(a) Does the applicant have a disability attributable to an impairment or an impairment to which a psychosocial disability is attributable?

1. There is no dispute between the parties that the requirement in paragraph 24(1)(a) is made out, both in relation to physical and psychosocial impairments.
2. There are important distinctions to be made between a medical condition or diagnosis, impairment and disability. An impairment is a loss of or damage to a bodily function, which may arise from some - or a combination of - medical conditions or diagnoses. 'Disability' is a descriptive concept of the overall effect of a person's impairments on the person's ability to engage in different aspects of personal and community life.[6]
3. The applicant gave evidence about each of his conditions and resulting impairments. In brief, because of his lung and cardiac conditions, he is prone to shortness of breath and has very limited tolerance for any physical activity. His sciatica also affects his mobility and capacity to stand for long periods and causes muscle weakness. His sleep is impaired by sleep apnoea and physical pain, and he experiences fatigue. He has difficulty attending to self-care, especially when his hidradenitis suppurativa flares up and restricts his movement. The hidradenitis suppurativa also causes embarrassment and a degree of social isolation. He has depressed mood and suffers from panic attacks and reduced motivation, including for self-care. His weight significantly increased up to 2023, which he partly attributes to antidepressant medication as well as reduced physical exertion and eating poorly. The impairments are interdependent. For example, the weight impacts most of the other conditions to some extent, and the reduced mobility and diminished motivation affect engagement in physical activity.
4. Those reported impairments are consistent with a report of the applicant's general practitioner, Dr Adaeze Emezie, on 3 September 2025.[7] Dr Emezie said the applicant had chronic fatigue due to depression, chronic pain and restricted movement due to hidradenitis suppurativa and sciatica, shortness of breath due to heart and lung disease, loss of sensation and muscle weakness in the left leg, and poor bladder control due to sciatica.
5. In the course of the hearing, I queried whether the wording in paragraph 24(1)(a) meant that psychosocial impairment and disability was to be approached in some different way to other sorts of impairment and disability. I did not specifically seek further submissions on the point, but the respondent's reply submissions briefly analyse the history of the provision and suggest that there is no parliamentary intention and no case law authority that there should be any different treatment. I am satisfied, at least, that there is no practical difference of any significance to this matter.
6. I accept, in general terms, that the applicant has the medical conditions and resulting impairments and disability he identified in his evidence, and that he therefore has a disability attributable to impairments and impairments to which a psychosocial disability is attributable.

(b) Are the impairments likely to be permanent?

1. In relation to whether an impairment is permanent or likely to be permanent, the 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. 'Permanent', in paragraph 24(1)(b), has been said to mean 'enduring', reflecting the purpose of the legislative scheme to deliver lifelong support to persons with disability.[8]
2. Examining whether an impairment, as distinct from the medical condition that causes it, is permanent is a difficult task. The applicant has impairments that are contributed to by more than one health condition, and the impairments impact one another to some extent. I have set out the evidence relating to each of the 7 medical conditions relied on by the applicant before returning to the question of permanence of the resulting impairments.

1. The applicant told the Tribunal that he first experienced hidradenitis suppurativa more than 10 years ago, but it had been a single episode where he had had a boil lanced and bandaged by a general practitioner. Some 8 or 9 years ago, he had an infected boil under the arm that was so severe he went to hospital and was put on intravenous antibiotics.
2. He has had recurrent problems since then, with the site of inflamed lesions gradually spreading further down his side to his groin and inner thighs. He was diagnosed with hidradenitis suppurativa about 5 years ago. He has been to a dermatologist, plastic surgeon and infectious diseases specialist.
3. He described experiencing constant leaking from hidradenitis suppurativa lesions. Every 2 or 3 weeks, one will block up requiring him to take cephalexin which will help the boil burst. Sometimes, lesions require incision and drainage. His antibiotic usage, consisting of doxycycline and frequently cephalexin, is significant.
4. He has most recently seen a dermatologist at Western Health and has undergone a lot of testing. A trial of biologic medication Humira (adalimumab) has been proposed but the medication can have significant side effects, and the applicant has not been willing to try it.
5. In a report dated 3 April 2023,[9] Dr Katya Chan, a medical practitioner working in the infectious diseases unit of Box Hill Hospital, recorded a history of the applicant being diagnosed with hidradenitis suppurativa about 5 years earlier. There were recurrent and frequent flare-ups resulting in painful abscesses over the abdomen and thigh. Management of flare-ups required drainage and antibiotics, as well as a combination of antibiotics, hormonal treatment, anti-inflammatories, immunomodulators and surgery over time to get the disease 'under sufficient control'.
6. In a medical certificate dated 3 June 2024,[10] Dr Darko Sulava, general practitioner, said the applicant was suffering from a chronic back condition with sciatica, chronic hidradenitis suppurativa and chronic left ankle instability. Treatment included antibiotic, anti-inflammatory, and analgesic medications. There was also secondary depression and anxiety. The multiple comorbidities affected the applicant's mobility, dressing and toileting.
7. In a medical certificate dated 10 July 2024,[11] Dr Keerthi Sirimanne, general practitioner, said that the applicant's hidradenitis suppurativa was a lifelong issue with no permanent cure. He was on long term doxycycline (a broad-spectrum antibiotic) and metformin therapy (an antidiabetic agent), and additional antibiotics were required for exacerbations. Drainage was required where the condition was treatment-resistant.
8. Dr Sirimanne said that the condition affected the applicant's mobility, self-care and social interactions.
9. Progress notes and discharge summaries indicate that this year the applicant attended medical practitioners for drainage and related treatment on 24 January 2025, 18 February 2025, 23 February 2025, 24 February 2025, 5 March 2025 and 1 April 2025.[12]

1. On 7 June 2024,[13] the applicant wrote to the Agency about the status of his various medical conditions. He said that his depression and anxiety were permanent. He was often depressed and succumbed to anxiety and panic attacks. Counselling helped but was not curative.
2. In the hearing, the applicant said that he started to experience mental health problems in 2020 or 2021 in the context of a breakup.
3. He was referred to a psychologist in about 2020 but did not get much out of it. He moved house, coming to live in a flat on his mother's property, and stopped going. In 2022, he was referred to Ms Linda Roglic, psychologist, who he continues to see.
4. The applicant explained that he did not have a regular appointment with Ms Roglic, but would typically make an appointment at the end of each attendance. He saw Ms Roglic 3 times in 2023, twice in 2024 and once in 2025 up to 25 May 2025.[14] He said the content of his sessions with Ms Roglic included strategies for improved motivation, discussing his bigger problems and examining different perspectives.
5. He has never seen a psychiatrist.
6. He takes escitalopram and diazepam as required.
7. On 6 June 2022,[15] Dr Arul Sivanesan, general practitioner, wrote that the applicant reported an incident in December 2020 where a teacher who was a friend of his ex-partner misused their position to discredit him in family law proceedings. That incident contributed to an escalation of depression and anxiety. Dr Sivanesan said he had seen the applicant since 19 April 2021. His anxiety stopped him from undergoing surgical intervention and other treatment. There was also anxiety associated with meeting people in positions of authority and travelling long distances.
8. Dr Sivanesan said that the impairment had not stabilised for the purposes of assessing a degree of impairment.[16]
9. On 6 June 2022,[17] Dr Srikumaran Shanmugasundaram, general practitioner, said he had prescribed diazepam for anxiety in April 2021.
10. On 28 June 2022,[18] a general practitioner referred the applicant to Ms Roglic for counselling. The applicant had 'depression and life stressors'.
11. In a report dated 14 October 2024,[19] Ms Roglic said that the applicant experienced post‑traumatic stress disorder, major depressive disorder and major anxiety disorder. He had poor motivation leading to poor self-care, including in connection with bathing and meal preparation.
12. In a report dated 28 May 2025,[20] Ms Roglic again indicated the applicant suffered from post‑traumatic stress disorder, major depression and an anxiety disorder. The applicant also suffered from a range of other complex medical conditions which affected his ability for sustained effort for self-care and overall energy and wellness. Relevant to the questions of permanence, Ms Roglic said:

I can confirm that Mr Charleton's conditions are chronic and not expected to improve or be cured over the foreseeable future. Appropriate support is expected to improve his general overall mental and physical health, reducing the probability of crisis incidents, vulnerability to abuse and permit more improved independent functioning in the future.

1. I observe that Ms Roglic's report is not restricted to the applicant's mental health, and her reference to the applicant's conditions in that passage appears, from context, to be more than his depression and anxiety conditions.
2. Counsel for the respondent took the applicant to an agency document called an 'ART Technical Advice (Comprehensive)' dated 12 September 2025.[21] The author of the document observed that, as well as a lack of evidence from a psychiatrist, it was not clear if the applicant had explored other treatment, which might include cognitive behavioural therapy, dialectical behavioural therapy, electroconvulsive therapy, repetitive transcranial magnetic stimulation or Ketamine infusions for depression, and exposure therapy and other treatment for anxiety.
3. The applicant said that he was not open to any of those treatments, essentially because he has a view that they will not make any difference to his condition. He accepted that he had not been given that advice by a medical practitioner.

1. The applicant told the Tribunal that he had had chest pain since his late teenage years, which was attributed to cardiomyopathy, specifically an enlarged heart (or ventricle). He took blood pressure tablets for a time. For years, he attributed any chest pain to his cardiomyopathy and did not seek medical assistance.
2. In 2017 or 2018, he experienced shortness of breath and an incident of nausea and weakness. He reported the symptoms to his general practitioner and was referred to Dr Vivek Mutha, cardiologist, who arranged a CT coronary angiogram.
3. An echocardiogram taken on 12 October 2018[22] was largely normal with mildly dilated ascending aortic diameter.
4. A stress echocardiogram on 17 October 2018[23] was normal but poor exercise tolerance was noted.
5. The CT coronary angiogram, on 5 December 2018,[24] demonstrated an 'extremely heavy burden of calcified coronary atherosclerotic plaque'.
6. A coronary angiogram taken on 19 December 2018[25] showed an arterial lesion, coronary artery disease and PDA disease (patent ductus arteriosus).
7. The applicant said that Dr Mutha planned for the applicant to have stents inserted and was prescribed anticoagulant medication Plavix (clopidogrel) in anticipation. The medication caused haemoptysis (coughing up of blood) and he was unable to have the stents inserted.
8. In a report dated 27 February 2019,[26] Dr Mutha said that the applicant had cardiac pathology requiring stents. The applicant, though, had previously been found to have haemoptysis and it was unclear to Dr Mutha (who said he was unsure about the underlying diagnosis) whether it would be safe to commence dual-antiplatelet therapy.
9. An echocardiogram on 4 January 2023[27] showed a first-degree atrioventricular block (that is, a slight delay in signals from the atria to the ventricles but not a blockage).
10. In his letter of 7 June 2024, the applicant said that his heart disease would not be remedied by surgical intervention due to the presence of high-risk factors.
11. In a report dated 14 February 2023,[28] Dr Mutha said that the applicant had arterial lesions amenable to percutaneous coronary intervention, but it remained that he was unsure about the significance of the applicant's suspected bleeding issues.
12. An echocardiogram taken on 3 July 2025[29] showed mild dilation of some cardiac anatomy.
13. In a letter dated 9 September 2025,[30] Dr Emezie said that the applicant had presented with haemoptysis which the applicant attributed to Candesan, which he was taking for blood pressure.
14. In a letter dated 3 October 2025,[31] Dr Shirin Sarejloo, cardiologist, said that the applicant had severe coronary artery disease, with significant stenoses identified in 2018. Insertion of stents was scheduled but indefinitely postponed due to a major episode of pulmonary bleeding. Further treatment options were limited. As a result of his cardiac disease, the applicant experienced chronic fatigue, breathlessness, chest pain, and exercise intolerance. He has been medically advised to avoid exercise.
15. The applicant said he continues to take blood thinning medications, uses nitroglycerin spray during episodes of angina, and tries not to exert himself.

1. As above, the applicant was investigated for lung disease because of haemoptysis. He told the Tribunal he saw a respiratory specialist in early 2019. His treatment is limited to inhalers. He has had minimal benefit from Ventolin.
2. The applicant is a heavy smoker. He estimated that he smokes 20 to 40 cigarettes per day, depending on stress and the amount of time he is awake. He acknowledged that his treating practitioners had recommended that he quit smoking and, although he has tried from time to time, he is not generally willing to do so. He said that he enjoys smoking, and it helps him with stress. He did not think respiratory specialists had recommended treatment other than smoking cessation.
3. A CT of the chest taken on 3 January 2019[32] showed 'extensive abnormality in both lungs' and referral to a respiratory specialist was indicated.
4. A further CT of the chest on 9 January 2019[33] noted 'patchy ground glass changes' within the lung fields that could be infective or inflammatory in nature.
5. The applicant had a spirometry test on 19 June 2019,[34] which was suggestive of a restrictive ventilatory defect and parenchymal and/or pulmonary vascular dysfunction. Smoking cessation was 'strongly encouraged'.
6. A further spirometry test on 2 May 2023[35] was consistent with the pathology reported in 2019, but there was a decrease in carbon monoxide transfer, and the applicant was noted to have gained 23 kilograms in weight.
7. In his letter of 7 June 2024, the applicant said that his lung disease, like his heart disease, would not be remedied by surgical intervention due to the presence of high-risk factors.
8. The applicant had an appointment at the Department of Respiratory and Sleep Disorders Medicine at Footscray Hospital on 15 July 2025,[36] which he confirmed at the hearing was about his lungs (rather than his sleep apnoea). He was to have had another appointment, but it clashed with the second day of the hearing.
9. As above, on 9 September 2025,[37] Dr Emezie said that the applicant had presented with haemoptysis.

1. The applicant gave evidence that he had had back pain for many years, and had been told about 20 years ago that he had sciatica. It had become more of a problem, though, in the past few years. He saw a general practitioner because he was having problems with his hip, and was referred for an x-ray. The condition rapidly worsened from about March 2024. He had fallen twice (on 5 and 13 May 2024, according to his letter of 7 June 2024) which he attributed to sciatica. Every six months or so he would have a 'bad attack' of sciatica, where he could not walk or mobilise effectively.
2. As to treatment, the applicant said that he had been taking anti-inflammatory medications for many years, particularly Celebrex (celecoxib). He now takes medication daily. He had been to a physiotherapist, but only once. He did not derive any benefit. He has not seen a medical specialist for his spinal condition. He thought he had tried Lyrica (pregabalin) in the past but had had some problem with it and stopped. There had been no recommendation for corticosteroid injections, though he would be reluctant to try that even if it was recommended.
3. A CT of the lumbar spine taken on 3 May 2024[38] for back pain and left leg weakness appears to have been somewhat inconclusive. There was possible compression of the L5 never roots but 'limited detail within the spinal canal'. An MRI was indicated.
4. In his medical certificate dated 3 June 2024,[39] Dr Sulava noted that the applicant's treatment for his chronic back condition with sciatica and other conditions, included antibiotic, anti‑inflammatory, and analgesic medications.

1. The applicant said that he was first diagnosed with sleep apnoea after seeing a cardiologist in 2018. He was told to have a sleep study, and ended up getting a CPAP machine. The machine addressed the sleep apnoea problem but unfortunately his machine had started leaking and was no longer useful. At the time of the hearing, the applicant was using another machine on a 4-week trial, but was going to have difficulty buying a machine after the trial with his limited income. He estimated he could save $100 per fortnight towards the cost of a machine.
2. The diagnostic sleep study took place on 14 January 2019.[40] The report's conclusion is missing, but the statistics in the report indicate there were multiple episodes of apnoea and hypopnoea.
3. Mr Tim Angel, occupational therapist, saw the applicant in his home and provided a request dated 30 April 2025,[41] at the request of the respondent. Mr Angel recorded the night before the assessment, the applicant had gone to sleep at about 11pm, woken at 2pm, smoked a few cigarettes, returned to sleep at 3.30am, woken again at 6.30am and dozed before getting up at 7.30am. The applicant reported napping frequently through the day as he was constantly tired. Mr Angel said:

Mr Charleton's sleep patterns are not functional. He would benefit from strategies to improve his routine as well as attention to his weight, nutrition, smoking habits and activity levels to assist in improving his sleep patterns and quality.

1. Mr Angel gave evidence at the hearing and was asked about that passage in his report. He said that he had no particular expertise with smoking, but the action and movement of getting out of bed alone would be a factor in disrupting the applicant's sleep, let alone whatever chemical changes might result from smoking.
2. Mr Angel noted that addressing the problem of a dysfunctional sleep pattern might involve a combination of proactive measures (examining the pre-sleep routine) and reactive measures (including strategies to stay in bed, like meditation and mindfulness).
3. The applicant said that he had not considered discussing his sleep dysfunction with his psychologist.
4. In his report of 3 September 2025,[42] Dr Emezie said - consistent with the applicant's evidence - that he was using a CPAP machine for sleep apnoea but the machine was old and not providing optimal treatment.

1. Comparing the 2019 and 2023 spirometry tests, the applicant's weight increased from 140 kilograms to 160 kilograms over that time. The applicant said that he had had weight problems for a long time, but it had become much worse during that period, before plateauing. As above, he attributed the weight gain to a combination of antidepressant medication, becoming less mobile and reduced physical exertion, and eating poorly.
2. In his letter of 7 June 2024, the applicant said that prior to the COVID-19 pandemic, he had been booked for gastric banding surgery. That had not gone ahead, he was no longer on a waitlist and no longer wanted the procedure. He hoped to reduce his obesity through exercise and diet.
3. In the hearing, he said that he knew he had to lose weight but had made only minimal changes, like choosing water over soft drinks. Exercise was too difficult for medical reasons. He did not think medication like Ozempic would help him.
4. He found buying frozen meals prohibitively expensive. He recalled being referred to a dietician some years ago but was unsure of the outcome. He said he had not particularly considered referral to a physiotherapist or the like for a light exercise regime, and noted it would take years to realise any significant benefit from doing so.

1. As I observed above, the issue here is whether impairments, not the underlying medical conditions or diagnoses, are permanent in the sense required by paragraph 24(1)(b) of the Act. In large part, that depends on the evidence establishing that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment (per Rule 5.4).
2. It may be that impairments are not permanent because the underlying medical condition is capable of treatment, or it may be that a medical condition is permanent, but there are medical or other treatments available that could remedy the resulting impairment. And as counsel for the respondent observed, an impairment that results from multiple medical conditions might not be permanent if one but not all of those underlying medical conditions are permanent.
3. In his closing submissions, the applicant said that the evidence was that he had engaged with treatment as recommended by his treating practitioners, and that an absence of 'certain specialist reports' should not negate his lived experience. I have borne that in mind and not dismissed the applicant's evidence about his treatment history merely because it is not explicitly corroborated by a medical practitioner.
4. The applicant also said that an impairment should not be found not to be permanent merely because 'every conceivable treatment option' has not been exhausted.[43]
5. I agree. It may be noted, though, that there is a difference between evidence of a treatment recommendation and evidence that there are no known, available and appropriate treatments. It does not follow that because the applicant has undertaken recommended treatment that there is no other treatment that might be likely to remedy the impairment. Noting Rule 5.6, an absence of a specialist review might mean that there is an absence of evidence as to what treatment is or is not indicated. It may follow that the evidence does not establish that there are no known, available and appropriate treatments.
6. I find that the impairments that result from the applicant's depression and anxiety (however diagnosed) are not permanent. The condition is not of short duration, but I cannot find that there are no known, available and appropriate treatments that would be likely to remedy the impairment. Potential treatment includes, at least, review by a psychiatrist and cognitive behavioural therapy - both mainstream and conventional treatments - and there is no medical or psychological evidence that those things would not assist the applicant's psychosocial impairment. I note Dr Sivanesan hypothesised that there would be a degree of permanent impairment but that it was not stabilised, suggesting that treatment might be indicated. Ms Roglic's opinion as to permanence (both that the applicant's conditions are not expected to improve, and that support would improve overall mental and physical health) is somewhat difficult to understand; the fairest reading is that the diagnoses are permanent, but the impact of impairments could be alleviated. The applicant's own view that treatment will not help him is speculative and cannot be given any real weight.
7. I find, consistent with the respondent's concession, that impairments resulting from the applicant's hidradenitis suppurativa (and not from other conditions) are permanent. The applicant is availing himself of the topical treatment recommended for his condition. The impairments include pain, restriction of movement and leaking sores, as well as the psychological impact of the condition.[44]
8. On the basis of Dr Sarejloo's recent report, in particular, I find that impairments that result from the applicant's cardiac condition (and not from other conditions) are permanent. I take Dr Sarejloo's opinion that treatment options are 'limited' to mean that there are no promising treatment options that the applicant is not already adopting (like blood thinning medications). Noting the problem with the applicant having stents inserted (that is, his comorbid lung condition), there is no indication in the wider medical evidence that there could be any available treatment that would be likely to remedy the impairment.
9. I find that impairment resulting from the applicant's lung condition is not permanent. That is for 2 reasons. First, the evidence establishes that there is significant lung pathology and that referral to a specialist is indicated. Specialist review is still in progress and there is no medical evidence as to what treatment may or may not be indicated arising from that review (even if the applicant's own evidence was that only smoking cessation had been recommended). As it stands, there is no medical evidence that points to a conclusion that there are no known, available and appropriate treatments that would be likely to remedy the impairment. Second, it has been repeatedly recommended to the applicant that he give up smoking. He has not done so (as above, he has made attempts in the past but is not currently willing to give up smoking), and the evidence tends to establish it is a measure that could remedy his lung impairment. The applicant submits that his lung damage is irreversible.[45] I am not sure that is established by the evidence (most of which demonstrates pathology but not medical opinion about that pathology), but even if that is right, it does not follow that the functional impairment that results from lung pathology is not remediable.
10. That does not undermine my finding in relation to the permanence of impairment resulting from the applicant's cardiac condition. The applicant's cardiac pathology has been demonstrated by a series of investigations and there is no indication that smoking cessation would remedy the problem with the applicant's intolerance to the medications he needs to take to have stents inserted.
11. For much the same reasons, I find that the spinal impairment/sciatica is not permanent. Clearly, there is spinal pathology but - particularly in the absence of any specialist review - the available medical evidence does not establish what treatment is or is not indicated. There are a number of readily identifiable treatment modalities that might be recommended by a medical practitioner but which the applicant has not trialled, including physiotherapy (other than one attendance), hydrotherapy or other exercise programs, and corticosteroid injections. Without probative evidence on that point, I cannot be satisfied that there are no known, available and appropriate treatments that would be likely to remedy the impairment.
12. I find that impairment resulting from obstructive sleep apnoea is not permanent. On the applicant's own evidence, there is a known, available and appropriate treatment that has already been seen to remedy the treatment, which is consistent use of a CPAP machine. I am satisfied that a (replacement) CPAP machine is available to the applicant despite that the cost of a machine will have to be met by gradually saving funds for it. It is also possible that weight loss or counselling in relation to sleep routines could alleviate symptoms, at least to some extent.
13. I find that impairment that results from the applicant's obesity is not permanent. The applicant has not trialled readily available treatment options, like a light exercise regime or taking and implementing dietary advice. There may also be more extreme treatment options, though I note the applicant's reasons for not wanting to pursue those.[46] I note the applicant's submission that an assumption that obesity can necessarily be remedied with diet and exercise is rigid and not in keeping with modern clinical evidence.[47] I also accept, as the applicant says, that it would likely take a long time now to realise any benefit from exercise and diet, if any could be achieved. Obesity, as the applicant points out, is a complex, chronic and potentially relapsing condition.[48] The problem I come to is more fundamental. When it comes to applying the legislative tests, it is nonetheless the case that the evidence before the Tribunal does not establish that there are no known, available and appropriate treatments that are likely to remedy the impairment. It is not that obesity is inherently treatable through lifestyle changes but that the applicant has not attempted available and appropriate treatments, and that there is no probative evidence that those things would not have some benefit in remedying impairment in his case.
14. In summary, then, the requirements of paragraph 24(1)(b) are met, but only in relation to the applicant's hidradenitis suppurativa and cardiac conditions, and only to the extent that impairments result from those conditions and not from other conditions.
15. Identifying the impairments that meet that description is not straightforward, but I am satisfied that the hidradenitis suppurativa causes painful and leaking lesions, and resulting pain, loss of mobility (as distinct from the lack of endurance), and odour. None of those things results from any of the applicant's other medical conditions. To the extent that the hidradenitis suppurativa has a psychological impact, I am not satisfied - for reasons given above - that there is permanent psychosocial impairment resulting from the hidradenitis suppurativa.
16. The cardiac condition causes chronic fatigue, breathlessness, chest pain, and exercise intolerance (per Dr Sarejloo's recent report). However, fatigue is also a feature of the applicant's sleep apnoea sleep dysfunction and so the impairment (as opposed to the underlying condition) is not permanent. Breathlessness and exercise intolerance are also features of the applicant's lung condition and possibly his sciatica (per Dr Emezie's recent report). Of the impairments that result from the applicant's cardiac condition, only the applicant's intermittent chest pain is permanent.

(c) Do the impairments result in a substantially reduced functional capacity to undertake one or more activities?

1. As above, the next requirement is that the impairments results in substantially reduced functional capacity to undertake at least one of 6 identified activities.
2. Because the disability requirements require that all the criteria be met in relation to an impairment or impairments, the reference to 'the impairment or impairments' in paragraph (c) can be taken to be a reference to only those impairments that are, or are likely to be, permanent. That is, for reasons above, the impairments that result only from the applicant's hidradenitis suppurativa and cardiac conditions. It is unnecessary to determine whether the applicant's other impairments result in a substantially reduced functional capacity because those impairments cannot ground access to the scheme.
3. On the issue of substantially reduced functional capacity, the Rules provide:

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

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

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

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

1. Rule 5.8 operates as a deeming provision.[49] That is, if any of Rule 5.8(a), (b) or (c) are made out, the person is taken to have substantially reduced functional capacity. If not, it remains to be determined whether the person has substantially reduced functional capacity on the ordinary meaning of those words.
2. The legislation requires a functional, practical based assessment of what a person can and cannot do.[50] That is to be contrasted with what a person is or is not prepared to do for reasons of personality and other extrinsic factors.[51]
3. 'Substantially', in this context, implies a high threshold for the test to be met. It is not enough that there is a demonstrable disability, or a reduction in functional capacity that is less than that high threshold.[52] Rather, the evidence should demonstrate that there are significant gaps in a person's capacity in the activity area.[53]
4. The 'Applying to the NDIS' guideline[54] says:

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 guideline sets out the content of each of the 6 activities as follows:
   • 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[55] - 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.
2. The issue for determination is whether there is substantially reduced functional capacity in the whole of any of those activities, not whether there is a substantially reduced functional capacity to do a particular task or set of tasks that might form part of the activity.[56]
3. I have set out the evidence about the applicant's functional capacity before turning to whether there is a substantial reduction in functional capacity, as a result of impairments I have found to be permanent, in each of those 6 activity areas.
4. On 29 November 2024,[57] the applicant completed a statement of lived experience. He said that he could walk up to 50 metres unassisted without needing to stop for a break. For longer distances, he would lean on a trolley (if shopping) or occasionally a walker. He had recently sold his car, as it was underutilised due to a reluctance to drive arising from a combination of pain, the effects of medication and the possibility of experiencing a panic attack. Similarly, the applicant could use public transport, but there was the challenge of walking to the stop or station and the embarrassment of sharing the space with strangers if his hidradenitis suppurativa was causing an odour.
5. At the hearing, he noted that he had not actually tried to walk 50 metres in the lead up to preparing that statement. He had recently tried to walk to shops about 500 metres away, relying on a walker, but got only 30 or 40 metres before he found himself gasping with air. He pushed on, despite shortness of breath and chest pain, stopping multiple times for rest. When he arrived at the shops, he called his brother to collect him in a car.
6. He said that he had never been a regular public transport user.
7. The applicant lives at his mother's home, in a converted car port. His brother lives in a granny flat on the same property. At the time of the statement, the applicant's daughter lived at the house every second week but at the time of the hearing she was living there fulltime and was home-schooled by the applicant.
8. The applicant identified that he had many friends but now rarely saw them. He kept up with some friends on the phone or online. He did not go out for meals or for community activities. He saw immediate family, including when people would visit his mother, and would sometimes accompany his mother to see family members at their homes. He avoided family gatherings, though, due to his hidradenitis suppurativa, and sometimes because he was unwell or in pain.
9. The applicant identified difficulty with some self-care activities. He said he had difficulty with showering, toileting and dressing. He would benefit from home modifications, including a higher toilet, larger shower and grab rails. He would often delay showering for several days. When he does shower, his sciatica and sometimes his hidradenitis suppurativa prevents him washing the lower parts of his body. His mother has done some things for him in the past, but has pulled back as she has got older.
10. The hidradenitis suppurativa symptoms are episodic and severity varies. The applicant said he might have a bad episode, occasioned by a problematic abscess on his torso, every 2 to 3 weeks. If it burst, the problem might last 24 to 48 hours. Otherwise, he would have to wait for antibiotics to work, and the problem might last 3 to 6 days. During a bad episode, the applicant said he would divide his time between bed and a chair, though transitioning between them was painful. Toileting, and especially cleaning up, was extremely difficult. He ate only what was convenient. Pain could be excruciating and impeded him from getting to a primary care clinic for lancing.
11. If he was not experiencing a bad episode, there was still pain and limited range of motion.
12. The applicant said that his in-person communication was affected by hidradenitis suppurativa, because it causes an odour, and by depression. He might avoid social contact on bad days.
13. He said his learning capacity was reduced, partly due to his age and partly due to his mental health and medications.
14. On 20 December 2023,[58] Ms Catherine van der Velden, occupational therapist, produced a report 'to support Peter Charleton and his application to gain access to this [NDIS]'. Ms van der Velden noted conditions of 'chronic ischaemic heart disease, restrictive lung condition, severe sleep apnoea, hidradenitis suppurativa, and chronic pain and swelling.'
15. At that stage, unlike now, the applicant lived alternately with his mother and another residence where his daughter lived. He derived some support from his mother with daily tasks in the week he lived with her.
16. Ms van der Velden commented on the applicant's impairment in connection with activities of daily living:
    • Self-care: impacted by low mood and feeling overwhelmed, leading to difficulty maintaining consistency with showering and dressing. There was also physical difficulty with showering and maintaining balance, and with bending over. The applicant needed to rest after taking a shower, so did not do so every day. The applicant only cooked if he had to, which was rare. His mother cooked in the weeks that he lived with her. The applicant could not stand for too long.
    • Self-management: the applicant fatigued easily. He occasionally ran out of medicine but was independent in managing finances.
    • Mobility and transfers: the applicant could walk only about 30 metres before requiring rest and could not tolerate standing for long periods. He used a 4-wheel frame. He had difficulty transferring in and out of bed. He could drive.
    • Pain and fatigue: there was chronic pain from sciatica, hidradenitis suppurativa and an ankle injury, which affected mobility and standing.
    • Sleep hygiene: the applicant's limited sleep impacted on energy and mood throughout the day.
    • Communication and cognition: there was some reduction in organisational skills and sustaining attention.
    • Community access and social participation: the applicant was socially isolated outside of interaction with family members and medical appointments. He could drive to access community but would not usually do so for leisure activities. His hidradenitis suppurativa caused embarrassment and discomfort.
    • Mood and emotional wellbeing: the applicant struggled with his mood. There had been substantial life changes because of his complex disabilities.
17. Ms van der Velden said that the applicant would benefit from a support worker to assist with community access, transport and to engage in a home-based exercise program, cleaning and gardening assistance, assistance technology including a powered mobility device, occupational therapy, physiotherapy, psychology and input from medical practitioners.
18. In her report of 14 October 2024,[59] Ms Roglic said the applicant had poor motivation leading to poor self-care, including in connection with bathing and meal preparation.
19. In Mr Angel's report of 30 April 2025,[60] he assessed the applicant's functional capacity in the paragraph 24(1)(c) domains as follows:
    • There were no concerns in communication skills, or in reading and writing, and no support required.
    • The applicant had good social skills, excellent communication skills, good self‑awareness and emotional intelligence. He was functionally independent in social interaction. However, there were barriers to social function stemming from anxiety and an avoidant behavioural pattern.
    • There was no learning impairment and a demonstrated capacity for learning new skills. However, his depression affected his motivation and physical conditions affected his mobility, which in turn impacted capacity.
    • The applicant was able to mobilise independently during the assessment, but walking was effortful and sometimes unstable. He was observed to walk for just over 50 metres (in the hearing he clarified that what he actually measured was 65 steps), but then required rest before proceeding. The applicant would lean on a shopping trolley if he was at the shops. The applicant was able to transfer in and out of a chair, on and off a toilet, on and off a bed, in and out of a car, and in and out of a shower independently but not smoothly in all cases.

Mr Angel noted that the assessment was not carried out during an episode of acute hidradenitis suppurativa inflammation, and capacity for movement might be more limited during those episodes.

• While hidradenitis suppurativa symptoms were under control, the applicant could shower independently but the small size of the shower made it hard for him to manoeuvre within the shower cubicle. Toileting was usually independent but when his hidradenitis suppurativa was inflamed, toileting could be painful and uncomfortable, and the applicant tried to avoid it. He preferred to wear loose fitting clothing and slip-in shoes which were easier to put on. When hidradenitis suppurativa was increased, capacity to move, bend and rotate was limited and dressing was difficult. The applicant did not habitually prepare meals, due to low energy, difficulty with prolonged standing and motivation.
• The applicant was independent in life administration and decision-making. He shopped from time to time, and completed his own laundry, but attended to limited cleaning.

1. Mr Angel said that the applicant would benefit from using a four-point walking stick when his hidradenitis suppurativa was in an acute stage of inflammation, a four-wheeled walker for longer distances, and grab rails in the toilet and shower.
2. Mr Angel suggested that addressing his weight or smoking, as the applicant has been advised by doctors to do, would assist his mobility and capacity for self-care, as well as the effects of hidradenitis suppurativa.
3. In his report of 3 September 2025,[61] Dr Emezie said that the applicant could go many days without showering due to reduced mobility and pain associated with hidradenitis suppurativa or sciatica. He did not attend to most household chores. He relied on takeaway food.
4. I come, then, to examine the question of whether there is a substantial reduction of functional capacity in each of the 6 activities (which I address in the order that they appear in the legislation). As above, that requires reference to Rule 5.8 and to the ordinary meaning of the statutory language, separately.
5. First, I am satisfied that there is no substantial reduction in functional capacity in communication, by reference to Rule 5.8 or otherwise. The applicant is articulate and there are no barriers to him being understood or understanding other people.
6. The applicant's own view is that his in-person communication suffers because of hidradenitis suppurativa (and depression). That may be, and I note the hearing proceeded by video, but any reduction in functional capacity must be minor. The assessments with Ms van der Velden and Mr Angel were conducted in-person and neither raised a concern with the applicant's capacity for communication.
7. Second, I am also satisfied that any reduction in functional capacity for social interaction is less than substantial. I accept the applicant is socially isolated, but the question is what the applicant can or cannot do, rather than what he prefers to do, for reasons of motivation or embarrassment. The applicant maintains social relationships with his family members (albeit he avoids large family gatherings). He keeps up with friends, sometimes on the phone or online, even if not as often as he would like. He accesses the community when he must, including for shopping. Relevant to Rule 5.8, none of those things require any assistance for the applicant to participate. He is, as Mr Angel put it, functionally independent. There is no suggestion that he cannot identify social cues or manage his emotions in social situations.
8. In closing submissions, the applicant said he rejected any characterisation that he avoided social settings by choice. The combination of his impairments affected his ability to participate, and his social isolation, he said, was 'beyond mere choice'. I see the point. The applicant's situation is not of his choosing. Even accepting, though, that the applicant is precluded from joining large gatherings by reason of his hidradenitis suppurativa symptoms, when I come to apply the statutory test, I find that - where the applicant maintains friendships in other ways and socialises with family in smaller groups - there is a real reduction, but not a substantial reduction, in functional capacity.
9. Third, I am satisfied that there is no substantial reduction in functional capacity for learning. Any reduction that may exist is attributable to the applicant's mental health (in particular, I accept that his depression affects his capacity for attention and motivation), and those are impairments I have found are not permanent for the purposes of the analysis above. But even leaving that aside, the reduction is not substantial. There is no suggestion that the applicant cannot learn or understand new things. He appears to have a view that he cannot learn new things easily but did a creditable job in prosecuting his application, including cross-examining Mr Angel and making apposite submissions. He does not have any need for assistance with learning.
10. Fourth, the applicant clearly has reduced functional capacity for mobility. Most significantly, he cannot walk any significant distance without becoming fatigued and needing a break. The difficulty I come to is that most of the reduction in functional capacity does not result from the impairments I have identified as permanent. The applicant's intolerance for walking any distance does not result from his impairments relating to hidradenitis suppurativa nor, by itself, chest pain (nor those impairments in combination).
11. The applicant has reduced mobility that is attributable to his hidradenitis suppurativa, in the nature of difficulty transferring. When the applicant is experiencing an acute flare-up of symptoms, that difficulty is so significant that the applicant moves only between a chair and his bed for the duration of the episode, and often avoids toileting. When he is not suffering from an episode of that nature, though, he is able to mobilise, albeit with some difficulty including because of his sciatica. He is able to drive and can push a trolley around a supermarket, from time to time. His inability to walk long distances is attributable to impairments I have found not be permanent for the purposes of the section 24.
12. Per the 'Applying to the NDIS' guideline, where capacity goes up and down, it is necessary to look at the picture over time, both the 'ups and downs'. In that context, where the applicant does not have a significant reduction in functional capacity attributable to a permanent impairment most of the time (but only when there is an intermittent flare-up in hidradenitis suppurativa), and where the difficulty that he has some of the time is in only one part of the mobility domain (particularly, transfers), I do not find that there is a substantial reduction in mobility.
13. For the purposes of Rule 5.8 it is not the case that the applicant is unable to mobilise without assistance technology, equipment, home modifications or assistance from another person. Unless he is suffering from a flare-up, he can mobilise independently, at least for a short time. He does not usually require assistance to mobilise because those episodes are occasional.
14. Fifth, the applicant has reduced capacity for self-care. For the most part, that is attributable to his hidradenitis suppurativa symptoms. When he is not experiencing a flare-up, he can attend to dressing, grooming, eating and drinking, and toileting and showering. When he is experiencing a flare-up, he is impeded by extreme pain from attending to most of those things, and does only what is necessary and convenient.
15. The analysis here is very similar to mobility. It is necessary to look at the applicant's level of functioning over time, noting that his hidradenitis suppurativa impedes him from self-care activities only some of the time. The result is the same. Where an episode prevents the applicant from doing some but not necessarily all of the activities that make up self-care (depending, potentially, on the severity and precise anatomical site of the lesion from time to time) and where he does not have a markedly reduced capacity or self‑care in between episodes, I find that the reduction in functional capacity is moderate but not substantial.
16. As to Rule 5.8, what I have said in relation to mobility applies. The applicant is not unable to engage in self-care activities without assistance when he is not experiencing a flare‑up. He does not usually require assistance with self-care activities.
17. Sixth, I am satisfied that there is no substantial reduction in functional capacity in self‑management, by reference to Rule 5.8 or otherwise. The applicant is able to solve problems and manage his finances. He home-schools his daughter.

1. The result is that paragraph 24(1)(c) is not met in relation to the applicant's impairments that are permanent. The criteria in section 24 of the Act are cumulative, which means each must be made out, and so the applicant does not meet the disability requirements.
2. It is unnecessary to consider whether paragraphs (d) and (e) are made out.

Does the applicant meet the early intervention requirements?

1. The last issue for determination is whether the early intervention requirements are met.
2. Section 25 of the Act provided (before 3 October 2024):

(1) A person meets the early intervention requirements if:

(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

(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

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

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(a) Does the applicant have identified impairments that are, or are likely to be, permanent?

1. Rules 6.4 to 6.7 are in much the same terms as Rules 5.4 to 5.7, as set out above in relation to the equivalent test in the disability requirements.
2. Accordingly, the same conclusion must be reached here as in relation to the issue of permanence for the purposes of paragraph 24(1)(b) above. I am satisfied that the applicant has impairments that are likely to be permanent.

(b) Would the provision of early intervention supports for the applicant be likely to benefit him reducing his future needs for supports in relation to disability?

1. In addressing this criterion, it is necessary to particularise the early intervention supports that could have the required effect of reducing future need for supports.[62] The applicant bears a practical onus of identifying those early intervention supports with reasonable precision[63] and it is not open to the Tribunal to speculate about possible supports.[64]
2. There is nothing in the wording of paragraph 25(1)(b) that suggests an identified early intervention support has to relate to a condition to an impairment that is permanent for the purposes of paragraph (a), so it is of no consequence that I have found the applicant's sleep impairment to not be permanent.
3. Rule 6.9 says that in addressing this criterion, the decision-maker should consider:

(a) the likely trajectory and impact of the person's impairment over time; and

(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

1. The 'Applying to the NDIS' guideline says, similarly, that in deciding whether early intervention will help, the decision-maker will look at how the impairment might change over time, how long the impairment has been present, whether there has been a significant change to the impairment, and if needs are likely to change soon (for example, if finishing school).[65]
2. In the applicant's statement of facts, issues and contentions,[66] he identifies a (working) CPAP machine as an early intervention support. Provision of a CPAP machine, the applicant submits, would reduce the stress of his heart and mitigate against a decline in other health issues. The applicant has not identified any other supports for the purposes of section 25.
3. Accordingly, my consideration of whether this criterion is met is limited to whether a CPAP machine is an early intervention support that would be likely to benefit him by reducing his future needs for supports.
4. In his report of 3 October 2025, Dr Sarejloo said:

Mr Charleton has chronic obstructive sleep apnoea for which he requires CPAP therapy. This is critical in reducing the cardiovascular strain during sleep and maintaining stability of his heart condition. His sleep apnoea and heart disease together contribute to his functional impairment and increased care needs.

Given the combination of his severe heart disease, chronic symptoms, and sleep apnoea, Mr Charleton requires ongoing support to manage his health, maintain daily living and prevent deterioration.

1. There is little else said about the need for a CPAP machine in the evidence before me. I infer that is because most reports were written at a point when the applicant was using a CPAP machine, and so the need for a new machine was not such a significant issue in the context of the applicant's myriad health problems. The occupational therapists, Ms van der Velden and Mr Angel, both simply mention that the applicant uses a CPAP machine.[67]
2. A question that arises is what it means for a support to be an early intervention support, in a particular case. Counsel for the respondent said in closing submissions that a CPAP machine would not be characterised as an early intervention because the applicant had been using a machine for 7 years and was merely seeking a replacement because that one had stopped working. The applicant said that early intervention was the concept of 'intervening now' to help reduce decline.
3. The revised explanatory memorandum to the National Disability Insurance Scheme Bill 2013 says, in relation to clause 25 (which became section 25):

This clause recognises that a person may need support to help minimise the impact of a disability from its earliest appearance, and that the provision of support may improve the person's functioning or prevent the progression of their disability over their lifetime.

1. In my view, the respondent must be right on this point. An early intervention support is necessarily something that may help the person within a short time of the effects of a condition appearing, or the condition being diagnosed, or the condition changing course.[68] The point of looking at the trajectory of the impairment over time, as Rule 6.9 encourages, is to determine the point or points in time at which early intervention might have the result required by section 25.
2. To adopt the applicant's construction is to require no work of the word 'early'. If the word 'early' was not intended to have the sort of effect suggested by the explanatory memorandum (though I do not think the proper construction is so limited as to almost require intervention at the earliest appearance of any disability), it would have sufficed to refer to 'intervention supports'.
3. With that in mind, a CPAP machine cannot be characterised as an early intervention support for the applicant. The condition was diagnosed in January 2019 and has since been treated with a CPAP machine that the applicant no longer uses. There has been no change in the course of the condition, other than the problem that has resulted from that machine falling into disuse. A replacement machine is not an intervention at a point in time that could be considered early, having regard to the trajectory of the applicant's impairment, and so is not - in my view - an early intervention support.
4. That being the only support in issue for the purposes of the early intervention requirements, it follows that the earlier intervention requirements are not met. It is unnecessary to consider the other criteria in subsection 25(1).
5. As the applicant meets neither the disability requirements nor the early intervention requirements, the decision under review will be affirmed.
6. I acknowledge this will be a disappointing result for the applicant who is struggling with a number of significant health conditions. I note this decision does not have the effect of permanently precluding the applicant from accessing the NDIS and he may wish to re‑apply in the future, especially once further treatment intervention has been contemplated and implemented, as appropriate.

[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

[3] National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [31], endorsing the Tribunal's reasoning in Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 at [21]; Beezley v Repatriation Commission [2015] FCAFC 165 at [68].

[5] Earlier in proceedings, the applicant identified those 7 conditions and 2 others (A1). In his statement of facts, issues and contentions (A3), he expressly abandoned the 2 others. His post-hearing submissions of 22 October 2025 confirm his reliance on those 7 conditions.

[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 at [51].

[8] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85].

[14] C5, p 415 contains the applicant's medicare claims history. The applicant said he had not seen Ms Roglic privately (that is, there were no additional attendances that would be unknown to Services Australia and not contained in the claims history).

[16] The applicant explained that the context of this report was for use in litigation that did not proceed far.

[21] D2. The name and qualifications of the document's author are not given.

[43] The applicant identified KDYG and National Disability Insurance Agency [2019] AATA 3411 as an example of a decision in which a treatment recommendation (in that case, group therapy for post‑traumatic stress disorder) that had not been followed and did not prevent a conclusion that an impairment was permanent. The applicant also cited JLZT and National Disability Insurance Agency [2022] AATA 541 but it seems to me the point of that decision in relation to permanency is somewhat different, that treatment only for symptomatic relief could not be said to remedy an impairment.

[44] C1, p 315 is a helpful 'fact sheet' about the condition, which is consistent with the applicant's evidence and medical evidence.

[46] A3, p 31, in relation to gastric banding and medications.

[50] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [64].

[51] Lampard at [50]-[51], endorsing the reasoning in Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 at [82].

[52] Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68].

[53] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [121].

[55] The statutory language is 'social interaction' and not 'socialising' but the content of the activity amounts to the same thing.

[56] Nika and National Disability Insurance Agency [2021] AATA 2127 at [248].

[62] National Disability Insurance Agency v Jones [2025] FCA 877 at [24]- [27].

[63] See Kharamesh and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1749 at [139].

[64] See Grac and National Disability Insurance Agency (NDIS) [2025] ARTA 2054 at [126].

[68] See Lloyd and National Disability Insurance Agency (NDIS) [2025] ARTA 2064, in which early intervention requirements were found to be met in connection with a neurological impairment that had been present from birth but diagnosed relatively recently; Puster and National Disability Insurance Agency [2023] AATA 1760, in which the Administrative Appeals Tribunal found that 'it may be possible for an applicant to meet the early intervention requirements without a close temporal connection to a diagnosis but where the impairments that flow from the underlying condition can still be said to be at an early stage of their trajectory' (at [67]).