Decision: The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024.

...........................[SGD].............................................

NATIONAL DISABILITY INSURANCE SCHEME - access to scheme - reviewable decision of Chief Executive Officer - becoming a participant - chronic schizoaffective disorder - Major Depressive Disorder - severe anxiety - Chronic back and neck pain - age and residence requirements met - permanence - substantially reduced functional capacity - weight attributable to medical evidence - disability and early intervention requirements - decision affirmed

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme Amendment (getting the NDIS Back on Track No. 1) Act 2024 (Cth)

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

Grant and National Disability Insurance Agency [2023] AATA 1206

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

National Disability Insurance Agency v Foster [2023] FCAFC 11

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

Madelaine and National Disability Insurance Agency [2020] AATA 4025

MRLK and National Disability Insurance Agency [2021] AATA 3896

Timofticiuc and National Disability Insurance Agency [2021] AATA 3015

Rooney and National Disability Insurance Agency [2021] AATA 3523

National Disability Insurance Agency, Our Guidelines - Becoming a participant - Applying to the NDIS_, (14 October 2024) (Web Page), _

1. This issue requiring determination by this Tribunal is whether Mr Daniel may become a participant in the National Disability Insurance Scheme (the NDIS or the scheme). To become a participant, Mr Daniel must meet the access criteria as prescribed in section 21 of the National Disability Insurance Scheme Act 2013 (the Act).
2. Mr Daniel sought access to the scheme on or around 12 August 2023, for impairments arising from the conditions of chronic schizoaffective disorder, major depressive disorder with features of severe anxiety and chronic pain and neck pain. On 8 September 2023 a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency determined that Mr Daniel did not meet the access criteria.[1] Mr Daniel lodged a timely review to that decision, which was confirmed on 21 September 2023 by a different delegate of the CEO.
3. On 26 September 2023 Mr Daniel made an application to the NDIS Division of the Administrative Appeals Tribunal (the AAT) for an independent review of the decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.[2]
4. On 9 October 2024 the Tribunal held a directions hearing by telephone and directed that the review be determined without holding a hearing. The Tribunal made such direction having been satisfied that, Mr Daniel and the Respondent, the CEO, National Disability Insurance Agency (the Respondent or the Agency) consented to the review being determined without a hearing, and that the issues for determination in the proceeding could be adequately determined without a hearing.
5. The Tribunal accepted into evidence various documents contained in the joint hearing tender bundle, filed by the Respondent on 4 December 2024.[3]

1. To be granted access to the NDIS and so become a participant of the scheme, Mr Daniel must satisfy the access criteria set down in subsection 21(1) of the Act which provides:

(1) A person meets the access criteria if: > > (a) the CEO is satisfied that the person meets the age requirements (see section 22); and > > (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and > > (c) the CEO is satisfied that, at the time of considering the request: > > (i) the person meets the disability requirements (see section 24); or > > (ii) the person meets the early intervention requirements (see section 25).

1. It is not in dispute, and I so find, that at the time of his application Mr Daniel met the age and resident requirements set down in sections 22 and 23 of the Act.
2. Therefore, I must determine whether Mr Daniel meets the access criteria as set down in section 24 (the disability requirements) or section 25 (the early intervention requirements).
3. I note that the National Disability Insurance Scheme Amendment (getting the NDIS Back on Track No. 1) Act 2024 (the amending Act) commenced on 3 October 2024. Sections 24 and 25 of the Act were amended by the amending Act. However, section 126 of the amending Act is only applicable to access requests lodged on or after 3 October 2024.
4. Therefore, as Mr Daniel's application was made before 3 October 2024, the Tribunal had regard to the provisions of the Act that were in place prior to 3 October 2024.
5. Subsections 24(1) and (2) of the Act states:

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self care;

(vi) self management; and

(d) the impairment or impairments affect the person's capacity for social or economic participation; and

(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

1. If Mr Daniel does not satisfy the disability requirements, the Tribunal must then consider whether he meets the early intervention requirements set down in subsection 25(1) of the Act:

(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 that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

(iii) is a child who has a 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

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

1. Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may make provision for determining any matter for the purposes of sections 25 and 26 of the Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
2. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), which form part of the legislation. Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b) of the Act, the Access Rules relevantly state:

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.

3. As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c) of the Act, the Access Rules state:

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.

4. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[4] In assessing Mr Daniel's claim the relevant operational guideline is Applying to the NDIS[5] (the Access Guideline).
5. The case law developed in this jurisdiction is also of assistance. In the matter of Mulligan[6] Mortimer J (as she then was) stated that the legislative regime:

contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted. > > ...No qualitative judgements in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do...[7]

6. This approach was endorsed by the Full Court in National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster).[8]

Does Mr Daniel have a disability attributable to an impairment?

1. The Tribunal had regard to the following evidence before it, summarised below.
2. In a disability support pension review conducted on 8 August 2012[9] Dr William Menashi, general practitioner, advised that Mr Daniel has been his patient since 2007 and he does not have a medical condition that has a significant impact on his ability to function.[10] Dr Menashi stated that the condition that has the most impact on Mr Daniel was his diagnoses of paranoid schizophrenia and major depression with psychotic features, the symptoms of which were controlled by medication "for years" and were monitored by regular review with his psychiatrist Dr Monir Younan.[11] The clinical features of the condition were depressed mood, loss of energy and motivation, sleep problems, weight gain, anxiety and irritability.[12] The impact on Mr Daniel's daily life as a consequence of these conditions were described as his "ability to function in the community" and "medication side effects" without elaboration.[13] Future treatment was ongoing pharmacological intervention and annual review with his psychiatrist,[14] noting that he was "stable with medications" and that the effect on Mr Daniel's condition on his ability to function within the next two years was to remain unchanged, as it had been stable for some years. Dr Menashi opined that Mr Daniel's mental health condition was fully diagnosed, treated and stabilised.[15]
3. As to Mr Daniel's chronic back pain, neck pain and cervical spondylosis Dr Menashi stated that the date of onset was some years ago, that the current and historical treatment included specialist review, pain management and physiotherapy.[16] Future treatment was conservative, including pain management with a physiotherapist. The clinical features were lower back and neck pain, knee and joint pain despite treatment.[17] This condition affects Mr Daniel's ability to do any heavy physical activities and that he can only sit, walk or drive for between five to 20 minutes.[18] Dr Menashi expected the condition to deteriorate over time.[19]
4. Dr Menashi reported other medical conditions that are generally well managed and that cause minimal impact on Mr Daniel's functioning to include frequent chronic dizzy spells, headaches, obesity, chronic hypertension, high blood sugar levels and mobility restrictions. He also noted that Mr Daniel suffers from chest pains and shortness of breath and has had a cardiology review with no ischaemic heart disease identified.[20]
5. There is in evidence a part report following magnetic resonance imaging of the brain conducted on 27 May 2013 after an episode of syncope and a query of right facial dropping. The document does not identify Mr Daniel as the person who underwent the scan. [21]
6. The application for access under review is not the first application lodged by Mr Daniel to gain access to the scheme. He first lodged such an application with the Agency on 30 May 2018,[22] which was refused by a delegate of the CEO on 13 June 2018.[23]
7. Attached to his May 2018 application Mr Daniel provided:
   • A letter dated 16 October 2008 authored by Dr Gamal Nashed, cardiologist, which stated that Mr Daniel was reviewed again after complaints of atypical left-sided chest pain that lasts for a few seconds and occurs at rest and exertion. He underwent a stress echocardiography was negative for ischaemic heart disease;[24]
   • A letter from Dr Nashed dated 21 March 2014, which stated that that Mr Daniel was reviewed again on that day. Dr Nashed reported that Mr Daniel denied any chest pain, shortness of breath or palpitations and a stress echocardiography was negative for ischaemic heart disease. Mr Daniel was considered stable and discharged to his general practitioner who was to review his cholesterol on a regular basis;[25]
   • A letter from Dr Younan, consultant psychiatrist, dated 27 August 2012 which stated that Mr Daniel was reviewed on 20 August 2012 and reported that he had stopped taking his anti-depressant but he commenced taking the medication again;[26]
   • a discharge referral from Liverpool Hospital dated 11 April 2018[27] which outlined that Mr Daniel underwent a C4/5 anterior cervical discectomy and fusion on 9 April 2018 following a history of right C5 radiculopathy and C4/5 right shoulder abduction elbow. A post-operative CT scan was deemed satisfactory and Mr Daniel was cleared for discharge by a physiotherapist;[28]
   • a letter from Dr Dawood Haddad, specialist generalist practitioner, dated 1 December 2017 which stated that Mr Daniel has ischemic heart disease and due to the side effects of his anti-psychotic medication requested a change of this medication.[29]
8. It is evident that Mr Daniel lodged a second application in the months after the first refusal. Apparently attached to this application was a medical certificate authored by Dr Menashi dated 14 August 2018 which stated that Mr Daniel had neck/cervical spine surgery in April 2018, his mobility is restricted because of this surgery and because he also suffered a "minor stroke" in April 2013. He went on to state that Mr Daniel has chronic back and right shoulder pain and needs care and support both in and outside the home. It was also noted that Mr Daniel's self-care and management was limited due not only to his medical conditions but also his psychiatric condition. Therefore, he is unable to look after his home, clean, cook, shop or mow his lawn. [30]
9. This access request was refused on 23 August 2018.[31] On 28 August 2018 Mr Daniel sought an internal review of this decision and provided the following supporting documents:
   • a report provided by Dr Noel Dan, neurosurgeon, dated 14 December 2018, following a medico-legal examination of Mr Daniel, as requested by Messelos & Co, Lawyers.[32] Dr Dan opined that the main issues for Mr Daniel is his psychological dysfunction and neck numbness that occasionally occurs and normally diminishes over time. He concluded that Mr Daniel's shoulder symptoms are overwhelmingly psychological rather than physical and his cervical symptoms are the result of a motor vehicle accident.[33] In a separate letter on the same day Dr Dan stated that Mr Daniel had a 25% whole person impairment.[34]
10. The internal review decision dated 3 July 2019 affirmed the original decision.[35]
11. In evidence is a motor vehicle medical assessment undertaken by Dr Kalev Wiling, orthopaedic surgeon, dated 16 September 2019. [36] Dr Wilding reported that, following Mr Daniel's involvement in a motor vehicle accident on 26 June 2015, [37] he suffered a soft tissue injury of the right shoulder and tendonitis of the rotator cuff as well as a cervical disc lesion at C4/5 as well as musculoligamentous strain of the lumbar spine.[38] It was concluded that these conditions were permanent, as the injuries had stabilised.[39]
12. In a report dated 28 August 2020, Dr Neil Griffith, neurologist, reported that following motor and sensory nerve conduction testing there was evidence of mild bilateral nerve entrapments at each wrist.[40]
13. Mr Daniel lodged a subsequent access claim on 29 September 2021.[41] In support of this request Dr Menashi completed a health professionals form on 16 February 2022.[42] Dr Menashi advised that the condition that has the most impact on Mr Daniel's daily functioning is his chronic neck, shoulder and back pain, schizophrenia, major depression, headaches and dizziness. Other conditions that do not have a significant impact on his functioning are Type 2 diabetes, hypertension, hyperlipidaemia and a "prostrate problem". These were all considered to be lifelong impairments. Other conditions were obesity, GORD, a "very short temper" and anxiety. [43] Dr Menashi stated that Mr Daniel requires support in the domains of mobility, social interaction, communication in the form of "guidance" and "supervision",[44] in the domain of learning as it is difficult for Mr Daniel to learn new skills or study because of his mental health issues and chronic pain symptoms,[45] and in the self-care domain including showering, dressing, overnight care and that he requires help with transport, form filling and attending specialists as well as in self-management.[46]
14. This access application was refused on 11 March 2022.[47]
15. In evidence is a report authored by Ms Zeinab Allaw, registered psychologist, dated 25 May 2023, certifying that Mr Daniel has been a client of the practice since 5 April 2023 following an incident where he was attacked while working.[48] She noted that Mr Daniel is divorced and lives alone, has no social support and works as an Uber driver. She opined that Mr Daniel meets the full criteria for major depressive disorder with features of severe anxiety. He has undergone some cognitive behavioural therapy and his goals are to reduce his negative emotions. She stated that he would need to attend psychological sessions on a regular basis to benefit from treatment and manage his mental health symptoms.[49] In a further letter to Dr Menashi dated 18 August 2023[50] Ms Allaw repeated much of her previous report, with the exception of describing the attack as not one not arising from Mr Daniel's work as an Uber driver, but rather he was on his way to "inspect a car and was accompanied by a friend".[51]
16. Mr Daniel's application for access to the scheme was supported by his general practitioner Dr Menashi in an access support form dated 12 August 2023.[52] Dr Menashi stated that Mr Daniel's primary impairment is his major severe depression and chronic schizophrenia and the other impairment that has a significant impact on him is his chronic back and left elbow pain.[53] Dr Menashi described both impairments as lifelong. He also noted that Mr Daniel's other impairments include hypertension, diabetes and "heart problems/chest pains".[54] He stated that Mr Daniel requires assistance in activities of self-care, including showering, overnight care and dressing, in respect of self-management requires physical assistance at all times, as well as supervision and guidance,[55] and requires assistance from a carer in the domain of social interaction, he cannot learn new tasks nor undertake further training or study[56] and requires assistance from a carer to communicate and to be mobile.[57]
17. An ultrasound of Mr Daniel's right shoulder was performed on 18 October 2023, which showed evidence of supraspinatus tendinosis and subdeltoid bursitis. Dr Joseph Trieu, radiologist, stated that should Mr Daniel's symptoms not improve with conservative treatment, he would offer an ultrasound-guided steroid injection.[58]
18. The Tribunal also notes that Mr Daniel provided a radiology report which suggest carpal tunnel syndrome.[59] A ultrasound guided corticosteroid injection was performed on the right median nerve on 25 October 2023.[60] On 29 November 2023 a CT scan of the cervical spine and an ultrasound of the right wrist was performed.[61] No definite neural impingement was noted in the cervical spine and carpel tunnel syndrome was confirmed.
19. On 18 December 2023 Dr Younan provided a handwritten note confirming that Mr Daniel was his patient since 30 August 1996, presenting with symptoms of flat affect and indecisiveness, noting that he was already prescribed anti-depressants and anti-psychotic medications before he was Dr Younan's patient.[62] Dr Younan confirmed that he diagnosed Mr Daniel with schizoaffective disorder, manifested with mood swings with periods of major depression and psychotic symptoms of auditory hallucinations and paranoid ideation. He reported that Mr Daniel responded well to treatment but that symptoms of impaired concentration, reduced motivation and anxiety continue to affect his functioning. Dr Younan opined that Mr Daniel would benefit from assistance, guidance and prompting on a daily basis.
20. On 19 December 2023 Dr Menashi provided a summary of Mr Daniel's relevant history and medications and advised that Mr Daniel suffered from chronic neck pain, has undergone review with a specialist and fusion surgery and that the condition is permanent and no improvement is expected in the future irrespective of the treatment type.[63] He also advised that Mr Daniel suffers from right shoulder pain and has been advised by an orthopaedic surgeon that he may require surgery. The chronic pain has been treated appropriately and there are no medications or treatment that can fully remedy his pain symptoms. Mr Daniel's pain and depression affect his daily physical activities like cleaning and food preparation, mowing the lawn and other activities of daily living.
21. It is apparent that Dr Renata Abrazko, neurosurgeon and spinal surgeon, referred Mr Daniel to a pain clinic at Liverpool Hospital on 4 July 2024 as Mr Daniel reported significant back pain.[64] She reported that he has moderate narrowing at L5/S1 level and disproportionate pain to the radiological images. On 11 August 2024 Dr Abrazko referred Mr Daniel for two facet joint injections.[65] Mr Daniel provided two confirmation of appointment letters for this dated 12 and 26 August 2024.[66] In evidence is also a letter from Liverpool Hospital confirming that Mr Daniel was to have an appointment with the Department of Pain Medicine on 1 November 2024.[67]
22. On 30 August 2024 Dr Menashi referred to Dr Nermen Ismail, psychiatrist, for psychiatric review as Dr Younan had retired.[68]
23. In a report dated 3 October 2024 Ms Allaw reported that Mr Daniel was referred to her from the Department of Victims Services due to "an attack by a trespasser".[69] She reported that he was currently working as an Uber driver, lives alone and is still attempting to have his "wife" join him in Australia. She opined that in particular the stress of his partner's absence severely impacts on his ability to engage in treatment. She reported that he had a depressed affect, with symptoms of low mood, heightened anxiety, overthinking, low energy, fatigue and irritability.
24. In a letter dated 14 October 2024 Dr Menashi also wrote in support of Mr Daniel's wife being granted a visa, so she can look after Mr Daniel and provide him with support, care and supervision.[70]
25. An x-ray of the right shoulder and cervical and thoracic spine was performed on 19 October 2024.[71] Mild diffuse idiopathic skeletal hyperostosis was noted in the lower thoracic. Otherwise the findings were unremarkable. The shoulder x-ray showed mild degeneration at the rotator cuff footplate. It was recommended that if symptoms persist an MRI is performed. A right shoulder ultrasound performed on 22 October 2024 showed a partial tear of the anterior-mid portion of the supraspinatus tendon.[72] On 23 October 2024 an ultrasound of the right wrist was again performed, which found features of right-sided carpal tunnel syndrome.[73]
26. Dr Menashi referred Mr Daniel for an ultrasound guided right shoulder corticosteroid injection on 24 October 2024.[74]
27. In evidence is a functional capacity assessment performed by Ms Fiona Curdie, occupational therapist, on 13 June 2024.[75] During the assessment Mr Daniel reported that he needs medication for his back pain when he cannot move, and this occurs about once every one to two months and is of about a week duration.[76] He can also lose his balance and has had two falls in recent months.[77] It was also noted that Mr Daniel's reported usage of a non-steroidal anti-inflammatory was not consistent with the capsules taken since the prescription was issued.[78]
28. Ms Curdie notes that Mr Daniel reported that he can independently purchase, manage and administer his medications.[79] He can also independently use public transport to attend his psychiatrist and psychologist.[80] He recently commenced physiotherapy and intends to purchase 20 private sessions.[81] Ms Curdie observed that Mr Daniel's home was reasonably clean and there was evidence of washing up completed, a meal prepared on the stove[82] and that he had hung out his washing on a clothes line in his back garden.[83]
29. Mr Daniel also reported that he is independent in all domestic activities except for mowing his lawn and making his bed. He noted that he can clean the house but also gets assistance from a cleaning company.[84] He also reported that he is independent in all activities in the psychosocial domain, noting that his carer "sometimes" takes him to the doctor.[85] Ms Curdie concluded that Mr Daniel is independent in all domestic activities and requires physical assistance with heavier tasks such as lawnmowing and house cleaning.[86] Mr Daniel reported that he is independent in dressing, showering, toileting, mobility (without the use of assistive technology), feeding, transferring, grooming and teeth care. He performed some of these tasks to demonstrate his capacity.[87] Mr Daniel reported he would benefit from NDIS support, particularly to have a support worker assist him to access the community and undertake housework.[88] Ms Curdie concluded that Mr Daniel is independent in all self-care tasks, does not require physical or verbal assistance and is able to self-manage in all areas.
30. Further, Ms Curdie concluded that Mr Daniel's mobility was not impacted by his mental health condition and was minimally impaired by his neck and back injuries.[89] No functional tolerance difficulties were noted in the tasks of standing, sitting, walking, kneeling, stopping, reaching, lifting, activity and balance.[90] Mr Daniel had no observed restrictions in his lower and upper limbs active range of movement, with the exception of some shoulder movement restriction though it was noted that flexion in activity was greater than on formal examination[91] leading to a conclusion that there was evidence that Mr Daniel was self-movements.[92]
31. In respect of psychosocial and cognitive function Ms Curdie reported that there were no concerns apparent during the assessment. However, it was noted that his minimal reduction for social interaction, due to lowered motivation though he can engage in everyday social situations.[93] Ms Curdie concluded that there was no reduced functioning in the domains of communication,[94] learning,[95] self-care and self-management.[96]
32. In an undated written statement[97] Mr Daniel relevantly reported that he requires a carer to take him shopping as he cannot carry heavy bags and he cannot walk for long periods. He also described poor concentration, low motivation and anhedonia. He no longer sees his friends as frequently nor goes fishing.[98] He reports difficulties in performing domestic chores, including vacuuming and lawn mowing. He can manage his own self-care, but experiences pain when dressing and undressing.[99]
33. Mr Daniel submitted a written statement to the Tribunal dated 4 September 2024.[100] He declared that he will be reviewed by Dr Ismail in about three months, and that on 12 September 2024 he will attend Liverpool Hospital for pain management with the aim of trying to reduce his pain. If this fails, his doctor will perform back surgery. He also stated that he must attend Liverpool Hospital on 19 September 2024, and each quarter thereafter, to check his blood for leukaemia.
34. The Respondent does not dispute that Mr Daniel suffers from physical impairments as a result of his neck and back pain including pain in joints, difficulty in movement and sleep problem. The Respondent also accepts that Mr Daniel suffers from psychosocial impairments attributable to schizoaffective disorder which include impairments of excessive worry and persistent fears, and to MDD including low mood, low motivation and concentration, stress, fatigue and avoidance.[101]
35. After consideration of the relevant medical evidence before me, I am satisfied that Mr Daniel has a disability that is attributable to a physical and psychosocial impairments, so satisfying paragraph 24(1)(a) of the Act.

Are Mr Daniel's impairments permanent or likely to be permanent?

1. As Mortimer J (as she was then) explained in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), it is the impairment, and not the condition giving rise to the impairment, that must be permanent:

The critical point is that "permanent" is used as an adjective in s 24(1) to the noun "impairment" (or in the plural, "impairments"). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.[102]

1. Therefore, the Tribunal must be satisfied that there are no treatments that may remedy the impairment and not the condition itself. Mortimer J went on to explain that 'remedy' means something approaching a removal or cure of the impairment.[103]
2. I have already set down the relevant Access Rules at paragraph 14.
3. The Respondent accepts that impairments flowing from Mr Daniel's chronic schizoaffective disorder are permanent or likely to be permanent but does not accept this criterion is met in respect of his other impairments.
4. After consideration of the medical evidence, I am satisfied that the impairments arising from Mr Daniel's diagnoses of schizoaffective disorder, anxiety and depression (collectively, his mental health disorders) are permanent within the meaning set down in paragraph 24(1)(b) of the Act. In reaching this conclusion I relied on the statements provided by Dr Younan who has been a long-term provider of psychiatric care to Mr Daniel. I note that Ms Allawah reports that there has been an exacerbation of his psychological symptoms due to the uncertainty regarding his partner's visa status, but she reports the same impairments as previously described when the issue with Mr Daniel's partner's visa was (apparently) not in issue. That is, his diagnosis, symptoms and ongoing treatment remained unchanged.
5. I am satisfied that Mr Daniel has received over two decades of optimal treatment for his mental health disorders. Despite this treatment, there is no evidence that there has been a significant reduction in his symptoms, with the exception of his paranoid ideation and auditory hallucinations. I accept that, as recommended by Ms Curdie, that Mr Daniel may benefit from ongoing psychological intervention. However, I am not persuaded that ongoing therapy, including cognitive behavioural therapy as provided by Ms Allaw, will remedy the impairments arising from his mental health disorders. There has been no evidence tendered that would indicate that there are other known, available and appropriate treatments that are likely to remedy these impairments.
6. I conclude that Mr Daniel's impairments experienced by Mr Daniel as a consequence of his mental health disorders are permanent for the purposes of paragraph 24(1)(b) of the Act.
7. I next considered Mr Daniel's chronic pain arising from his cervical, thoracic and lumbar spine conditions in addition to his right shoulder condition and right wrist carpal tunnel syndrome (collectively his chronic pain conditions).
8. On 19 December 2023 Dr Menashi stated Mr Daniel's chronic pain has been treated appropriately and there are further treatments that can improve his pain symptoms.[104] However, in the same report he stated that Mr Daniel may undergo surgery to address his right shoulder pain. Furthermore, more than six months after Dr Menashi declared that no treatments can fully remedy, Mr Daniel's consulted with Dr Abraszko, neurosurgeon, who recommended facet joint corticosteroid injections and a referral to a pain management clinic notwithstanding the fact that she suggests that his pain symptoms may be psychological in origin.[105] Dr Menashi also referred Mr Daniel for an ultrasound guided right shoulder corticosteroid injection on 24 October 2024.[106] Further, there is evidence that he had a corticosteroid injection in right wrist on 25 October 2023,[107] Mr Daniel advised Ms Curdie that he had a further corticosteroid injection in his right wrist some six months before the assessment and also in his left wrist.[108]
9. There is no evidence before me to confirm that the facet joint or right shoulder corticosteroid injection procedures were performed and, if so, whether they provided any relief to Mr Daniel. Similarly, there is no evidence to suggest that Mr Daniel attended his scheduled appointment with the Department of Pain Medicine at Liverpool Hospital and, if so, whether this intervention provided him with any symptom relief. Whilst there is evidence of Mr Daniel being diagnosed with carpal tunnel syndrome in the right wrist what, if any, functional impairment arises from this diagnosis is not clear. Whether the corticosteroid injections resulted in any reduction in his wrist pain and functionality is unknown. Mr Daniel reported to Ms Curdie that he attended physiotherapy[109] but has not provided any evidence from his treating physiotherapists.
10. Without evidence about the success (if any) arising from these procedures and therapies, I am not satisfied that Mr Daniel's chronic pain impairments have been fully treated. Certainly, his right shoulder condition is not fully treated, given that surgery has been mooted. The evidence before me suggests that there are other readily available and evidence-based treatments that may result in some functional improvement including surgery, corticosteroid injections and engagement with a pain clinic.
11. I conclude that the impairments arising from Mr Daniel's chronic pain conditions are not permanent for the purposes of the Act. Therefore, paragraph 24(1)(b) of the Act is not satisfied in respect of these impairments. Therefore, I did not proceed to assess whether these conditions give rise substantially reduced functional capacity in the activities listed at paragraph 24(1)(c) of the Act.
12. For completeness, I note that if I am incorrect in finding that Mr Daniel's chronic pain conditions are not permanent, there is no evidence before me to suggest that the impairments caused by the chronic pain conditions result in substantially reduced functional capacity within any of the domains outlined at paragraph 24(1)(c) of the Act. At its highest, this impairment prevents Mr Daniel from undertaking heavy cleaning tasks and mowing his lawn. Though Mr Daniel reports he can only stand for between 5 to 10 minutes he also reported that he is able to walk to his local bus stop and shop without assistance (provided he does not carry heavy shopping bags). In my view, Mr Daniel's self-reported standing tolerance is not consistent with his declared ability to undertake public transport and shopping tasks. In any event, even if his assertions regarding his standing tolerance is accepted, this does not persuade me that he has a substantially reduced functional capacity in activities requiring mobility.
13. My conclusions on this point are consistent with Foster, which dictates that it is not sufficient to establish a person's capacity to undertake only one task in an activity set down in paragraph 24(1)(c) of the Act is substantially reduced (in that case, toileting in the self-care domain). Instead, the decision-maker must consider whether there is a substantially reduced functional capacity to undertake the activity as a whole.[110] Therefore, on the evidence before me, it is apparent that subparagraph 24(1)(c)(iv) of the Act is not established.

Do Mr Daniel's impairments result in substantially reduced functional capacity?

1. The Tribunal must next determine whether Mr Daniel's impairments arising from his mental health disorders result in substantially reduced functional capacity in at least one of the six domains of communication, learning, self-care, self-management, social interaction and mobility.
2. The Respondent accepts that Mr Daniel has some reduced functional capacities in one or more of the domains listed in subsection 24(1)(c). However, the Respondent contends that Mr Daniel does not have substantially reduced functional capacity in those domains.
3. Access Rule 5.8 (already been set down at paragraph 15 above) provides guidance as to when an impairment results in substantially reduced functional capacity. The Operational Guideline in respect to whether an impairment substantially reduces a person's functional capacity relevantly states:

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

• 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.

1. The test in subsection 24(1)(c) is one of objective functional capacity and requires the Tribunal to consider both what the person can and cannot do.[111] A person will not necessarily be found to have a substantially reduced functional capacity simply because one task cannot be completed without assistive technology. Instead, the degree to which the person can participate in the activity must be assessed.[112] The test is one of objectivity and not a subjective comparison.[113] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[114]
2. In Mulligan[115] Mortimer J explained that Access Rule 5.8 defines when a person must be found to have a substantially reduced functional capacity and is a 'deeming provision'[116] of this Rule; that is, that Rule 5.8 operates by reference to each of the activities set down in each of the six subparagraphs 24(1)(c)(i) to (vi). The decision-maker must make a factual assessment of each of the outcomes or effects of the person's impairments in each of the six activities. However, her Honour made clear that this is the first part of the statutory task required by paragraph 24(1)(c) of the Act. The decision maker must then proceed to consider whether, regardless of Rule 5.8, a person's functional capacity is substantially reduced in any of the six domains of activity.[117]
3. The Tribunal's first task is to determine if Mr Daniel's circumstances are captured by the deeming provision as set down in Rule 5.8. If the deeming provision does not apply, I must then consider the evidence regarding his functional capacity in each domain and determine whether he meets the statutory threshold.
4. In undertaking the assessment of Mr Daniel's functional capacity I adopt the Tribunal's reasoning in Rooney[118] where it was held that the word 'substantially' in paragraph 24(1)(c) of the Act takes its ordinary meaning and so establishes a 'significant threshold' that a prospective applicant must meet.

1. The Respondent contends that Mr Daniel's impairments do not result in a substantially reduced functional capacity to undertake communication activities.
2. In his report dated 16 February 2022[119] Dr Menashi stated that Mr Daniel requires support in the communication domain, primarily with guidance and support. In his 12 August 2023[120] report Dr Menashi stated that Mr Daniel requires assistance from a carer to communicate. The basis on which Dr Menahsi reached this conclusion is not clear and importantly, whether this was based on Mr Daniel's self-report alone.
3. In contrast, Mr Daniel's treating psychologist did not raise any concerns regarding Mr Daniel's capacity to communicate. In fact, in each report Ms Allaw provided evidence that Mr Daniel was able to provide her with a comprehensive history and articulate his legal issues. Further, Mr Daniel provided written submissions to this Tribunal which suggest that he can be understood and understand others. Ms Curdie also reached this conclusion after undertaking an in-person assessment. Her assessment indicates that Mr Daniel can use his mobile phone to interact with his family, noted that he was able to prepare written submissions in support of this review and his migration matter and was observed to be able to effectively communicate through speech during the assessment.
4. Without further evidence as to the basis that Dr Menashi concluded that Mr Daniel requires support to communicate, I am not persuaded that Mr Daniel is unable to participate effectively in this activity, nor that he requires support or assistance to communicate. Mr Daniel demonstrated a capacity to communicate with Ms Curdie and this Tribunal. Ms Curdie stated that he communicated well during the assessment, showed strong comprehension, was reasonable historian providing details information and appropriate word usage.[121] There is no persuasive evidence to indicate that Mr Daniel has a reduced functional capacity to undertake communication activities.
5. I conclude that Mr Daniel is able to participate effectively and completely in communication activities without assistance from a person, assistive technology, equipment or home modifications. Mr Daniel's impairments arising from his mental health disorders do not result in substantial reduced functional capacity in activities involving communication and so subparagraph 24(1)(c)(i) of the Act is not satisfied.

1. The Respondent contends that Mr Daniel impairments do not result in a substantially reduced functional capacity to undertake social interaction activities.
2. Mr Daniel advised in his undated written statement[122] that he suffers from poor concentration, low motivation and anhedonia and that he no longer sees his friends as frequently nor does he undertake pleasurable activities.[123] Ms Curdie reported that Mr Daniel stated that he does have some contact with his family and regularly speaks with his fiancé and carer.
3. There is a paucity of medical or allied health evidence regarding Mr Daniel's capacity to engage in social interaction. Whilst in his reports dated 16 February 2022[124] and 12 August 2023[125] Dr Menashi stated that Mr Daniel requires assistance in social interaction the basis of this conclusion is not articulated. In her 3 October 2024 report Ms Allaw reported that Mr Daniel's impairments and current stressors do result in a depressed affect, with symptoms of low mood, heightened anxiety, overthinking, low energy, fatigue and irritability.[126] This is consistent with Mr Daniel's report to Ms Curide that his medications make him "lazy".[127] I accept that these symptoms impact on Mr Daniel's capacity to engage in social interactions.
4. I accept Ms Curdie's opinion that Mr Daniel has reduced social interactions.[128] Nevertheless, I am not persuaded in light of Mr Daniel's own declarations about his interactions with his family, his former carer and his community that he has a substantially reduced functional capacity in this domain.[129] Certainly, there is no evidence that he requires assistance from others, assistive technology, equipment and assistance to participate in social activities.
5. The evidence before me does not support a finding that Mr Daniel has a substantially reduced functional impairment with respect to social interaction activities. Subparagraph 24(1)(c)(ii) of the Act is not satisfied.

1. The Respondent contends that Mr Daniel's impairments do not result in a substantially reduced functional capacity to undertake learning activities.
2. Dr Menashi's report dated 16 February 2022[130] states that Mr Daniel experiences difficulties in learning new skills or undertaking study because of his mental health condition. Dr Menashi's 12 August 2023[131] report states that Mr Daniel cannot learn new tasks or undertake further training or study. No supporting psychiatric, cognitive or neurological reports or assessments were provided in support of this conclusion.
3. Dr Younan declares that Mr Daniel's has symptoms of impaired concentration, reduced motivation and anxiety continue that affect his functioning and that he would benefit from assistance on a daily basis.[132] I accept Dr Younan's description of the impairments that arise from Mr Daniel's mental health disorders. However, I am not persuaded that these impairments require the provision of assistance on a daily basis or give rise to a finding that these symptoms result in substantial reduced functional capacity in activities involving learning. Ms Curdie's assessment of Mr Daniel's capacity in this domain supports such a conclusion.[133] During the assessment undertaken by Ms Curdie, Mr Daniel reported that he enjoyed reading and learning about astrology. He also clearly explained his legal proceedings and demonstrated an understanding of correspondence he had received. She opined that he showed appropriate cognitive ability.[134]
4. I therefore conclude that Mr Daniel's impairments arising from his mental health disorders do not result in substantial reduced functional capacity in activities involving learning and so subparagraph 24(1)(c)(iii) of the Act is not satisfied.

1. The Respondent contends that Mr Daniel's impairments do not result in a substantially reduced functional capacity to undertake mobility activities.
2. In his written submissions Mr Daniel reported that that he requires a carer to take him shopping as he cannot carry heavy bags and he cannot walk for long periods. He also reported difficulties in performing domestic chores, including vacuuming and lawn mowing.[135] His description of difficulties in carrying heavy shopping bags and undertaking heavy household tasks such as mowing the lawn were supported by Dr Menashi's 16 February 2022[136] and 19 December 2023 reports. [137]
3. However, Dr Menashi goes further to state that Mr Daniel requires assistance from a carer both in and outside the home[138] to undertake mobility activities,[139] including in the form of guidance and supervision.[140] This suggests that the difficulties experienced by Mr Daniel in this domain arise not from any physical impairment, but from his mental health disorders.
4. Dr Menashi's statements are not consistent with Mr Daniel's statements to Ms Curdie. During the assessment, Mr Daniel was observed to undertake household tasks and mobilise effectively around his home without supervision and prompting. He reported that he independently uses public transport and goes to his local shops, only requiring a taxi to transport him home when he has heavy items. No functional tolerances were noted in all mobility activities, including sitting, standing, walking, transfers and balance.[141] He was observed to have no difficulties in undertaking meal preparation, general cleaning and undertake laundry tasks.
5. I have already referred to the decision of Foster whereby it was determined that an inability to undertake only one task in a domain is not sufficient to give rise to a finding that an impairment results in substantially reduced functional capacity to undertake the relevant activity. Instead, an assessment must be made about what a person can and cannot do[142] and whether the person is unable to participate effectively or completely in the activity.[143]
6. Even if I were to accept that the difficulties in undertaking heavy household chores was a consequence of Mr Daniel's mental health disorders (which I do not) I am not persuaded that Mr Daniel is unable to undertake mobility activities effectively or completely without assistive technology, equipment or home modifications, notwithstanding the fact that he requires others to complete heavy chores. Such a conclusion is consistent with decisions made by this Tribunal (differently constituted) in the matters of MRLK and National Disability Insurance Agency [2021] AATA 3896 and Grant and National Disability Insurance Agency [2023] AATA 1206.
7. I am not persuaded that the independent evidence before me gives rise to a finding that the Mr Daniel is unable to perform mobility tasks and actions without assistive technology, equipment or home modifications.
8. I conclude that Mr Daniel's impairments arising from his mental health disorders do not result in substantial reduced functional capacity in activities involving mobility. Subparagraph 24(1)(c)(iv) of the Act is not established.

1. The Respondent contends that Mr Daniel does not have a substantially reduced functional capacity to undertake activities of self-care.
2. Dr Menashi has opined that Mr Daniel requires assistance with showering, dressing and overnight care.[144] Dr Younan made a general statement that Mr Daniel would benefit from assistance, prompting and guidance when undertaking activities of daily living.[145] This is in direct contrast to Mr Daniel's statements to Ms Curdie, which is that he undertakes all cooking, dressing, showering, toileting, transferring and grooming tasks independently.[146]
3. I am not persuaded that Drs Younan and Menashi's general statements should be preferred over Mr Daniel's statements to Ms Curdie regarding his capacity to undertake self-care tasks. I conclude that Mr Daniel is independent in the domain of self-care. I reach this conclusion notwithstanding the evidence before me that Mr Daniel suffers from low-motivation and lethargy.
4. I conclude that Mr Daniel's impairments arising from his mental health disorders do not result in substantial reduced functional capacity in activities involving self-care as required by subparagraph 24(1)(c)(v) of the Act.

1. The Respondent contends that Mr Daniel does not have a substantially reduced functional capacity to undertake activities of self-care.
2. Dr Menashi has opined that Mr Daniel is unable to manage his home, clean, cook and shop,[147] requires assistance with transport, form filling and attending specialists as well as with self-management more generally.[148] Again, this is inconsistent with Mr Daniel's own assertions made during the assessment undertaken by Ms Curdie, where he stated that he is solely responsible for his financial and medication management.[149] He went on to state that he budgets and attends medical appointments alone. Ms Curdie noted that his home was generally clean and he negotiates with his housing provider for maintenance tasks to be undertaken. Furthermore, the evidence suggests that Mr Daniel has capacity to manage his legal matters, including seeking a visa for his fiancé to join him in Australia.
3. I conclude that Mr Daniel is independent in the domain of self-management.
4. Mr Daniel's impairments arising from his mental health disorders do not result in substantial reduced functional capacity in activities involving self-management as required by subparagraph 24(1)(c)(vi) of the Act.

1. Having concluded that Mr Daniel does not satisfy paragraph 24(1)(c) of the Act, I am not required to consider whether Mr Daniel's impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e) of the Act.
2. I conclude that Mr Daniel does not meet the disability requirements in accordance with section 24 of the Act.

1. I next considered whether Mr Daniel satisfies the criteria for early intervention set down in section 25 of the Act.

1. As already set out at paragraph 12 above, a person meets the early intervention requirements if the person has impairments that are, or are likely to be, permanent or the person is a child who has developmental delay. Access Rules 6.4 to 6.7 with respect to section 25 of the Act mirror Rules 5.4 to 5.7 relating to section 24.
2. Self-evidently, Mr Daniel is not a child who has developmental delay. Therefore, subparagraph 25(1)(a)(iii) of the Act is not made out.
3. I have already concluded that the impairments arising from Mr Daniel's mental health disorders are permanent. Therefore, paragraph 25(1)(a) of the Act is satisfied.

Will the provision of early intervention supports reduce Mr Daniel's future needs for support?

1. The Respondent accepts that Mr Daniel's chronic schizoaffective disorder meets the criteria for subparagraph 25(1)(a)(ii) but contends that early intervention is not appropriate because the provision of supports would not reduce Mr Daniel's future needs for supports in relation to his mental health disorders.
2. I have already concluded that Mr Daniel's mental health disorders are chronic, fully treated and stabilised and there is no evidence before me to suggest that the provision of early intervention supports would result in a reduction in Mr Daniel's future need for support.
3. I conclude that no early intervention supports would achieve the requirements of paragraph 25(1)(b) of the Act.
4. Having concluded that Mr Daniel does not meet the requirements of paragraph 25(1)(b) of the Act, I am therefore not required to consider paragraphs 25(1)(c) and (d) of the Act.
5. As section 25 of the Act is not met, Mr Daniel does not meet the early intervention requirements that would enable him to become a NDIS participant under this provision.

1. Mr Daniel does not meet the disability requirements set down in section 24 of the Act, nor does he meet the early intervention requirements in section 25 of the Act. Therefore, the decision under review is correct and so is affirmed.

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

[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

[3] Noting that Mr Daniel sought to adduce further material post-hearing. This was not accepted into evidence as the material was provided out of time.

[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[6] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan).

[59] A1, folio 158 following an ultrasound of both wrists performed on 13 October 2023

[101] Most recently conceded at page 6 in the Respondent's Statement of Facts, Issues and Contentions (RSFIC) dated 22 November 2024.

[113] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [109].

[114] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].

[118] Rooney and National Disability Insurance Agency [2021] AATA 3523 at [22].