Mobility The neurological symptoms affect his balance sometimes leading to falls. Also reduced power/function of hands > > Communication [No response] > > Socialising Mental ill health affects social interactions > > Learning Dyslexia ADHD affect new learning > > Selfcare Can affect [indecipherable] during depressive episodes > > Self-Management Poor focus, concentration affect organise life.[13]

6. In response to the question "what type and frequency of assistance does the applicant need to participate in ..." these life activity areas, Dr C provides the following responses:

Mobility > > Home and/or environmental modifications [no response] > > Assistive equipment and technology [no response] > > Assistance from other persons Physiotherapy > > Communication > > Home and/or environmental modifications [no response] > > Assistive equipment and technology [no response] > > Assistance from other persons Psychotherapy > > Social interaction > > Home and/or environmental modifications [no response] > > Assistive equipment and technology [no response] > > Assistance from other persons Psychotherapy > > Learning > > Home and/or environmental modifications [no response] > > Assistive equipment and technology [no response] > > Assistance from other persons Social work > > Self-care > > Home and/or environmental modifications [no response] > > Assistive equipment and technology [no response] > > Assistance from other persons [no response] > > Self-management > > Home and/or environmental modifications [no response] > > Assistive equipment and technology [no response] > > Assistance from other persons Social worker[14]

7. The Applicant also submitted an "Evidence of psychosocial disability form" completed by Dr D, Consultant Psychiatrist, dated 28 January 2021 as part of his Access Request. In that form, Dr D records that he has been treating the Applicant since 8 November 2012. He confirms that the Applicant has a mental health condition and records his diagnosis and year of diagnosis as follows: "recurrent depression pre-2012, ADHD 1995 + 2017, CPTSD pre 2012, Dyslexia 2012 and Hypersomnia". He reports that the Applicant has never been hospitalised in relation to any of these conditions.[15] In the Table at question 2 of the Form Dr D describes the Applicant's impairment in each domain as follows:

Social Interaction Minimal social interaction. Actively avoids contact with others, isolated. > > Self-management Procrastination, delay ability to complete tasks > > Self-care No > > Communication Yes, subtle - feels misunderstood, Dyslexia impedes > > Learning Can vary. Ability to concentrate and attend varies > > Mobility No.[16]

8. In the Table at question 3 of the Form, Dr D provides the following treatment summary[17]:

1. In response to the question "are there any known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy the impairments", Dr D opines that there are none, explaining as follows: "patient has tried multiple treatments and psychological therapies". He also expresses the opinion that the Applicant's impairments, caused by his mental health conditions, are likely to be permanent.[18]
2. On 14 April 2021 the Agency sent the Applicant a letter in response to his Access Request advising that further information was required and allowing 28 days for this to be furnished.[19] The Applicant contends that he was advised orally by a NDIS officer that he would have 90 days to do so.[20]
3. By letter dated 29 April 2021 a delegate of the CEO notified the Applicant of her NDIS Access Decision.[21] Due to an administrative error that decision was made before the elapse of the period the Applicant was permitted to supply further information requested by the Agency in support of his Access Request. That error was the subject of a complaint to the Minister by the Applicant and an apology to the Applicant by the Agency.[22] The Applicant continues to be aggrieved by that error because, as he apprehends it, it deprived him of a "fair review" the effect of which continues up to the present.[23]
4. The Applicant contends that he provided further information in response to the Agency's request on 19, 20 and 22 April 2021 and 4 May 2021, but this was not considered by the delegate. The further information the Applicant supplied in April 2021 is set out in email exchanges between the Applicant and an agency representative which are at Tab R7 of the Agency Bundle.[24] This information is not referred to in the NDIS Access Decision as "information considered".[25] I cannot find, and was not taken to, any further information provided by the Applicant to the Agency in May 2021.
5. In her NDIS Access Decision, the delegate determined that she was satisfied that the Applicant met the age and residence requirements for the NDIS. However, she determined she could not be satisfied that the Applicant met the disability requirements or early intervention requirements for access to the NDIS. Specifically, that was because she was not satisfied that the 'permanency' criterion had been met:

Disability Requirements > > Based on the information provided, you do not meet the disability requirements as set out in section 24 of the NDIS Act, specifically: > > Permanency, Section 24(1)(b) > > The NDIS Act considers whether a disability is permanent, or likely to be permanent. > > The information provided confirms you have undiagnosed neurological disorder and depression. > > However, this information does not indicate that all available and appropriate treatment options that are likely to improve the impacts of your disabilities have been explored. These treatment options must be explored before this requirement can be met. > > ... > > Early intervention Requirements > > Based on the information provided, you do not meet the early intervention requirements as set out in section 25 of the NDIS Act, specifically: > > Permanency or Developmental Delay, section 25(1)(a) > > The NDIS Act considers whether a person has a permanent disability or is a child under 6 years of age with developmental delay. > > As previously explained, this information does not indicate that all available and appropriate treatment options that are likely to improve the impacts of your disability have been explored. These treatment options must be explored before this requirement is met.[26]

6. The delegate also considered the "other reported disabilities" referred to in the Applicant's Access Request Form and determined that "the information does not indicate that these meet the disability or early intervention requirements".[27]
7. On 5 May 2021 the Applicant requested an internal review of the NDIS Access Decision under s 100 of the NDIS Act. This internal review was completed, and the Applicant notified of the outcome, by letter dated 25 June 2021. The delegate determined to confirm the decision, but with respect to the disability and early intervention requirements, cited additional grounds for doing so. The delegate sets out the materials she considered in the internal review in her internal review report. It appears from this list of materials that she considered all the information the Applicant had provided to the Agency up to that point.[28]
8. The relevant contents of the internal review decision are extracted following:

Access criteria: section 24 Disability > > To meet the disability requirements the NDIA must be satisfied that all of the five criteria in paragraph 24(1) have been met. > > Criteria (a) on impairments - .... > > I am satisfied that this criteria has been met regarding the undiagnosed neurological condition, Attention Deficit Hyperactivity Disorder (ADHD), Complex Post-Traumatic Stress Disorder (CPTSD), depression, cervical radiculopathy, bilateral carpel tunnel and dyslexia. > > I am not satisfied that this criteria has been met regarding the obstructive sleep apnoea, sleep disorder and circadian rhythm disorder based on the evidence provided. > > In making this decision I have considered Section 8.1 of the National Disability Insurance Scheme Operating Guidelines - Access, the term 'disability' refers to "the reduction or loss of an ability to perform an activity". > > The information tendered does not demonstrate that these impairments result in a disability in accordance with NDIS Guidelines as outlined above. As such, dyslexia, obstructive sleep apnoea, sleep disorder and circadian rhythm disorder will not be considered further in this report. > > Criteria (b) on permanence ... > > The NDIA does not assess the permanency of a diagnosis, but rather the associated and resulting impairments (for example, impaired mobility, impaired capacity for social interaction and so on). A person may have a lifelong diagnosis or condition which may require ongoing medical review. However, the impairment resulting from a diagnosed condition cannot be considered permanent until all treatment options have been explored. > > In making this decision, I have had consideration towards the following rules and Operational Guidelines.

• Section 5.4 of the [NDIS] (Becoming a Participant) Rules 2016 ...
• Section 5.6 of the [NDIS] (Becoming a Participant) Rules 2016 ...
• Access to the NDIS Operational Guidelines - 8.2 ...

I am satisfied this criteria has been met regarding ADHD, CPTSD, depression and dyslexia. > > I am not satisfied that this criteria has been met regarding undiagnosed neurological condition, cervical radiculopathy and bilateral carpel tunnel based on the evidence provided. > > Justifications regarding the assessment of your impairments have been broken down below to ensure clarity in how this decision has been made. > > Undiagnosed neurological condition > > Evidence provided by Dr E (item 18) reports, "Given the ongoing uncertainty, I've requested a second opinion from Professor N ..." > > As a further review is pending I cannot determine the permanency of your impairment. As outlined in Section 5.6 of the [NDIS] (Becoming a Participant) Rules 2016 "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". As such, this criteria has not been met. The undiagnosed neurological condition will not be further assessed in this report. > > Cervical radiculopathy > > Evidence provided by J (Item 10) reports, "His symptoms have been so debilitating that he is considering major spinal depression and fusion surgery to try to remedy this". > > As the evidence indicates the possibility of surgical intervention I cannot conclude that the impairment is likely to be permanent. As outlined in s 5.4 of the [NDIS] (Becoming a Participant) Rules 2016 "An impairment is, or is likely to be permanent only if there are no known, available and appropriate evidence based clinical, medical or other treatments would (sic) be likely to remedy or substantially relieve the impairment". As such, this criteria has not been met. The cervical radiculopathy will not be assessed further in this report. > > Bilateral carpel tunnel > > Evidence provided by Dr E (Item 18) reports, "On the positive side, he isn't experiencing major problems with his carpel tunnel condition despite not wearing splints or receiving hand therapy". > > Based on the evidence it cannot be concluded that you have accessed all available and appropriate treatments which may be likely to remedy or substantially relieve your impairment. As outlined above, an impairment is, or is likely to be permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy or substantially relieve the impairment. As such, it cannot be concluded that your impairment is permanent at this time. The bilateral carpel tunnel will not be considered further in this report. > > Future applications would benefit from a thorough treatment history for your impairments indicating the outcomes of all medical treatment, surgical intervention (if applicable), and specialist reviews/prognosis. The evidence would need to demonstrate that all readily available and evidence based treatments that would be likely to remedy or substantially relieve your impairments has been completed, become unavailable, or no longer deemed medically viable by the relevant treating professionals/specialists. > > Criteria (c) on functional impact ... > > To meet this criterion, evidence must demonstrate, as a result of your disability, that you require the support and intervention of another person, assistive technology, equipment or home modifications to successfully complete daily activities. > > In addition, completing tasks in a modified or different manner, more slowly or with the aid of 'commonly used items' such as a walking stick, is not considered to reflect a substantial reduction. Assessment must also conclude, between acute episodes, an individual has reduced functioning for most or all of the tasks within a major life activity. > > In making this determination I have referred to the following: > > Access to the NDIS Operation Guidelines - 8.3 ... > > Section 5.8 of the [NDIS] (Becoming a Participant) Rules 2016 ... > > Based on the evidence provided, I am not satisfied that this criteria has been met in regards ADHD, CPTSD, depression and dyslexia. > > Whilst the functional impact of the neurological condition, cervical radiculopathy and bilateral carpel tunnel is acknowledged, the only functional impact that can be considered to meet this criterion is that due to a permanent impairment. As you have not met the requirements in Section 24(1)(b) the impacts it results in cannot be used as part of the determination for Section 24(1)(c). > > In reference to ADHD, CPTSD, depression and dyslexia: The evidence provided indicates that you do not usually require the assistance of another person, specialist disability aids or equipment that is formally prescribed or specifically designed for a person with disability. As such, I am not satisfied that a substantial reduction in functional capacity has been demonstrated as er the Rules outlined above. > > Future applications would benefit from detailed information about the impacts of your disability from your treating health professional. The type of information required to assess functional capacity is outlined below:

• Descriptive information on what activity you are unable to independently participate effectively or completely in.
• Descriptive information of the activities/tasks you require the support of another person, equipment or assistive technology.
• Descriptive information of the type of support required (e.g. one-one-support, specifically prescribed equipment) as well as the frequency of this support (e.g. daily, weekly etc)

Criteria (d) on participation ... > > I am satisfied that this criteria has been met. > > Criteria (e) on lifetime NDIS support ... > > I am not satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia based on the evidence provided. > > Without meeting all of the preceding criteria, I have been unable to conclude that you will require the support of the NDIS for your lifetime. Accordingly, I find that you do not fulfil the disability requirements to enable you to become a participant in the NDIS. > > ... > > Access criteria: Section 25 Early Intervention > > Decision: Not satisfied > > To meet the early intervention requirements, the NDIA must be satisfied that all of the three criteria in paragraph 25(1) have been met, and that the support is not more appropriately provided through other schemes or services. > > Criteria (a) on impairments ... > > I am satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia, > > Criteria (b) on reducing future need for support ... > > Due to the longstanding nature of your impairments, providing support now would not be considered early intervention. As outlined in Section 9.3 of the [NDIS] Operational Guidelines - Access, "when considering if a person is likely to benefit from early intervention supports, the NDIA may consider factors such as the time elapsed since the onset of the diagnosis". As such, this criterion has not been satisfied. > > Criteria (c) on improving capacity ... > > I am satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia based on the evidence provided. > > Criteria 23(3) that the NDIS is the most appropriate support system ... > > I am not satisfied that this criteria has been met in regards to ADHD, CPTSD, depression and dyslexia based on the evidence provided. > > The evidence submitted does not demonstrate that NDIS is the most appropriate support system. Accordingly, I find that you do not fulfill the early intervention requirements to enable you to become a participant in the NDIS. > > ...

1. The Tribunal's role in undertaking this administrative review is to reach its own conclusion as to what is the correct decision by conducting its own independent assessment of the factual matters necessary to be addressed in determining if the Applicant meets the criteria for access to the NDIS. This is, in essence, to do again what the original decision-maker did. In this respect, the Tribunal stands in the shoes of the original decision-maker for the review process.[29] The Tribunal's role is to make the correct decision on the material before it as it stands on the date of the hearing. This may include consideration of material not considered by the delegate who made the decision subject to administrative review.[30]
2. In reviewing the delegate's decision, the Tribunal may exercise all the powers and discretions that are conferred on the CEO by the NDIS Act. It may affirm, vary, or set aside the decision under review. If it sets aside the decision, it may substitute a different decision for the internal review decision or remit the access request to the CEO for reconsideration with any directions or recommendations the Tribunal considers appropriate.[31]

1. In administrative review proceedings neither party bears a formal onus of proof. However, this is a case in which the Applicant seeks access to a public benefit which is only available if specified statutory criteria are met. He therefore bears a practical onus of placing before the Tribunal, or otherwise drawing attention to, relevant and probative evidence that can establish that he meets these access criteria.[32]
2. I note that the Applicant made repeated statements in pre-hearing communications with the Agency and the Tribunal and in his SFIC to the effect that the Agency bore an onus of "requesting" additional information from him that would enable him to meet the access criteria, that he stood ready to provide this information on request, and that the Agency's failure to do so somehow "denied" him "the ability to provide the evidence [he] needed".[33]
3. The Applicant also made repeated statements to the effect that it is unreasonable to expect him to provide information in support of his Access Request beyond what he provided at the time of his Access Request, particularly because of the extent of his medical information the Agency obtained in response to various summonses it issued to his treating professionals.[34] Submissions to this effect were also made at the hearing.[35]
4. These beliefs are misconceived. It is the Applicant who bears the practical onus of putting before the Agency (and now Tribunal) the evidence that will establish his eligibility for the NDIS. The Agency has an obligation to ensure that the access criteria are clear to an Applicant, but it does not have any positive obligation beyond that to assist the Applicant to meet the access criteria.
5. The Agency may, in the proper exercise of its statutory functions, seek to interrogate the Applicant's claims for eligibility and in doing so may, among other things, issue summonses to treating professionals and engage an independent expert to assess an Applicant (both of which have occurred in this case). Indirectly, that may assist an Applicant to establish that they meet the access criteria, or it may not. But the purpose of such efforts is neither to assist or impede the Applicant. Such efforts involve the essentially neutral exercise of evaluating the Applicant's claims against the statutory access criteria to ensure the proper administration of the NDIS.[36]
6. The Applicant also made various statements to the effect that the Tribunal's procedural directions deprived him of a procedurally fair opportunity to present additional evidence in support of his access request. I have dealt with that complaint at some length in my reasons in relation to the recusal application, and rely on what I said there, without repeating it here.[37]

1. The Applicant is a man, now 35 years of age. On the date his NDIS Access Request was made he was 32 years and 3 months old.[38] He is an Australian Citizen and was so on the date his NDIS Access Request was made.[39]
2. Since April 2022, the Applicant has lived alone in a two-bedroom, two-level, townhouse that he rents on a subsidised basis from a social housing provider (the Applicant's home).[40] The Applicant's home is in a rural town in Victoria that is approximately 90kms from Melbourne.[41] He has a driver's license[42] and owns a motor vehicle.[43] He maintains regular contact with his mother.[44] He is estranged from his father.[45] He has an adult brother and sister from whom he is also estranged.[46]
3. This proceeding arises from the Applicant's second Access Request to the NDIS.[47] His first application appears to have been made on 3 July 2018.[48]
4. When he made this Access Request for the NDIS, the Applicant lived with his mother, brother, and sister in another Victorian rural town (residence at the time of application).[49] His sister moved out shortly after his application was made. His mother and brother still live at that location, which is approximately 70km by car from the Applicant's current home.
5. It would appear from the material the Applicant submitted to the Agency in support of his Access Request that a significant driver of that request were domestic stressors he was experiencing in relation to what I will refer to obliquely as his brother's and sister's antisocial and risk-making behaviour.[50] Those specific stressors no longer pertain in the Applicant's current living environment, although he does complain that his current home is configured over two levels, which negatively impacts on his mobility.[51]
6. The Applicant completed Year 12, apparently over 3 years.[52] He then enrolled in a university degree program in graphic design which he did not complete, he reports, because of declining health and hand function.[53] In 2017, he enrolled in a Master of Laws at another university which he has not yet completed, he reports, because of difficulty tolerating travel. He hopes to complete this degree in the future once NDIS supports are in place.[54]
7. After leaving school, the Applicant worked as a driller's off-sider (full-time),[55] as a groundman on a golf course,[56] and as a security guard (1 day per week).[57] However, he has been in receipt of a Disability Support Pension since 2016.[58] In or about December 2019 AusSuper paid out the Applicant's claim for his superannuation accumulation on the basis was unable to work due to disability as it presented at that time.[59]
8. With NDIS supports in place, the Applicant would now like to work towards employment as a disability advocate.[60]
9. Apart from helping him complete his law degree studies and obtaining work as a disability advocate, at the time his NDIS Access Request was made, the Applicant stated as his objectives for obtaining access to the NDIS as being able to "live independently", in a "clean and safe environment", "closer to where I receive medical treatment", to avoid the physical and mental demands of long-distance travel which are incapacitating for him.[61] He also stated that he sought "assistance with dietary and cooking needs", with "cleaning",[62] and help to obtain equipment that will "enable [him] to sit and sleep comfortably".[63] Additionally, the Applicant stated that he wanted to obtain support to achieve "increased physical mobility" which would enable him to have "more of a social life, and over time, 'help [him] to a point where [he] can have a somewhat normal life".[64] Specifically, the Applicant stated a goal of finding an outdoor hobby that he enjoys and which will not make his symptoms worse.[65] The Applicant expressed the fear that without NDIS intervention "overtime [his] life will get worse along with [his] disability".[66]
10. I note that all the above statements of objectives were made on or about the time the Applicant made his NDIS Access Request in April 2021 while he still lived with his mother, brother, and sister.
11. At the hearing, the Applicant had some difficulty in identifying what his objectives were in obtaining access to the NDIS. He told me that "it is difficult to say", but added, "from [his] understanding, being approved for the NDIA, [he is] not using the resources, it's not costing them anything, right?" [67]
12. Counsel for the Agency returned to this issue in her questions of the Applicant which led to the following exchange:

Am I understanding correctly that, if you were to be granted access right now, you wouldn't use any supports? --- I don't know. But - because I still - I still don't know what can and cannot be - like, claimed under the NDIS - it's never been made clear to me. And I know that this is a universal problem for a lot of people. So I can't answer that question, honestly. Because I don't know. > > ... It's in the same way that I don't know when my next cycle's going to occur. But it's coming. It's getting worse. I can already feel it. So.[68]

13. In relation to that last quoted statement, and with respect to his undiagnosed neurological condition, the Applicant informed me that his "health [had] improved a little bit", but this was "part of a cycle" that would likely lead to relapse in the future. He stated that he wanted to obtain access to the NDIS in advance of any future relapse so that support will be available to him at that time.[69]
14. Otherwise, the Applicant identified transport assistance to attend medical appointments in Melbourne as a support he would likely seek to obtain from the NDIS because he is sometimes too tired from lack of sleep to drive to these appointments.[70]
15. When questioned by Counsel for the Agency what supports he would seek to obtain from the NDIS in relation to Dyslexia if access was given, the Applicant replied:

'I am not sure. Because once again. Going to yesterday, it's still not been made clear to me what the NDIA cover and what they do not and how they help. All I know is that several years ago, whenever I needed help from a service because of how sick I was at the time, I would reach out to services and every single one of them would say 'you should be on the NDIS.'[71]

16. The Applicant refers to his mother as his informal (unpaid) "carer".[72]
17. In an 'Access Request, Supporting Evidence Form' which was completed on 21 July 2018, apparently in relation to the Applicant's first NDIS Access Request, Dr F, General Practitioner, states in relation to mobility that "mum helps him to take him shopping and to the doctors"[73] and in relation to self-management "mum helps to drive him to shopping [and] she also helps him to handle day to day problems due to anxiety and depression".[74]
18. In his Personal and Carer Impact Statement the Applicant states that his mother "has to do all my shopping, cooking, laundry etc".[75] He describes his mother as an older woman with physical disability who struggles to look after herself, let alone provide him with the care he needs.[76] He states with respect to the care his mother provides that "she can't do it anymore". He states that if he were to obtain access to the NDIS it would improve the quality of his life, and his mother's.[77]
19. The Applicant was interviewed by Agency engaged independent expert, Mr Mate, Occupational Therapist, for the purpose of preparing his report. Mr Mate records in his report that the Applicant told him that his mother "provides informal support" and would "occasionally visit him approximately once a month, and he will visit her approximately twice a week". Mr Mate also reports being informed by the Applicant that he and his mother "speak on the phone each day" and that his mother provides the Applicant with "emotional support', and 'occasionally assist[s] him with grocery shopping or cooking".[78]
20. In his oral evidence, during questioning by the Agency's representative, the Applicant stated that he continued to receive support from his mother, and that he would typically see her twice a week, either based on him visiting her, or her visiting him.[79] He stated that she continues to assist him with shopping, laundry, and various other tasks that he finds it difficult to deal with because of social anxiety.[80] In response to specific questions, the Applicant accepted that his mother provided him with "occasional' support", which is "getting harder" for her to provide because of her own age and health issues.[81] He also accepted that he no longer relies on his mother's support for cooking and cleaning.[82]
21. The Applicant reported to Mr Mate during his Occupational Therapy Assessment that he consults a neurologist for review approximately every 6 months, a Psychiatrist, Dr D, in relation to his Complex Post Traumatic Stress Disorder (C-PTSD) approximately every 3 months, another Psychiatrist, Dr G, in relation to his Attention Deficit Hyperactivity Disorder (ADHD) every 6 months, and a General Practitioner from weekly to monthly depending on his presentation at the time. He also reported consulting a psychologist in the past, but not currently, an Optometrist in relation to his Dyslexia, and a Podiatrist, both in the past. [83]
22. The Applicant does not currently receive any formal disability related supports.[84] He reports being turned away from all community-based formal supports he has approached because he was deemed ineligible.[85]

Evidence in relation to health conditions and impairments

1. The medical evidence before the Tribunal in relation to the Applicant's health conditions and impairments comprises the material submitted by the Applicant in support of his NDIS Access Request, some (limited) further material that was generated by specific treating professionals in response to targeted questions put to them by the Agency or the Applicant's former legal representatives after the institution of this proceeding, and material obtained from the Applicant's treating professionals in response to summonses issued to them by the Agency in June 2022 (and specifically placed into evidence in the Agency Bundle). As at the date of the hearing this material ranges in age between 10 years and 5 months and just under 2 years old.
2. This material falls into four broad categories which have some overlap, being:
   1. Evidence related to neurological and orthopaedic investigation and management,
   2. Evidence related to the Applicant's mental health conditions and their management,
   3. Evidence related to sleep investigations and management, and
   4. Evidence related to dyslexia investigation and its management.
3. The medical opinion submitted as a component of the Access Request itself has already been set out above. The further material is summarised following.

Evidence related to neurological and orthopaedic investigation and management

On 13 January 2014 the Applicant attended on Dr H, Neurosurgeon, at The Melbourne Neuroscience Centre, Department of Neurology, at The Royal Melbourne Hospital, for review on referral from a General Practitioner, Dr I. Dr H reported the following observations to Dr I following that consultation:

I reviewed [the Applicant] today in my Neurosurgery Clinic. [The Applicant] has returned to see me after his cervical MRI. > > This patient last saw me in August 2012 complaining of chronic neck pain and some intermittent left arm pain. His chronic intermittent neck pain has been stable and he does not complain of any significant arm pain anymore. > > This patient's MRI scan done in October 2013 demonstrated minor cervical spondylosis but there is no significant canal stenosis, foraminal stenosis or neural compression. > > Given the scan finding, I recommend to [The Applicant] to undergo conservative treatment for his cervical pain including restriction of physical activities, analgesic medication and physiotherapy/hydrotherapy. > > From my point of view, no further neurosurgery follow up or intervention is required. > > ...[86]

On 1 May 2019 the Applicant attended Dr J, Spinal and Orthopaedic Surgeon, for review on referral from Dr C, General Practitioner. Following review, Dr J reported the following observations to Dr C, relevantly:

... As you are aware, he is a 33 year old man who has been on a disability pension for chronic low back issues for several years. These issues have remain in status quo and so I did not go into any great detail with regards to them. > > As you are aware, since February this year he has been suffering some new, atypical symptoms. They developed quite insidiously without any major recollectable injury or triggering event and were associated with quite intractable pain in both the neck and the middle of his thoracic spine. > > His main issue presently is that his pain continues to refer down his left arm into his middle, ring and little fingers. It is associated with numbness. It is also associated with some subjective weakness but he tells me that this weakness was more profound back in February and he has regained a lot of strength. His pain is worse at night keeping him from sleep, quite typical of neuropathic pain. > > He has been reliant on regular Palexia for some respire [sic, respite_?). He is getting a bit depressed and miserable with life. He is spending all his days either sitting or lying in bed, in the hope with that his pain will resolve. He is also describing some atypical body and leg twitching but he is actually not describing typical myelopathic features as such. He can still safely walk around significant distances comfortably._ > > On examination today he did walk slowly but with a smooth, symmetric gait, no ataxic component. Pertaining to his cervical spine he had satisfactory functional range of movement in all directions and extremes of range of movement did not really trigger any of his left arm brachialgia. He did not have any focal motor neurological deficit. He did however have some slightly reduced subjective sensation over the medial aspect of his hand and forearm. > > He had a very sensitive MRI of his cervical and thoracic spines performed recently and I went through those images very carefully with him. He does have multiple areas of degenerative disc disease (spondylosis), a lot more than I like and would expect to see in a thirty year old, especially considering his lower back issues. > > Pertaining to his referred upper limb pain which appears his [main] trouble, he does have moderate left sided paracentral degenerate disc protrusions at C6/7 and C7/T1 which are likely irritating the exiting left C7 and C8 nerve roots which would be in keeping with the dermatomal distribution of his pain and paraesthesia. I think these are best managed by way of injection therapy, targeting the most pathologic left C7/T1 neuroforamin first and hopefully this will be enough to get him over the line as major cervicothoracic discectomy and instrumented fusion surgery would not have a very favourable risk/benefit ratio in his case. > > The separate issue of his T8/9 disc protrusion indenting on the anterior spinal cord and possibly causing a bit of myelomalacia I think at this stage is a red herring as the spinal canal is still capacious around the spinal cord thus there is no major neural compression or stenosis and he really is not describing symptoms or clinical features of thoracic myelopathy so we will keep an eye on this at this stage. > > If the two injections do not settle things down for him and get him over the line I would be happy to review him again for reassessment.[87]

On 26 July 2019 the Applicant attended Dr E, Neurologist and Neurophysiologist, for consultation on referral from Dr C, General Practitioner. Dr E reported the following observations to Dr C following that consultation:

... > > I saw [the Applicant] today for the first time. > > [The Applicant] is a pleasant but somewhat complicated 20 year old ... man > > He presents for reassessment of his condition and is attending Dr J's rooms. Going further back, he's been worked up for narcolepsy +/- obstructive sleep apnoea and was recently diagnosed with a moderately severe disorder of the latter. > > [The Applicant] presents with multiple neurological issues and is mainly concerned about unexplained atrophy of L FDI. He plays lots of video games and worries about his ability to use the L hand effectively. At times, he can drop objects and on other occasions, develops unexplained twitches and/or cramps. These occur in random parts of the body and become more prominent when recumbent. He has a history of back discomfort although denies pain radiating into either lower extremity. > > Twitches mostly occur while falling asleep although a few have happened in clear consciousness. There are no reliable triggers and [the Applicant] has never had a convulsion. > > Apart from ADHD, an elevated BMI and mild asthma, he is otherwise well. > > [The Applicant] was prescribed Lyrica but stopped because of side effects. He uses a Ventolin inhaler prn and apparently reacts to tetracyclines and bee stings. > > Socially, [the Applicant] takes minimal alcohol and is a non-smoker. He lives locally and isn't using mobility aids. > > On examination [the Applicant] was alert and appropriate. Speech and higher functions were within normal limits. Tone in both lower extremities appeared normal and there was no focal weakness on either side. Sciatic stretch tests negative. Knee reflexes brisk but symmetrical. Ankle jerks mildly reduced and plantars down going. Light touch and temperature perception preserved over both sets of toes. In the upper limbs, there was no focal weakness including FDI and APB on both sides. No finger-nose ataxia was detected and reflexes were reduced but symmetrical. Cranial nerves intact. > > It will be difficult to reach a unifying diagnosis for his condition. He probably has mild cervical radiculopathy and could also have propriospinal or idiopathic myoclonus. If we don't obtain clear answers within 2-3 months, I'll consider referring him to Dr [redacted] Hughes who's our movement disorders subspecialist. I've also encouraged [the Applicant] to forward a video clip of his movements. > > Time constraints prevented us performing EMG and nerve conductions and I've scheduled these for next week. He'll also have MRI scans of the entire spine with emphasis on the thoracic and lumbar regions. Scans will principally check for cord pathology including demyelination or mechanical compression and results will be forwarded. He'll also undergo sensory and motor limb evoked potentials to exclude central conduction delay. Lastly, he'll have a sleep-deprived EEG to screen for subclinical epileptiform activity, ceruloplasmin level, ANA/ENA and iron studies. > > ...[88]

On 1 August 2019 the Applicant attended Dr E, Neurologist, on referral from Dr C, General Practitioner. Dr E performed Sensory and Motor Nerve Conduction Studies and an Electromyography test. Dr E interpreted the results of those tests as follows:

Electrophysiological studies of the L upper and lower extremities revealed no evidence of neuropathy, myopathy, ulnar neuropathy across the elbow, cramp fasciculation syndrome or myotonia. > > Central pathology cannot be excluded from the above data and a follow-up appointment will be arranged following the upcoming sensory and motor evoked potentials.[89]

On 1 August 2019 the Applicant was also reviewed again by Dr J on referral from Dr C. In his report to Dr C following that review, Dr J stated, relevantly:

... > > He underwent a left C7 - T1 foraminal cortisone injection and this has profoundly helped with his referred arm brachialgia and neuropathic pain. In place, however, he has felt increasing weakness of his left upper limb and especially his hand and grip strength. He is dropping things and has trouble turning door knobs. He has noticed wasting of the posterior interosseous muscles and this is very obvious when comparing with the right side. > > You have quite appropriately referred him to a neurologist, [Dr] E who he has only just seen and he is due to have some EMG/Nerve Conduction studies tomorrow which is a fantastic idea. > > The new MRI of his cervical spine confirms the known degenerate hard disk disc osteophyte protrusion at C6/7 and C7/T1 and so if he feels this is all in keeping with C7 and C8 cervical radiculopathy then I have the option of considering decompressive cervical spine surgery but his neck is definitely not the best neck to operate on because of its shape and the fact that these stenotic levels are at the absolute base of the neck. This may well require both front and back surgery to try to reach it which would be a massive undertaking and he is very keen to avoid this if at all possible. > > Thus, I would be very interested on hearing [Dr] E's assessment and advise so that hopefully surgery can be avoided.[90]

On 5 August 2019 the Applicant attended on Dr K, Neurologist, on referral from Dr E. Dr K performed an Electroencephalogram with respect to query myoclonic epilepsy. Dr K reported the outcome of his tests as follows:

... > > Factual Report > > Posterior reactive 11 Hz alpha rhythm was present. Normal drowsing changes were present. No stage II sleep transients were seen. Normal ECG artefact was visible posteriorly. > > No focal, periodic or epileptiform abnormality was seen in this study. > > Hyperventilation and photic stimulation did not induce any abnormality. > > No clinical events were reported during this EEG. > > Conclusion > > Normal EEG. No typical events were reported during the recording.[91]

On 1 October 2019 the Applicant was reviewed again by Dr J on referral from Dr C. In his report to Dr C following that review, Dr J states the following:

... I spoke to his neurologist [Dr] E [a couple of months ago] and we both agreed to adopt a wait and see approach. Apparently, his EMG/nerve conduction studies did not show anything majorly untoward, acknowledging his thenay [sic, thenar?] musculature wasting. > > Over the past couple of months he has been suffering increasing pain as well as weakness and atrophy of not just his thenay [sic, thenar?] musculature but also his forearm extensors. His back pain has also increased and he is getting increasingly debilitated, depressed and frustrated by all of this. He is actually coming to the end of his tether with one year suffering like this and he is actually desperate for some help. Even though we all wanted to avoid surgery, he would now like to consider this as a last resort. He is due to see [Dr] E later this month for a further opinion. > > I have already mentioned to him that if surgery were to be considered in my hands it would involve C6/7/T1 anterior cervicothoracic discectomies and fusion. This would not be technically straight forward due to his habitus and he understands this. There is a real risk of exacerbating his pre existing quite severe voice issues and swallowing difficulties. There is a chance that this will not make any difference to his pain or radiculopathy whatsoever. ...[92]

By letter addressed 'to whom it may concern' also dated 1 October 2019, Dr J, Spinal and Orthopaedic Surgeon states:

This letter is to confirm that [the Applicant] has come in to see me on three separate occasions during the course of this year, with progressively debilitating neck pain and referred left - right arm pain consistent with cervical radiculopathy. > > His objective MRI scan confirms degenerative C6/7/T1 hard disk osteophyte protrusions causing significant left sided neuroforaminal stenosis and likely compression and irritation of the exiting left C7 and C8 nerve roots in keeping with all of this. > > He is also seeing a neurologist for further specialist opinion. > > His symptoms have been so debilitating that he is considering major spinal decompression and fusion surgery to try to remedy this. > > ...[93]

On 14 January 2020 the Applicant attended Dr L, Neurologist, and his Advanced Trainee in General Medicine, Dr M, for review at the Movement Disorders Clinic at The Royal Melbourne Hospital on referral from Dr C, General Practitioner. Following that review Dr M reported the following to Dr C:

... > > On examination today, [the Applicant] was obese. He had normal gait pattern. Cranial nerves II, III, IV and VI were intact. There was subjective reduced sensation on the left side of the face with normal power. Cranial nerves IX, X, XI, and XII were intact. On examination of [the Applicant's] upper limbs, there was no pronator drift. There was some hand asymmetry with some loss of muscle bulk in the left hand compared to the right. There was normal tone and power throughout all muscle groups of the upper limbs and reflexes were symmetrical. In the upper limbs was some sensory loss to temperature sensation, which was not in a dermatomal or peripheral nerve distribution. There was intact vibration sense throughout. On examination of the lower limbs, Romberg's test was negative and there was a normal gait pattern. There was normal tone, power and reflexes and plantars were downgoing. There was some temperature sensation loss in the left lower limb, which was patchy and not in a dermatomal nor peripheral nerve distribution. There was normal vibration sense. > > I saw [the Applicant] with Dr L who reviewed the history and the investigations that have been done to date. He was reassured by the negative investigations and felt it was likely that there was no organic cause for the symptoms. It is likely that [the Applicant's] symptoms are as a result of a combination of anxiety, chronic pain and deconditioning. We attempted to enter into a discussion with [the Applicant] about the nature of this and what could be done; however [the Applicant] had very fixed ideas that there was an undiagnosed organic cause to these symptoms and could not accept that there was no organic cause found on investigations to date. He was not willing to discuss strategies on how to improve his symptoms. > > If he were willing to engage in strategies in future, we would suggest input of physiotherapy, dietetics and psychology ...[94]

On 22 April 2021 the Applicant again attended Dr E, Neurologist and Neurophysiologist on referral from his General Practitioner, Dr C. Dr E reported the results of this review to Dr C as follows:

... > > Since our last contact [the Applicant] remained relatively stable. > > As before, he reports a number of seemingly unrelated symptoms including L facial numbness, fluctuating fatigue and intermittent numbness of both hands. In addition he has L sided neck/lower back pain and recent MRI scans revealed low-grade C-7 root irritation. On the positive side, he isn't experiencing major problems with his carpal tunnel condition despite not wearing splints or receiving hand therapy. [The Applicant] denies radicular symptoms in either lower limb and general health appears fairly stable. > > Limb examination revealed no focal weakness and reduced by symmetrical reflexes. Tinel's tests negative over the carpel tunnels and Phalen's tests negative after a minute. No objective sensory deficits or muscle tenderness apparent. Finally, there was no facial weakness or ptosis and eye movements were full. > > [The Applicant] has bilateral carpel tunnel syndrome as well as possible cervical radiculopathy which appears inactive. The question is whether he has fibromyalgia or chronic fatigue syndrome and an opinion from a Rheumatologist might be helpful. Given the ongoing uncertainty, I've requested a second opinion from Professor N ... Hopefully John can see [the Applicant] within 3-4 months and I've forwarded relevant clinical letters to him. > > ...[95]

On 16 June 2021 the Applicant attended A/Professor N, Neurologist, for review and second opinion on referral from Dr E. His findings were reported to Dr E as follows:

... > > [The Applicant] currently presents with a range of symptoms which took some time to explore. He reports intermittent brief periods of neck pain which come and go. He feels he is generally low in energy and has had a couple of episodes of foggy vision. At one point, he reported wasting of the small muscles of the left hand, in particular the thenar eminence but feels this has now resolved. He describes occasionally stumbling and falling to the ground "in slow motion". This has happened once in the shower and he wondered whether the heat was responsible. He did not injure himself. He describes intermittent pain in his hands that come and go, lasting minutes at a time. The pain seems to be over all the fingers. He also reports reduced sensation in his hands and says he accidentally injures them from time to time. He had some Band-Aids on a couple of fingers. [The Applicant] describes intermittent cramping of the hands. This tends to come on late in the afternoon with the hands developing a cramping posture for around a minute, resolve for a minute and then recurring camping once more off and on for around 20 minutes. The symptoms spontaneously abate if he lies down and relaxes. [The Applicant] reports periods of sleep paralysis where he wakes and is unable to move briefly. At other times he has periods of sleepwalking. > > ... > > On examination [the Applicant] was not acutely unwell. He was moderately overweight and softy spoken. He was polite and cooperative. Neurologically, gait was normal including tandem gait and Romberg's testing. He was able to rise from a chair without the use of arms. Examination in the bunk confirmed mild action tremor of the left greater than right upper limb. He was quite muscular and there was no evidence of wasting of the small muscles of the hands or forearms. Power was normal of shoulder abduction, elbow flexion and extension, wrist extension, finger abduction, extension and grip as well as thumb abduction. Reflexes were present at the biceps, triceps, supinator and finger jerks and in the lower limbs were present at the knee and ankle with flexor plantar responses. External ocular movements were smooth and full. There was a full range of facial movements and speech was no evidence of dysarthria or dysphasia. Blood pressure was elevated on two occasions at 150/100 in the seated position. > > I note that Dr E has performed a number of investigations previously including nerve conduction studies which did reveal mild delay in the median nerve conduction velocities across the wrist. He has been reviewed by a surgeon who felt that the hand symptoms were not consistent with carpal tunnel and has had conservative management recommended. [The Applicant] appears happy with this assessment. A range of blood tests have also been performed although I did not have access to these results. I am not aware of any major concerns. I am aware that the CK level was at the upper limit of normal but this clearly would not account for the various sensory symptoms. There has been some discussion of referral to a rheumatologist given some joint symptoms which is not unreasonable. The MRI of the cervical spine showed some "low grade C7 nerve root irritation." This (sic) are all of uncertain significance. > > In summary, [the Applicant] reports a wide range of symptoms but has a paucity of hard neurological signs. Investigations thus far revealed only minor abnormalities which do not appear to account for his range of neurologic symptoms. > > I am somewhat concerned that [the Applicant] is hypertensive, tremulous and anxious, all of which could be a consequence of the high dose of stimulant medication he is taking. I had a frank discussion that the doses of these stimulants may need to be adjusted and he will have this discussion with his psychiatrist. I also raised the concept that many people get a range of unusual bodily sensations, some of these can be not serious but if they are focused on, seem to take on greater importance than they warrant. Obviously, it is important to distinguish between these sensations and any serious medical issues but the absence of hard neurological signs is reassuring. > > ...[96]

On 1 April 2022 the Applicant attended Dr E, Neurologist and Neurophysiologist for further review on referral from Dr C, General Practitioner. Dr E reported the following outcomes of that review:

I caught up with [the Applicant] to perform follow-up nerve conduction studies. > > [The Applicant] reported a number of ongoing issues including reduced energy, mood swings, a tendency to become hyper-focused on individual subjects and variable tingling and or numbness in both distal lower limbs while sitting for long periods. Lastly, he tends to drop objects from either hand, R -L and reports variable issues with short-term memory and concentration. > > Given the time available, we focussed mainly on his hands. Examination revealed no objective weakness in any major group and there was no shoulder-finger ataxia. > > Nerve conduction studies revealed median neuropathy at both wrists. Findings are consistent with mild L/moderate R carpel tunnel syndrome and in view of his failure to improve with conservative measures, I've referred him to Professor Gavin Davis. Hopefully, Gavin can see and/or talk to [the Applicant] within 2-3 months and in the interim, it might be worthwhile organising ultrasound scans of the R wrist. > > With regard to his brain MRI findings, I've reassured [the Applicant] that the subcortical T2 hyper-intense lesions in the frontal lobes appear non-specific. Nevertheless, I've organised follow-up scans to exclude new or active demyelinating plaques and we'll recheck his cervical spine at the same time. The report will be forwarded to you and you could organise scans of the lumbosacral spine given the tingling and/or numbness that he's experiencing in the lower limbs. > > I haven't made immediate changes to treatment. If sensory symptoms become unmanageable, you could consider low-dose Cymbalta or Tegrotol. Gabapentin is another options although isn't on the PBS schedule. Finally, there is the option of referring him to Rheumatology for an opinion regarding fibromyalgia or chronic fatigue syndrome. > > I'll reassess [the Applicant] in 4 months and as a final aside, his recent urine collection revealed no evidence of abnormal adrenaline or noradrenaline excretion. The latter findings argue against a diagnosis of pheochromocytoma. > > ...[97]

Evidence related to the Applicant's mental health conditions and their management

1. The evidence in relation to the Applicant's mental health conditions can be summarised as follows:

1. In the NDIS Access Request - Supporting Evidence Form dated 21 July 2018, Dr F, General Practitioner, completed in relation to the Applicant's first NDIS Access Request, he records the Applicant has having a primary impairment, among several stated, of Adult ADHD and Anxiety and depression, which he states "can be lifelong". He records the treatment of this impairment as Dexamphetamine. He recommends referral to a psychologist for early intervention support. In relation to the functional impact of these impairments, in the domain of "social interaction", Dr F states the Applicant requires assistance from other persons because "sometimes he has panic attacks with social anxiety and can not leave home".[98] 2. A letter to Dr D, Consultant Psychiatrist, from Dr G, Consultant Psychiatrist, dated 19 October 2017 in response to Dr D's referral of the Applicant for review. That letter contains the following clinical observations:

... > > He is very likely to have adult persistent ADHD. > > His pathway to this diagnosis has been somewhat entangled with combined obesity, disordered sleep, and musculoskeletal problems (lower back), on the background of complex Post Traumatic Stress Disorder [redacted] > > I note the diagnosis of ADHD as a child, but rejection of the trial of a psychostimulant by his mother. > > There is no evidence of personality disorder nor of affective or anxiety disorder. > > His substance use history is though informative:

2. Duromine to facilitate weight loss (he tells me he dropped 10kgs) but also enhanced his capacity to sustain his focus in academic processes.
3. He has used a lot of caffeine each day to remain more alert.
4. Marijuana use to help with pain control; has still been infrequent at once each two to three weeks (he reports no off-putting psychological reaction).

[The Applicant] is very keen to become a game designer; he can easily focus in [sic] video games for 12 hours plus. > > Taking all the above into account, I have a strong sense he has adult ADHD. > > I have arranged a series of appointments to review [the Applicant] over the next three months, involving a Behavioural Analysis, psychoeducational material, and will probably discuss a trial of psychostimulant in November 2017.[99]

1. A letter from Dr D, Consultant Psychiatrist, to Dr C, General Practitioner dated 12 February 2018 following a review of the Applicant conducted on that date. Dr D observes:

... > > He has been treated with dexamphetamine for ADHD. He has found this medication beneficial. He has been more focused and has been functioning better at home. He is now involved in market trading and has found that he is learning and progressing well with this. He is exercising. He is feeling confident and his anxiety has reduced. > > On mental state he was calm and settled. He was soft spoken. His mood was good, His affect was reactive. Had some positive thoughts. His insight was good. > > I have not made any changes. I will see him again in 3 months.[100]

2. A letter to Dr F, General Practitioner, from Dr G, Consultant Psychiatrist, dated 13 December 2018 following a specialist review. Dr G advises:

I continue to review [the Applicant] for ADHD ... > > I can now confirm his psychotropic medication as:

• Lis dexamphetamine 70mg mane,
• Dexamphetamine 5mg mane, 20mg five hours later and 15mg four hours beyond that.
• Alprazolam 1mg nocte is enabling reasonable sleep initiation.

... > > In view of his persistent self-doubt (not depression, but more a free flooding anxiety, commonly co-morbid with ADHD but also with asthma, I have asked him to trial Duloxetine 30mg over the Christmas/New Year period > > He derived significant benefit from Desvenlafaxine in the past, but ceased this due to hair loss. SSRI's in the past were ceased due to [redacted - a particular side effect]. > > ...[101]

1. A letter from Dr D, Consultant Psychiatrist, to Dr C dated 26 May 2020 following a clinical review conducted on that date. Dr D observes:

I reviewed [the Applicant] today. He is taking duloxetine 30mg od. > > He is feeling good in himself. He has had some issues with disturbed sleep pattern recently. His mood has remained good and he is managing life through the lockdown. He is near the completion of a number of long term tasks and feels content about this. He does have some issues with weakness in both hands/arms but is having specialist follow up with this. > > On mental state he was calm and settled. He was soft spoken. His mood was fair. His affect was reactive. He had some positive thoughts. There were no morbid thoughts. His insight was good. > > I have not made any changes...[102]

2. A letter from Dr D, Consultant Psychiatrist, to Dr C, General Practitioner, reporting the outcomes of a clinical review of the Applicant conducted on 11 May 2021. Dr D reports:

I reviewed [the Applicant] today. > > [The Applicant] has been busy at home. He can feel apathetic but more recently has been busy repainting his car. He has not suffered issues with procrastination during [this] project. He can still feel frustrated and betrayed by a number of happenings in his life. Anxiety is no longer an issue and he feels confident. > > He continues to see Dr G for his ADHD management. > > On mental state he was calm and settled. He was soft spoken. His mood was fair. His affect was reactive. He had some positive thoughts but also expressed his frustration. There were no morbid thoughts. His insight was good. > > I have not made any changes today. ...[103]

3. A letter to the Applicant dated 14 February 2022 from Dr D, Consultant Psychiatrist, which is apparently in response to targeted questions put to him by the Agency or the Applicant's then legal representative. In that letter Dr D states, relevantly, that the Applicant has experienced "recurrent Major Depressive Disorder" and "Unspecified Trauma Disorder" noting that "this is a designated classification for trauma disorder that does not fit the criteria of other more well known disorders such as Post-traumatic Stress Disorder". Dr D states that it is difficult for him to give a precise date of onset of these conditions because they were present when he first assessed the Applicant in 2012, but that the Applicant has reported to him difficulties with his mental health going back to age 14 in 2003. Dr D also notes a diagnosis of Attention Deficit Disorder but states that the Applicant is treated by another psychiatrist (Dr G) for that condition. Dr D goes on to state the following in relation to the treatment of these conditions and the impact of this treatment:

1. [The Applicant] has trialled many therapeutic interventions over the years for these disorders. He has trialled multiple cognitive therapies with no definitive benefit. He has also used duloxetine 2019-2020 (no clear benefit), sertraline (not tolerated), desvenlafaxine (not effective), and valproate (not tolerated), agomelatine (2016) (not effective), Aripiprazole (2012) ineffective.
2. [The Applicant] currently has supportive psychological therapy. In view of the chronicity of his problem his condition is stable and no further changes are expected in regard to improvement.
3. As noted, the current treatment is to assist in maintaining stability rather than improving his overall psychological state.
4. I expect him to be able to perform tasks in the future at his current level of function with the treatment he receives.

6. There are no other treatments available to [the Applicant].

5. [The Applicant] has generally limited his engagements with society due to his experiences in the past (due to his disorders). He can suffer fatigue and decreased motivation that also impair his function. Assistance from services to help lift his functional abilities would have a positive impact on his self-esteem. Engagement in activities that promote social engagement may prove difficult for him though.
6. He has minimal social interaction and actively avoids contact with others. He procrastinates. This delays his ability to complete tasks. He is able to care for himself on a personal level. He can frequently feel misunderstood. Dyslexia impedes written communication. His ability to concentrate and attention are reduced and this impacts on learning. There are no issues with mobility as such, but fatigue can impair his ability to engage and carry out tasks.[104]

1. A letter to Dr C, General Practitioner, from Dr D, Consultant Psychiatrist, dated 14 February 2022 following his review of the Applicant on that date. Dr D reports:

I reviewed [the Applicant] today. > > [The Applicant] has been "rattled" as he has [had] MRI brain recently that revealed white matter hyperintensities. He is worried as he has read that MS is a possible cause of this. > > Apart from this he had been feeling reasonably good. He continues to have issues with low mood and irritability but these have not been as severe. > > He is looking forward to a possible house move .... > > On mental state he was calm and settled. He was soft spoken. His mood was concerned. His affect was subdued. There were no morbid thoughts. His insight was good. > > I have not made any changes today and continued with supportive work. I will see him again in 3 months.[105]

2. A letter to the Agency's legal representative dated 1 March 2022 from Dr G, Consultant Psychiatrist, apparently in response to targeted questions, which states that the Applicant has been attending on him for psychiatric consultation since 16 October 2017 following referral from Dr D. Dr G states the following, relevantly:

... > > At that time I confirmed his psychiatric diagnosis as:

1. Adult Persistent Attention Deficit Disorder (Adult ADHD), diagnosed but not treated in childhood, with secondary morbid obesity, sleep apnoea (CPAP intolerant - a multiple sleep latency test was unremarkable), persistent insomnia with phase delay and caffeine overuse.
2. Post Traumatic Stress Disorder (PTSD with a history of childhood abuse (his father was prosecuted).
3. Comorbid asthma, irritable bowel syndrome (both far more prevalent in persons with ADHD)
4. Chronic pain - headaches, back pain (work-related 2010).
5. Et al.

• Of note there was a history of documented hypertension, predating any use of psychostimulant medication.
  • Recent neurological assessments have not revealed any significant neurological signs.

• Dexamphetamine 15mg mane and a further 15mg one or two doses later in the day (i.e. often nine tablets daily).
• Lis dexamphetamine 70mg one hour post the initial dexamphetamine dosage.
• Alprazolam 1mg enables satisfactory sleep initiation. Melatonin, Doxepin and Oxazepam have been unhelpful.
• SSRI/SNRI medications have been trialled including Desvenlafaxine and Duloxetine, but only induced side effects.

[The Applicant] despite effectiveness of the psychotic medication regime now in place, continues to struggle with social interactions and to manage his own self-care (nutrition, weight loss, physical condition) in a resilient way.[106]

1. Dr G provided a substantially similar letter dated 31 October 2022 addressed to the Applicant's then legal representative, apparently also in response to targeted questions. Apart from setting out the dates of consultations attended between October 2017 and July 2022, the letter contains the following additional statements:

... > > 5. Et. Al. > > ...

• I have NOT made a diagnosis of obsessive-compulsive disorder (OCD).

... > > His current psychotropic medication regime is > > ...

• He is entirely compliant and adherent to the prescribed psychotropic regime and psychotherapy focusing on developing living behavioural strategies (he is unable to derive any benefit from cognitive behaviour therapy (CBT), due to his high level of cognitive distractibility and poor task completion consequent upon his ADHD.

... > > His level of impairment has been stable for the past three years.[107]

Evidence related to sleep investigations and management

1. The medical evidence in relation to the Applicant's disturbed sleep may be summarised as follows:

1. In the NDIS Access Request - Supporting Evidence Form, Dr F, Psychiatrist, completed on 21 July 2018, apparently to support the Applicant's First NDIS Access Request he records "Obstructive Sleep Apnoea" as another impairment that has a significant impact on the Applicant.[108] 2. An undated letter addressed "to whom it may concern" written by Dr M, Psychologist, Respiratory and Sleep Psychology Clinic, Austin-Repatriation Medical Centre which states:

This is to certify that [the Applicant] has been attending the Respiratory and Sleep Psychology Clinic at Austin- Repatriation Medical Centre since 2016. [The Applicant] suffers from a range of sleep difficulties including insomnia, circadian rhythm disorder, sleep walking/talking, poor sleep hygiene and obstructive sleep apnoea.[109]

1. A letter to the Agency's legal representative from Dr G, Consultant Psychiatrist, dated 1 March 2022 in response to targeted questions which states, relevantly, that the Applicant has attended on him for psychiatric consultation since 16 October 2017 at which time he confirmed the Applicant's psychiatric diagnosis as Adult Persistent Attention Deficit Disorder (Adult ADHD) with secondary morbid obesity, sleep apnoea (CPAP intolerant - a multiple sleep latency test was unremarkable), persistent insomnia with phase delay and caffeine overuse.[110] Dr G goes on to state with respect to treatment for the Applicant's sleep condition: "Alprazolam 1mg enables satisfactory sleep initiation. Melatonin, Doxepin and Oxazepam have been unhelpful".[111]
2. Four handwritten progress notes taken by Dr M, Psychologist, during or after telephone consultations with the Applicant.

(a) In the first of those notes, taken in relation to a consultation on 1 September 2020, Dr M records the following from the Applicant's report to her: > > ... > > Previously seen by Gerard. Disappointed that Gerard no longer available. > > Currently involved in corruption + misconduct case [redacted: related to his education]. Can't say much but not in a good place at the moment. Causing him a lot of stress. > > Sleep disorder - onset as a child 6-7 y.o. Has a number of symptoms suggestive of narcolepsy (sleep paralysis, hypnogogic hallucinations, myoclonic jerks ++) but [undecipherable] has not confirmed Dx. Describes alternating pattern of sleepwalking for - 2 years & then paralysis for 2 years. Currently thinks he might be sleep walking - finds things in room moved. > > ... > > Had correction of deviated septum just before lockdown. Has been told (occasional bed partner) that he no longer has apnoea and that he sleeps better since surgery. Has splint for bruxism, feels his sleep issues are psychological. > > Main complaint is difficulty [with] sleep onset. Very bad 2010-2012. > > Currently: sleeps 8-10 hrs then awake 14 hrs. No synchronisation [with day night] cycle. Sleep has been pretty good for the past couple of years. > > Takes ½ Alprazolam before sleep. Has a 20min window where dexamphetamine wears off & Alprazolam kicks in. > > Once asleep, pretty easy to get back to sleep if he wakes. Feels these meds work well for him. Would prefer to sleep [without] meds, and would prefer to sleep @ night + be awake during the day, but currently managing quite well on this regime. > > ... > > During waking hours [insert day trader] trader commodities - currencies and bitcoin. Has to follow the market - impacts his sleep schedule. > > Relaxes by playing video games. > > Caffeine - no bec of ADHD meds but sometimes has some Coke, esp if needs to be "aggressive" for trading. > > ... > > ... Exercise - No bec of back... [insert: has bought some exercise gear, so some intention is there]. > > ... > > Melatonin - tried it but it makes him "comatose" for 18 hrs, even v low dose. > > Currently does not want to change anything bec [high] stress at the moment. [112] > > (b) The Applicant next attended a telephone consultation with Dr M on 20 October 2020. Dr M records the following in the progress notes she made in relation to that consultation (relevantly): > > ... > > "Tired" Been pretty busy + stressed. Can't recall enjoying anything at the moment bec. Working on his legal stuff. ... what will he do when all this is over? Working on it since 1995 - 25 yrs. For past 4 + yrs has been working on it almost 4 yrs ... > > ... > > ?Exercise/walking? Not really, has been trying to get up + get stuff done around the home.[113] > > (c) The Applicant next attended a telephone consultation with Dr M on 1 December 2020. Dr M records the following in the progress notes she made in relation to that consultation (relevantly): > > ... > > Stressed. Saw ENT today. For past couple of months, bad earaches. Caused by bruxism. Difficult to use [splint?] bec of nose mucus built up etc. Using humidifier in room. Blames the stress, because of legal issues. Will be finishing soon. > > Sleep walking - don't think so, nor any sleep paralysis. > > [Sleep onset latency (SOL) high] Very difficult. Still free-running. Currently SOL [more than] 20 mins if meds work. If not, SOL = 3-4 hrs [more than] twice a week. Once every 2/52 or so, can't sleep for [more than] 30 hours. Has been on a day cycle for the past couple of days. > > Exercise - has been doing a bit of gardening. > > ... > > Still spending most of his time in the bedroom but trying to get out a bit. > > Encouraged to spend time outside bedroom if possible + to exercise. Review 8/52 by which time legal stuff should be finished.[114] > > (d) The Applicant next attended a telephone consultation with Dr M on 19 January 2021. Dr M records the following in the progress notes she made in relation to that consultation (relevantly): > > ... > > "Feeling pretty lethargic" Pottering around. Has not finished his report/legal stuff. Hasn't submitted it. Has taken a bit of time to enjoy himself - played some video games, watched a couple of movies, went to his mate's birthday party. NYE somebody tried to break in over fence - dog got out etc. Earaches (bruxism) have not been as bad for past couple of weeks when he has take a break from his legal stuff (10 years working on it). Stress related. Using splint. > > Discussed finishing this + moving on [with] his life. He said he has been looking at cold cases/unsolved murders etc to take a break + reading about extremists. > > Discussed doing something refreshing + completely different - something that doesn't involve humans behaving badly. He agreed this is probably worthwhile. Discussed thinking about giving himself a deadline. > > ... > > Exercise - a bit of gardening etc. Did some today + feels "jet lagged". Currently awake during the day, but will then have a day when he can't sleep for 30 hrs and will then reverse his circadian rhythm. > > Trying to spend time out of the bedroom.[115]

Evidence related to dyslexia investigation and its management

1. There are references to the Applicant's Dyslexia in the material cited above. However, the Applicant's primary medical evidence in relation to Dyslexia arises from an assessment conducted by Kosmac & Clemens Optometrists in June 2011. A "Visual Information Processing Report" dated 30 June 2011, which was produced following that assessment, is in evidence. It opines:

Visual Information Processing Status > > [The Applicant] performed in the average range in some of the visual processing tests including visual perception, eye tracking, right/left awareness and visual recall. > > [The Applicant] had difficulty with reading proficiency, reversals, visual motor integration, visual capture, sequential processing, auditory analysis, reading and spelling. > > The results from the dyslexia determination test indicate that [the Applicant] has two forms of dyslexia to varying extents. He has marked dysnemkinesia, borderline-mild dysphonesia and mild-moderate dyseidesia. ... > > Recommendations:

2. Use Arial font to provide clear print and avoid confusion between like letters.
3. Try to minimise copying from whiteboard, instead, wherever possible, obtain the information in clear font.
4. Create a check list for yourself when given instructions which you can then refer back to.
5. Improve spelling skills using handout provided and phonetic skills using THRASS.
6. Improve visual processing skills using a program like PTS or Piggyback.

These forms of Dyslexia with which the Applicant was diagnosed are explained in an attached information sheet "Types of dyslexia" as follows: > > ... > > 2. Dysnemkinesia > > Signs & symptoms: is defined as a deficit in the ability to develop motor a engram (memory trace) for written symbols. Specifically it is referred to difficulties with laterality and directionality leading to reversal of letters and numbers. It can also lead to reading from right to left and backwards. > > ... > > 3. Dysphonesia > > Signs & symptoms: Dysphonesia is a dysfunction of phonetic analysis, syllabication and structural analysis. There is an inability to match the visual components of words with the appropriate sounds. > > ... > > 4. Dyseidesia > > Signs & symptoms: A deficit in the ability to perceive whole words as visual patters and to match the words with auditory patters. Individuals will have difficulty spelling or they spell phonetically.

Occupational therapist evidence in relation to function

1. In support of his NDIS Access Request, the Applicant submitted an "NDIS Access Report" dated 10 February 2021 prepared by Ms G A, Occupational Therapist, Community Allied Health Services, [Health Service]. The Report does not set out Ms A's qualifications and experience other than that she is an Occupational Therapist. The Applicant did not call Ms A as a witness in the proceeding. At the time this Report was completed the Applicant was living in his former residence with his mother and brother.
2. Ms A explains her assessment methodology and summarises the outcomes of her assessment in the following extracts from her report:[116]

... > > Assessment Summary > > The initial assessment was conducted via phone on 13/07/2021 with OT and [the Applicant] present. A second assessment occurred on 19/01/2021 at the Community Allied Health Services office. A final phone review occurred on 16/01/2021. The assessments consisted of an interview and observation of some daily activities. A WHODAS 2.0 was completed on 16/01/2021. > > WHODAS 2.0 results: > > D1: Understanding and communicating - moderate impairment > > D2: Getting around - severe impairment > > D3: Self-care - moderate impairment > > D4: Getting along with people - severe impairment > > D5: Life Activities - extreme impairment > > D6: Participation in society - extreme impairment > > Communication - (D1: moderate impairment) > > Due to [the Applicant's] significant fatigue, he reports moderate difficulty in understanding what people say as well as starting and maintaining a conversation. [The Applicant] reports he can misunderstand information at times. These difficulties are primarily a result of the fatigue [the Applicant] lives with. [The Applicant] is able to verbally articulate his needs and he is able to use email and phones to communicate with health professionals and significant others. > > [The Applicant] had difficulty with written communication due to his diagnosis of dyslexia. [The Applicant] can incorrectly read appointment and he reports it takes longer to both read and write information (such as emails) as a result of dyslexia. This increased time to read and write information impacts his ability to spend time engaging in more meaningful occupations such as social activities and leisure as well as results in cognitive fatigue. > > Social Interaction - (D4: severe impairment) > > [The Applicant] has reported severe difficulty dealing with people he does not know and making new friends due to his C-PTSD and anxiety. [The Applicant] reports he finds it difficult to trust new people and he can be suspicious of people he is not familiar with. When making new friends, [the Applicant] reports his behaviour can confuse people, as it does not reflect the way he truly feels. > > [The Applicant] reports he can maintain existing relationships but he can become withdrawn for weeks at a time due to his anxiety which impacts his ability to consistently contribute to the relationship. > > Learning - (D1: moderate impairment) > > [The Applicant] has reported that due to his ADHD he can become hyper focused on a task and unable to shift his attention. [The Applicant] has advised he is unable to remember to do important things such as appointments and taking his medications due to poor recall and his dyslexia; he is reliant on using his phone to set reminders for appointments. > > Mobility - (D2: severe impairment) > > [The Applicant] has advised he is unable to walk more than 100 metres without exacerbating the pain in his neck, which then limits his engagement in other necessary daily activities. [The Applicant] has advised that when he is fatigued, he has noticed that his gait changes and he is more likely to sustain a fall. [The Applicant has had one fall in the past three months due to loss of strength and control in his legs. > > [The Applicant] has reported that when the pain in his neck and his back is exacerbated, he is incapable of moving. This means he is unable to engage in any necessary daily activities such as self-care, or participate in social or economic activities. > > During the observational assessment, [the Applicant] was observed to be independent and safe to stand from a sitting position, independent using three steps with a banister rail, and he was observed to walk approximately 50 metres with a steady and safe gait. > > [The Applicant] reported he is unable to sit for more than 40 minutes without exacerbating his back and neck pain, which then limits his engagement in other necessary daily activities. > > Self-care - (D3: moderate impairment) > > [The Applicant reports he showers independently; he has a shower chair to use when his symptoms are exacerbated to reduce his risk of falling. [The Applicant] is able to dry and dress himself independently; he dresses while sitting on the edge of the bed. [The Applicant] was observed to independently manipulate the buttons on his shirt to do them up and undo them. [The Applicant] was also observed to don and doff his shoes independently; he crosses his legs whilst sitting to reduce the risk of exacerbating his neck and back pain from leaning forwards to tend to his shoes [The Applicant] was able to tie his shoe laces independently. > > [The Applicant] is independent with toileting. He manages his medications independently using a reminder on his phone to prompt him to take his medications. > > [The Applicant] reports a significant disruption to his sleep patterns; he reports he is usually awake for 20-30 hours then will sleep between 4-12hours. As a result he does not have a consistent sleep/wake time which makes it difficult for him to develop a consistent daily routine. This disrupted sleep cycle also results in significant fatigue which [the Applicant] reports can impact his physical and cognitive functioning. > > Self-management - (D5: extreme impairment; D6: extreme impairment) > > [The Applicant] reports he is currently unable to prepare meals or wash the dishes due to the low bench height at his home, which exacerbates his neck and back pain, [The Applicant] reports he also forgets to eat at times. > > [The Applicant] cleans his own room and is able to use a cordless vacuum to do this. [The Applicant] reports that he is unable to complete his cleaning and household tasks as quickly as needed, which reduces the time and energy available to engage in other activities. [The Applicant] reports he is unable to complete gardening tasks (including lawn mowing) and other cleaning tasks due to his neck and back pain being exacerbated which then renders him unable to complete other daily activities. At current [the Applicant's] mother completes his laundry, housework and meal preparation. > > [The Applicant] has a driver's license but when he has been awake for a significant period of time or when his neurological symptoms are exacerbated, he does not drive. [The Applicant] does not use taxis or public transport locally and is reliant on his mother for transport when he is unable to drive. [The Applicant] reports great difficulty in accessing medical specialists in Melbourne due to the length of time it takes for him to travel via public transport to attend these appointments. > > Due to [the Applicant's] limited standing and walking endurance, he is unable to attend the supermarket to complete the grocery shopping. [The Applicant] is able to complete this on-line or his mother completes the shopping. [The Applicant] is independent with managing his finances online. > > [The Applicant] reports he is unable to find activities to engage in for relaxation or pleasure due to his physical disability. [The Applicant plays video games for leisure but reports his carpel tunnel syndrome flares up if he plays for too long. > > [The Applicant] has previously worked as a driller's offsider and as a security guard. Both roles resulted in an exacerbation of his pain and neurological symptoms; this then impacted his ability to engage in other self-care, self-management and social activities. > > Summary of issues identified

• - Reduced engagement in domestic/community/leisure/productive operations due to chronic pain resulting in reduced standing/sitting tolerances
• - Inconsistent daily routine and reduced engagement in domestic/community/ leisure/productive operations due to disrupted sleep cycle resulting in fatigue
• - Impaired communication as a result of [the Applicant's] dyslexia
• - Difficulty with social activities due to [the Applicant's] anxiety and C-PTSD.

1. The Agency engaged as an independent expert, Mr E Mate, Senior Occupational Therapist, Axion Health Pty Ltd. Mr Mate's qualifications and experience is set out in Addendum C of his report. He holds a B. App. Sc (Occupational Therapy). He has worked as an Occupational Therapist since February 2018 in several roles, and since June 2018 has worked as a Senior Occupational Therapist for Axiom Health Pty Ltd, specialising in the provision of expert witness occupational therapy and vocational capacity medico-legal reports and health consultancy. His work has had a major focus on the NDIS since he qualified as an Occupational Therapist and prior to that he worked with persons with disability in a support worker role.[117] In section 1.3 of his report, Mr Mate declares that he has read and understood the AAT's guidelines for persons giving expert and opinion evidence.[118]
2. Mr Mate attended on the Applicant for assessment at the Applicant's home on 25 September 2023. Mr Mate's assessment methodology is set out in some detail in Addendum B of his report.[119] In short summary, it involved discussion with the Applicant of his current symptoms, medications, and any side-effects, current and any anticipated future treatment, observations of the Applicant's existing home environment, and observations of the Applicant undertaking selected activities of daily living and demonstrating his functional tolerances. For tasks not observed directly (such as showering and toileting), assumptions were drawn based on observations of other tasks with similar functional demands, supplemented by information provided by the Applicant and contained within the medical evidence.[120]
3. Mr Mate's assessment of function is to be understood in accordance with the following "key"

MOD = Modified. Applicant utilises a modified technique to complete task and maintain independence. > > SUPP = Support. Applicant would benefit from support to acquire coping strategies and techniques to increase independence. > > IND = Independent. Applicant able to complete this task without assistance or assistive technology.[121]

4. Mr Mate concluded in relation to the domain of communication:[122]
   1. The Applicant is independent in relation to being understood in spoken and written language. He observed that the Applicant communicated clearly in English throughout the assessment, articulately and without difficulty, for a duration of approximately 2.5 hours. He also observed from the documentation with which he was briefed many pages of well-written correspondence, demonstrating excellent written communication skills.
   2. The Applicant utilises a modified technique to understand others independently. He observed that the Applicant can understand others with occasional difficulty. That was based on the Applicant reporting to him that he sometimes requires information to be repeated and can 'drift off' during a conversation. However, the Applicant also reported being generally able to understand others including information provided by his treating professionals. Mr Mate did not observe any deficits in the Applicant's ability to understand the purpose of the assessment or any questions asked throughout the assessment process.
   3. The Applicant is independent in relation to expressing his needs and wants by gesture, speech, or context in a manner appropriate to his age. Mr Mate observed that the Applicant can express himself independently without difficulty. This included being able to clearly articulate his responses to questions throughout the assessment, and to independently use telephones, email, the internet, and technology generally.
   4. The Applicant is independent in the domain of communication. No recommendations for communication were therefore applicable.
5. Mr Mate concluded the following in relation to the domain of social interaction activities:[123]
   1. The Applicant utilised a modified technique to maintain independence with making and keeping friends. The Applicant reported that his social activity is reduced and that he has difficulty making new friends and meeting new people. The Applicant reported that he has approximately 6 close friends with whom he remains in close contact, communicates regularly with, and sees occasionally in person. The Applicant reported that he is often introduced to friends of his friends and feels he can easily slot into their groups.
   2. The Applicant would benefit from support in relation to interacting with the community in the form of occupational therapy to assist with sleep hygiene. That conclusion was based on the Applicant reporting that he sometimes goes without sleep for a whole night or two which results in him cancelling appointments because he is too tired to attend and Dr M's opinion that the Applicant experiences poor sleep hygiene.
   3. The Applicant is independent in relation to behaving within limits accepted by others. The Applicant reported being able to behave within acceptable limits without difficulty.
   4. The Applicant is independent in relation to coping with feelings and emotions within a social context. The Applicant reported that he can cope with feelings when in a social context. The Applicant stated that he may experience symptoms of anxiety and even dissociate which may make social interactions difficult, but that he is able to perform social interaction tasks despite this.
   5. To maximise the Applicant's safety and independence in the domain of social interaction it is recommended that he engage with an occupational therapist or psychologist focusing on sleep hygiene to promote healthy sleeping routines and overcome disrupted sleep.
6. Mr Mate concluded the following in relation to the domain of learning activities:[124]
   1. The Applicant has modified independence with learning. The Applicant reported undertaking tertiary studies. He also reported that his ADHD and dyslexia can impair his ability to learn, requiring additional time for him understand written material. The Applicant also reported that he can have difficulty remembering details, which he attributes to his ADHD, however, he compensates for this by writing things down. The Applicant reported that he is able to manage despite these difficulties and is able to understand and remember key information and dates using his existing strategies.
   2. The Applicant has modified independence in the domain of learning. No recommendations for learning are therefore applicable.
7. Mr Mate concluded the following in relation to the domain of mobility activities:[125]
   1. In relation to mobilising within the home the Applicant utilises modified techniques to maintain independence. Mr Mate observed the Applicant to access all areas of his home independently without difficulty. The Applicant reported to Mr Mate that, at times, his back pain impacts his mobility which can make stair climbing difficult, and that there have been times when he has lost coordination and has fallen. However, he reported that this has not occurred in the last 12 months. The Applicant reported tripping or stumbling on the stairs within the past month when experiencing pain symptoms. Mr Mate did not observe the Applicant demonstrate any impairments with balance or mobility on the day of the assessment. He mobilised without restriction.
   2. In relation to accessing cupboards, storage and shelving the Applicant is independent. The Applicant reported he can access cupboards, storage and shelving within his home independently without difficulty.
   3. In relation to transfers (transferring between bed, chair, floor, toilet, shower, car) the Applicant utilises modified techniques to maintain independence. Mr Mate observed the Applicant to complete chair transfers without difficulty several times. The Applicant reported that he was able to complete car, shower, toilet and bed transfers without difficulty.
   4. In relation to mobilising outside the home, with respect to driving, the Applicant utilises modified techniques to maintain independence. Mr Mate notes that the Applicant owns a car, has a license, and can drive independently. The Applicant reported to Mr Mate that on days when he has reduced sleep, he will avoid driving long distances. Mr Mate concludes from this that the Applicant demonstrates insight into driving risk when tired and can therefore be deemed independent with driving.
   5. In relation to mobilising outside the home, with respect to public transport, the Applicant utilises modified techniques to maintain independence. The Applicant reported to Mr Mate that he can catch trains, buses, Uber, and taxis if required. However, he complained that using public transport to attend appointments in Melbourne takes excessive time, up to 14 hours a day. The Applicant also reported to Mr Mate that his ability to catch public transport can be reduced when he is tired due to sleep disturbance. Nevertheless, Mr mate concluded that the Applicant can use public transport independently.
   6. In relation to mobilising outside the home, with respect to mobilising in the community including accessing essential services the Applicant utilises modified techniques to maintain independence. In this respect Mr Mate notes that the Applicant reported to him that sometimes pain symptoms can reduce his walking tolerance and at times he must use a single-point walking stick as a mobility aid. Nevertheless, Mr Mate concluded that the Applicant can access essential services independently.
8. Mr Mate concluded the following in relation to self-care activities:[126]
   1. In relation to toileting the Applicant is independent with toilet transfers to and from the toilet, with wiping and cleaning after toileting (perineal hygiene) and washing hands.
   2. In relation to bathing/showering the Applicant is independent with transfers to/from bath/shower. In this respect, Mr Mate records that the Applicant reported he can complete shower transfers independently without difficulty. The Applicant also reported to Mr Mate that he has experienced difficulties with coordination and has stumbled in shower transfers in the past, however, this has not happened for at least 12 months or longer.
   3. In relation to wash body/hair and drying body following showering the Applicant is independent. In this respect, Mr Mate records that the Applicant reported to him that he can wash his head and dry himself after showering without difficulty.
   4. In relation to dressing, with respect to dress/undress upper body, the Applicant utilises a modified technique to complete these tasks independently. Mr Mate records that the Applicant reported to him that he is currently able to dress independently without difficulty. However, he also reported that in the past he had experienced cramping, paralysis, pain, pins and needles, and numbness in his hands, which impacted on his ability to dress. He reported that he underwent Carpel Tunnel release surgery last year, and since then, he has not experienced paralysis. He reported continuing to experience pins and needles and cramping but being able to dress independently despite these symptoms.
   5. In relation to dressing, with respect to dress/undress lower body, and don/doff socks and shoes, the Applicant utilises a modified technique to perform these tasks independently. Mr Mate records that the Applicant reported to him that he can dress his lower body and don/doff shoes and socks independently, but with difficulty and pain due to a reduced range of motion in his lower back. Mr Mate opines that the Applicant may benefit from equipment to reduce the difficulty of this.
   6. In relation to grooming, and with respect to cleaning teeth, wash face, shaving, brush/style hair and apply make-up, the Applicant can perform these tasks independently. Mr Mate records that the Applicant reported to him that he can perform these tasks independently without difficulty. However, the Applicant expressed concern that in the past he was not able to do so due to paralysis, numbness and pins and needs. Although he has been able to perform these tasks independently for at least the last 12 months, he fears his pain symptoms will recur in future and impair his ability to do so.
9. Mr Mate concluded the following in relation to self-management activities:[127]
   1. In relation to cognitive capacity for planning, problem-solving and making decisions, the Applicant can perform these functions independently.
   2. In relation to taking responsibility for oneself in completing activities of daily living, the Applicant can perform this function independently.
   3. In relation to managing finances (bank accounts, bills), the Applicant can perform these functions independently.
   4. Overall, the Applicant is independent in the domain of self-management. No recommendations are therefore applicable.
10. Mr Mate concluded the following in relation to other activities:[128]
    1. In relation to vocational status the Applicant utilises a modified technique to complete this task independently. In this respect, Mr Mate records that the Applicant reported to him that his disrupted sleep cycle impacts on his ability to maintain employment and that he is considering working one night a week as a security guard.

The Applicant's evidence in relation to impairment and function

1. In his SFIC dated 6 May 2024, the Applicant states that he has the following diagnoses:

... Circadian rhythm disorder, Attention Deficit Hyperactivity Disorder (ADHD), Complex Post Traumatic Stress Disorder (C-PTSD), Dyslexia, ... Spinal Problems, Depression, Anxiety, and at the time of making my application an undiagnosed neurological disorder.[129]

2. Later in his SFIC, The Applicant states that he seeks access to the NDIS based on these conditions.[130]

1. In his SFIC, the Applicant states that he has been diagnosed with anxiety in the past as a child and teenager,[131] that he has "grappled with anxiety" 'throughout [his] life,[132] and that its "impact persists to this day".[133] In his oral evidence the Applicant stated that he completed his Victorian Certificate of Education over 3 years due to anxiety, the impact of which was that he could 'at most' only attend school 2 days a week.[134]
2. However, the Applicant denied ever claiming that he has an 'anxiety disorder'.[135] Rather, he contended that he has an "impairment" related to "a medical history that includes anxiety".[136]
3. At the hearing, counsel for the Agency invited the Applicant to explain what he meant by that, which led to the following exchange:

When you say you don't have an anxiety disorder, what do you mean exactly? From my understanding, you've got anxiety related to other things, so like anxiety and depression. But then you've got actual anxiety disorders on the sole things. I could be wrong. But I don't think I am. > > So you're saying your anxiety is related to your other conditions? I would say its related to depression. > > ... > > And do you currently suffer from anxiety? It comes and goes.[137]

4. In response to the Agency's contention that the Applicant "does not appear to have been formally diagnosed with Anxiety (as distinct from symptoms of anxiety attributable to other conditions)", in his SFIC, the Applicant contends:

I have been diagnosed with anxiety and depression in the past, as a child and teenager. Had I been informed of the summons, I could've actually directed the respondent to the correct persons to summon. As this would've also provided me necessary medical evidence I've been trying to collect for over a decade...[138]

Throughout my life, I have been grappling with anxiety, a condition for which I could have readily supplied evidence. However, the National Disability Insurance Agency (NDIA) did not request this evidence. Instead they summoned my medical practitioners who had no prior involvement with these issues ...[139] > > ... > > My initial diagnosis of anxiety was made when I was approximately 8 years old and its impact persists to this day. The repercussions of these proceedings have exacerbated my condition, making it more challenging than ever before.[140]

6. In response to the Agency's contention that the medical evidence before the Tribunal indicates that the Applicant "currently does not (and has not for a number of years) suffer from impairments attributable to anxiety"[141], the Applicant asks the Tribunal to consider his current presentation as this is reflected in his pre-hearing communications with the Agency and the Tribunal:
   1. Please take into account ... my previous communications with the Administrative Appeals Tribunal (AAT) and the legal representation of the National Disability Insurance Agency (NDIA) over the past six months. These communications pertained to amendments to the Occupational Therapy (OT) report and concerns about the data breach at HWL Ebsworth, as well as what the NDIA might disclose to the public to distress me. It is evident that I am experiencing significant anxiety. ... [the medical evidence] referenced [by the Agency] ... may have been applicable in the past, but they are no longer relevant given the current circumstances. The actions of the NDIA's legal representation and the AAT have undone decades of therapeutic progress ...[142]

1. In response to the Agency's contention that there is "insufficient evidence to establish that impairments arising from the Applicant's OCD are permanent"[143], the Applicant complains:

... [the Agency] never requested the evidence. I was diagnosed with OCD at age 14, and it has been crippling to my life[144]

2. In his oral evidence, the Applicant reiterated that he could have advised the Agency where to summons information about his OCD diagnosis and treatment, if he had been asked.[145]
3. The Applicant further complained that the Agency sought information from Dr G in the form of targeted questions about the diagnosis and treatment of OCD, which resulted in Dr G confirming that he has neither diagnosed nor treated the Applicant in relation to this condition[146]:
   1. I am uncertain as to why it was presumed that Dr. G had any involvement with my OCD. ... These inquiries were unnecessary; the NDIA could simply have requested the evidence.[147]
4. In response to a question put to him by counsel for the Agency, the Applicant agreed that his current home 'is very neat and tidy and clean', stating "it's part of the OCD, I've got to have things very clean".[148]
5. When asked by counsel for the Agency to explain the impairment(s) that are attributable to OCD, the Applicant referred to 'ritualistic' behaviour such as repetitive checking that the stove is turned off, that the door is locked, needing to be the one who turns off a light he has turned on, and being only able to tolerate the TV being on an even number. He said that when his OCD is acute, he finds it difficult to leave the house because of the need to check repeatedly the door is locked. He stated that these symptoms make it difficult to get things done.[149]

1. With respect to his putative undiagnosed neurological condition, the Applicant contends that his symptoms are likely prodromal of Multiple Sclerosis,[150] but that other potential diagnoses of Fibromyalgia and Chronic Fatigue Syndrome should not be ruled out.[151] He stated, however, that there was nothing he could do to provide evidence to support a diagnosis of Multiple Sclerosis, which is:

... the reason I get tested every six months and go through the process of getting nerve conduction studies every six months: because I know something's there and it's going to get worse over time. This has been one of the biggest frustrations for me, because I can't provide evidence for it, other than what I have provided. Its clearly there. There's something that's there. Everyone knows it's there. And, by the time I get that evidence, its going to be too late to provide me any help...[152]

2. In his Opening Statement on Day 1 of the Hearing the Applicant stated that his "agitation" and "aggression"[153] result from brain lesions which he said were evident from FLAIR MRI scans done 'around 2009'.[154] He said that he was first being tested for neurological issues in 2009, that his neurological symptoms went away in 2014, but came back "in full force" around 2016, and worsened in 2019.[155] He also stated that his neurological disorder has resulted in "developing atrophy in [his] arms and legs"[156], and in loss of co-ordination resulting in fall risks.[157]
3. In response to a question put to him by counsel for the Agency, the Applicant denied that his 'neurological problems' were successfully managed by pain medication:

... I've tried neurological medication for fibromyalgia specifically, which is kind of like pain medication, but not exactly. So things like Gabapentin, I had great success with that. However, that had quite a bit of impairment in my ability to drive and think.[158]

1. In his Opening Statement, the Applicant said he lived with 'a lot of spinal problems'.[159] In his oral evidence, he went on to state that he has 'disc bulges' and (he believes) he as a 'fractured disc' in his spine, as well as spondylosis in his lumber, mid and cervical spine areas.[160] He said:

... I was in bed for, like a year-and-a-half, where I couldn't really do much. I saw the surgeon, Dr J, because I had issues in my lower back. This is actually some of the evidence I tried to provide the NDIA, but they never actually reviewed it. It had to do with my lower back. The spondylosis. But I do see that it is in the summons documents. The other parts. The cervical spine. I believe it was T7. > > And then, the midsection of my spine, running down the - between the elbow blades. So, I'm told, for my neck, that my collarbone is too high for surgery to be done there. The surgery that requires them to go through the front. They move your throat to the side, and then they go in and they do spinal fusion. But they can't do that. > > The other section of my spine is behind my heart. So they obviously can't do spinal fusion there. The spondylosis in the lower back, that causes significant problems that run down my leg, and the sciatic nerve. This limits my ability to walk some days. > > I've had several CT injections throughout the years, over these - for these issues. They don't really do a whole lot. And this is where the opioids come in, to help manage that. So I currently take Palexia for that. Yes, I tried to give that evidence on several occasions, but it appears it's just been ignored. I don't know why, because I wasn't present at those case conferences.[161]

2. In response to questions put to him by counsel for the Agency, the Applicant stated as follows in relation to his spine condition as it is now as compared to what he reported to Ms A in January/February 2021:

... Now, with mobility, you advised Ms A that you're unable to walk more than 100 metres without exacerbating the pain in your neck? Mm-hm. > > And that you're unable to sit for more than 40 minutes? Yes. > > So what do you do right now, for example? I'll stand. And then I'll sit. So. > > Right? - But it - my walking is better than what it was, then. It's - that being said, unless I've got a flare up in my lower back. Then its significantly impacted. I'll be bed ridden. But, at the moment, it's not nearly as bad as it was 'then'. > > So, at the moment, you wouldn't classify it as 'severe' impairment? No. But that also is largely based on the medications that I take. Without them, I would say, that would still apply.[162]

1. In his SFIC, the Applicant states that 'for as long as [he] can recall, [he has] struggled with falling asleep'.[163] He also refers to 'sleep paralyses', and 'sleepwalking'[164]. He states that 'this lifelong issue has been consistently overlooked by [his] doctors.[165] He states that in 2014 his 'sleep deprivation reached such an extreme that [his] respiratory system began to shut down, causing [him] to lose consciousness and fall asleep'.[166]
2. In his oral evidence, the Applicant stated that he has had 'sleep issues' since 1996 ('since [he] was a little kid'). He stated that "its next to impossible [for him] to fall asleep", and that he has "always acted on very limited sleep".[167] He stated that he has encountered profound misunderstanding of his sleep disorder in the medical system, particularly from his General Practitioner.[168] He said he had to 'lie' to his General Practitioner by claiming that he had sleep apnoea to obtain a specialist referral.[169] He stated that he has had "three sleep studies over the years" and that "the consensus between all the doctors [was] we will just throw drugs at him, until something sticks. Because that's all we can do".[170] He states that he was given the diagnosis of Circadian Rhythm Disorder because he did not fit the diagnostic category for the sleep disorder which "[he] appears to have" which is either idiopathic insomnia, or alternatively, idiopathic hypersomnia.[171] He stated that that for the "last several years his sleep has been at a point where [he is] awake for about 18 hours, and then [he will] sleep for maybe six" and that "roughly every two weeks [he will] have an inability to fall asleep" which might last for one or two days. He stated that this has the effect of switching his awake and sleep period times around, such that he is awake at night and asleep during the day.[172]
3. In his SFIC, the Applicant takes objection to the Agency's contention that his sleep condition is exacerbated by his pursuit of his interests, being online day trading and browsing the internet, both late at night, at the detriment of his sleep routine, and that the solution is to engage in better sleep hygiene[173]. He says in response:

Wrong, I have had these sleeping problems my whole life, and I only did these things when I am trying to stay awake so that I can get my sleep cycle back into the correct day/night routine. ... > > ... > > ... Asserting that sleep hygiene is a solution to a sleep disorder not only feels like gaslighting, but also demonstrates a fundamental misunderstanding of the issue at hand.[174]

4. The Applicant also takes objection to the Agency's contention that there is insufficient evidence to support a finding that all appropriate and available treatments have been undertaken by him in relation to his sleep condition which it identifies as being attributable to Circadian Rhythm Disorder.[175] He says in response:

The respondent is wrong. I was given the diagnosis of Circadian Rhythm Disorder because I did not fit the diagnostic category for the sleep disorder which I appear to have. A decision was made that the only solution left was very serious medication. > > You'll note in recent correspondence to the AAT I requested an extension of time, this was due to an allergic reaction to Dayvigo, a new type of sleep medication. Whenever I find something that might help, I try it. My sleep has the biggest impact on my life over every other impairment. I would give anything for a cure. I do not accept the respondent's claim that available treatments have not been effectively undertaken and I'll sue the NDIA for discrimination if this issue is further contested ...[176]

5. In his oral evidence, the Applicant offered the following additional information about his experience of treatment for his sleep condition:

I've tried just about every medication I can, for my sleep. Melatonin. High doses of Melatonin. Instant relief? High-dose Melatonin can work, but its very difficult to get - at least, one that is trustworthy. If I take Melatonin with something else like a sleeping agent - say, Alprazolam - then I'm more or less comatose... > > Coming back to medication. I've tried different variants of Benzodiazepines. The only success I have had is with Alprazolam. And this is of great concern to me, because the long-term effects of Diazepam is not good for a - good for you. I've been on one milligram, for multiple years now. I believe - I don't know - Five? - six years, maybe? Since August of last year, in dealing with what has occurred in these proceedings, I'm now taking up to three milligrams, which is pushing the limit of what a person should take per-day. Four milligrams last night, yet I still only managed an hour.[177]

6. Additionally, also in his oral evidence, the Applicant took objection to the Agency's contention that he does not engage in appropriate exercise to help with sleep, claiming that he was unable to engage in exercise because if he does "too much" it will result in a recurrence of his neurological symptoms, including by over-heating, which causes him to fall.[178]
7. The Applicant contends that his sleep condition has a primary functional impact on his ability to self-manage, which arises because he is unable to drive to appointments when fatigued.[179]

1. In his SFIC, the Applicant states that he has been diagnosed with depression in the past as a child and teenager. However, he appears to go on to contend that he has an impairment related to depression but not a diagnosed disorder of that nature.[180]
2. In his oral evidence the Applicant reiterated that he seeks access to the NDIS in relation to depression,[181] but he did not elaborate in relation to that impairment. In response to a question put to him by counsel for the Agency, the Applicant stated his belief that his anxiety was related to his depression.[182]

1. In his SFIC, the Applicant contends that he "often faces challenges in expressing [himself], leading to misunderstandings [of his] written or verbal communication," which is a claim supported by Dr D, Consultant Psychiatrist, who has been providing him with care for approximately a decade.[183] The Applicant goes on to state:

... During my early 20s, I spent years working with a speech pathologist, often to great embarrassment in the same room as 6 to 7-year-olds receiving similar therapy. This was all to improve my spelling to its current level, which still necessitates substantial assistive technology.[184]

2. In his oral evidence, the Applicant described his Dyslexia as a "pretty persistent problem" which "results in him not reading and writing the same way as everybody else". He stated that because of this condition he does not have the "phonetic ability to process words" and has to do so from "visual memory", which leads to "a lot of miscommunications" on his part and on the part of others "misunderstanding what [he] is trying to say ...".[185] He went on to state that his Dyslexia has caused him to "miss a lot of deadlines", "miss flights", "miss appointments" and "miss work". He said that it was a "serious problem throughout school" and that "it remains a problem to this day" because "it slows [him] down". He stated that in particular "[his] spelling is still quite low [slow?]".[186]
3. During questions, counsel for the Agency asked the Applicant how Dyslexia currently affected his day-to-day life, in response to which he stated:

... For example, when I read things I'll often run it through a text to speech filter just to make sure I'm reading things correctly, because I often don't. If I read something and I don't run it through this filter, I will misread something, and this usually leads to maybe getting a little bit aggressive misinterpreting things. > > ... > > And if you take extra time, are you able to effectively complete a reading task ...? Yes. > > Completely? Yes > > How about a writing task? If you take extra time, can you complete a writing task effectively? Yes. It does take substantially longer, but I can do it. > > Do you use any other tools to assist with these impairments? (sic) For example, do you use your phone to set reminders about appointment times? Yes. I've got my phone for my alarms, for medications. As far as appointment time, I don't like to use the phone for that. It's not conducive to good mental health. > > I see. But do you use any other tools? A diary. I've got a year board on my ... > > But you don't use any assistive technology or equipment? Besides from the text to speech, I use AI just to correct my spelling. > > Yes, But nothing of that would have been prescribed by a doctor. Is that correct to say? Yes. That's correct to say. I have previously used, its different shades of, its like a blue filter pair of glasses, bluish-grey.[187]

Attention Deficit Hyperactivity Disorder (ADHD)

1. In response to questions put by counsel for the Agency, the Applicant stated that his ADHD is "very stable" at this time.[188] When asked to explain the effect of his impairment attributable to ADHD the Applicant stated "it ranges". He goes on to refer to problems with memory, distraction, and motivation:

Do you have bad days with ADHD? I mean you never really have a good day. The only way I would say there's a good day is that it can help you get through a lot of things quickly, or it can help you work on things that you would not otherwise work on. And what are your, what are the effects of your impairments attributable to ADHD on a given day, at the moment? It ranges from everything. You know, its like, you'll forget to, you'll put your clothes on spin cycle six times because you forget to pull them out. You'll go get something to eat and then you'll forget what you went to do because you got distracted by something. It's like, okay, I've got to do the dishes. You'll finish that and then you'll be distracted again by another thing ... > > On a bad day with ADHD, can you undertake self-care, like shower, dress yourself, brush your hair, brush your teeth? Yes. If I am being generous to myself I'd say on a bad day of ADHD it probably takes five hours just to get anything, to get motivated to do anything. But after that, yes.[189]

Complex Post-Traumatic Stress Disorder (C-PTSD)

1. In his oral evidence the Applicant stated that Dr B had diagnosed him with C-PTSD in December 2011, which was "the only thing she got right".[190] The Applicant gave no other evidence in relation to this condition.

1. Chapter 3, Part 1, of the NDIS Act sets out the process by which a person may become a participant in the NDIS.
2. In this respect, s 18 provides that a person may make a request to the Agency to become a participant in the NDIS, which is designated an access request.
3. Section 19(2) provides that, in the circumstances described there, if a person has made an access request which has been refused they may make another access request at any time.
4. Section 20(1)(a) provides that if a person (the prospective participant) makes an access request the CEO must decide whether the prospective participant meets the access criteria for the NDIS.
5. Section 21 specifies the circumstances in which a person meets the access criteria. It provides, relevantly:

21 When a person meets access criteria > > (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. Section 24 specifies the disability requirements that must be satisfied to obtain access to the NDIS. It provides:

24 Disability requirements > > (1) A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

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

(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

(4) Subsection (3) does not limit subsection (2).

1. Section 25 specifies the early intervention requirements that must be satisfied to obtain access to the NDIS. It provides:

25 Early intervention requirements > > (1) A person meets the early intervention requirements if: > > (a) the person:

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

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

(iii) is a child who has 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

(iii) improving such functional capacity; or

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

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

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

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

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

(a) as part of a universal service obligation; or

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

1. Section 209 of the Act provides that the Minister administering the Act may, by legislative instrument, make rules governing the operation of the NDIS in accordance with that section. The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (NDIS Rules) were made pursuant to that section.
2. Part 2 of the Rules provides an outline of the Rules:

Part 2 Outline of these Rules > > 2.1 A person, or someone who is able to act on their behalf, may make a request under the Act to become a participant in the NDIS (an access request). Once a person becomes a participant, they can develop a personal goal-based plan which may provide for supports for the participant ... > > 2.2 This Instrument assists the CEO determine who becomes a participant. ... > > 2.3 A person becomes a participant in the NDIS on the day the CEO of the Agency decides they meet the access criteria. > > 2.4 A person meets the access criteria if the CEO is satisfied that they meet each of the following, ... > > (a) the age requirements (see Part 3); > > (b) the residence requirements (see Part 4);

(c) either the disability requirements or the early intervention requirements (see Parts 5 and 6).

2.5 Generally, speaking:

(a) a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent or likely to be permanent and that results in substantially reduced functional capacity;

(b) alternatively, a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. ...

1. Part 5 of the Rules explains the circumstances in which a prospective participant meets the disability requirements for access to the NDIS. It provides, relevantly:

Part 5 When does a person meet the disability requirements? > > 5.1 The Act sets out when a person meets the disability requirements. The requirements are met if:

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

(b) the person's impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.8); and

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

(e) the person is likely to require support under the NDIS for the person's lifetime.

5.2 In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.

[Paragraphs 5.1 and 5.2 summarise section 24 of the Act.]

5.3 This Part sets out rules relating to some of the elements in paragraph 5.1 above, however, in order to meet the disability requirements, all of the requirements in that paragraph need to be satisfied.

When is an impairment permanent or likely to be permanent for the disability requirements?

5.4 An impairment is, or is likely to be, permanent (see 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 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 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.

[Paragraphs 5.4 to 5.7 are made for the purposes of paragraph 27(a) of the Act]

When does an impairment result in a substantially reduced functional capacity to undertake relevant activities?

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.

[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act].

1. Part 6 of the Rules explains the circumstances in which a prospective participant meets the early intervention requirements. It provides:

Part 6 When does a person meet the early intervention requirements? > > 6.1 A person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is more appropriately funded or provided through another service system (service systems is defined in paragraph 8.4) rather than the NDIS. > > 6.2 However, a person meets the early intervention requirements if: > > (a) the person:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent (see paragraphs 6.4 to 6.7); or

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability (see paragraphs 6.8 to 6.11); and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

(ii) preventing the deterioration of such functional capacity; or

(iii) improving such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer (see paragraphs 6.8 to 6.11)

[Paragraph 6.1 summarises subsection 25(3) of the Act. Paragraph 6.2 summarises subsection 25(1) of the Act.

6.3 This Part sets out rules relating to some of the elements in paragraph 6.2 above, however, in order to meet the early intervention requirements, all of the requirements in that paragraph need to be satisfied.

When is an impairment permanent or likely to be permanent for the early intervention requirements?

6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(1)(i) and (ii)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

6.5 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 may improve.

6.6 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).

6.7. 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.

[Paragraphs 6.4 to 6.7 are made for the purposes of paragraph 27(a) of the Act]

Deciding whether provision of early intervention supports is likely to benefit the person

6.8 Where paragraph 6.2(a) applies to a person, the main way in which the CEO can determine whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs 6.2(b) and (c) above is to consider evidence going to those matters, as indicated in paragraph 6.9 below. However, young children who have an impairment resulting in developmental delay (see paragraph 6.10) or resulting from a particular condition (see paragraph 6.11) will not need to provide further evidence of the matters in paragraphs 6.2(b) and (c).

[Paragraph 6.8 is made for the purposes of paragraph 27(d) of the Act.]

Where evidence is required

6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would 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 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.

[Paragraph 6.9 is made for the purposes of paragraph 27(d) of the Act. It does not compel the CEO to take the actions mentioned in that paragraph in any particular instance]

...

1. The term "service systems" for the purposes of Rule 6.1 is defined in Rule 8.4 as follows:

Service systems means general systems of service delivery or support services offered by a person, agency, or body, or systems of service delivery or support services offered:

(a) As part of a universal service obligation; or

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

1. To determine the outcome of this review, the Tribunal must pose and answer the following questions:

(i) Does the Applicant meet the age requirements for the NDIS?

1. It is not in issue that the Applicant meets the age requirements for the NDIS. On the evidence set out at paragraph 43 above I make that finding.

(ii) Does the Applicant meet the residence requirements of the NDIS?

1. Nor is it in issue that the Applicant meets the residence requirements for the NDIS. On the evidence set out at paragraph 43 above I also make that finding.

(iii) Does the Applicant meet the disability requirements for the NDIS? This requires consideration of 5 separate, cumulative,[191] sub-questions (subject to them being reached):

(a) Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or one or more impairments to which a psychosocial disability is attributable?

(b) If the answer to (a) is "yes", is the impairment(s) permanent, or likely to be permanent?

(c) If the answer to (b) is "yes", does the impairment(s) 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?

(d) If the answer to (c) is "yes" does the impairment affect the person's capacity for social and economic participation?

(e) If the answer to (d) is "yes", is the person likely to require support under the NDIS for the person's lifetime?

1. The application of s 24(1)(a) of the Act requires a distinction to be drawn between the concepts of "health condition", "impairment", and "disability". None of those terms are defined in the NDIS Act.
2. In Mulligan[192] the Court concluded that the term "disability' is used in the Act, and in s 24 specifically, as a description of the overall effect of a person's impairments on that person's ability to participate in all aspects of personal and community life. In Davis[193] the Court observed that the 'impairment' that is attributable to disability for the purposes of s 24 must be identified with precision because the threshold questions on permanency (s 24(1)(b)) and substantially reduced function (s 24(1)(c)) operate not on the concept of disability, but on the concept of impairment.
3. Interpretative assistance with these provisions can also be obtained from the World Health Organisation's International Classification of Functioning, Disability and Health (WHO) (ICF)[194] which has as one of its objectives to "provide a standard language and [conceptual][195] framework for the description of health and health-related states".[196] The ICF was endorsed by the Fifty-fourth World Health Assembly on 22 May 2001.[197] It is currently in its 11th iteration.[198] Australia is a WHO Member State.[199] The Australian Institute of Health and Welfare (AIHW) is a "Collaborating Centre" in the development of the ICF.[200] The AIHW has developed an ICF Australian User Guide.[201] The relevance of the ICF in the assessment of whether a person meets the disability or early intervention requirements for access to the NDIS is recognised in Part 7 of the National Disability Insurance Scheme (Becoming a Participant ) Rules 2016 (Cth).[202] The ICF is therefore extrinsic material that may be used to assist in the interpretation of the provisions contained in s 24 of the NDIS Act pursuant to section 15AB of the Acts Interpretation Act 1901 (Cth).
4. The ICF is a classification of human function in the context of a "health condition", which is a diagnosis of a disease, disorder, or other health condition.[203] Section 24(1)(a) is concerned with health conditions that give rise to intellectual, cognitive, neurological, sensory, physical, and psychosocial impairments.
5. The ICF defines "body functions" as the physiological functions of body systems (including psychological functions). It defines "body structures" as the anatomical parts of the body such as organs, limbs, and their components. It defines "impairment" as a problem in body function or structure such as a significant deviation or loss as compared with typical or expected function or structure.[204] The NDIS Operational Guidelines "Applying to the NDIS', "Do you meet the disability requirements", "Is your disability caused by an impairment" reflect this definition of impairment by reference to the domains of body functions and structures. They also describe "impairment" as a loss or significant change to body function or structure consistently with the ICF definition of that term. [205]
6. "Disability" is conceptualised within the ICF in accordance with a 'bio-psycho-social model' as the 'problem' that is generated by the interaction between the biological and psychological features of the person and the features of the social and environmental context in which the person lives. The ICF also recognises that personal factors in interaction with impairments may be disabling for a person, including in a particular social context (for example, poverty, gender, ethnicity, sexuality).[206] [207]
7. The ICF incorporates "domains" that describe changes in body function (physiology) and structure (anatomy), what a person with a health condition can do in their usual environment (their level of capacity), as well as what they actually do in their usual environment (their level of performance).[208] It thus provides a useful analytical framework for the purposes of s 24. Specifically, it is facultative of the identification of impairment with a high degree of precision.
8. Applying the ICF framework to s 24, what 24(1)(a) requires is for the decision-maker to identify with precision the problem of body function or structure (the impairment) which, in interaction with other personal, social, and environmental factors, is generative of the prospective participant's disability. Section 24(1)(a) is not concerned with the aetiology of that impairment.[209] The section is concerned with the anatomical or physiological outcome of the health condition, not its cause. Nor is s 24(1)(a) concerned with the personal, social, and environmental factors that are generative of the prospective Applicant's disability.

Spine and central and peripheral nervous systems

1. I understand the Applicant to contend, in effect, that he has impairments of his Cervical, Thoracic, and Lumbar vertebrae and of his central and peripheral nervous systems (the putative undiagnosed neurological impairment).
2. On the evidence before me I am positively satisfied that the Applicant lives with an impairment of body structure related to movement, being to the structure of his neck region,[210] and trunk.[211] Specifically, the joints of the Applicant's neck[212] and the structure of his vertebral column[213] are impaired at the at the Cervical 6 and 7 and Thoracic 1 vertebrae. In this respect he has 'moderate left-sided paracentral degenerate disk protrusions' (or herniations) at those vertebrae.[214] Additionally, I am positively satisfied that the Applicant lives with a related impairment of his spinal cord structure,[215] being irritation to his Cervical 7 and 8 spinal nerves.[216] I am also positively satisfied that at the level of body function the Applicant lives with related impairment to his movement functions, specifically impaired mobility of these joint functions.[217] There is also a related functional impairment arising from this condition in the form of sensation of pain[218], being radiating pain in those dermatomes.[219] These impairments are physical, neurological, and sensory (respectively) for the purposes of s 24(1)(a).
3. I am not satisfied on the evidence that the Applicant lives with an impairment of body structure in his lower Thoracic and Lumbar spine. Nor am I satisfied on the evidence that the Applicant lives with any broader neurological impairment (the putative undiagnosed neurological impairment).
4. In his report to Dr C following his review of the Applicant on 1 May 2019, Dr J refers to the Applicant as having a medical history of "chronic low back issues" which "remain in status quo", which I take to mean were unchanged at that time. However, there is no evidence before me as to the particulars of that pre-existing condition. Dr J also refers to the "separate issue" of a 'Thoracic 8- and 9-disc protrusion indenting on the anterior spinal cord causing myelomalacia' (softening of the spinal cord) as a "red herring". In this respect he opines that "the spinal canal is still capacious around the spinal cord thus there is no major neural compression or stenosis" (restricted space inside the backbone). He also observes that the Applicant "really is not describing symptoms or clinical features of thoracic myelopathy." His advice to Dr C was "to keep an eye on this at this stage."[220]
5. The Applicant attended Dr E for review on 26 July 2019 who referred him for MRI scans of his "entire spine with emphasis on the thoracic and lumbar regions."[221] Dr J refers to the outcomes of those investigations in his report to Dr C following review of the Applicant on 1 October 2019. The investigations did not reveal "anything majorly untoward". Dr J makes no reference to any issue with the Applicant's Thoracic and Lumbar spine.[222]
6. There is no other reference to the Applicant's Thoracic and Lumbar spine in the medical evidence before me.
7. Consequently, while there is some evidence that is suggestive of a past Lumbar Spine impairment, there is no reasonably contemporary evidence that this impairment persists. Nor is there any reasonably contemporary evidence of impairment of the Applicant's lower Thoracic spine. Although the Applicant contends for extensive spinal impairment, these claims are not corroborated by the evidence of his specialist Spinal and Orthopaedic Surgeon (Dr J) or Neurologist and Neurophysiologist (Dr E).
8. With respect to the Applicant's claim that he lives with an undiagnosed neurological impairment, as I have stated above, it is not necessary for the purposes of s 24(1)(a) that he establish a specific diagnosis for this putative condition. However, he must establish the impairment of body structure (anatomy) or function (physiology) that results from that condition. Put another way, he bears the practical onus of establishing that the symptoms he complains of have some organic cause.
9. The medical evidence before me does not establish that this is the case. The Applicant's reported symptoms have been the subject of extensive investigation and review by three neurologists (Dr E, Dr L, and Professor N) each of whom were unable to isolate an organic cause for those symptoms. Following his review of the Applicant on 14 January 2020, Dr L specifically ruled out an organic cause for these symptoms and the existence of the 'undiagnosed neurological condition' the Applicant contended for. He concluded that the Applicant's reported symptoms are likely "a result of a combination of anxiety, chronic pain and deconditioning".[223] Following his review of the Applicant on 16 June 2021, Professor N concluded that while the Applicant "reports a wide range of symptoms ... [he has] a paucity of hard neurological signs", noting that "investigations thus far [have] revealed only minor abnormalities which do not appear to account for his range of neurologic symptoms". He hypothesised that these symptoms could be the consequence of the high dose of stimulant medication the Applicant was prescribed by his Psychiatrist, Dr D, or be somatic delusions. [224]
10. It is not entirely clear to me on the Applicant's case if he seeks access to the NDIS based on an impairment of the structure and function of his wrists and hands. However, as there is medical evidence before me that traverses this issue, it is prudent that I consider it.
11. On his review of the Applicant on 1 August 2019, Dr J observed wasting of the posterior interosseous muscles of the left hand. On his review of the Applicant on 14 January 2020 Dr L noted "some hand asymmetry with some loss of muscle bulk in the left hand compared with the right". On his review of the Applicant on 22 April 2021, Dr E noted that the Applicant had "bilateral carpel tunnel syndrome". On his review of the Applicant on 16 June 2021 Professor N noted that the Applicant had "at one point" reported wasting of the small muscles of the left hand, specifically in the thenar eminence, but that he reported to him at the review that he "feels this has now resolved". Professor N goes on to note that a nerve conduction study conducted by Dr E had revealed mild delay in the median nerve conduction velocities across the Applicant's wrists which had resulted in the Applicant's referral to an unspecified 'surgeon' who had concluded that this was not consistent with carpel tunnel syndrome and had recommended 'conservative management', and that the Applicant was "happy with [that] assessment". On his review of the Applicant on 1 April 2022, Dr E noted no objective weakness in either hand. He further noted that a nerve conduction study had found median neuropathy at both wrists which was consistent with mild left wrist and moderate right wrist Carpel Tunnel Syndrome. He notes an intention to refer the Applicant to a neurosurgeon for review. In his report, Mr Mate states that the Applicant reported to him that he underwent Carpel Tunnel release surgery in 2022, and that since that surgery he had no experienced hand paralysis.
12. On the state of this evidence, it is not open to me to find that the Applicant has a current impairment of the structure and function of his wrists and hands. The evidence is suggestive, but not conclusive in my view, of past impairment, but there is no sufficiently contemporaneous medical evidence that such impairment persists.

Impairments attributable to mental health conditions

1. The evidence in relation to the Applicant's mental health conditions does not easily lend itself to the task of identifying what, if any, impairment, or impairments, are attributable to those conditions.
2. I note that the Applicant's case, as it was presented at the hearing, involved a claimed functional impairment attributable to OCD, being ritualistic and repetitive behaviour, which makes it difficult to get things done.[225] It is not clear to me how OCD came to feature in this review. It was not a condition referred to in the Applicant's Access Request, and it was not identified by the Applicant as a condition upon which he sought access to the NDIS in his SFIC or Opening Statement. None of the medical reports before me refer to the Applicant having a diagnosis of OCD or to any impairment that is attributable to that condition. In his response to the Agency's targeted questions, on 1 March 2022, Dr G, Psychiatrist, stated that he had not diagnosed the Applicant with OCD.[226] The Applicant's claim that he has a functional impairment involving ritualistic and repetitive behaviour that is attributable to OCD is thus uncorroborated by any appropriate objective opinion or other evidence. I thus cannot be satisfied that the Applicant has this mental health condition, and therefore any impairment attributable to it, on the evidence before me.
3. The Applicant did seek access to the NDIS based on an impairment attributable to C-PTSD, and this was confirmed in his SFIC and Opening Statement. Dr D, Psychiatrist, treats the Applicant for this condition. In his letter to the Applicant dated 14 February 2022 in response to targeted questions, Dr D notes that this condition is associated with social avoidance, fatigue, decreased motivation, feeling misunderstood, procrastination, low mood, and irritability.[227]
4. The Applicant also sought access to the NDIS based on impairments attributable to ADHD, and this was confirmed in his SFIC and Opening Statement. In the NDIS - Access Request - Supporting Evidence Form he completed in July 2018 in relation to the Applicant's first NDIS Access Request, Dr F states that this condition is associated with anxiety, depression, panic attacks, and social anxiety.[228] Dr G has treated the Applicant for this condition since October 2017. He reports that this condition is associated with a high level of cognitive distractibility and poor task completion.[229]
5. The Applicant's Access Request also refers to 'anxiety' and 'depression' as conditions in relation to which he sought access to the NDIS. He confirmed that position in his SFIC and in his Opening Statement. However, in the presentation of his case, the Applicant made it clear that he did not contend that he had an independent 'anxiety condition' but rather that he had an anxiety related impairment that was attributable to depression.[230] He also appeared to contend that while he has been diagnosed with depression in the past, he does not presently experience depression as a stand-alone condition, it too being attributable to his other mental health conditions.[231]
6. Whatever may have been the position in the distant past, the medical evidence before me is consistent with anxiety and depression now being latent symptoms of C-PTSD and ADHD which are largely controlled, but which occasionally 'break through'.
7. In this respect, Dr D reported to Dr C following his review of the Applicant on 12 February 2018 that he was successfully treating the Applicant with Dexamphetamine which had resulted in a reduction of anxiety. On mental state examination he noted the Applicant to be 'calm and settled', that 'his mood was good', 'his affect was reactive' and that he had experienced 'some positive thoughts'.[232]
8. Later that year, on 13 December 2018, Dr G reported to Dr F following a review of the Applicant conducted on that date that the Applicant's persistent self-doubt did not equate with 'depression' but was "more a free flooding anxiety, commonly co-morbid with ADHD ..." in relation to which he proposed to commence the Applicant on a trial of Duloxetine.[233]
9. On 26 May 2020 the Applicant was reviewed by Dr D who noted that the Applicant was taking Duloxetine, that "he was feeling good in himself", and that "his mood had remained good". On mental state examination, he found the Applicant to be "calm and settled", that his "mood was fair", "his affect was reactive", and that he had experienced "some positive thoughts".[234]
10. The Applicant was reviewed again by Dr D on 11 May 2021. Dr D observed that "anxiety is no longer an issue" for the Applicant and "he feels confident". On mental state examination he found the Applicant "calm and settled", "his mood was fair", "his affect was reactive", he had experienced "some positive thoughts" but was also expressing "frustration" and that he had "no morbid thoughts".[235]
11. The last review of the Applicant by Dr D that is in evidence occurred on 14 February 2022. Following that review Dr D reported to Dr C that apart from being rattled by a recent MRI, that the Applicant had reported "feeling reasonably good" but continues "to have issues with low mood and irritability but these have not been as severe". On mental state examination Dr D noted the Applicant to be "calm and settled", that "his mood was concerned", "his affect subdued", and that he had "no morbid thoughts".[236]
12. In the Evidence of Psychosocial Disability Form he completed on 28 January 2021 in support of the Applicant's NDIS Access Request, Dr D records that the Applicant was diagnosed with "Recurrent Depression" prior to 2012 when he commenced seeing him.[237] In his letter to the Applicant dated 14 February 2022, Dr D states, apparently in response to targeted questions put to him by the Applicant's then legal representative, that the Applicant has a "recurrent Major Depressive Disorder".[238] He also states in that letter and in the Evidence of Psychosocial Disability Form that the Applicant has had a trial of Duloxetine "with no clear benefit" and with "unsure" effect on his impairments respectively. I acknowledge that this evidence is inconsistent with the conclusion I have set out above.
13. Nevertheless, the preponderance of evidence, including the review outcomes reported by Dr D himself over the four-year period set out above is inconsistent with the Applicant now experiencing a mood disorder that is independent of his C-PTSD and ADHD. Rather, it is consistent with latent and occasional break-through depression which is attributable to these conditions.
14. I note that there is no evidence whatsoever that the Applicant has ever been diagnosed with a 'stand-alone' Anxiety Disorder, and the Applicant does not contend otherwise.
15. In summary, having regard to the foregoing analysis, I am satisfied that the Applicant lives with impairments to his global and specific mental functions which are attributable to C-PTSD and ADHD. In this respect, he lives with an impairment of his temperament and personality function[239] (specifically, his psychic stability function)[240], his energy and drive functions[241] (specifically, his energy level[242] and motivation functions)[243], his attention functions[244] (specifically, his sustaining attention[245], shifting attention functions[246], and dividing attention functions)[247], and his emotional functions[248] (specifically his regulation of emotion[249] and range of emotion functions).[250]
16. I am not satisfied on the evidence before me that the Applicant lives with any other impairment that is attributable to a mental health condition.

1. I am satisfied on the evidence before me that the Applicant has Dyslexia, which is, or results in, a cognitive impairment for the purposes of s 24(1)(a). In this respect, he has Dysnemkinesia, Dysphronesia, and Dyseidesia which are impairments of the specific mental functions of language,[251] being reception of language,[252] expression of language,[253] and integrative language functions,[254] These impairments are explained in the Kosmac & Clemens report.[255]

1. The question of whether the Applicant has a sleep-related impairment is not conducive of a simple answer. That is because it is not sufficient for the Applicant to establish that he experiences disrupted sleep. He must, further to this, establish that his sleep disruption has an organic cause; that is, that it results from some variation or loss of typical body structure or function, rather than from a non-organic personal or environmental factor.
2. In his NDIS Access Application the Applicant and Dr C both record as 'another' disability an unspecified 'sleep disorder'. Dr C states that this condition had been unsuccessfully treated by use of a Continuous Positive Airway Pressure (CPAP) machine which indicates that at least at one point in time it was hypothesised that the Applicant's sleep disorder resulted from obstructed airways.[256] That is confirmed by the NDIS Access Application completed by Dr F on 21 July 2018 which records "Obstructive Sleep Apnoea" as another impairment that has a significant impact on the Applicant.[257]
3. In the Evidence of Psychosocial Disability Form Dr D completed on 28 January 2021 he records the Applicant's sleep disorder as "hypersomnia",[258] which is excessive sleepiness. It is not apparent how that relates to the Applicant's complaint, which concerns the inability to sleep in accordance with a typical sleep cycle, or insomnia. In his letter to the Agency's legal representative of 1 March 2022 in response to targeted questions, Dr G opines that the Applicant has sleep apnoea and persistent insomnia with phase delay (that is, a Circadian Rhythm disorder) which is secondary to his ADHD.[259] Dr G also refers to a Multiple Sleep Latency Test as having been performed with "unremarkable" results.[260] I understand that this is a test for idiopathic hypersomnia, which would appear to rule out any impairment related to excessive sleepiness.
4. In her undated letter addressed "to whom it may concern", Dr M, the sleep psychologist at the Austin Repatriation Medical Centre with whom the Applicant was most recently engaged, "certifies" that the Applicant "suffers from a range of sleep difficulties including insomnia, sleep walking/talking, circadian rhythm disorder ... and obstructive sleep apnoea".[261]
5. In his oral evidence and submissions, the Applicant contended that the diagnoses that best fits his lived experience is either idiopathic insomnia or idiopathic hypersomnia.[262] He specifically rejected a diagnosis of sleep apnoea and Circadian Rhythm Disorder. He was highly critical of those practitioners who had treated him in relation to his sleep disorder for their failure to properly understand and respond to this condition.[263] He was dismissive and critical of Dr M's opinion, as stated in her letter. His evidence was to the effect that she did not understand his condition.[264]
6. The evidence before me is strongly suggestive that there are non-organic personal and environmental factors that affect the Applicant's sleep. In his letter in response to targeted questions dated 1 March 2022, Dr G refers to the Applicant's disrupted sleep as being related to "caffeine overuse".[265] In her undated letter Dr M refers to the Applicant as having "poor sleep hygiene". Additionally, in her consultation notes taken between 1 September 2020 and 19 January 2021, Dr M refers to the following personal and environmental factors as impacting on the Applicant's sleep: stress related to a 'corruption and misconduct case' the Applicant is involved in and feels unable to move on from; online gaming and online trading in currency and bit coin overnight ("following the market"); lack of exercise and outdoor activity; and an overfocus on online material related to cold cases/unsolved murders and extremism.
7. As I have stated, it is not necessary for the purposes of s 24(1)(a) that the Applicant establish a specific diagnosis of a sleep related impairment. Rather, what he must do is to establish the existence of such an impairment (that is, the variation or loss in body structure or function) whatever its diagnosis may be.
8. It is clear to me that there are multifactorial causes of the Applicant's disrupted sleep, which include non-organic personal and environmental factors. These factors tend against me attaining a state of positive satisfaction as to the existence of a sleep impairment.
9. However, against that, the evidence discloses a long history of medical and psychological treatment for a sleep condition, with several diagnosed organic causes or contributors to that condition. The Applicant may reject those diagnoses, but the point for present purposes is that those medical and allied health professionals who have treated him for this condition have all proceeded on the basis that there is an underlying organic cause or contributor to the condition. There is no evidence before me that any treating professional has concluded that the sleep condition has no organic basis.
10. In summary, I am satisfied that the personal and environmental factors referred to above should be understood as exacerbating of the Applicant's underlying sleep impairment which exists independently of those factors.
11. For the purposes of s 24(1)(a), a sleep impairment is a cognitive impairment, in that it is an impairment of global mental function related to sleep functions.[266] The specific dimensions of that impairment in the Applicant's case are functions related to the amount of sleep,[267] onset of sleep[268] and quality of sleep.[269]

1. For the reasons set out above I am satisfied that the Applicant meets the access criteria contained in s 24(1)(a) based on:
   1. physical, neurological and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves,
   2. cognitive impairment of global and specific mental functions which are attributable to C-PTSD and ADHD,
   3. cognitive impairments of specific mental functions of language arising from Dyslexia,
   4. cognitive impairment of global mental functions related to sleep.
2. These impairments will therefore be considered against the access criteria contained in s 24(1)(b).
3. I am not satisfied that the Applicant meets the access criteria contained in s 24(1)(a) based on:
   1. physical impairments of body structure and function related to his lower Thoracic and Lumbar spine,

ii. neurological impairments arising from 'an undiagnosed neurological condition',

1. physical or neurological impairment of body structure and function to his wrists and hands.
2. impairments attributable to OCD,
3. impairments attributable to a Major Depressive Disorder and Anxiety Disorder that are independent of C-PTSD and ADHD.

1. These matters will therefore not be further considered.

Physical, neurological and sensory impairments of body structure and function related to the C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves

1. I am satisfied that the physical impairments of body structure and function related to the Applicant's C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves are likely to be permanent.
2. Following his review of the Applicant on 1 May 2019, Dr J proposed to deal with that impairment by way of "injection therapy" because he considered that "major cervicothoracic discectomy and instrumental fusion surgery would not have a very favourable risk/benefit ratio in [the Applicant's] case".[270] In his subsequent review of the Applicant on 1 August 2019 Dr J noted that the Applicant underwent a left C7 - T1 foraminal cortisone injection and that this had "profoundly helped with his referred arm brachialgia and neuropathic pain", but he had developed other symptoms referrable to that impairment. Dr J noted that there remained "the option of considering decompressive cervical spine surgery" but opined that the Applicant's "neck is definitely not the best neck to operate on because of its shape and the fact that these stenotic levels are at the absolute base of the neck" which "may well require both front and back surgery to try to reach it which would be a massive undertaking." Dr J states that he "is very keen to avoid this if at all possible".[271] In a further review of the Applicant conducted on 1 October 2019, Dr J notes that "even though we all wanted to avoid surgery [the Applicant] would now like to consider this as a last resort. Dr J reiterated his previous advice in relation to the scale of surgery this would involve and warned "there is a risk of exacerbating his pre-existing quite severe voice issues and swallowing difficulties" and "there is a chance that this will not make any difference to his pain or radiculopathy whatsoever...".[272]
3. Rule 5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the NDIS Rules) provides that an impairment is, or is likely to be, permanent for the purposes of s 24(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.
4. In Davis the Court held that the term "permanent impairment" in s 24(1)(b) means an impairment which is of an enduring nature even if its impact may fluctuate or there are prospects of improvement.[273] It held, further to this, that the term 'remedy' in Rule 5.4 must be understood to mean more than to just relieve and improve, but rather as something approaching a removal or cure of the impairment.[274]
5. In this case decompressive cervical spine surgery is a potentially available treatment for the Applicant's impairment, but as I understand the evidence, that impairment will endure despite this surgery albeit in altered form (sections of the Applicant's neck vertebrae will be removed to relieve pressure on his spinal nerves and his neck vertebrae will be fused to create stability). These remedies involve changes to the structure of the spine to relieve pain and radiculopathy, but they do not remove or cure the Applicant's underlying physical impairment at least as it concerns body structure. In fact, they would further impair the Applicant's body structure, even if they improved function.
6. Additionally, while such surgery is available, Dr J's opinion casts substantial doubt on whether it is an appropriate evidence-based treatment in the Applicant's case. In this respect he refers to it as a "last resort" and a "massive undertaking" which is associated with a risk of "exacerbating other conditions" and of "not making any difference to the whatsoever". I cannot be positively satisfied that this surgery is an appropriate, evidence, based treatment having regard to those substantial qualifications. It is involves unreasonable risk, and its outcome is speculative on the evidence before me.

Cognitive impairment of global and specific mental functions which are attributable to C-PTSD and ADHD

1. There is no medical evidence before me in relation to the 'permanence' of C-PTSD and ADHD per se. However, as a matter of common knowledge, I understand ADHD to be a lifelong condition the impact of which may be ameliorated by treatment. C-PTSD is a condition that may have life-long impact, which may be ameliorated by treatment, and is potentially capable of remedy with long-term treatment. The 'permanence" of the Applicant's impairments that are attributable to C-PTSD and ADHD are to be understood in that context.
2. The medical evidence sourced from Dr D and Dr G establishes the following with respect to the Applicant's cognitive impairments that are attributable to his psychosocial disability (C-PTSD and ADHD):
   1. The Applicant has been treated for C-PTSD by Dr D since October 2012 up to the present, and by Dr G for ADHD since November 2017. Dr G appears to provide the Applicant with psychotherapy,[275]
   2. In the Evidence of Psychosocial Disability Form Dr D completed in January 2021, Dr D states that the Applicant has had "multiple psychological" treatments for these conditions, but he is "unsure" of the effect of this treatment on the Applicant's impairments.[276] In his letter to the Applicant dated 14 February 2022 Dr D states that the Applicant "has trialled multiple cognitive therapies with no definitive benefit", but (at that time) had "supportive psychological therapy".[277] In his letter to the Agency's legal representative dated 1 March 2022 Dr G states that the Applicant is "unable to derive any benefit from cognitive behaviour therapy (CBT) due to his high level of cognitive distractibility and poor task completion consequent upon his ADHD".[278] As at the date of the hearing the Applicant was not consulting a psychologist and had not done so for some time,[279]
   3. the Applicant has been prescribed various medications over many years to attempt to control the impairments that are associated with these conditions. These medications include mood stabilisers and anti-anxiolytics for his depression and anxiety, and psychostimulants to improve his energy, motivation, and focus. The evidence in relation to the effectiveness of this treatment is associated with a degree of inconsistency:

• - Dr D states the opinion that the Applicant did not tolerate Sertraline (an antidepressant).[280] Dr G states that other SSRIs were trialled but ceased due to a serious side-effect,[281] * - Dr G prescribed Duloxetine (a mood stabiliser and anti-anxiolytic) in December 2018. In his reviews of the Applicant conducted on 26 May 2020 and 11 May 2021 Dr D appears to indicate that this has had a positive effect in the treatment of the Applicant's mood and anxiety.[282] However, in the evidence of Psychological Disability Form he completed on 28 January 2021, Dr D states that he is "unsure" if Duloxetine had any impact on the Applicant's impairments.[283] In his letter to the Agency's legal representative in response to targeted questions dated 1 March 2022, Dr G appears to state that Duloxetine was ceased due to side effects,[284] * - Dr D states the opinion that the Applicant was unable to tolerate Valproate which was apparently prescribed in relation to his mood and anxiety symptoms,[285] * - Dr G stated in December 2018 that the Applicant had derived significant benefit from Desvenlafaxine (a mood stabiliser) "in the past", but that this medication was ceased due to a serious side-effect.[286] In the Evidence of Psychosocial Disability Form he completed in January 2021, Dr D states that he is unsure as to the effectiveness of Dexamphetamine, * - Dr G confirmed the prescription of Lis dexamphetamine and Dexamphetamine (both psychostimulants) in December 2018. He confirmed the continued prescription of that medication in his letter to the Agency's legal representative in response to targeted questions dated 1 March 2022 and goes on to state the opinion that this medication is "effective".[287] In the Evidence of Psychosocial Disability Form he completed in January 2021 Dr D states the opinion that Lis dexamphetamine has been effective in treating the Applicant's impairments, * - Dr D and Dr G[288] both refer to the Applicant being prescribed Alprazolam (a psychotropic medication used to manage anxiety and panic related disorders). Dr D opines that this has been 'partially effective' in managing the Applicant's C-PTSD derivative impairments.[289]

(iv) In his letter to the Applicant's legal representative dated 31 October 2022 Dr G states that the Applicant is "entirely compliant and adherent to the prescribed psychotropic regime and psychotherapy focusing on living behavioural strategies",[290] > > (v) In his letter to the Agency's legal representative dated 1 March 2022, Dr G states that "despite effectiveness of the psychotropic medication regime now in place [the Applicant] continues to struggle with social interactions and to manage his own self-care (nutrition, weight loss, physical condition) in a resilient way".[291] In his letter to the Applicant's legal representative dated 31 October 2022 Dr G states that the Applicant's "impairment has been stable for the past three years",[292] > > (vi) In his letter to the Applicant dated 14 February 2022, apparently in response to targeted questions, Dr D states that "in view of the chronicity of his problem his condition is stable and no further changes are expected in regard to improvement"; "the current treatment is to assist in maintaining stability rather than improving his overall psychological state"; that he "expect[s] [the Applicant] to be able to perform tasks in the future at his current level of function with the treatment he receives"; and that "there are no other treatments available" to the Applicant.[293]

3. I would have benefited from an integrated, more contemporary, account of the psychiatric and psychological treatment the Applicant has received for his impairments attributable to C-PTSD and ADHD and its impact on those impairments. Nevertheless, the evidence is sufficient for me to conclude in relation to permanence that:
   1. the Applicant receives ongoing psychiatric treatment (principally medication) for mood and anxiety related impairments attributable to C-PTSD an ADHD with generally good effect, but this treatment has not removed or cured these impairments. These impairments have and are likely to continue to fluctuate despite this treatment. I am therefore satisfied that these conditions are permanent on the basis contemplated by Rule 5.5,
   2. The Applicant receives ongoing psychiatric treatment (medication and psychotherapy) for his energy, motivation, and attention related impairments attributable to ADHD with good effect, but this treatment has not removed or cured those impairments. It has enabled him to achieve a relatively stable level of function in those domains that nevertheless remains impaired (or sub-optimal),
   3. The evidence does not disclose any additional or alternative treatments not yet attempted that have any prospect of removing or curing the Applicant's impairments that are attributable to C-PTSD and ADHD.
4. For the foregoing reasons, I determine that the Applicant's impairments attributable to C-PTSD and ADHD are permanent for the purposes of s 24(1)(b).

Cognitive impairments of specific mental functions of language arising from Dyslexia,

1. There is no specific medical evidence before me in relation to the 'permanence' of Dyslexia per se. However, as a matter of common knowledge it is a lifelong condition, manifested by impairments in the processing of language. Also, as a matter of common knowledge, the impact of those impairments may be ameliorated by adaptive technology and personal and environmental adjustments. However, those adaptive techniques and adjustments do not remove or cure these impairments. I do not understand the Agency to contend otherwise. Certainly, there is nothing in the evidence before me that would allow me to conclude that there is some form of treatment available, and not attempted by the Applicant, that would cure his Dyslexia.
2. I am therefore satisfied that the Applicant's language related cognitive impairments derivative of Dyslexia are permanent for the purposes of s 24(1)(b).

Cognitive impairment of global mental functions related to sleep

1. The evidence before me establishes that the Applicant has experienced disrupted sleep over many years. However, this is not sufficient for me to conclude that the sleep impairments associated with this condition are permanent for the purposes of s 24(1)(b) (a person may live with an impairment that is capable of being removed or cured for a range of personal or environmental reasons (by choice, or inability to afford treatment due to poverty, or inability to access treatment due to discrimination in a relevant medical or allied health system, for example).
2. There is controversy as to the aetiology of the Applicant's disrupted sleep. While that is not an impediment to identifying the impairments that derive from that condition, it does present difficulties in determining if those impairments are permanent for the purposes of s 24(1)(b).
3. In her undated letter Dr M, the Applicant's (former) sleep psychologist refers to him having a diagnosis of Sleep Apnoea. Dr F also records a diagnosis of Obstructive Sleep Apnoea in the NDIS Access Request - Supporting Evidence Form he completed in relation to the Applicant's First Access request on 21 July 2018. Dr C does not specifically refer to this diagnosis in the 'Treating Professional's Information' section of the Applicant's current Access Request but he does refer to treatment of the Applicant's 'sleep disorder' with CPAP machine to which the Applicant had "not responded". In her notes arising from a telephone consultation conducted with the Applicant on 1 September 2020, Dr M records that the Applicant reported to her that he had recently undergone corrective treatment for a deviated septum, that he sleeps better since that surgery and that he had been told by an occasional bed partner that he no longer has sleep apnoea.[294] The Applicant denies that he has Obstructive Sleep Apnoea. His evidence was that he had to "lie" about this to his General Practitioner to obtain a specialist referral. On the state of the evidence, whether the Applicant had Sleep Apnoea in the past or not, I could not be satisfied that any sleep impairment derivative of it is permanent. It has been 'cured' for the purposes of s 24(1)(b) and Rule 5.4 by a correction to his deviated septum.
4. In his letter to the Agency's legal representative in response to targeted questions dated 1 March 2022 Dr G states that the Applicant is using Alprazolam which "enables satisfactory sleep initiation". He also states that the Applicant has trialled Melatonin, Doxepin and Oxazepam to assist with his sleep, but these medications have been "unhelpful".[295] In the note she took in relation to the telephone consultation she had with the Applicant on 1 September 2020, Dr M records that the Applicant reported to her that his "main complaint" was with sleep onset and that he feels Alprazolam works well for him, that his sleep had been "pretty good for the past couple of years" and that "once asleep [it is] pretty easy to get back to sleep if he wakes". However, he also reported continuing disruption of sleep cycle.[296] At the hearing, the Applicant reported recently being prescribed Dayvigo (a sedative-hypnotic used for the short-term treatment of insomnia).[297] There is no medical evidence in relation to the effectiveness of that medication before me.
5. Other than what I have set out in the paragraphs above, there is no evidence before me as to the treatment, if any, that is available for the Applicant's sleep impairments, whether he has attempted those treatments, and if so, with what results.
6. That position is further complicated by the fact that his treating professionals record several non-organic personal and environmental factors as contributing to or exacerbating the Applicant's sleep disruption (caffeine use, late night gaming and trading, stress arising from prolonged legal proceedings, online investigating/viewing of potentially disturbing subject matter, poor exercise and limited outdoor activity). It appears to me that until those non-impairment related factors are eliminated, it is impossible to know if the Applicant's sleep impairments can be successfully treated (removed or cured).
7. I have carefully considered the Applicant's own evidence in relation to his sleep condition. So far as treatment with medication goes, there is a degree of concordance between his evidence and that of his treating professionals. In relation to his evidence to the effect that he has exhausted all known treatments for his condition and did so while under the care of Dr O at the Sleep Psychology Clinic of the Austin-Repatriation Medical Centre, there is no corroborating medical evidence in relation to that contention. It was open to the Applicant to provide that information, but he did not do so. In relation to the Applicant's denial or rejection of the personal and environmental factors his treating professionals have identified as contributing to or exacerbating his disrupted sleep, I am satisfied that scepticism should attach to his assertions. I am satisfied those personal and environmental factors have been identified by the Applicant's treating professionals from information he has provided to them at various times while he has been engaged in positive ongoing therapeutic relationships with them. For this reason, significant weight should attach to them.
8. I am required to be positively satisfied that the Applicant's sleep-related impairments are permanent. On the state of the evidence, as I have set it out above, I cannot be so satisfied.

1. For the reasons set out above I am satisfied that the Applicant meets the access criteria contained in s 24(1)(b) based on:
   1. permanent physical, neurological and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves,
   2. permanent cognitive impairment of global and specific mental functions which are attributable to C-PTSD and ADHD, and
   3. permanent cognitive impairments of specific mental functions of language arising from Dyslexia.
2. These impairments will therefore be considered against the access criteria contained in s 24(1)(c).
3. I am not satisfied that the Applicant meets the access criteria contained in s 24(1)(b) in relation to his cognitive impairment of global mental functions related to sleep. This impairment will therefore not be further considered.

1. In the present case it is only necessary to observe that the Applicant will have substantially reduced functional capacity to undertake an activity of life prescribed by s 24(1)(c) if the impairment results in one of the outcomes specified in Rule 5.8. That is, those outcomes, if established, are 'deemed' by Rule 5.8 to constitute a substantially reduced functional capacity for the purposes of s 24(1)(c).[298] This is an objective test that requires the decision maker to ascertain with precision what the prospective applicant can and cannot do.[299] The focus of analysis is the prescribed life activity area as a whole. It may not be sufficient that the Applicant is unable to perform a single task or activity falling within the domain. What must be demonstrated is substantially reduced function in the life activity area taken as a whole.[300]
2. The issue is not what the prospective participant does not do, but what they cannot do.[301] That is, using the ICF's frame of analysis, s 24(1)(c) requires the Tribunal to ascertain with precision the prospective Applicant's functional 'capacity', which may or may not be congruent with their functional 'performance'. This is a 'point in time assessment'[302] on the material before the Tribunal as at the date of the hearing.

1. As noted above, this Application has been before the Tribunal since April 2021. One consequence of that is that the Applicant's circumstances have fundamentally changed in the period between the filing of his application for review and the final hearing of that application.
2. At the time his application was made, the Applicant lived with his mother, brother, and sister in a regional town in Victoria. It is clear from the Applicant's PCIS and the material that was attached to it that he found his living environment at that time extremely stressful and disabling. His PCIS makes clear that he was highly motivated to leave that environment and that his functional performance was severely inhibited by his brother's and sister's risk taking and anti-social behaviour in that environment.
3. As at the date of the hearing, the Applicant is living alone in his own home in a different regional town in Victoria that is some distance from his former home. This new environment does not inhibit the Applicant's functional performance in the ways that his former living environment did. It provides an opportunity for the Applicant to realise his functional capacity. I will elaborate on this with respect to the life activity areas specified in s 24(1)(c) following.
4. Ms A's NDIS Access Report was completed while the Applicant was still resident in his former home. The Applicant did not agree to Ms A attending his home to carry out her assessment because he was embarrassed by his then living environment.[303] Consequently, her report is substantially based on self-reports by the Applicant as to his functional capacity given by him over the telephone,[304] and one direct observation of the Applicant's function when he attended her clinic.[305] I am satisfied that the Applicant's self-reports to Ms A as to his function are substantially artefacts of his then living environment and his motivation to escape that environment.
5. As I have stated above, s 24(1)(c) is not concerned with functional performance. It is concerned with functional capacity. The Applicant's self-reports to Ms A insofar as they reflect his functional performance in his former living environment are therefore of no assistance in ascertaining if the s 24(1)(c) criteria are satisfied. To the extent that those self-reports concern the Applicant's functional capacity, I am also satisfied that they should be considered with caution, as they are subjective self-assessments motivated by a desire to obtain access to the NDIS, rather than objectively observed clinical assessments of the Applicant's function in an authentic environment of daily living I note in this regard that Counsel for the Agency put squarely to the Applicant in questions that his self-reports to Ms A as to his lack of functional capacity were exaggerated. He denied that this was so, but I am satisfied it is the case.[306]
6. Ms A did make some direct observations of the Applicant's function in her clinic environment, but these observations only related to mobility and self-care. Subject to what I say following, that evidence as to function is potentially more robust. However, even if this evidence did not have the difficulty that I will turn to following, those observations are now more than 3 years old. There is therefore a real issue as to the value of these observations as evidence of the Applicant's current function.
7. My further concern with Ms A's report is that her overall findings do not appear to me to be consistent with the objective facts as to function she identifies. As I say, there are only two examples.
8. Ms A assessed the Applicant has having a "severe" mobility impairment based on his self-reported inability to walk more than 100 metres without experiencing neck pain, change gait creating a risk of fall when fatigued, and an 'inability to move' when his neck and back pain was exacerbated, despite her own direct observations that he could safely stand and sit independently, independently climb three steps with the assistance of a banister, and walk approximately 50 metres with a steady and safe gait.
9. Ms A assessed the Applicant has having an "moderate" impairment in relation to self-care functions, despite the Applicant reporting to her that he is able to shower, dry, dress, toilet, and manage his medication, and her own direct observations that he could independently manipulate the buttons on his shirt to do them up and undo them, don and doff his shoes, and tie his shoelaces, albeit with some adjustments.
10. How these conclusions could have been reached rationally is unexplained, noting that the Applicant did not offer Ms A as a witness. I am thus concerned that Ms A's report has the quality of 'advocacy' for the Applicant's access to the NDIS, rather than being the measured objective opinion of an expert. For the foregoing reasons I am satisfied that little weight should be given to the findings as to the Applicant's function contained in Ms A's report.
11. Mr Mate's functional assessment also relies to a significant extent on the Applicant's self-reports as to his capacity. However, by contrast to Ms A's assessment, Mr Mate had the opportunity to directly observe the Applicant's function in his current living environment. Mr Mate was offered as a witness at the hearing and was subject to questioning under affirmation. His report sets out his qualifications and experience and certifies that he understands his obligations to the Tribunal as an expert. Having regard to Mr Mate's qualifications and experience, I am satisfied that he is appropriately qualified and experienced to provide an expert opinion in relation to the Applicant's functional capacity. Mr Mate's report includes observations and opinion that assists and does not assist the Applicant. His oral evidence was given in a straightforward and objective manner. I am satisfied that he gave credible evidence. For these reasons I am satisfied that significant weight can be given to Mr Mate's observations and opinions as to the Applicant's functional capacity.
12. In his PCIS the Applicant's sets out in compelling terms the degree of support that he asserts was provided to him by his mother, and the impact of that asserted level of support on his mother's own well-being. As I have noted, the PCIS is referable to a time when the Applicant lived with his mother, brother, and sister in an environment that he found very stressful and disabling. What is described there about the support the Applicant received from his mother, assuming for present purposes that this is accurate, is therefore of limited assistance in determining the Applicant's level of function in his new home.
13. In response to questions from counsel for the Agency at the hearing the Applicant did make concessions as to his degree of current reliance upon his mother for support but nevertheless maintained it was substantial and to her detriment.[307] I will return to this issue following.
14. Rule 5.8(b) directs the Tribunal's attention to the issue of whether the prospective participant usually requires physical assistance, guidance, supervision and prompting from other people to participate in an activity or perform tasks or actions required to undertake or participate in the activity. If the answer is "yes" then the prospective participant will be deemed to have a substantially reduced capacity to participate in or undertake the activity.
15. The degree of assistance the Applicant receives from his mother, and how and why that assistance is provided, are therefore highly relevant considerations in this review. That is the more so if, because of providing that support, the Applicant's mother's own well-being is being compromised by the level of support she is obliged to provide to the Applicant because of his functional impairments.
16. In this context the Tribunal would have been greatly assisted if the Applicant's mother had contributed a statement going to these issues, and/or if she had been offered as a witness at the hearing. As it stands, the Applicant's assertions about the degree of current support he receives from his mother is uncorroborated by her or by any objective evidence. This is problematic for three reasons. First, because of the Applicant's tendency to exaggerate in relation to matters he perceives will assist him to access the NDIS (to which I return following). Second, because the Tribunal must distinguish between what the Applicant can do and what he does not do due to personal factors as distinct from functional impairment. Third, because the Tribunal must also distinguish between the normative support adults within a family may provide to each other and the non-normative support that a carer is obliged to provide because of prospective participant's substantial functional impairment.

1. I have found that the Applicant lives with permanent cognitive impairments of specific mental functions of language arising from Dyslexia. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity to undertake communication activities. I am satisfied that they do not.
2. In this proceeding I have had the opportunity to read communications and submissions drafted by the Applicant and the opportunity to observe and interact with him over two days of hearing. I am satisfied that he can express ideas clearly in writing and in speech. In his functional assessment of the Applicant, Mr Mate reached an equivalent conclusion. Over the 2.5 hours of the assessment, he observed the Applicant to communicate articulately and without difficulty. He did not observe any deficits in the Applicant's ability to understand the purpose of the assessment or any questions asked during the assessment. Mr Mate was also briefed with various documents that had been drafted by the Applicant, which he assessed as demonstrating excellent written communication skills.[308]
3. The Applicant contends that his language related impairments result in him misinterpreting communication with others. During the hearing, the Applicant was sometimes argumentative, but I did not observe him to be unresponsive to any specific question or issue due to misinterpretation of what was being said. My observation was that he was able to follow the stream of communication closely and accurately. The Applicant also reported this contention to Mr Mate but told him that he is generally able to understand others, including his treating professionals.[309] The Applicant's extensive written communications and his submissions show very little evidence of spelling or grammatical error.
4. The Applicant also referred in his evidence to poor spelling ability slowing him down and to his tendency to misread documents as resulting in him missing appointments.[310]
5. In response to questions put to him by the Agency, the Applicant outlined various techniques he utilises to manage the impact of his language related impairments. This includes using an online text to speech filter for written material which helps ensure he is reading material correctly and using a calendar ('year board') and phone alarm to diarise appointments. He also word processes documents and in doing so utilises program-based spelling and grammar check functions. He agreed with counsel for the Agency that none of these techniques had been recommended (prescribed) by a doctor and were generally available aides. As noted above, the Applicant was unable to identify any impairment related support he would seek to be provided under the NDIS in relation to his language related impairments if access was granted.[311]
6. For completeness, I note that Ms A records in her assessment the Applicant's self-report that he has moderate difficulty in understanding what people say, and of starting and maintaining a conversation, as a result fatigue.[312] I infer that this fatigue is derivative of the Applicant's sleep disorder which I have not found to be permanent for the purposes of s 24(1)(b). Functional impairment said to be derivative of that disorder therefore cannot be considered under s 24(1)(c).
7. It is not in issue that the Applicant is able to speak fluently, hear, read, and use communication technology (telephone, email, internet etc) independently.[313]
8. I am thus not satisfied that the Applicant's language-related impairments result in substantially reduced functional capacity in communication. The impact of these impairments is relatively mild and substantially alleviated by generally available technologies and adaptive strategies.

1. I have found that the Applicant lives with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD and that this involves impaired energy, motivation, and emotional regulation, including anxiety. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for social interaction. I am satisfied that they do not.
2. I accept that the Applicant's impairments are inhibiting of his social interaction,[314] but I am not satisfied that they are preclusive of it. In this respect, I note that the Applicant reported to Mr Mate that he 'may experience symptoms of anxiety and even dissociate which may make social interactions difficult, but he is able to perform social interaction tasks despite this'.[315]
3. Despite his impairments, the Applicant reported to Mr Mate at his assessment that he has a small group of approximately six friends 'with whom he remains in close contact, communicates regularly with, and sees occasionally in person' and that he 'is often introduced to friends of his friends and feels he can easily slot into their groups'.[316]
4. At the hearing the Applicant disputed that he had reported those things to Mr Mate. This led to the following exchange between the Applicant and counsel for the Agency:

... Yet, to Mr Mate, you've reported that you are often introduced to friends - of your friends - and that you feel like you can easily 'slot into' the group. Is that correct? ---- No, that's not the exact wording I used. So it's --- that's hearsay. Its not evidence. I thought I'd been very --- > > (indistinct words) evidence don't ---? I thought I had been very clear about this. Like, I have a very small group of friends, and they're all like me. The friends that I have, they're all as socially isolated as I am, in a way. So I might not speak to someone for, like, six months. And then they'll do the same. And it's just because we're socially isolate. But we understand each other, in that sense, which is why we have a maintained friendship. As far as being introduced to other friends, this sometimes happens, with more social friends of mine who want me to be more social. So they introduce me. When I 'slot into' those groups, it's not - its not me. Like, I can't be myself. I don't feel like I fit. I can't explain it very well. > > But you can 'slot into' the group? --- Ugh. If it was, say, a once-off event: yes. But not a continued offer - thing, no. > > Right. So the - when Mr Mate reports that you 'often' - that you said to him you 'often' were introduced to friends of his - of friends - that's not, in fact, true? So it's not 'often' that that would happen? - No. No, it's not.[317]

5. Careful reflection on that exchange does not lead to the conclusion that Mr Mate inaccurately described the Applicant's friendship network. The Applicant confirmed that he has a small group of like-minded friends with whom he can and does interact. Through some of his 'more social' friends he can and does sometimes meet other people, although he contends, he does not enjoy this. The Applicant does not refer to his capacity to do these things being substantially reduced by impaired energy, motivation, or emotion attributable to his C-PTSD or ADHD. Rather he indicates that his functional performance of interactions with his friends and with people introduced to him by his friends is limited by his and their personal preferences.
6. Section 24(1)(c) is concerned with the functional capacity of a prospective applicant, not their functional performance. In this case it is the Applicant's own evidence that he has the capacity to socially interact with a small group of friends both in person and by other means. The fact that he does not choose to do so in typical ways is substantially the result of his personal preference not to.
7. In his PCIS the Applicant refers to his friends 'helping him out to rebuild a car for him for a price he could afford'.[318] In her consultation notes, Dr M refers to the Applicant as having an 'occasional bed partner'.[319] This is also evidence of the Applicant's capacity for social interaction with others when he chooses this.
8. There is no issue in this review that the Applicant can behave in his social interactions within limits accepted by others. In the assessment conducted by Mr Mate the Applicant agreed that this was so.[320]
9. Having regard to this evidence I am satisfied that while the Applicant's impairments attributable to C-PTSD and ADHD do impact on his functional capacity for social interactions, they do not do so to such a degree that its results in any of the outcomes specified in Rule 5.8 of the NDIS (Becoming a Participant) Rules. The Applicant can effectively participate in social interactions without assistance despite any reduction in his functional capacity in this area of life activity. Although 'social anxiety' is a factor limiting the Applicant's interactions with the broader community, it does not prevent him from interacting with his close friends, or their friends. Any limit on his interactions with these groups results from his personal choices.
10. Mr Mate states the opinion that a major issue impacting on the Applicant's social interaction functional capacity is his disrupted sleep pattern; that is, fatigue and a non-normative sleep cycle. In this respect, he recommends the Applicant engage with an occupational therapist to improve his sleep hygiene.[321] I have not found the Applicant's sleep disorder permanent for the purposes of s 24(1)(b). Any reduction in functional capacity that is derivative of that condition therefore cannot be considered under s 24(1)(c).

1. I have found that the Applicant lives with cognitive impairments of specific mental function related to language and with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD involving impaired functions related to energy, motivation, and attention. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for learning. I am satisfied that they do not.
2. The Applicant's language related impairments potentially affect the Applicant's ability to accurately interpret written and oral information in a learning context. However, as I have already found with respect to the communication life activity area, the impact of these impairments is relatively mild and substantially alleviated by generally available technologies and adaptive strategies.
3. The Applicant gave evidence of receiving specialised learning assistance in relation to his language related impairments in the past, and of the difficulties he experienced because of these impairments throughout school.[322] Nevertheless, the Applicant completed his secondary education and went on to enrol in two tertiary degrees. He has not completed either degree, but the Applicant does not contend, and there is no evidence, that this was because of any impairment related to language. The Applicant is not presently enrolled in any formal learning activity. He did not give evidence as to any specific current learning activity that is impacted by his language related impairments.
4. There is some evidence that the energy, motivation, and attention related impairments that are derivative of C-PTSD and ADHD impact on the Applicant's learning capacity. In this respect, in his letter dated 14 February 2022, Dr D states the Applicant's 'ability to concentrate and attention are reduced'.[323] However, against that, on his review on 12 February 2018, Dr D concluded that due to treatment with dexamphetamine '[the Applicant] has been more focused and has been functioning better at home. He is now involved in market trading and has found that he is learning and progressing well ...".[324] On review on 26 May 2020 Dr D also observed "[the Applicant] has been busy at home ... has been busy repainting his car. He has not suffered issues of procrastination during [this] project ...". Having regard to those observations, I note that Dr D's 14 February 2022 letter also states that he "expects [the Applicant] to be able to perform tasks in the future at his current level of function with the treatment he receives".
5. Having regard to this evidence, I can be satisfied that the Applicant's energy, motivation, and attention related impairments do impact on his functional capacity to learn, but they do not substantially reduce it for the purposes of s 24(1)(c). Despite these impairments, the Applicant can still effectively participate in learning activities and tasks without assistance (leaving to one side the medical management of these conditions).

1. I have found that the Applicant lives with physical, neurological, and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for mobility. I am satisfied that they do not.
2. The Applicant lives in a two-level dwelling which has an internal staircase. Mr Mate observed the Applicant to independently access all areas of his home without difficulty. He did not observe the Applicant to experience any difficulty with balance or mobility. Nor did he observe the Applicant to experience pain when performing this activity. [325] Ms A also observed the Applicant to be able to climb a short staircase with banister independently when he attended her clinic for assessment.[326]
3. The Applicant did report to Mr Mate that climbing stairs was sometimes problematic for him due to back pain, that there have been occasions in the past when he has lost co-ordination and fallen, and more recent occasions when he has tripped and stumbled on the stairs.[327] However, the Applicant attributes that pain and those incidents to his undiagnosed neurological condition which is not established for the purposes of s 24(1)(b).[328] Any reduced functional capacity imputed to such an impairment therefore cannot be considered under s 24(1)(c).
4. The Applicant reported to Mr Mate that he can access cupboards, storage and shelving within his home independently and without difficulty. He also reported to Mr Mate that he can complete car, shower, toilet, and bed transfers independently and without difficulty.[329] I do not understand the Applicant to dispute these reports. In any event, there is no evidence to the contrary. Mr Mate observed the Applicant to complete chair transfers several times.[330] Ms A also observed the Applicant to be capable of independently and safely standing from a sitting position.[331]
5. The Applicant has a driver's license and car. He reports driving regularly. He also reports that he can catch trains, buses, and hire vehicles (taxi's etc). By these means he has the functional capacity to access essential services, shops, and community facilities.
6. The Applicant was observed by Mr Mate to be capable of walking independently, although he also reported to Mr Mate that he sometimes uses a single pointed walking stick to maintain balance/stability.[332] Ms A also made a direct observation that the Applicant was able to walk without difficulty, and with a steady and safe gait, up to 50m.[333]
7. The Applicant does contend that his ability to drive and catch public transport is impacted by fatigue that is derivative of his sleep disorder. I have not found the Applicant's sleep disorder to be permanent for the purposes of s 24(1)(b). Any reduced functional capacity imputed to such an impairment therefore cannot be considered under s 24(1)(c).
8. The Applicant also contends that his ability to utilise public transport is impacted by pain that is derivative of his putative undiagnosed neurological disorder. I have not found that condition established for the purposes of s 24(1)(a). Any functional impairment that is imputed to that condition therefore can't be considered under s 24(1)(c).

1. I have found that the Applicant lives with physical, neurological, and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves and with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD involving impaired functions related to energy, motivation, and attention. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for self-care. I am satisfied that they do not.
2. As I have set out above in relation to mobility, the evidence is that the Applicant is able to dress and undress (including manipulate buttons, don, and doff socks and shoes, and tie his shoelaces), shower (wash his whole body), and toilet independently, although he may use an adjusted technique to do so.
3. With respect to toileting specifically, the Applicant reported to Mr Mate that he sometimes experiences difficulties with anal continence related to a putative irritable bowel syndrome, but that he can manage this independently. He reported that he is independent with perineal hygiene, and that he can wash both hands independently.[334] I do not understand the Applicant to now contend otherwise.
4. With respect to grooming specifically, the Applicant reported to Mr Mate that he can clean his teeth, wash his face, shave, brush and style his hair, and cut his finger and toenails independently.[335] I do not understand the Applicant to now contend otherwise.
5. With respect to meals and nutrition, the Applicant reported to Mr Mate that back pain and distractibility derivative of ADHD reduce his functional capacity for more complex meal preparation. To overcome these difficulties the Applicant reported that he prepares simpler meals (such as sausages) or buys pre-prepared meals.[336] Mr Mate recommended that the Applicant purchase a kitchen perching stool to address back pain that results from any standing intolerance during meal preparation.[337] A kitchen perching stool is a generally available item. It is not a specialist disability related item of equipment. In his PCIC the Applicant contended that he relied substantially on this mother for meal preparation. However, in response to questions from counsel for the Agency he conceded that is no longer the case in new home environment.[338]
6. With respect to shopping, the Applicant reported to Mr Mate that he can shop independently, although due to fatigue arising from his sleep disorder he may delay doing so.[339] As I have noted, I have not found the Applicant's sleep disorder permanent for the purposes of s 24(1)(a). Any functional impairment that is imputed to that condition therefore can't be considered under s 24(1)(c).
7. In his oral evidence, the Applicant stated that he shops by attending shops personally, and by ordering his shopping over the internet.[340] He also stated that he continues to rely upon his mother to do his shopping, specifically referring to social anxiety as a barrier to him undertaking shopping personally.[341] I do not understand the Applicant to contend that his social anxiety inhibits his capacity to order his shopping online. With respect to his evidence about his mother's assistance, there are the difficulties I outlined above. That is, there is no corroborating evidence from the Applicant's mother that would enable me to ascertain if such assistance is provided in response to any reduction in the Applicant's functional capacity to perform these tasks independently as distinct from a reduction in his functional performance that relates to a personal factor. Nor am I able to ascertain if the degree of any such assistance provided is normative or non-normative support between familial adults.
8. With respect to domestic activities, the Applicant reported to Mr Mate that he can perform domestic housecleaning tasks (dusting, sweeping, vacuuming, mopping, bathroom scrubbing, washing up and kitchen cleaning), general tidying, and lawn mowing and yard maintenance independently, although he sometimes becomes distracted from these tasks or procrastinates about their performance. Mr Mate observed the Applicant's home environment to be neat and tidy to a high standard. In his oral evidence, the Applicant agreed with the proposition put to him by counsel for the Agency that his home was very clean, stating: "yes. It's part of the OCD, I've got to have things very clean".[342]
9. With respect to light laundry (clothing) and heavy laundry (bed linen), the Applicant reported to Mr Mate that he can perform these tasks independently, although he sometimes becomes distracted from these tasks or procrastinates about their performance. Mr Mate observed freshly laundered clothing drying on an indoor airer on the day of his assessment. He also observed the Applicant to be wearing clean clothing on that day.[343]
10. In his oral evidence, the Applicant contended that he continues to rely substantially on his mother to do his laundry.[344] However, I face the same difficulties with evaluating this evidence that I have outlined above in relation to shopping.
11. Having regard to the totality of the evidence I cannot be satisfied that the Applicant has substantially reduced functional capacity to perform the range of tasks that together constitute the self-care life activity area. The impairments I have found that are attributable to the Applicant's mental health conditions do have some impact on his functional capacity in relation to some self-care tasks, but this does not amount to a substantial reduction in functional capacity with respect to these tasks individually, let alone with respect to the whole of the activity area. Notwithstanding the impact of his impairments, the Applicant can perform self-care tasks effectively without assistive technology, or specialist equipment, or home modifications, and he does not usually require the assistance of others (including his mother) to do so.

1. I have found that the Applicant lives with cognitive impairments of global and specific mental function which are attributable to C-PTSD and ADHD involving impaired functions related to energy, motivation, and attention. The s 24(1)(c) issue is whether those impairments result in the Applicant having substantially reduced functional capacity for self-management. I am satisfied that they do not.
2. Mr Mate assessed the Applicant as having cognitive capacity for planning, problem solving and decision-making. He also assessed him as being able to take independent responsibility for the completion of activities of daily living (as detailed in relation to the other life activity areas), and as being able to manage his own finances.[345]
3. In his oral evidence, the Applicant contended that his ability to self-manage was cyclical, and that while he has been functioning well in this life-activity area for some time, he was presently in the process of losing that ability. I found this evidence unsatisfactory. It was given argumentatively to 'stitch up' what the Applicant apprehended was an emerging difficulty for him qualifying for access to the NDIS based on what he had stated in is SFIC. This is illustrated in the following excerpt of his oral evidence in response to questions asked of him by counsel for the Agency:

[referring to the A Report and the Applicant's SFIC filed 6 May 2024] > > Now, 'extreme impairment', that refers to ... the information that you've provided as part of the assessment? So that's what you self-reported? That you have 'extreme impairment' when it comes to self-management, at that time? - Yes. > > We have just previously talked about, though, that in your current statement, you state that, apart from being, at times, too fatigued to drive due to sleep issues, you don't have any substantially reduced functional capacity when it comes to self-management" - This goes back to what I was saying before about cycles. > > So, at that point, you had a cycle where your self-management was significantly impaired? - Yes > > But at the moment, right now, at this point in time, is your evidence that - of your statement - that you don't have substantially reduced functional capacity when it comes to self-management? - No. It's - it's coming back in. It's getting worse. > > So it got worse as of two days ago? Or, what do you mean? - No. Its been a gradual build up since last year. And, no-one confirming that data - this is why I've been so agitated about it. > > ... > > I'm asking about the ability to self-manage 'at this point in time'? - Yes. > > ... > > ... But what we need to provide the Tribunal with is information about 'today'. And --? - Yes. Well > > From what I can see, in your statement, you say that, at the moment, apart from sometimes when too tired to drive due to your sleep issues, you have no substantially reduced functional capacity when it comes to self-management. Is that correct? No, that's not what I said. > > So let's just go to your statement then. It was filed a couple of days ago with the Tribunal? Which part? > > ... paragraph 156? --- Yes, I agree, 'in part', about self-management. > > Yes. And the part you don't agree with is the part that's impacted by the sleep? - It's not just sleep. As I also state, in my statement, I have not had sufficient time to prepare a statement ...[346]

4. There is essentially no objective or other satisfactory evidence before me that could lead me to the conclusion that the Applicant experiences substantially reduced functional impairment in any task or activity related to his self-management. Any reduced function arising from his distractibility, procrastination, or decreased energy, derivative of C-PTSD and ADHD is not substantial on the evidence before me. I am satisfied that the Applicant can perform the tasks and activities of self-management effectively without assistive technology, or specialised equipment, or home modifications, and he does not usually require the assistance of others to do so.
5. For completeness, insofar as the Applicant contends that any reduced function in self-management is derivative of his putative undiagnosed neurological condition and/or sleep disorder I have not found that those conditions meet the satisfy the impairment requirement of s 24(1)(a) and permanence requirement of s 24(1)(b) respectively. Any functional impairment that is imputed to these conditions therefore cannot be considered under s 24(1)(c).

1. I have not found that the Applicant experiences substantially reduced functional capacity because of his permanent impairments in any of the life activity areas specified by s 24(1)(c).

Summary with respect to the disability requirement

1. For the reasons set out above the Applicant ultimately does not meet the disability requirement for access to the NDIS.
2. I note in this respect that having regard to cumulative nature of the requirements in s 24, and the findings I have made in relation to the requirements of ss 24(1)(a),(b) and (c) it is unnecessary for me to consider the requirements of ss 24(1)(d) and (e).

(iv) Does the Applicant meet the early intervention requirement for the NDIS? In this case this requires consideration of the following separate, cumulative, sub-questions:

(a) Does the applicant have one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be permanent, or one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent?

(b) If the answer to (a) is "yes" can the Tribunal be satisfied that the 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?

(c) If the answer to (b) is "yes" can the Tribunal be satisfied that it would do so in one or more of the following ways:

(i) by mitigating or alleviating the impact of the person's impairment upon the Applicant's functional capacity in the prescribed activities of life? or

(ii) preventing the deterioration of such functional capacity? or

(iii) improving such functional capacity? or

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

(d) If the answers to (b) and (c) are "yes", is the early intervention support most appropriately funded or provided through the NDIS?

1. For the reasons stated above I have determined on the evidence before me that the Applicant lives with the following impairments which are permanent or likely to be permanent:

(i) physical, neurological, and sensory impairments of body structure and function related to his C6, C7 and T1 vertebrae, and C7 and C8 spinal nerves, > > (ii) cognitive impairment of global and specific mental functions which are attributable to C-PTSD and ADHD, > > (iii) cognitive impairments of specific mental functions of language arising from Dyslexia.

2. There is no evidence before me that would permit me to conclude that early intervention supports would benefit the Applicant by reducing his future needs for support in any of the ways contemplated by s 25(1)(b) and (c) of the Act as informed by the evidentiary requirements specified in Rule 6.9 of the NDIS (Becoming a Participant) Rules.
3. The only articulation of an early intervention support that appears in the material before me in relation to the Applicant's present Access Request is found in Section 2 of the Access Request Form as completed by Dr C. He identifies as the relevant support "finding housing in Melbourne" which he states would enable the Applicant to engage with specialists and other health professional more easily.[347] Dr C does not identify which specialists or what specific interventions they would provide the Applicant that would have one or more of the effects described in s 25(1)(c).
4. I am not satisfied that "housing in Melbourne" is capable of being an early intervention support within the meaning of s 25. It is not an impairment-related treatment or support. It is a subsistence support, which in any event is not a support that is appropriately provided or funded under the NDIS. Housing assistance (as distinct from disability-related independent living support) is a separate, general system of service delivery and support which is external to the NDIS for the purposes of s 25(3). In this respect the Applicant is already provided with social housing. Any change of location and configuration of that housing assistance is a matter for his housing provider, not the NDIS.
5. In the Access Request - Supporting Evidence Form he completed in relation to the Applicant's first Access Request in July 2018, Dr F identifies 'physiotherapy' and 'psychology' as early intervention supports that would improve the Applicant's functional capacity and strengthen the sustainability of the Applicant's existing supports. However, he also states that the Applicant has already "been referred" for that assistance, presumably through the health system.[348] As at the date of the hearing the Applicant presents with a history of consultation with a psychologist from whom he has disengaged. Both Dr D and Dr G opine that psychological interventions have not been successful in treating the Applicant's mental health conditions.[349] There is therefore no evidence before me that could persuade me that psychological interventions are an early intervention support that would benefit the Applicant, even if this was asserted in the present Access Request, which it is not. On the material before me I do not know the outcome of Dr F's referral of the Applicant for physiotherapy. In any event, this is not asserted as a form of early intervention support that would benefit the Applicant at this time, and even if it had been, there is nothing in the evidence which indicates why such assistance is most appropriately provided by the NDIS, rather than through the health system.
6. In his evidence, the principal support the Applicant identified as being of assistance to him was transport, which I understand to be for-hire transport (taxis and rideshare).[350] He contends that this would allow him to reliably attend medical and other appointments which he sometimes misses due to fatigue which makes it unsafe for him to drive, and fatigue and pain, which makes it difficult for him to use public transport. I have not found the putative undiagnosed neurological condition an impairment for the purposes of s 25(1). Nor have I found the Applicant's sleep condition permanent for the purposes of that section. Early intervention supports are therefore not available to the Applicant in relation to those conditions. Having regard to that, I leave to one-side the question of whether transport assistance could constitute an early intervention support.
7. As I have set out above, the Applicant repeatedly asserted that he should be provided with access to the NDIS now so that it is available to him should his condition deteriorate in future, which he is confident it will.[351] In this respect he appears to conceptualise pre-emptive access to the NDIS as early intervention.[352] He also appears to conceptualise early intervention as being medical intervention directed at the cure or treatment of a health condition, specifically his asserted undiagnosed neurological condition, as distinct from treatment or support directed at maintaining or enhancing functional capacity related to impairment.[353] He is misconceived in both respects.
8. The early intervention requirement is only capable of being satisfied where a person would presently benefit in a specified way from a specified intervention or support that would have one of the effects specified in s 25(1)(c). It is not met on a 'just in case' or speculative basis or in the absence of the precise identification of the intervention or support and the benefit the prospective Applicant is likely to obtain from it.
9. Nor is the early intervention requirement met where it is medical treatment that is required to prevent the onset or progression of the health condition which gives rise to the impairment. By operation of s 25(3), treatment of that nature is more appropriately provided or funded through the health system, not the NDIS. In any event, insofar as his early intervention access request relates to an undiagnosed neurological disorder, I have not been satisfied as to the existence of an impairment derivative of that condition. It therefore cannot be considered under s 25.
10. For the foregoing reasons, I cannot be satisfied that the Applicant meets the early intervention requirements for the NDIS.

1. For the foregoing reasons I am not satisfied that the Applicant, on his current presentation, is a person for whom the NDIS is intended. He does not meet either disability or early intervention requirements for access to the scheme. The delegate of the CEO reached the same conclusion in her decision following internal review. I therefore affirm that decision as correct.

I certify that the preceding 295 (two hundred and ninety-five) paragraphs are a true copy of the reasons for the decision herein of

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

[1] DQKZ and National Disability Insurance Agency (No.1) [2024] AATA 2271

[2] Transcript of Proceedings, Day 1, 8 May 2024 (Transcript, Day 1), page 2, line 36 to page 5, line 28.

[3] This correspondence is set out in my reasons in the recusal application (DQKZ No.1) at paragraphs 29 - 45.

[4] Applicant's Statement of Facts, Issues and Contentions (Exhibit 1) (Applicant's SFIC) at [50] - [52].

[5] Transcript of Proceedings, Day 2, 9 May 2024 (Transcript, Day 2), page 28, line 9 -14.

[6] Transcript, Day 2, page 17, lines 47 - 38; page 28, line 15.

[7] Transcript, Day 2, page 28, lines 9 - 33.

[8] Transcript, Day 2, page 28, line 40; page 29, lines 4 - 7.

[9] Applicant's SFIC at [26], [89] and [103].

[10] Transcript, Day 2, page 29, line 34 to page 31, line 12.

[11] Agency Bundle, Tab R1, pages 14 - 16.

[13] Agency Bundle, Tab R1, pages 19 - 20.

[14] Agency Bundle, Tab R1, pages 21 - 24.

[19] s 26 of the NDIS Act; T Documents, Tab T1A, page 7.

[21] Agency Bundle, Tab R2, pages 30 - 33.

[22] T Documents, Tab T1A, pages 7 - 8.

[23] AAT Application for Review of Decision, Agency Bundle, Tab R4, pages 50 - 51; Applicant's SFIC at [9] - [21]; Transcript, Day 1, page 9, lines 8 - 30; Transcript, Day 2, page 37, lines 27 - 44.

[25] Agency Bundle, Tab R2, pages 30 - 31.

[28] Agency Bundle, Tab R3, pages 38 - 39.

[29] Shi v Migration Agents Regulation Authority [2008] HCA 31; (2008) 248 ALR 390 at 422 - 423 [141]; 420 - 421 [134] per Keifel J; 423 [142]; 412 - 413 [100] per Hayne and Heydon JJ

[30] Ibid, 423 - 424 [142] - [147] per Keifel; 413 [101] per Hayne and Haydon JJ.

[32] Beezely v Repatriation Commission [2015] FCAFC 165 at [68]; applied in HPSC v National Disability Insurance Agency [2021] AATA 727 at [85] and Sutherland v National Disability Insurance Agency [2024] AATA 411 at [53].

[33] Applicant's SFIC at [17], [21] - [23], [31] - [33], [76], [83], [167], [183], and [186].

[34] Applicant's SFIC at [34] and [187].

[35] Transcript Day 1, page 9, lines 14 - 26 and 39 - 41; page 10, lines 7 - 11; Transcript Day 2, page 37, lines 34 - 45.

[36] National Disability Insurance Agency v Davis [2022] FCA 1002 at [44].

[37] DQKZ (No.1) at [73] - [82], [89] - [90] and [109] - [110].

[38] T Documents, Tab T18, page 80. In his Access Request, the Applicant provided consent to the Agency to verify his birthdate with Centrelink (T Documents, T18, page 83) which it did (T Documents, T20, page 108).

[39] T Documents, T18, page 80. In his Access Request, the Applicant provided consent to the Agency to verify his residency status with Centrelink (T Documents, T18, page 83), which it did (T Documents, T20, page 108).

[40] Elliott Mate, Occupational Therapy Functional Capacity Assessment report, 17 October 2013, Tab R27 of Agency Bundle (the Mate report) at pages 197 and 199.

[41] Transcript, Day 2, page 13, line 3.

[42] Transcript, Day 2, page 11, line 31.

[44] Transcript, Day 1, page 22 and lines 24 - 38.

[47] This appears from the Applicant's Personal and Carer Impact Statement (Applicant's PCIS) at page 69, and from communications with the Agency in relation to his present application, which are in the Agency Bundle at Tab 7, p 117.

[48] That is the date stated by the Applicant in his Application for Review: Agency Bundle, Tab R4, page 51; although a Supporting Evidence Form completed by Dr Waheed Ahmed which is in the T Documents, T5, at pages 43 - 49 is dated 21 July 2018.

[49] T Documents, Tab T18, page 80; Agency Bundle, Applicant's PCIS, pages 67 - 113.

[50] Agency Bundle, Tab R6, Applicant's PCIS pages 68 - 69, 75, and 77 - 113.

[51] Agency Bundle, Recusal Application, Tab R9, page 15.

[52] Agency Bundle, Tab R31, page 257; Transcript, Day 1, page 16, line 23.

[54] Applicant's PCIS, page 72; Applicant's SFIC at [151].

[58] Agency Bundle, Tab 29, at page 239; Agency Bundle, Tab R20, G A Occupational Therapist, NDIS Access Report, (A Report) at page162.

[59] T Documents, Tab T11, pages 56 - 64.

[61] Applicant's PCIS, page 71; see also A Report, page 165.

[67] Transcript, Day 1, page 18, lines 32 - 34.

[68] Transcript, Day 1, page 31, line 39 to page 32, line 3.

[69] Transcript, Day 1, page 18, lines 16 - 24.

[70] Transcript, Day 1, page 18, lines 26 - 20.

[71] Transcript, Day 1, page 4, lines 1 - 7.

[72] Applicant's PCIS, page 71; Transcript, Day 1, page 22, line 30.

[79] Transcript Day 1, page 22, line 27 - 38.

[80] Transcript, Day 1, page 22, line 42 - 45.

[81] Transcript, Day 1, page 23, lines 16 - 17.

[82] Transcript, Day 1, page 23, lines 23 - 28.

[85] Applicant's SFIC at [177] to [179]; Transcript, Day 2, page 4, lines 5 -7.

[88] Agency Bundle, Tab R31, pages 262 - 263.

[89] Agency Bundle, Tab R12, pages 144 - 145

[98] Agency Bundle, Tab R11, pages 137 - 143.

[99] Agency Bundle, Tab R30, pages 242 - 243.

[101] Agency Bundle, Tab R30, page 245.

[102] Agency Bundle, Tab R30, page 246.

[103] Agency Bundle, Tab R30, page 247.

[104] Agency Bundle, Tab R23, pages 169 - 170.

[105] Agency Bundle, Tab R30, page 250.

[106] Agency Bundle, Tab R24, page 171 - 172.

[107] Agency Bundle, Tab R25, pages 173 - 174.

[108] Agency Bundle, Tab R11, page 139.

[109] Agency Bundle, Tab R22, page 168.

[110] Agency Bundle, Tab R24, page 171.

[111] Agency Bundle, Tab R24, page 172; Dr G provided the same advice to the Applicant's legal representative in a letter dated 31 October 2022 which is at Agency Bundle, Tab R25, page 173 - 174, and to Dr C in a letter dated 1 March 2022 which is at Agency Bundle, Tab R31, page 255 - 256.

[112] Agency Bundle, Tab R28, pages 233 - 234.

[113] Agency Bundle, Tab R28, page 232.

[114] Agency Bundle, Tab R28, page 231.

[115] Agency Bundle, Tab R28, page 230.

[134] Transcript, Day 1, page 16, lines 23 - 29.

[135] Applicant's SFIC at [66] and [71].

[137] Transcript, Day 2, page 6, lines 6 - 17.

[138] Applicant's SFIC at [60]; see also Transcript, Day 1, lines 29 - 34.

[141] Agency's Statement of Facts, Issues and Contentions (Exhibit 2) (Agency's SFIC) at [23].

[145] Transcript, Day 1, page 16, lines 43 - 45.

[148] Transcript, Day 1, page 23, lines 30 - 31.

[149] Transcript, Day 2, page 15, lines 20 - 34.

[150] Transcript, Day 1, page 11, line 21.

[151] Transcript, Day 1, lines 24 - 34.

[152] Transcript, Day 1, page 11, lines 35 - 42.

[153] Transcript, Day 1, page 9, lines 35 - 36.

[154] Transcript, Day 1, page 10, lines 31 - 32.

[155] Transcript, Day 1, page 10, lines 31 - 35.

[156] Transcript, Day 1, page 10, lines 38 - 39.

[157] Transcript, Day 1, page 11 lines 5 - 7.

[158] Transcript, Day 2, page 15, lines 40 - 43.

[159] Transcript, Day 1, page 9, line 34.

[160] Transcript, Day 1, page 15, line 45 to page 16, line 9.

[161] Transcript, Day 1, page 15, line 46 to page 16, line 21.

[162] Transcript, Day 1, page 28, lines 19 - 34.

[167] Transcript, Day 1, page 12, lines 10 - 13.

[168] Transcript, Day 1, page 12, line 15; see also Transcript Day 2, page 9, lines 16 - 24.

[169] Transcript, Day 1, page 12, line 15.

[170] Transcript, Day 1, page 14, lines 5 - 8.

[171] Transcript, Day 1, page 12, lines 22 - 35.

[172] Transcript, Day 1, page 12, line 37 - 42.

[173] Agency's SFIC at [37] - [38].

[174] Applicant's SFIC at [127]; See also: Transcript Day 1, page 12, line 6.

[176] Applicant's SFIC at [134] - [135].

[177] Transcript Day 1, page 13, lines 25 - 41.

[178] Transcript, Day 1, page 14, 36 - 45.

[181] Transcript, Day 1, page 16, line 23 to page 17, line 7.

[182] Transcript, Day 2, page 6, line 12.

[185] Transcript, Day 1, page 15, lines 21 - 29.

[186] Transcript, Day 1, page 15, lines 31 - 37.

[187] Transcript, Day 2, page 3, lines 1 - 41.

[188] Transcript, Day 2, page 14, line 27 - 28.

[189] Transcript, Day 2, page 14, lines 35 - 46.

[190] Transcript, Day 1, page 17, line 17 - 19.

[191] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [7].

[192] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 (Mulligan), 212 [51].

[194] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva.

[195] World Health Organisation, (2013), How to use the ICF: A practical manual for using the International Classification of Functioning, Disability and Health (ICF). Exposure Draft for Comment, Geneva (WHO (2013)).

[196] World Health Organisation (2002), Towards a Common Language for Disability Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO: 2002) at page 2.

[197] Fifty-Fourth World Health Assembly, Ninth plenary meeting, 22 May 2001, Resolution WHA54.21.

[198] International Classification of Functioning, Disability and Health (ICF) (who.int).

[199] Constitution of the World Health Organisation [1948] ATS 7; entry into force for Australia 7 April 1948.

[201] Australian Institute of Health and Welfare, (2003), ICF Australian User Guide. Version 1.0, Disability Series. (AIHW Cat. No DIS33), Canberra.

[202] Part 7 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant) Rules empowers the CEO to specify assessment tools for the purpose of deciding whether a person meets the disability requirements or the early intervention requirements (Rule 7.2). Rule 7.5(b) provides that such a tool must have reference to areas of activity and social and economic participation identified in the ICF. The CEO has not specified any assessment tools pursuant to Part 7 to date, however.

[205] Do you meet the disability requirements? | NDIS accessed 14 June 2024.

[207] This concept of disability is broadly consistent with the s 24 concept of disability described by her honour in Mulligan at 212, [51]

[214] Dr Quan's opinion - see paragraph 69 above.

[216] ICF s1201; see Dr Quan's opinion at paragraph 69.

[217] ICF b710 Description: Functions of the range and ease of movement of a joint: see Dr Quan's opinion at paragraph 69 above.

[218] ICF b280 Description: Sensation of unpleasant feeling indicating potential or actual damage to some body structure.

[219] ICF b2803 Description: Unpleasant sensation indicating potential or actual damage to some body structure located in areas of skin served by the same nerve root: see Dr Quan's opinion at paragraph 69 above.

[225] See paragraphs 103 to 107 above.

[239] ICF b126: Description: General mental functions of constitutional disposition of the individual to react in a particular way to situations, including the set of emotional characteristics that make the individual distinct from others.

[240] ICF b1263: Description: Mental functions that produce a personal disposition that is even-tempered, calm and composed, as contrasted to being irritable, worried, erratic and moody.

[241] ICF b130: Description: General mental functions of physiological and psychological mechanisms that cause the individual to move towards satisfying specific needs and general goals in a persistent manner.

[242] ICF b1300: Description: Mental functions that produce vigour and stamina.

[243] ICF b1301: Description: Mental functions that produce the incentive to act; the conscious or unconscious driving force for action.

[244] ICF b140: Description: Specific mental functions of focusing on an external stimulus or internal experience for the required period of time.

[245] ICF b1400: Description: Mental functions that produce concentration for the period of time required.

[246] ICF b1401: Description: Mental functions that permit refocusing concentration from one stimulus to another.

[247] ICF b1402: Description: Mental functions that permit focusing on two or more stimuli at the same time.

[248] ICF b152: Description: Specific mental functions related to the feeling and affective components of the processes of the mind.

[249] ICF b1521: Description: Mental functions that control the experience and display of affect.

[250] ICF b1522: Description: Mental functions that produce the spectrum of experience of arousal of affect or feelings such as love, hate, anxiousness, sorrow, joy, fear and anger.

[251] ICF b167: Description: specific mental functions of recognising and using signs, symbols and other components of a language.

[252] ICF b1670: Description: specific mental functions of decoding messages in spoken, written or other forms, such as sign language, to obtain their meaning.

[253] ICF b1671: Description: specific mental functions necessary to produce meaningful messages in spoken, written or other forms of language.

[254] ICF b1672: Description: mental functions that organise semantic and symbolic meaning, grammatical structure and ideas for the production of messages in spoken, written or other forms of language.

[264] Transcript, Day 1, page 12, lines 22 - 35.

[266] ICF b134: Description: General mental functions of periodic, reversible and selective physical and mental disengagement from one's immediate environment accompanied by characteristic physiological changes.

[267] ICF b1340: Description: Mental functions involved in the time spent in the state of sleep in the diurnal cycle or circadian rhythm.

[268] ICF b1341: Description: Mental functions that produce the transition between wakefulness and sleep.

[269] ICF b1343: Description: Mental functions that produce the natural sleep leading to optimal physical and mental rest and relaxation.

[281] See paragraph 80(iv) and (ix) above.

[298] Mulligan at [66] - [67]; [2015] FCA 544; 233 FCR 201.

[300] National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521, 537 [65].

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

[302] Newell and National Disability Insurance Scheme [2023] AATA 4140 at [131]

[303] Transcript, Day 1, page 31, lines 15 - 16.

[304] Ms A's conclusions in relation to the Applicant's function in the life activity areas of communication, social interaction, learning and self-management are entirely based on the Applicant's self-reports; the only life activity areas where Ms A also makes findings as to the Applicant's function based on her direct observation are mobility and self-care.

[306] Transcript, Day 2, page 30, line 11 to page 31, line 6.

[313] Mate report, page 202; A report, page 162.

[314] Dr Eaton's opinion at paragraph 80(vii) above at internal paragraphs 7 and 8 ("... has generally limited his engagements with society ..."; "...has minimal social interactions..."); Dr G's opinion at paragraph 80(ix) above ("... continues to struggle with social interactions...").

[317] Transcript, Day 1, page 27, line 34 to page 28, line 10.

[321] See paragraphs 89(ii) and (v) above.

[322] See paragraphs 122 and 123 above.

[338] Transcript, Day 1, page 23, line 23.

[340] Transcript, Day 1, page 23, 45 - 46.

[341] Transcript, Day 1, page 22, lines 43 - 45.

[342] Transcript, Day 1, page 23, lines 27 - 31.

[344] Transcript, Day 1, page 22, line 43.

[346] Transcript, Day 1, page 26 line 1 to page 27, line 15.

[349] See paragraphs 26 and 80(vii) and (x) above.