Commission [2015] FCAFC165

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

G v Minister for Immigration and Border Protection [2018] FCA 1229

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

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

1. This application is about whether the Applicant, Mr Vyacheslav Arkhipov, should be granted access as a participant in the National Disability Insurance Scheme (**'**NDIS'). I will refer to him as either Mr Arkhipov or the Applicant throughout this decision. Mr Arkhipov seeks review of a decision made on 7 October 2022 by a "reviewer" under ss 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') ('Decision under Review').[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (either termed 'the Respondent or 'the Agency'), dated 19 August 2023 not to grant access to Mr Arkhipov as a participant in the NDIS.
2. The Administrative Review Tribunal's ('Tribunal') jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) ('ART Act'), operating in conjunction with

s 103 of the NDIS Act. 3. For the reasons set out below, the Decision under Review is affirmed as there is insufficient evidence to establish that Mr Arkhipov meets the access requirements under s 21 of the NDIS Act.

1. Mr Vyacheslav Arkhipov is a 48-year-old man who lives on the Central Coast in New South Wales. He lives in a privately rented property with his wife and two school age children. Mr Arkhipov has the following diagnosed medical conditions:

1. Cerebellar dysfunction is a condition characterised by difficulty with coordination, imbalance, and gait disorders that can develop secondary to underlying causes, including vascular, autoimmune, infectious, and neoplastic etiologies.[2]
2. Arising out of these various medical conditions, Mr Arkhipov reported that he experiences a range of symptoms:
   • gait issues
   • balance issues, including vertigo; and
   • nystagmus
3. The Agency has acknowledged that Mr Arkhipov's cerebellar dysfunction is a permanent condition in accordance with s 24(1)(b) of the Act:[3]

1. On 14 March 2023, Mr Arkhipov applied to the Agency seeking to be granted access to the NDIS.
2. The Respondent provided its decision on 23 July 2023 after assessing Mr Arkhipov's eligibility to access the scheme. It advised that he had not met the eligibility criteria to be granted access to the scheme ('the Initial Decision').
3. On 8 September 2023, Mr Arkhipov requested the Respondent conduct an internal review of the Initial Decision.
4. The Respondent conducted its internal review, and on 2 November 2023 advised that it had confirmed the Initial Decision to find Mr Arkhipov was not eligible to gain access to the scheme ('the Reviewable Decision').
5. The Agency advised that the basis for its decision was the following:
   • That he had not established that his impairments are permanent.
   • That he had not established that he has a substantially reduced functional capacity in the domains of communication, social interaction, learning, mobility and self-care or self-management.
   • That he had not established that the impairments affect his capacity for social and economic participation.
   • That he had not established that he required lifetime NDIS supports.
   • That he had not established that he met the early intervention criteria.

DECISION UNDER REVIEW AND APPLICATION FOR REVIEW TO THIS TRIBUNAL

1. As noted in paragraph 25 above, the Reviewable Decision is the decision by the Respondent, on 2 November 2023, that Mr Arkhipov had not established that he met the eligibility criteria to be granted access to the scheme.
2. On 2 November 2023, Mr Arkhipov applied to the then Administrative Appeals Tribunal (AAT), for the AAT to conduct an independent review of the Reviewable Decision.
3. In his application for review, Mr Arkhipov noted the following as reasons why he considered the Reviewable Decision was wrong:

"I disagree that I do not meet the disability criteria to be able to get access to the NDIS".

1. As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process ('the T Documents'). Of potential relevance to this decision are the following reports and other documents:
   • MRI Report, Dr Brett Lyons (Radiologist) dated 10 October 2018.
   • Letter, Dr David Puglisi (General Practitioner) dated 21 January 2019.
   • Pensioner Concession Card.
   • Letter, Dr Ghassem Rostamian (General Practitioner) dated 5 August 2019.
   • Further letter from Dr Rostamian dated 24 March 2020.
   • Letter Dr Yun Tae Hwang (Neurologist) dated 25 March 2020.
   • Further letter from Dr Rostamian dated 23 August 2022.
   • Further letter from Dr Rostamian dated 23 August 2022 re MRI order Form.
   • Further letter from Dr Hwang dated 21 November 2022.
   • Letter from Dr Rostamian dated 27 January 2023.
   • Centrelink Consent Form dated 10 February 2023.
   • Report from Dr Christopher Wong (Radiologist) dated 9 April 2023.
   • Assessment Services Report from Dr Rostamian dated 2 May 2023.
   • Letter from Dr Rostamian dated 19 June 2023.
   • Letter from Dr Hwang dated 27 June 2023.
   • Letter from Dr Hwang dated 1 August 2023.
   • Internal Review Decision dated 2 November 2023.
   • Undated letter from Peter Smits (Clinical Nurse Specialist).
   • Blood test results.
   • Health records for Mr Arkhipov.
2. The following additional documents were lodged with the Tribunal on Mr Arkhipov's behalf:
   • A statement of lived experience dated 11 June 2024.
   • A Medical Assessment form for Housing NSW prepared by Dr Rostamian dated 28 February 2024.
   • Email from Services Australia to Dr Rostamian dated 26 April 2023 and Dr Rostamian's response dated 2 May 2023.
   • Carer Payment/Allowance Medical report from Dr Rostamian dated 31 October 2020.
   • Letter from Dr Rostamian responding to targeted questions dated 4 March 2024.
   • Email from Mr Arkhipov dated November 2024.
   • Letter from Dr Rostamian dated 6 February 2025 recording Mr Arkhipov's recent fall and broken elbow.
   • Letter dated 31 January 2025 from Mr Arkhipov's letting agent advising of termination of his lease.
   • Diagnostic imaging of Mr Arkhipov's fractured elbow.

1. In his statement, Mr Arkhipov stated that he has had a neurological condition since February 2018.
2. The effects of that condition are:
   • my sense of balance, with consequences like frequent falls, especially on uneven surfaces, difficulty navigating stairs, vertigo.
   • my ability for fine hand movement, with consequences like difficulties for self-care, various every-day tasks.
   • my eyesight, with consequences like difficulties reading text, seeing small things, recognising people's faces and so on.
   • my overall feeling of well-being, with consequences like frequent feeling of tiredness, apathy, feeling low, my sleep and sleep patterns.
3. These effects can vary considerably depending on a range of factors such as the time of day, whether he has had a rest, whether he has regular exercise, and spending time outdoors.
4. The impacts of his disability in his daily life are:
   • I often need support from my carer when taking showers. If I lose a sense of balance while showering, I may fall on a wet slippery concrete floor inside a glass shower cabin. My weight of 130kgs makes the showering experience very difficult for me and my carer.
   • I have difficulties and my carer helps me with cooking, cleaning, dressing myself, driving me around. My carer often assists me while I'm walking and exercising.
   • I have sleep problems. I have difficulty falling asleep and am very sensitive to noise. If I don't have enough sleep, it makes the negative consequences of my condition much more severe.
5. The additional support Mr Arkhipov considers he requires are:
   • My place of living needs modifications to be done railings, shower cabin, no steps or stairs, special furniture.
   • I need regular exercises to help maintain my well-being and alleviate negative consequences of my condition.
   • I need help with maintaining our car as it's vital for me moving around and Centrelink payments which I currently receive are not enough to adequately maintain the car.
   • I need help with fixing my sleep issues: separate room, different mattress and pillows, medication.
   • I need nutritional support to help me with my obesity.
   • I need help with maintaining the lawn in my place of living.
   • I need assistive technology with my computer & tv. I need a computer & tv with big screens as I can't see anything on small screens.
   • I need emotional support to help me recover.
   • I need financial help to cover my regular visits to my neurologist and other specialist doctors.
6. Mr Arkhipov noted that the list of things of the additional support he requires is probably not quite full and requires more discussion with the Agency to fine-tune the bullet points and potentially add more.

1. The Agency requested that Mr Arkhipov consent to a functional capacity assessment by an Occupational Therapist as an Independent Medical Expert (IME) who would conduct an independent functional assessment of Mr Arkhipov and then provided a written report.
2. Mr Arkhipov did not consent to undergoing such as an assessment and therefore the Agency has not submitted any independent assessment report as to Mr Arkhipov's functional capacity.

1. During the conduct of the Tribunal's pre-hearing procedure, the Respondent filed with the Tribunal, Statements of Facts, Issues and Contentions (SFIC).
2. This will be referred to throughout this decision.

1. Mr Arkhipov's most recent statement of position is outlined in his Statement of Issues (SOI) dated 27 September 2024.
2. In that Statement, Mr Arkhipov stated as follows:

In August of 2024 I was sick with what seemed to be influenza. Apart from the usual symptoms that people experience when they get infected with influenza or the common cold, in my situation it makes the effects of my neurological condition much more pronounced (to the worse). The most acute period lasted for about two weeks.

During those two weeks I could hardly get up from bed. Normally as I was trying to get up, I'd experience nausea and bouts of vertigo. It also affected my mood, I felt depressed. I had to rely on my wife's help to provide me with everyday care.

• Helping me to walk to the shower and the toilet. While showering I was often losing my balance. Only thanks to my wife's help, I managed to avoid serious falls and injuries.
• Obviously, I couldn't cook during these challenging times. My wife was cooking and feeding me.
• I couldn't do my usual exercises and walking. That by itself made my conditions worse. Without exercise, my condition spirals down rapidly.
• I could only "watch" tv to try to get my mind off my situation. My eyesight was also affected, and I couldn't clearly see the picture. Nystagmus and double vision become much more pronounced.
• My sleep pattern was disturbed, and I was feeling tired constantly. Not being able to sleep was driving me mad.

1. As can be seen from the above statement, it does not specifically address the section 24(1) criteria.
2. However, I have taken the view that as Mr Arkhipov continues to believe he should be granted access to the NDIS, his position is that:
   • His condition is permanent and all reasonable treatment options have been trialled.
   • His impairments cause him to have substantially reduced functional capacity in all six areas, and particularly in the areas of mobility, communication, and social interactions.
   • His impairments affect his capacity for social and economic participation.
   • He is likely to require support under the NDIS for his lifetime.
3. In relation to Mr Arkhipov's likely need for NDIS support for his lifetime, I consider that his position is that as his conditions are permanent and he has a substantially reduced functional capacity, this will likely require him to have NDIS support for his life. Additionally, there is no alternative service system that could best meet his needs.

1. The Respondent's position was set out in its most recent SFIC dated 21 March 2025.
2. Before outlining its contentions as to which elements of s 24(1), namely impairments, permanence, substantially reduced functional capacity, social and economic participation, and requiring lifetime NDIS support disability, had not been established, the Agency conceded the following criteria had been met:
3. That the following conditions constitute a disability under s 24(1)(a) of the Act:
   • Neurological impairments attributable to cerebellar dysfunction including gait issues, balance issues including vertigo and nystagmus.
4. The available evidence established that Mr Arkhipov's impairments are permanent under s 24(1)(b) of the Act.
5. That Mr Arkhipov's cerebellar dysfunction affect his capacity for social and economic participation under s 24(1)(d) of the Act.
6. The Agency submitted that the current evidence did not establish the following:
   • That while Mr Arkhipov's neurological impairments have resulted in him having a somewhat reduced functional capacity, that did not result in him having a substantially reduced functional capacity in any of the six domains contained in s 24(1)(c).[4]
   • That he required NDIS support for his lifetime (s 24(1)(e). In this regard the Agency submitted firstly that as it had not been established that Mr Arkhipov had a substantially reduced functional capacity, he would not therefore require lifetime support. Alternatively, the Agency outlined several alternative support services available to Mr Arkhipov and therefore his disability support needs were most appropriately met through those other support services.[5]
7. In this regard, the Agency stated that Mr Arkhipov had submitted little evidence which established what he can and cannot do and submitted that therefore could not satisfy the Tribunal that he suffers from a substantial reduction in functional capacity.
8. The Agency also provided submissions addressing Mr Arkhipov's eligibility for early intervention under s 25 of the Act.

1. Taking account of those eligibility criteria that the Respondent has acknowledged Mr Arkhipov meets, the matters to be determined by the Tribunal are the following:
   • Does Mr Arkhipov have substantially reduced functional capacity in any of the domains listed in s 24(1)(c) of the Act?
   • Is Mr Arkhipov likely to require support under the National Disability Insurance Scheme for his lifetime?
   • Does Mr Arkhipov meet the early intervention criteria in s 25 of the Act?

1. Subsection 21(1) of the NDIS Act provides that a person satisfies the access criteria if they meet:
   • the "age requirements" under s 22.
   • The residence requirements" under s 23.
   • The "disability requirements" under s 24 (as set out in paragraph [72] below) or the "early intervention requirements" under s 25 (as set out in paragraph [74] below).
2. The disability requirements are contained in s 24 of the NDIS Act and provide as follows:

(5) 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).

1. The requirements of s 24 of the NDIS Act are cumulative and all criteria must be met in order for access to be granted to the scheme.
2. The early intervention requirements are contained in s 25 of the NDIS Act and provide as follows:

(5) 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...

1. Likewise, the requirements of s 25 of the NDIS Act are cumulative and all criteria must be met.
2. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('the Access Rules').

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

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

1. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines ('the Access Guidelines').
2. There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[6] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[7] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[8] where Mortimer J (as her Honour then was) held:

Justice or injustice is not found within a policy: It is found by looking at the overall circumstances of an individual's case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it...[9]

1. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Arkhipov meets the disability requirements or the early intervention requirements.
2. Whether Mr Arkhipov meets the disability requirements or the early intervention requirements, is a question of fact to be determined on the balance of the available evidence. The Tribunal is required to undertake a 'fact-finding task',[10] with a relatively high degree of precision and be positively satisfied.
   • The Tribunal notes that in Mulligan v National Disability Insurance Agency,[11] Mortimer J held that the legislation, as it relates to the access criteria, requires 'a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted'.[12] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster,[13] also outlined that the legislation requires a functional, practical assessment of what a person can and cannot do.[14]
3. The hearing of the application took place via video link over two days on 30 April and 1 May 2025.
4. Mr Arkhipov was self-represented. The Agency was represented by Ms Michelle Jenkins of Counsel instructed by Ms Amanda Whitely of Maddocks Lawyers.
5. The parties agreed that the areas in contention between the parties were:
   • Whether Mr Arkhipov's functional capacity in each of the six domains was substantially reduced under s24(1)(c).
   • Whether Mr Arkhipov was likely to require NDIS support for his lifetime as required by s24(1)(e).
6. Ms Jenkins did indicate that while the Agency had conceded that Mr Arkhipov's neurological condition was permanent, it reserved the right to reverse this position subject to any medical evidence that may be given. Otherwise, she stated the Agency would rely on the outline of its position in its most recent SFIC.
7. Also, Ms Jenkins asked if Mr Arkhipov would agree that the assessment of his case would be limited to his neurological impairment and would not extend to any impairments arising out of the injuries he sustained in a fall in February 2025.
8. Mr Arkhipov agreed that he was agreeable to that limitation.
9. Mr Arkhipov also advised me that he was hoping to have his Neurologist, Dr Hwang give evidence to the Tribunal but had yet to hear from the doctor as to his availability on either the first or second day of the hearing. He later advised the Tribunal by email that Dr Hwang had responded and had confirmed that he would not be available as he was booked out all day on 1 May seeing patients.
10. With those preliminaries resolved, Ms Jenkins asked several questions, however before she did so, I asked several preliminary questions of Mr Arkhipov.

1. I asked Mr Arkhipov what supports he believed the NDIS could assist him with, if he was to be approved for access to the Scheme.
2. In response Mr Arkhipov hoped that the Agency could assist him with finding housing as he has been given a Notice to Vacate from his existing private rental property. He has lodged an appeal with the New South Wales Civil and Administrative Tribunal (NCAT) which has yet to be heard.
3. He has been approved for priority housing by Housing New South Wales however he has been advised it may take some time before a property which meet his particular needs would become available and offered to him.
4. He hoped that he could receive some assistance from the Agency in either providing him with a property or some assistance in looking for another private rental property.
5. He said that he would also benefit from some assistance in his home including help with managing his lawn and garden and some domestic tasks such as cooking.
6. I advised that under its legislation, the Agency regarded general (as opposed to disability specific) housing as a day-to-day expense that was the responsibility of a participant to fund.
7. Ms Jenkins advised Mr Arkhipov that she would be asking him a range of questions relating to the section 24(1)(c) criteria and would be referring to the following documents:
   • Mr Arkhipov's Statement of Lived Experience.[15]
   • Mr Arkhipov's email of 30 September 2024.[16]
   • His email of 11 February 2025.[17]
   • His email of 14 March 2025.[18]

1. Ms Jenkins put it to Mr Arkhipov that he did not have any problems with being able to communicate.
2. In response, Mr Arkhipov said that he did not agree that he did not have such difficulties stating that he had trouble with communicating when he was tired. He also had difficulties responding to emails when he was having a bad day as he can't see clearly and experiences tiredness.
3. When Ms Jenkins asked if he agreed that there was no medical evidence establishing that he needed assistance with communication he responded that he was not sure that was the case.

1. Ms Jenkins referred Mr Arkhipov to his responses to questions 26 to 28 from the targeted questions the Agency sent him.
2. In those answers Mr Arkhipov stated:
   • That he speaks with family and friends by phone several times a week.
   • That he interacts in person with his family every day.
   • That he does not interact with family or friends by social media.
3. He was asked by Ms Jenkins if he thought he had a substantial reduction in his capacity for social interactions. Mr Arkhipov appeared not to understand this question.
4. When asked if he still takes walks with his family or visits friends, he agreed this was still the case, however he was not able to see his friends as often as he would like to.

1. Ms Jenkins put it to Mr Arkhipov that there was no evidence that he had any cognitive impairments or any form of intellectual disability.
2. Mr Arkhipov appeared to not understand that question and Ms Jenkin's rephrased that question to ask if he considered he had difficulty learning.
3. In response he said that he found reading difficult, found learning a challenge and did not consider he would be able to do a university or TAFE course.

1. Ms Jenkins asked Mr Arkhipov about the exercise program he was advised to follow in 2019.[19]
2. He was asked if he had declined having his physical assessment conducted in his home. Mr Arkhipov could not remember if that was the case.
3. Ms Jenkins referred to the physiotherapist's assessment report.[20] He also could not recall the date a physiotherapist conducted the capacity assessment.
4. He said that the physiotherapist asked him to demonstrate walking.
5. He attended the exercise program regularly for about a month, then stopped attending for another month and then did two more sessions.
6. He stopped attending as he felt sick while attending the sessions.
7. He was asked about who attended the assessment and whether it was supervised. Mr Arkhipov indicated that he could not recall these details as it happened six years ago.
8. He is not attending physiotherapy now.
9. He attempts to exercise when he can and have walks but can't do this when he is feeling dizzy.
10. He said that when he can exercise, he feels better however his capacity to do so depended on whether he was experiencing bad days.
11. When asked if he was able to drive his car, noting that Dr Rostamian in his May letter said he does not drive, Mr Arkhipov said that depended on what part of his condition's cycle he was in, sometimes he is able to drive and other times he can't. He also stated that he has no restrictions in place on his driving licence.
12. Ms Jenkins noted that Mr Arkhipov's weight was 130 kilograms and asked him if any of his doctors told him that his weight may be affecting his levels of fatigue. In response he said that no one has suggested that to him.

1. Ms Jenkins referred Mr Arkhipov to the 2019 physiotherapy assessment which noted that:
   • He was independent in toileting but needed to brace himself when showering.
   • His wife attends to all the domestic tasks.
   • That his wife does the grocery shopping.
2. Mr Arkhipov agreed that was the case, however he would help his wife with various household tasks where he can.
3. His wife currently receives the Carer Payment.
4. He said that his doctor had recommended that he needs minor property modifications such as handrails in the bathroom however he is not allowed to install them in his current rental property.
5. His wife will assist him with showering and getting dressed mainly to prevent him falling while doing so.
6. He could do simple cooking such as making toast.
7. Ms Jenkins asked him about his email from September 2024, in which he outlined the negative affects when he had influenza. He said that his capacity did decline at that time and his wife needed to help him with toileting and showering. His need for his wife's help is dependent on what stage of his cycle and needed more help when he was having a bad day or days.

1. Mr Arkhipov agreed that the answers he gave to the targeted questions about his ability to manage his finances and banking with his wife's assistance were correct and that most of the time his impairments don't affect his ability to self-manage.
2. Ms Jenkins asked him some questions of what he considered as good or bad days.
3. When he is having a good day, he is able to drive his car, go for a walk, do some exercises and help his wife with the shopping.
4. On a bad day he either needs to stay in bed or spend the day on the couch.
5. The occurrence of good and bad days varied and was more week to week rather than day to day.
6. He was not sure what might trigger a bad day He tries to exercise when he can as this seems to prevent him experiencing very bad days.
7. Ms Jenkins asked Mr Arkhipov about the injury he sustained early this year after a fall and referred him to his email of 11 February 2025.[21]
8. Mr Arkhipov said that he went to the local hospital's Emergency Department after he had a fall at home. It was later determined that he had fractured his elbow. He had surgery on his elbow in February. He agreed that he was still recovering from the surgery and had not recovered full movement in his arm but was able to hold things now. His surgeon has prescribed regular exercises designed to improve his mobility and strength.

1. As I noted earlier Mr Arkhipov was intending to call his Neurologist, Dr Hwang however he advised the Tribunal later that day that the doctor was unavailable
2. Therefore, on the morning of the second day both parties provided their respective oral submissions.

1. As noted above, at the conclusion of the hearing, I allowed the parties some time to provide the Tribunal with final submissions, addressing the evidence heard in the hearing and then addressing the relevant legislation as it applies to the facts of this case.

1. Ms Jenkins advised the Tribunal that after considering Mr Arkhipov's evidence it would maintain its position as set out in its March 2025 SFIC.
2. She referred me specifically to paragraphs 23 and 24 of the Agency's SFIC and the cases of Mulligan and National Disability Agency[22] and Beezley and Repatriation Commission,[24] which requires decision makers to exercise a high degree of precision in assessing what a person can and cannot do and that there was insufficient evidence to enable the Tribunal to make the necessary detailed assessment of Mr Arkhipov's capacities and functional deficits.
3. She noted that Mr Arkhipov declined to engage with an independent functional capacity assessment when the Agency invited him to do so and has not provided his own evidence addressing this.
4. There is evidence of a limited functional assessment conducted in 2019, however there is no other evidence indicating if his functional capacity has either declined or improved since then.
5. The only other evidence on Mr Arkhipov's functional capacity was his own evidence. While not asserting that Mr Arkhipov was untruthful in his evidence, it suffered from a degree of inherent bias as he wished to be granted access to the Scheme.
6. Ms Jenkins also submitted that Mr Arkhipov's evidence was at times vague and lacked specifics.
7. Additionally, the Tribunal did not have the opportunity to hear from Mr Arkhipov's GP, Dr Rostamian or his Neurologist, Dr Hwang which may have been relevant to the issues before the Tribunal.
8. The doctors may have been able to provide evidence of any relationship between his neurological impairments and the role of physiotherapy in addressing them or the relationship of his condition and his experiencing of 'good' and 'bad' days.
9. In conclusion, Ms Jenkins stated that there was insufficient evidence for the Tribunal to be satisfied that the criteria in either section 24 or 25 had been met, and consequently the Tribunal should affirm the Agency's decision.

1. Mr Arkhipov stated that he had originally applied for access to the NDIS three years ago and this application was rejected. He applied a second time and again the Agency declined to grant him access. This then led to his application to the Tribunal nearly two years ago.
2. Responding to Ms Jenkin's observations about his evidence being biased, he stated that he believed that he has a condition that would be helped by being given access to the Scheme.
3. He also said that Ms Jenkin's comments about his evidence being vague did not take proper account of how his condition affects him. He said that his condition was like those that have had a stroke. He said that it was difficult to properly describe what people who have had a stroke are feeling and that in his case he has a 'very fuzzy feeling.'
4. He stated that Ms Jenkin's observations about his evidence being vague concerning his participation in a group exercise program, could be easily explained by the length of time since then and it was quite natural that he might not remember the details of that program.
5. Responding to Ms Jenkin's observations about the lack of oral evidence and the relationship between the management of his condition and the use of physiotherapy, he noted that Dr Hwang in one of his reports had stated that he did not consider physiotherapy would benefit him and that there was no medicine or treatment generally which would improve his condition.
6. He said that he had spoken to both Dr Rostamian and Dr Hwang about the possibility of giving evidence to the Tribunal and both had expressed surprise that their existing reports and other evidence had not been accepted and therefore questioned the need for them to appear at the hearing.
7. Mr Arkhipov requested that I give serious consideration to his current situation and the strong likelihood he and his family could soon be homeless. He has lodged an appeal with NCAT and that has yet to be heard.
8. He said that he believed that a favourable decision by me would both assist him in finding alternative housing and could be a factor that may influence the decision in his appeal to NCAT.
9. Lastly, he referred me to Dr Rostamian's medical report provided to Housing NSW which he said was very detailed and should be considered by me as evidence of his lack of functional capacity.

1. Taking account of those eligibility criteria that the Respondent has previously acknowledged Mr Arkhipov meets, the various matters to be determined by the Tribunal are the following:
   • Does Mr Arkhipov have substantially reduced functional capacity in the domains of communication, social interaction, learning, mobility, self-care and self-management? (s 24(1)(c)).

• Is Mr Arkhipov likely to require support under the National Disability Insurance Scheme for his lifetime? (s 24(1) (f)).
• Does Mr Arkhipov meet the early intervention criteria set out in section 25 of the NDIS Act?

1. I shall now consider these three questions before me.

Subsection 24(1)(c) Do Mr Arkhipov's impairments result in him having substantially reduced functional capacity in the domains of communication, social interaction, learning, self-care and self-management?

1. Before considering this, I consider it useful to again refer to the relevant legislation, rules, guidelines and any applicable case law.
2. Rule 5.8 provides that:

An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by an applicant:

Does your impairment substantially reduce your functional capacity?

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

• Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
• Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
• Learning - how you learn, understand and remember new things, and practise and use new skills.
• Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
• Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
• Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.

• a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

To help us decide if you're eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.

If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.

We consider how you're involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

1. The Tribunal is not bound by those descriptions provided in the guidance as to the six Prescribed Activities in ss 24(1)(c) of the NDIS Act when assessing the criteria relating to "substantially reduced functional capacity". However, in general terms, the Tribunal considers that those definitions in the Access Guidelines operate as a good starting point in making that assessment.
2. As observed by her Honour Justice Mortimer (now, Chief Justice) in Mulligan,[25] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as "avowedly functional, and multi-faceted" and that:

...No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person. No qualitative judgments in that sense are called for.[26]

1. The judicial authority as outlined in Foster, calls for the Tribunal to make an assessment of the person's capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, taken as a whole.[27] This interpretation in Foster by the Full Court of the Federal Court of Australia stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity merely because they have difficulty with one task related to that activity:
2. The Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by "effectively and completely" as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:

[83] In the overall legislative scheme, the adverb "completely" appears to be redundant, and in any event, unachievable. If "completely" is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person's impairment results in substantially reduced functional capacity to participate "wholly" or "perfectly" in the activities of communication, social interaction, learning, mobility, self-care and self-management - an impossible bar for almost everyone.

[88] Within this statutory context and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity. [28]

1. As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under ss 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of r 5.8 of the Access Rules.[29] Instead, her Honour, Justice Mortimer, made clear that the statutory task before a decision-maker was to consider whether a person's functional capacity is substantially reduced in any of the six Prescribed Activities.
2. Before addressing the functional capacity criteria, I note that Mr Arkhipov did not consent to having a functional assessment conducted in his home by an Independent Occupational Therapist engaged by the Agency.
3. This was entirely a matter for him, as he was under no obligation to do so and therefore, I make no adverse comment on his choice.
4. However, in assessing an applicant's functional capacity, a recent detailed assessment report from an Occupational Therapist or other health professional addressing an applicant's functional capacity, whether engaged by the Agency or the applicant themselves, is in my opinion, the best form of evidence addressing this essential criterion for access to the Scheme.
5. My reasons for stating this is that such assessments are generally thorough and detailed. The health professional will conduct a series of standard tests of the potential participant assessing a range of functional areas.
6. They will then observe a potential participant engage in their home environment a range of day-to-day domestic and other tasks and record their capacity in this regard.
7. The importance of this, is that it will generally result in an objective and arm's length assessment of a person's functional capacity across the six domains of mobility, learning, communication, social interaction, self-care and self-management.
8. Such an approach also means that the assessment is less reliant upon a person's self-reporting as to their capacities.
9. There is of course the assessment conducted in 2019 by Ms Sharon Nakak, a Physiotherapist at the Central Coast Community Allied Health clinic.
10. However, there are several other assessments and reports that may provide additional information concerning Mr Arkhipov's level of function.
11. Following Mr Arkhipov's request that I give serious consideration to Dr Rostamian's medical report to Housing NSW[30] I have done so. I have also reviewed that doctor's medical report in support of Mr Arkhipov's application access to the NDIS,[31] his application for the Disability Support Pension[32] and a separate report relating to the application for a Carer Payment.[33] These were all prepared in 2023.
12. Dr Rostamian also prepared a report in 2024 in support of Mr Arkhipov's application for social housing.[34]
13. All reports to a greater or lesser extent provide information about Mr Arkhipov's functional capacity and have the benefit of being relatively recent.
14. I will therefore provide a summary of the observations made in each of those reports. I will then consider what guidance they may provide in my own assessment of his level of functional capacity.

1. This report noted the following:
   • Mobility: reports walking is "difficult", when asked how, he reported that he has balance and vision - major problems - can't see clearly due to nystagmus/vision.
   • Social supports: wife performs cleaning cooking and household duties.
   • Aid: Independent NIL aid.
   • Exercise tolerance: unlimited prior, currently 1km.
   • Limitation: fatigue and generalised weakness.
   • Transfers:
     • - Bed: Independent
     • - Chair: Independent
     • - Toilet: Independent, NIL equipment
     • - Shower: Independent, braces himself? Wall
   • Equipment/modifications: NIL reported.
   • Stairs: Independent.
   • Mobility: Independent NIL aids
   • Gait: Good foot clearance, R0 trendelenburg gait, moderate BOS and bow leg L0 LL
   • Bed mobility: Independent reported with dizziness
   • STS: Independent NIL UL.
     1. 5 x STS = 16.9s
     2. 10m walk (NIL aid) 16 steps, 9.9 s
     3. TUG (NIL aid) 10.9s.
   • Client presents as a low falls risk when performing ADL's though may be a high risk when performing higher exertion tasks with more challenging balance components. Patient would be suitable for ongoing group therapy.

Dr Rostamian's Assessment Report to Housing NSW

1. Dr Rostamian's medical assessment form to Housing NSW provided the following responses to specific questions:
   • Difficulty walking or accessing public transport: imbalance and abnormal gait.
   • Is current accommodation exacerbating his medical conditions: Yes; inadequate space for sleeping/unable to manage stairs.
   • Can client manage steps/stairs? No.
   • Does client require modified accommodation? Yes.
   • High or low level of modification? High.
   • Does their medical condition affect ability to look for suitable private rental accommodation? Yes, due to difficulty walking and dizziness.
   • Is the client able to live independently without support? No.

1. Personal care
2. Cooking
3. Shopping
4. Cleaning
5. Financial management
6. Identifying unsafe situations
7. Transport

• Does client have such support and who provides it? Yes, Irina Egorovan.
• Do psychological issues affect the client's ability to cope? Yes.
• Does the client have a particular dwelling requirement? Yes, separate room, no steps for access and inside, no carpets inside.

1. Are there early intervention supports likely to benefit the person? Yes.
2. Provision of early supports will:
   1. Alleviate the impact on functional capacity.
   2. Prevent deterioration of functional capacity.
   3. Improve functional capacity.
   4. Strengthen the sustainability of available or existing supports.
3. Have any assessments been undertaken on person's impairment? No.
4. Recommended early intervention supports? Regular exercise, proper diet, managing stress/anxiety related to the medical condition.
5. Response to functional capacity questions:
   1. Mobility: Yes, requires assistance. Needs occasional help from others due to imbalance. Dependent on others as he is not able to drive, his wife is driving around.
   2. Communication: No, does not require assistance.
   3. Social Interaction: No, does not require assistance.
   4. Learning: No, does not require assistance.
   5. Self-care: Yes, occasionally needs assistance with showering, bathing and dressing.
   6. Self-management: No, does not require assistance.

Dr Rostamian's response to Centrelink DSP Questionnaire

1. Dr Rostamian provided the following responses in this document:
   • Continual difficulty with balance such as continual dizziness or having to sit down or hold on to a solid object? Yes.
   • More frequent difficulty with the above? Yes.
   • Severe difficulty walking from the carpark into and around local facilities without assistance from another person? Yes.
   • Severe difficulty using public transport without assistance? Yes.
   • Severe difficulty performing light day-to-day household activities without requiring long recovery period afterwards? Yes.
   • Likely to have severe difficult sustaining work-related tasks of a clerical, sedentary or stationary nature for a shift of at least 3 hours? Yes.
   • Unable to walk around a shopping centre without assistance from another person? Yes.
   • Unable to perform light day-to-day household activities (e.g. folding and putting away laundry or light gardening? Yes.
   • Mild difficulty seeing things at a distance or up close and mild difficulty seeing the fine print in newspapers and magazines? Yes.
   • Moderate difficulty seeing things at a distance or up close and moderate difficulty performing day-to-day activities involving visions etc? Yes.

1. Dr Rostamian provided the following responses to these questions.
   • Is care required for a significant period each day? Yes, varies from 2 to 3 hours to whole day.
   • Bowels: Continent.
   • Bladder: Continent.
   • Needs help with personal care e.g. face, hair, teeth? Yes.
   • Toilet use? Independent
   • Feeding? Independent.
   • Transfer? Minor help (verbal or physical).
   • Mobility? Independent.
   • Dressing? Needs help but can do about half unaided.
   • Stairs? Need help (verbal, physical, carrying aid).
   • Bathing? Dependent.
   • Cognitive impairment? No.
   • Does person show signs of depression? Sometimes.
   • Show signs of memory loss? Sometimes.
   • Withdraw from social contact? Never.
   • Display aggression towards self or others? Never.
   • Display disinhibited behaviour? Never.
2. I also note that responding to a series of targeted questions from the Agency, Dr Rostamian noted that Mr Arkhipov experiences constant impairment in his functional capacity with occasional aggravation.[35]
3. He will require support with housing and ongoing rehabilitation and requires continuous long-term support.

1. I note that while the 2019 community health assessment appears to contain some observations based upon Mr Arkhipov's performance of certain tasks, much of the report's comments on his functional capacity appear to be based upon Mr Arkhipov's responses to questions.
2. Similarly, most of Dr Rostamian's responses in the various assessment forms appear to be based upon what Mr Arkhipov has told him. They do not appear to be based upon the doctor performing certain tests or observing Mr Arkhipov's daily activities in his home or out in the community.
3. I do not consider that in any way to be inappropriate or suspect. It is merely a reflection of the busy life of all GP's which includes completing and providing a significant amount of paperwork to government and other agencies about their patients. In many cases the source of that information will be the patient's self-reporting.
4. However, the source of that information must inform the weight I give them as evidence of Mr Arkhipov's functional capacity.
5. While I must take proper account of Mr Arkhipov's evidence and his account of his lived experience and the various aspects of his life, that he experiences difficulties with, this must also be assessed in the context of objective evidence such as medical reports and any assessments before me.
6. As I stated earlier, the best evidence on functional capacity will be a report prepared by a suitably qualified and experienced occupational therapist or other health professional after conducting a thorough and independent physical observation of their daily activities. This information is not available to me in this matter.
7. I will now consider each of the section 24(1) criteria.

1. Mr Arkhipov in his evidence stated that at times, he experienced difficulties with reading and responding to emails when he was fatigued.
2. Dr Rostamian in his NDIS supporting evidence form stated that Mr Arkhipov did not require assistance with communication.
3. I accept that he may experience difficulties at times with certain aspects of communication due to his conditions, there is no evidence before me that this reduction in capacity is substantial.
4. I therefore find that he does not have a substantial reduction in functional capacity in this domain.

1. Mr Arkhipov in his evidence said that he interacts daily with his family and will go for walks with them
2. He also sees friends from time to time but not as often as he would like.
3. In his response to the Agency's targeted questions, he gave similar answers.
4. Dr Rostamian in his NDIS supporting evidence form responded that Mr Arkhipov did not require assistance with social interaction.
5. Based on this evidence, I do not consider that Mr Arkhipov has experienced a substantial reduction in functional capacity in this domain.

1. Mr Arkhipov in his evidence at the hearing stated that he believed he is experiencing difficulty with learning and stated that he did not think he could participate in a TAFE or university course.
2. I note that effectively participating in higher education is an aspect of learning, however this domain covers everyday functions like memory retention and recall.
3. Dr Rostamian in his NDIS supporting evidence form indicated that Mr Arkhipov did not require assistance with learning. I note in his responses in the Carer Payment medical form that he did indicate that Mr Arkhipov experienced memory problems sometimes.
4. None of this evidence in my view establishes that Mr Arkhipov has experienced a substantial reduction in functional capacity in the domain of learning.

1. Mr Arkhipov's own evidence is that he can walk both inside and outside his home and can drive his car other than when he is experiencing a bad day.
2. Most of the assessments referred to above indicate that Mr Arkhipov is independent in his mobility, although Dr Rostamian's NDIS report indicates that Mr Arkhipov does require assistance from time to time due to imbalance.
3. Dr Rostamian's report in support of Mr Arkhipov's application for the DSP seems to indicate that Mr Arkhipov's mobility is more restricted.
4. I note that at present Mr Arkhipov has no mobility aids however it is entirely possible he may require these in the future.
5. My overall impression from all the evidence is that Mr Arkhipov does have a reduction in functional capacity and remains at high risk of further falls.
6. However, I do not consider it amounts to a substantial reduction in functional capacity.

I therefore find that he does not have a substantial reduction in functional capacity in this domain.

1. The evidence indicates that Mr Arkhipov needs his wife's assistance with showering and dressing, primarily it seems to support him and minimise his risk of falls.
2. It appears that his care needs did increase last year after he had the flu and since his fall in January this year.
3. However, the deterioration in his capacity on those two occasions do not appear to me to represent his baseline in managing his self-care.
4. I note that his wife appears to perform the majority of the domestic tasks such as cooking, cleaning, laundry, shopping, etc. It is not clear whether that this arrangement is long standing or predates the onset of his neurological condition or is a reflection of Mr Arkhipov's inability to perform such tasks himself.
5. Dr Rostamian in the DSP report states that Mr Arkhipov cannot perform light day-to-day household activities.
6. As I indicated earlier, I consider this response was based upon information provided by Mr Arkhipov himself and not based upon an objective observation and assessment of Mr Arkhipov's functional capacity.
7. I consider there is insufficient evidence that this domestic arrangement arises primarily out of Mr Arkhipov's impairments.
8. I have concluded that while Mr Arkhipov does have a reduced capacity for self-care, I do not consider it being a substantial reduction.
9. I therefore find that he does not have a substantial reduction in functional capacity in this domain.

1. Mr Arkhipov's own evidence is that he can manage his finances, banking and other aspects of self-management with his wife's support.
2. The medical reports and assessments in my view do not really address this aspect of Mr Arkhipov's life.
3. There is insufficient evidence for me to make a finding that Mr Arkhipov has a substantial reduction in this domain of capacity.
4. I therefore find that he does not have a substantial reduction in functional capacity in this domain.

Subsection 24(1)(e) Is Mr Arkhipov likely to require NDIS support for his lifetime?

1. It is already conceded by the Agency that Mr Arkhipov's impairments arising out of his medical conditions are permanent.
2. The Agency in its March SFIC contended that as Mr Arkhipov did not have a substantially reduced functional capacity as required under section 24(1)(c) of the NDIS Act, he does not meet the threshold requirement for access to the NDIS and therefore is not likely to require NDIS support for his lifetime. The Respondent also contended that Mr Arkhipov's needs were more appropriately met through the health care system and other government services.
3. I agree with the Agency's position. In the absence of my finding that Mr Arkhipov has a substantially reduced capacity in any of the six domains, I cannot logically find that he likely requires lifetime support.

Does Mr Arkhipov's impairments result in him meeting the early intervention criteria set out in section 25 of the NDIS Act?

1. I will again outline section 25 (1) of the Act.

A person meets the early intervention requirements if:

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

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

(vii) 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:

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;

preventing the deterioration of such functional capacity; or

strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

1. While it is clear Mr Arkhipov has an accepted permanent neurological impairment there is insufficient evidence that indicates that early intervention supports are likely to benefit Mr Arkhipov or reduce his future support needs or provide the benefits outlined in section 25(1(c).
2. I note that Dr Rostamian indicated in his Supporting Evidence form that the provision of early supports would:
   • alleviate the impact of functional capacity,
   • prevent deterioration of functional capacity,
   • improve functional capacity, and
   • strengthen the sustainability of available or existing supports.
3. In this regard he identified regular exercise, proper diet and managing stress and anxiety as possible early interventions.
4. Dr Hwang nominated 'ongoing physical therapy' as potential early intervention support.
5. Having reviewed this evidence, I do not consider it is sufficient to establish that the provision of early intervention supports for Mr Arkhipov is likely to benefit him by reducing his future needs for supports in relation to his disability.
6. I also consider that there is insufficient evidence that would satisfy section 25(1)(c).
7. Finally, I note that the suggested supports can either be conducted by Mr Arkhipov himself or through again engaging with an exercise program provide by his local community health service.
8. I therefore conclude that Mr Arkhipov does not meet the early intervention criteria in the Act.

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

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

I certify that the preceding two hundred and eleven

........................................................................

[1] Documents lodged under s 23(b) of the Administrative Review Tribunal Act 2024 (Cth) ('TD').

[2] National Library of Medicine website www.ncbi.nlm.nih.gov/books/NBK562317/

[3] Respondent's SFIC 19 August 2024 JTB

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

[7] [1979] 24 ALR 577 ,590.

[8] [2018] FCA 1229.

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

[11] Mulligan v National Disability Insurance Agency [2015] FCA 544 ('Mulligan') [55].

[13] National Disability Insurance Agency v Foster [2023] FCAFC 11 ('Foster').

[22] 23 Mulligan v National Disability Insurance Agency [2015] FCA 544

[25] Mulligan (n 12) [55]-[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.