1. By way of a form dated 26 May 2023 Mr Grant applied to access the NDIS.[1] On 5 October 2023 a delegate of the Chief Executive Officer (CEO) of the Agency refused that application.[2] On 20 October 2023 Mr Grant asked the Agency to conduct an internal review of that decision.[3] On 2 January 2024 another delegate of the CEO upheld the original decision that Mr Grant did not meet the access requirements for the NDIS.[4] This is the 'reviewable decision' (the decision under review) that is now before the Tribunal.
2. In providing reasons for that decision to Mr Grant, the Agency's decision-maker advised that while Mr Grant met the age and residency requirements in the National Disability Insurance Scheme Act 2013 (the NDIS Act), he met neither of the disability or early intervention requirements. These requirements are explained in detail in a following section of this decision.
3. On 23 January 2024 Mr Grant lodged an application with the former Administrative Appeals Tribunal (the AAT) seeking review of this decision.[5]
4. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
5. Mr Grant represented himself throughout the review and at the final hearing. The Agency was represented by Maddocks Lawyers, who instructed Mr Marco Nesbeth of Counsel at the hearing.
6. The review was heard by video (by Microsoft Teams) on 16 July 2025.
7. At the hearing, the Tribunal had before it the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents), and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which also contained relevant excerpts from legislation and the NDIS Rules and Guidelines. The Hearing Bundle also contained documents produced by Dr Stuart Mackenzie, a medical practitioner attended by Mr Grant, pursuant to a summons issued by the Tribunal at the request of the Agency. The Hearing Bundle became Exhibit 1 in the proceedings. Additionally, in accordance with its obligations to provide the Tribunal with documents that are relevant to the review, arising from section 25 of the Administrative Review Tribunal Act 2024 (Cth), the Agency provided an advice from its Technical Advice and Practice Improvement Branch dated 14 January 2025, which became Exhibit 2.
8. Mr Grant gave evidence at the hearing. The Agency called as a witness Mr Mateusz Miszczuk, an Occupational Therapist who had undertaken an independent functional assessment of Mr Grant at the Agency's request. Mr Miszczuk's report, dated 9 December 2024, was in evidence as part of the Hearing Bundle.[6]

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[8]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[9] In undertaking its review, the Tribunal may exercise all the powers and discretions that are conferred on the maker of the decision under review.[10] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[11]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[12]

1. The applicable legislation in this review is the NDIS Act. Section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements and the section 25 early intervention requirements. Those rules, being the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), are also applicable.

1. After Mr Grant filed his application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note are the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[13] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when Mr Grant applied to access the NDIS, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
2. The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, Mr Grant's application must be determined in accordance with the provisions of the NDIS Act existing before that date.
3. Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.

1. Section 18 of the NDIS Act provides that a person may make a request (an access request) to the Agency to become a participant in the NDIS. Pursuant to section 20 of the NDIS Act, the Agency's CEO must decide if the person making the access request meets 'the access criteria'. Section 21(1) of the NDIS Act (as it read prior to 3 October 2024) sets out the relevant requirements for this, and provides:

21 When a person meets the 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 9 of the NDIS Act defines 'meets the disability requirements' to have the meaning given by section 24, which provides as follows:

1. A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

1. 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.
2. 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.
3. Subsection (3) does not limit subsection (2).
4. The five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met. In this review, the Agency submitted that the evidence did not support findings that Mr Grant met the following disability requirements:[15]

(a) the permanence criteria under section 24(1)(b); > > (b) the substantially reduced functional capacity criteria pursuant to section 24(1)(c), in any of the six listed activities; and > > (c) the requirement of support under the NDIS for the person's lifetime, under section 24(1)(e).

5. Section 25(1) provides as follows, in relation to the 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;

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

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

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

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

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

(iii) improving such functional capacity; or

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

1. Similarly, the early intervention requirements under section 25(1) are cumulative. The Agency submitted that Mr Grant does not meet the requirements for early intervention, in that:

(a) His physical impairments are not permanent, within the meaning of section 25(1)(a). > > (b) As such, early intervention would not be appropriate because there is no evidentiary basis to establish that the provision of early intervention supports: > > > (i) is likely to benefit Mr Grant by reducing his future needs for support - section 25(1)(b); and > > > > (ii) will mitigate or alleviate the impact of Mr Grant's impairments; or prevent the deterioration of his functional capacity; or improve his functional capacity; or strengthen the sustainability of informal supports available to Mr Grant - section 25(1)(c).[16]

1. As noted, section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements, or the section 25 early intervention requirements. Section 27 provides:

27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:

(a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or

(b) one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or

(c) one or more impairments affect a person's capacity for social and economic participation for the purposes of paragraph 24(1)(d); or

(d) the provision of early intervention supports is likely to benefit a person by reducing the person's future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or

(e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person's functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or

(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person's carer for the purposes of subparagraph 25(1)(c)(iv).

1. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. NDIS Rules relating to the disability and early intervention requirements have been made; namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules). Relevantly, Part 5 of those Rules addresses '[W]hen does a person meet the disability requirements?' and the requirements of 'permanency' and 'substantially reduced functional capacity to undertake relevant activities.'
2. Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements. These Rules provide as follows:[17]

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

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

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

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

1. Rule 5.8 addresses the issue of when does an impairment result in substantially reduced functional capacity to undertake one or more of the relevant activities outlined in section 24(1)(c) of the Act, and provides:

When does an impairment result in 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.

1. Part 6 of the Access Rules addresses '[w]hen does a person meet the early intervention requirements?' and again addresses the requirement of 'permanency', and additionally 'deciding whether provision of early intervention supports is likely to benefit the person.'

1. The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA's 'operational information': '[t]hey explain what we need to consider and how we make decisions based on the legislation.' [18] The guidelines of relevance to this review are those entitled Applying to the NDIS (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.
2. Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[19] As such, the Guidelines set out the NDIA's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[20]

DOES MR GRANT MEET THE ACCESS REQUIREMENTS FOR THE NDIS?

1. Mr Grant was 50 years of age when he applied to access the NDIS. He is an Australian citizen, living permanently in this country. As such, the Agency accepted,[21] and I find, that Mr Grant meets the age and residence requirements in sections 22 and 23 of the NDIS Act.

Section 24(1)(a) - disability attributable to impairments

1. The first of the section 24 disability requirements is that the person applying for access to the NDIS 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.
2. The Agency accepted that Mr Grant has disability attributable to physical impairments, resulting from his diagnosed conditions of bilateral knee osteoarthritis, with fixed joint deformity.[22] The Agency outlined the specific impairments that Mr Grant relied upon, for the purpose of his access application, in the following terms:

(a) poor mobility due to knees that do not straighten and nerve damage to left foot; > > (b) knee pain, with random episodes of sharp pain; > > (c) restricted range of motion; > > (d) lower limb weakness, with both legs "giving way", exacerbated by prolonged sitting, standing or walking; and > > (e) chronic right shoulder pain, "from using the walking frame".[23]

3. I find that Mr Grant satisfies the requirement of section 24(1)(a).

1. Throughout this review the Agency contended that Mr Grant's physical impairments arising from his bilateral knee osteoarthritis and bilateral fixed joint deformity were not permanent, or likely to be permanent, for the purposes of section 24(1)(b) of the NDIS Act.[24]

1. When applying to access the NDIS, Mr Grant was assisted by his treating General Practitioner, Dr Elizabeth Revelle. In the NDIS access form, Mr Grants' 'main disability' was described in this way:

Severe knee pain due to osteoarthritis, bilaterally fixed joint deformity.

Barely able to walk even with aids - requires use of frame and mobility scooter constantly, has to hold on to transfer.[25]

1. At the time of completing the relevant section of Mr Grant's access form on 13 April 2023, Dr Revelle had been treating Mr Grant for three months.[26] Relevant to the issue of whether Mr Grant's impairments are permanent, Dr Revelle noted that:
   • Mr Grant's disability had affected his functional capacity for nine years, and that he had been medically retired due to his inability to work.
   • Current treatment consisted of exercise physiology to stabilise his upper body.
   • Previous treatments included a right knee arthroscopy and left knee synovectomy.
   • An 'available treatment/intervention' likely to 'substantially relieve' Mr Grant's impairment was the 'possibility of knee replacement', for which Mr Grant had been referred.[27]
2. Dr Revelle also provided a letter dated 25 May 2023 in support of Mr Grant's NDIS application. In that letter she noted:

Andrew is a 50y/o man with severe mobility issues due to osteoarthritis of his knees and a fixed flexion deformity. He has had a background of multiple knee surgeries which were unsuccessful leaving him with this and forcing him to retire on medical grounds from the public service at a very young age. He has recently seen an orthopaedic surgeon, but the surgeon does not believe there is a medical option that will be successful in returning his mobility.[28]

1. Dr Revelle also provided another 'Supporting Evidence' form dated 13 September 2023, which was similar in content to the April 2023 form, but which contained some more details about Mr Grant's impairments. This form advised that:
   • Mr Grant has had these impairments for 16 years.
   • They are likely to be 'lifelong'.
   • Relevant treatment, current and past, was:

Left knee surgery - arthroscopy, lateral release, excision of patella tendon.

Seen although recently would not recommend further surgery.

Seen exercise physiology, small amount of improvement in flexibility.[29]

1. The references by Dr Revelle to Mr Grant seeing an orthopaedic surgeon relate to Dr Stuart Mackenzie, to whom Mr Grant was referred by Dr Revelle. Mr Grant's application material included a report from Dr Mackenzie back to Dr Revelle, dated 18 May 2023.[30] Neither Dr Mackenzie nor Dr Revelle were called at the hearing. It is useful to set this initial report from Dr Mackenzie out in full, as it deals with the central issue in this review:

Thank you for referring Andrew to see me. This 50-year-old gentleman has a long history of having a lot of trouble with his knees. He has had multiple operations on his knees. Both knees give him a lot of trouble, but the left is probably slightly worse than the right. He had an arthroscopy on the right knee 20 or 30 years ago, and on the left knee he has had an arthroscopy, a lateral release, excision of some patellar tendon due to tendinitis, and an open synovectomy. Despite all this, he still has awful knees.

His main issue with his knees is stiffness. He does get pain as well, but his knees do not come anything like straight and do not bend very well. This makes it awkward for him to walk and he uses a walking frame to get around. He ls working with an exercise physiologist and feels like his movement has improved a little bit, but he is still quite debilitated.

On examination he walks with a very awkward gait. His range of motion in both knees Is from fixed flexion of about 30° to about 80° maximum flexion. His hips are not irritable. His ligaments are clinically intact and he is neurovascularly intact.

His most recent x-rays are from about 12 months ago and show arthritic changes with loss of joint space and osteophyte formation. The arthritic change, however, is not as much as I would expect to account for the very significant loss of range of motion that he has.

I have had a long discussion with Andrew today and have told him that I agree with you that the only thing that I would offer to try and help his knees would be total knee replacement. I have also explained, however, that I feel that there is quite a significant risk that it would not improve him significantly. Given how stiff he is, I think he is at high risk of being someone who would end up with very stiff knees after a knee replacement as well.

He has not had an x-ray in the last 12 months, so I have recommended we get an up-to-date x-ray for him. I have also requested MRls to see if there is something soft tissue going on in the knees that we are missing. I would not be surprised, however, if they are not able to fit his knees in the MRI[31] scanner with his fixed flexion deformity.

I am going to see Andrew once he has had his imaging done and we will discuss things further. We had quite a long discussion today and I have allowed for a long consultation next time to discuss things with him again. I have also given him an information sheet about knee replacement to take away and read.

1. As noted, Mr Grant's application to access the NDIS was refused. In response to that decision, Dr Revelle provided another letter in support of Mr Grant to the NDIS in December 2023. Relevantly, Dr Revelle stated:

I have read the letter in response to his NDIS application where an NDIS access representative has stated he is not permanently disabled because there are medical interventions that could still occur. This is a misunderstanding of the medical information that has been given, understandable given NDIS is not a medical organization.

Andrew Grant is disabled and it is permanent. He has fixed deformities of his knees which has been caused by soft tissue fibrosis/tightening of ligaments from repeated failed knee surgeries. This is not correctable by further surgery and the letters from Dr Stuart Mackenzie states that a further operation would likely be unsuccessful. There is some further discussion of MRI, but this is a letter is saying operative management is not appropriate. Hence medical interventions have been exhausted.[32]

1. Dr Mackenzie also provided a further letter at that same time, stating:

Andrew has severe issues with his knees resulting in him needing a mobility scooter to get around.

Although it may be possible, although not certain, to improve his symptoms with surgery, even with successful surgery he would still have significant mobility issues and likely still be dependent on motorised mobility aids.[33]

1. During the review Mr Grant filed a further letter from Dr Revelle, dated 27 June 2024. In that letter Dr Revelle stated:

I can confirm that Andrew has had no significant improvement to his disability from his treatment with Exercise Physiology. His condition is stable, not improving and not deteriorating.

He has fixed deformities of his knees which has been caused by soft tissue fibrosis/tightening of ligaments from repeated failed knee surgeries. This is not correctable by further surgery or by muscular skeletal practitioners.

His surgical treatment course finished many years ago in Canberra and his referral to Stuart Mackenzie (orthopaedics in Newcastle) was to confirm that there was nothing more that could be done. Andrew was more than compliant and sadly Dr Mackenzie told us there had been no advances in treatment that could help.[34]

1. Dr Mackenzie provided records relating to Mr Grant to the Tribunal, following the issue of a summons to produce requested by the Agency (the summons records). In addition to the letters and reports noted already, those records contained some other materials, including the initial referral letter from Dr Revelle to Dr Mackenzie, dated 27 January 2023. Therein, Dr Revelle referred Mr Grant 'for assessment and opinion', commenting:

Looking at him today I am astounded that no one has spoken of tkr (total knee replacement) to get him moving again. I'd appreciate your opinion as to why and what is and isn't possible.'[35]

1. Dr Mackenzie assessed Mr Grant and responded to Dr Revelle by way of his letter dated 18 May 2023, which has been set out above.[36]
2. Further, the summons records also contained a later referral letter from Dr Revelle to Dr Mackenzie dated 11 January 2024, in which Dr Revelle noted:

Thank you for seeing Andrew Grant, age 50 yrs, for assessment and opinion to look at surgical management of his knee osteoarthritis/soft tissue deformity. Sadly NDIS has again rejected his appeal because his disability is not permanent enough in their view, so we are locked into going down this path unless you are sure it will be unsuccessful. He will need new MRI requests as his will have expired since he last saw you (he will ring to get those as you might as well have all the information before seeing him next).[37]

1. The reports from the MRI and X-Ray examinations carried out on Mr Grant's knees on 20 and 30 January 2024 were also included in the summons records,[38] along with a letter from Dr Mackenzie to Dr Revelle, dated 7 March 2024 and reporting back on the referral. In that letter Dr Mackenzie stated:

I saw Andrew back in the Belmont rooms today. Predictably, his knees are largely unchanged since last time I saw him.

He has had his plain x-ray and MRI of his knees which show arthritis affecting the knees. There is nothing else I can see on the MRI that would explain his significant fixed flexion deformities.

I have had another long discussion with Andrew today and explained that I think the only thing that can possibly help his knees is total knee replacement and I think there is a very good chance that we would be able to significantly improve him with knee replacement surgery. I am almost certain I would be able to get his knees out straight at the time of surgery, it would just be a question of maintaining that and improving his flexion range as well. I think with good rehab, we would probably be able to achieve this.

Andrew is going to go and have a think about whether he wants to go down this path. He is understandably a little bit reluctant having had previous surgeries that have been unsuccessful. He also currently does not have health insurance cover that will cover him for knee replacement surgery and he is going to consider upgrading his cover. He is aware that the surgery would also be available to him through the public system, although there would be a 12 month or longer wait there as well.

I have left it open to Andrew to decide if he would like to come back to see me and discuss things further. I got the impression he is probably going to upgrade his insurance and come back and see me in about 10 months to book in for knee replacement surgery. The plan would be to do both knees at once, given his young age and the severity of his disability.[39]

1. The summons records reflect that Mr Grant considered Dr Mackenzie's advice regarding knee replacement surgery, leading to Mr Grant sending Dr Mackenzie an email dated 17 June 2024, in which he informed Dr Mackenzie:

I have decided that due to the results of my previous non successful surgeries, not to proceed with total knee replacement surgery on both my knees. I feel the risks of yet another unsuccessful surgery outweigh any potential benefits. This decision in no way reflects on my confidence in your abilities to perform the surgeries, more in my lack of confidence in my own ability to successfully recover from them.[40]

1. In that letter Mr Grant also requested that Dr Mackenzie provide further information (going to the issue of the permanency of his impairments), for the purpose of his current review application. Consequently, Dr Mackenzie provided a further letter dated 9 July 2024, stating:

I have been asked to provide a report regarding Andrew's knees. I note that the report requests something from the surgeon who performed his previous knee surgeries. This is not myself, although I have seen him a number of times.

Andrew has a lot of trouble with very stiff and non-functional knees. We were looking into doing total knee replacements for him, but he has decided against taking this option. I believe that total knee replacement is likely to significantly improve Andrew's level of function, although this certainly cannot be guaranteed. Given this, I could not say that Andrew's condition has been optimally treated and stabilized. As I have said, I believe total knee replacement has potential significant benefit for him.[41]

1. After receiving the summons records, on 19 May 2025 the Agency's lawyers wrote to Dr Mackenzie, noting the views expressed by him in his above report and contrasting those with the opinion contained in Dr Mackenzie's report of 18 May 2023 (as set out above). This letter sought further comment from Dr Mackenzie, specifically:

We would be grateful if you could please explain the medical reasoning for the apparent change in your opinion as to the efficacy of a total knee replacement between the letters dated 18 May 2023 and 9 July 2024.[42]

1. In response Dr Mackenzie provided a letter dated 22 May 2025, in which he advised:

I believe that the two statements I made, although expressed differently, are not in contradiction to each other. In both my notes, I have said that it is possible to treat Andrew's knee issue with total knee replacement. There is certainly a possibility that it would significantly improve his knees, but as I have noted, there is also a risk that it could not.

In the letter dated 18th May you will also note that I had intended to see Andrew back to discuss things further with him. He did not return to see me until 7th March 2024 at which stage we once again discussed total knee replacement, I once again expressed that I felt that total knee replacement would be able to help him although there was a risk that we would not be able to maintain his knees being straight. I noted then that I felt that with good rehab we would probably be able to achieve a good outcome for him, but as always, there is a risk.[43]

1. Mr Grant also filed two statements of particular relevance to the permanence issue during the review, one undated[44] and one dated 25 September 2025.[45] He also gave evidence at the hearing and made submissions in support of his application.
2. Mr Grant's evidence addressed his physical impairments and their impact on his life. These included his medical retirement from the Australian Public Service (APS) in October 2014, on the grounds of permanent incapacity. On a day-to-day basis, Mr Grant's impairments have resulted in him moving to live with his elderly mother, as he believes he cannot safely and competently live alone and care for himself. It is very clear from Mr Grant's evidence that his physical impairments have had life-changing and significant impacts for him.
3. Mr Grant confirmed his decision not to proceed with the option of total knee replacement surgery. Essentially, his consistent position on the issue of the permanency or likely permanency of his physical impairments and his decision not to undertake this surgery was that he was reliant upon the views of his General Practitioner Dr Revelle as noted above, and on the opinion expressed by Dr Mackenzie in his May 2023 report, regarding the 'significant risk' that total knee replacement surgery would not improve Mr Grant's impairments significantly. Mr Grant's stance in this regard was strongly influenced by his surgical history. As he explained in one written statement:

I have been asked to supply a statement as to why I believe that knee replacement surgery is not a viable and appropriate option for future wellbeing.

As I have previously informed, I have had six previous operations on my knees. The first of these was over 30 years ago. This first surgery I would consider to have been successful. The most recent five surgeries however were anything but. On each of these occasions I was told by the respective surgeon that my mobility issues would be solved and my knees would regain range of movement. Unfortunately, after each of these 5 operations my condition regressed. I have been told by Dr Mackenzie that he could fix my mobility issues and get my knees straight. After expectations not being met on the last 5 occasions I am convinced that nothing will be different if I was to proceed with the surgeries he has suggested. If fact I fear that my condition will only get worse as it has in the past. To me this decision is akin to a game of Russian roulette except instead of only one bullet in the barrel, there is 5, and only one empty chamber. And I have to pull the trigger twice. I have had only one successful surgery out of six, and that was when I was only 19 or 20 years old. I am now 51 years old with more underlying medical conditions (diabetes being the main concern). If my condition worsened after surgeries in my 20s and 30s when I was much healthier I am very fearful of what condition I would be in if I was to proceed with these two suggested surgeries.[46]

1. Mr Grant gave evidence at the hearing[47] about his history of knee surgeries and the outcomes, although there was little evidence in the form of medical records before the Tribunal concerning these surgeries. In his evidence Mr Grant explained that his existing records relating to his medical retirement from the APS had been submitted to the Agency many years ago but had been 'lost'. It can be noted however, from the limited records and also Mr Grant's evidence, that none of these procedures involved a total knee replacement.
2. Mr Grant was taken during cross-examination to his attendance upon Dr Mackenzie and the doctor's views as set out in his letter of 9 July 2024. Mr Grant stated that he had not considered getting a second opinion regarding the total knee replacement surgery suggested by Dr Mackenzie, based on what he had been told by other orthopaedic surgeons who undertook previous procedures on his knees:

I have seen many orthopaedic surgeons in the past and heard pretty much verbatim the same response that yes, I will be able to do that ... you will be able to straighten the joints, and each and every time I've gone ahead with the surgery, I've ended up in a worse position.

1. Mr Grant acknowledged that these comments related to the context of different surgical procedures, and that total knee replacement surgery had not previously been recommended to him by other practitioners, although it had been discussed with him. Dr Revelle's comments in her initial referral letter to Dr Mackenzie of January 2023, as noted above, confirm that the option of total knee replacement surgery had not been considered at length for Mr Grant before he was referred to Dr Mackenzie.
2. Mr Grant also submitted that he had full confidence in his treating General Practitioner, Dr Revelle, and her views regarding the permanency of his impairments. He contended that Dr Mackenzie's reports raised 'ambiguity' about the likely outcomes of total knee replacement surgery, noting the doctor's earlier opinion that Mr Grant may still require the use of mobility aids post-surgery.[48]
3. When taken to the relevant NDIS Rules regarding permanency, Mr Grant submitted that total knee replacement surgery was unlikely to remedy his impairments, given the experience of his past surgeries. He again noted the 2023 views of Dr Mackenzie, as mentioned in the previous paragraph. He submitted that the surgery might change his situation, but it would not 'remedy' his impairments.

1. Then Agency's central contention was that total knee replacement surgery, as suggested by Dr Mackenzie, was an available treatment option for Mr Grant, which is likely to remedy his knee condition and his physical impairments. As such, under Rule 5.4 of the Access Rules, Mr Grant's impairments could not be considered to be permanent, or likely to be permanent.[49] The Agency also submitted that if the Tribunal was not satisfied on the evidence that this treatment would be likely to remedy Mr Grant's impairments, Rule 5.6 was of application, given Dr Mackenzie's recommendation for surgery and his opinion that Mr Grant's impairments could not be considered to be optimally treated or stabilised.
2. Noting the differing opinions expressed by Dr Mackenzie in 2023 and 2024, the Agency contended that more weight should be accorded to the doctor's most recent and up-to-date evidence, which asserted that Mr Grant's condition has not been optimally treated or stabilised, as total knee replacement surgery has not been performed. The Agency further contended that Dr Revelle's views about the permanency of Mr Grant's impairments and treatment options not being able to return his mobility appeared to be based on Dr Mackenzie's earlier opinion (that is, his 2023 letters), rather than her own assessment. It was also submitted that more weight should be given to Dr Mackenzie's clinical evidence than to the evidence of Dr Revelle, given Dr Mackenzie's role as a surgeon and his specialised expertise.[50]
3. While noting Mr Grant's concerns about undergoing total knee reconstruction (TKR) procedures, the Agency reiterated that Dr Mackenzie was of the opinion that the procedure may have beneficial outcomes for Mr Grant:

Based on the clinical evidence, TKR remains an available remedy for the Applicant's condition. The test of permanence relies on clinical evidence to determine the suitability of remedies available to individuals, and Dr Mackenzie's evidence clearly states that the Applicant's condition has not been 'optimally treated and stabilised' due to his suitability for TKR. According to Dr Mackenzie, TKR is likely to offer significant potential benefits to the Applicant and there is a very good chance that TKR would improve the Applicant's condition.[51]

1. In closing submissions before the hearing,[52] Counsel for the Agency noted the observations made by Dr Revelle about the option of total knee replacement procedures in her initial referral letter to Dr Mackenzie of 27 January 2023.
2. Further, Counsel submitted that in stating in her letter of 1 December 2023[53] that Mr Grant's impairments were not correctable by further surgery and 'letters from Dr Stuart Mackenzie state that a further operation would likely be unsuccessful', Dr Revelle was not accurately stating the position articulated by Dr Mackenzie.
3. Counsel also noted that Dr Mackenzie's views as expressed in 2024 were informed and influenced by up-to-date information, from the MRI scan and X-Rays, that was then available.
4. Additionally, Counsel identified the uncertainties arising from the very limited state of the evidence concerning Mr Grant's previous surgeries, in terms of attempting to identify the goals and to evaluate the outcomes of those procedures.

1. The Agency contends that Mr Grant does not satisfy the requirements for permanence in section 24(1)(b), having regard to the application of the Access Rules. This is due to the option of total knee replacement surgery as a known, available and appropriate treatment, likely to remedy Mr Grant's impairments (Access Rule 5.4). Additionally, in submissions at the hearing, Counsel for the Agency placed reliance upon Rule 5.6 of the Access Rules, which provides that an impairment may require medical treatment and review before a determination about permanency can be made, and that an impairment is permanent, or likely to be permanent, only if it does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated.
2. It is to be noted that the concept of 'impairment', within section 24 of the NDIS Act, is generally understood 'as involving the loss of or damage to a physical, sensory or mental function.' [54]
3. The NDIS Act does not define the term 'permanent'. However, the meaning of that term, and also the relevant rules in Part 5 of the Access Rules, have been considered in previous Federal Court decisions, including by Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), and more recently by McEvoy J in Kelly v National Disability Insurance Scheme [2024] FCA 1462 (Kelly). In that latter decision, McEvoy J said the following of Mortimer J's decision in Davis:

In that case Mortimer J rejected an argument advanced by the NDIA that permanent meant "irreversible" or "untreatable" (at [77]). Her Honour instead held (at [85]) that the correct meaning of "permanent" in s 24(1)(b) is "enduring", noting that

... This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[55]

1. In Davis, in deciding that the correct meaning of "permanent" in s 24(1)(b) is "enduring", Mortimer J further commented about the effect of the adjectival use of "permanent" to the noun "impairment" in section 24(1):

"The focus of the text, consistently with the purposes of the scheme, is whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme." [56]

1. Rule 5.4 of the Access Rules provides that an impairment will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. In Davis, Mortimer J considered the meaning of the word 'remedy' in Rule 5.4:

In this context, "remedy" should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word "remedy" should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase "permanent impairment", as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.[57]

1. Kelly dealt with a challenge to the validity of Rule 5.4 of the Access Rules; McEvoy J finding that the Rule was valid.[58] The decision of the Tribunal that was appealed to the Federal Court in Kelly had found that the applicant in that matter had satisfied s.24(1)(a) of the NDIS Act, in that she had a disability attributable to a physical impairment, with the Tribunal then going on to consider section 24(1)(b) and the question of the permanence or likely permanence of that physical impairment. The Tribunal's consideration of the meaning of the word "likely" was as follows:

One key word that appears in the legislation and the rules [that] does not appear to have been addressed in the authorities is 'likely'. The Macquarie Dictionary defines likely as: 'probably or apparently going or destined (to do, be, etc.)'_. Likewise, the Oxford English Dictionary defines the word as '_probable' _in the sense of '_having a high chance of occurring'. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation.[59]

1. McEvoy J found that in defining "likely" by reference to probability, in contradistinction to possibility or mere speculation, the construction adopted by the Tribunal accorded with the ordinary meaning of the word "likely", and also appropriately reflected the beneficial and remedial nature of the NDIS.[60]
2. The Access Guidelines also help in assessing permanency (footnotes omitted):

We need evidence that you'll likely have your impairment for your whole life.

You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.

Even when your condition or diagnosis is permanent, we'll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.

Generally, we'll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.

Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:

• known and available
• appropriate for you and your impairment
• evidence-based - that is, there's proof they are likely to be effective.

The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.

If you're still undergoing or have recently had treatment, we'll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.

In some situations, it may be clear your impairment is likely to be permanent while you're still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it's clear you'll have a permanent impairment.

You might still have a permanent impairment, even if its effects may change over time.

For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn't likely to help or improve the impairment's effects.

1. Accordingly, the issues for the Tribunal to determine are:

(a) using the language of Rule 5.4 of the Access Rules, whether 'there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment'; being the physical impairments that Mr Grant has, arising from his knee conditions; and > > (b) in considering Rule 5.6 of the Access Rules, whether Mr Grant's impairments require medical treatment and review before a determination can be made about whether they are permanent or likely to be permanent.

2. Mortimer J's consideration of the term 'remedy' in Davis has been set out above. In Davis, Mortimer J also considered the proper construction of the descriptors 'known', 'available' and 'appropriate' in Rule 5.4[61]:

The executive has chosen to use three descriptors, each of which must be given work to do. See Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, Griffith CJ; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], McHugh, Gummow, Kirby and Hayne JJ; Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487 at [146]; District Council of Streaky Bay v Wilson [2021] FCAFC 181; 287 FCR 538 at [63]. On the application of principles of statutory interpretation to delegated legislation, see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [28]. See also Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417; Acts Interpretation Act 1901 (Cth) s 46(1); Legislation Act 2003 (Cth) s 13(1).

The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment "would be likely to remedy the impairment".[62]

As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.

The word "available" should be understood as meaning available to a particular individual. If it were to be construed as meaning "exists in Australia", then it would have little different work to do from the word "known". The Macquarie Dictionary defines "available" as meaning:

"adjective 1. suitable or ready for use; at hand; of use or service ... "

Assuming as I do the validity of r 5.4, and on the premise any given treatment is "known" and "appropriate" as I have explained those terms, in my opinion the adjective "available" should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.

Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is "available" to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is "available" to that individual, even if it might be "available" to a person without agoraphobia.

1. Mortimer J also considered the application of Rule 5.6 of the Support Rules in Davis, observing that both Rules 5.4 and 5.6 are exclusionary in nature, and:

... prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person's impairment will be excluded from meeting the permanency criterion in s 24(1)(b).[63]

Like r 5.4, r 5.6 directs attention to a negative state of fact - whether an impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated. To be clear, although these rules are expressed in objective terms, their purpose is to guide the repository's formation of a state of satisfaction for the purposes of s 21(1)(c) of the NDIS Act; namely that the repository (here the Tribunal):

is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24) ...

Therefore, what the Rules, and relevantly r 5.6 in particular, guide, is the formation of a state of satisfaction.[64]

1. The medical evidence before the Tribunal, together with Mr Grant's evidence, reflects that Mr Grant's physical impairments arising from his bilateral knee problems are long-standing in nature, and quite debilitating for him, in terms of the impacts he suffers.
2. That medical evidence also establishes that the treatment option of total knee replacements for Mr Grant was initially considered as a potential procedure likely to benefit him when Dr Revelle first referred Mr Grant to Dr Mackenzie for his specialist opinion on 27 January 2023. The information provided by Dr Revelle at the time of completing a form to support Mr Grant's application for the NDIS, which is dated 13 April 2024, noted that she had by that date been treating Mr Grant for three months.[65] This means that Dr Revelle's referral to Dr Mackenzie was instigated at an early stage of her doctor and patient relationship with Mr Grant, which is consistent with Dr Revelle making the comment in that referral letter that she was 'astounded' that no one had spoken of total knee replacement procedure 'to get [Mr Grant] moving again'. That comment reflects that the option of total knee replacement surgery loomed large in Dr Revelle's initial contemplation of the possible solutions to improve Mr Grant's impairments. Indeed, when completing Mr Grant's NDIS Access Request form, Dr Revelle noted that an 'available treatment/intervention' likely to 'substantially relieve' Mr Grant's impairment was the 'possibility of knee replacement'.[66]
3. The evidence set out above about Dr Mackenzie's assessment of Mr Grant, and the conclusions that he has arrived at, as expressed in his 2024 letters, reflect that he is of the opinion that total knee replacement surgery is a suitable treatment option that may produce significant improvements for Mr Grant, although there is a risk that it may not. In his letter of 22 May 2025 Dr Mackenzie has addressed the perceived differences in the views he expressed in 2023 and 2024. Dr Mackenzie concluded, at the time of what appears to have been his most recent consultation with Mr Grant, in March 2024, that:

... I once again expressed that I felt that total knee replacement would be able to help him although there was a risk that we would not be able to maintain his knees being straight. I noted then that I felt that with good rehab we would probably be able to achieve a good outcome for him, but as always, there is a risk.[67]

1. In the context of the limited medical evidence that is before the Tribunal in this review, I accept the Agency's submission that significant weight should be given to Dr Mackenzie's evidence, in view of his specialist qualifications and experience.
2. The Agency also contended that greater weight should be placed on Dr Mackenzie's more recent views, as expressed in his letters of 7 March and 9 July 2024 and informed by his consideration of Mr Grant's January 2024 MRI and X-Ray results, than upon his earlier (2023) opinions.
3. Dr Mackenzie's 2024 views were as follows:

7 March 2024: I have had another long discussion with Andrew today and explained that I think the only thing that can possibly help his knees is total knee replacement and I think there is a very good chance that we would be able to significantly improve him with knee replacement surgery. I am almost certain I would be able to get his knees out straight at the time of surgery, it would just be a question of maintaining that and improving his flexion range as well. I think with good rehab, we would probably be able to achieve this.

9 July 2024: I believe that total knee replacement is likely to significantly improve Andrew's level of function, although this certainly cannot be guaranteed. Given this, I could not say that Andrew's condition has been optimally treated and stabilized. As I have said, I believe total knee replacement has potential significant benefit for him.

1. Mr Grant has explained the reasons for his reluctance to undergo total knee replacement surgery. His position is understandable. However, on the basis of the above evidence from Dr Mackenzie, I am satisfied that the procedures of total knee replacements are, within the language of rule 5.4 of the Access Rules, known and available treatments for Mr Grant.
2. Turning to the 'appropriateness' of those treatments and the guidance provided in Davis, I am also satisfied, on the basis of Dr Mackenzie's 2024 evidence, that these treatments are suitable ones for Mr Grant to undergo.
3. From Davis, as explained above, the word 'appropriate' connotes a treatment which has a capacity to 'remedy' the impairment.
4. I am less confident that the evidence supports a finding that such treatments would be likely (adopting the interpretation of 'likely' approved in Kelly), to remedy Mr Grant's impairments, for the purpose of making a finding that Rule 5.4 applies to exclude Mr Grant's impairments as not being permanent or likely to be permanent. In this regard, while Dr Mackenzie has explained how the views he expressed in 2023 and 2024 are consistent, in his mind, it remains that there is some significant divergence between those positions, which is not fully explained to my satisfaction by, for example, the January 2024 MRI and X-ray results being available at the time of the 2024 opinions, as Counsel for the Agency submitted. Dr Mackenzie was not called as a witness at the hearing and hence the opportunity to further clarify his views did not present. It remains that in 2023 Dr Mackenzie opined that significant risk attached to total knee replacement surgery, in terms of whether Mr Grant would improve significantly, and/or still end up with 'very stiff knees' or continue to require the use of mobility aids. His later opinions are much more positive as to the probability of significant benefits for Mr Grant, while still acknowledging the possibility of less favourable results.
5. Given the state of the evidence, I am not satisfied that there is a sufficient evidentiary basis to support a conclusion that the proposed total knee replacement procedures would be likely to remedy Mr Grant's impairments. The 2024 evidence of Dr Mackenzie supports a view that these treatments may improve Mr Grant's impairments, but it is insufficient, in my view, to support a finding that the outcomes are likely to be in the required nature of 'something approaching the removal or cure' of those impairments.[68]
6. In light of the overall evidentiary picture resulting from Dr Mackenzie's records, I am however satisfied that this is an application where Rule 5.6 applies. I am not satisfied that Mr Grant's impairments are permanent, due to the evidence about total knee replacements offering the possibility of significantly improving his impairments. These procedures, initially contemplated by Dr Revelle at an early stage of her treatment of Mr Grant, and recommended by Dr Mackenzie, remain as unexplored treatments that offer a significant possibility of improving Mr Grant's current impairments. As was noted by Senior Member Bean in the Tribunal decision of Richardson and National Disability Insurance Agency [2024] AATA 3505:

While an impairment can be permanent notwithstanding fluctuations or positive changes in its impact on a person's functional capacity, it is not tenable in my view to regard an impairment as permanent in circumstances where treatment offers the possibility of a dramatic and lasting improvement which will substantially increase a person's functional capacity. Where this is the case, in my view it is simply not accurate to say that the person's current impairment is permanent. The concept of 'impairment' has both a qualitative and a quantitative dimension. Even where it is likely a person's impairment will persist but at a much lower level, it would not be accurate, or consistent with the aims and objectives of the Act, to regard their current impairment as permanent.[69]

1. I am satisfied Rule 5.6 applies to Mr Grant's physical impairments as further treatment, in the form of the recommended total knee replacement procedures, is required before a reliable determination can be made as to the permanence or likely permanence of his impairments. The operation of Rule 5.6 excludes Mr Grant's impairments from being regarded as permanent at this time.
2. It may be that if Mr Grant pursues the recommended total knee reconstruction procedures, he will still experience physical impairments afterwards, which may be permanent. Dr Mackenzie's evidence admits of this possibility. However, the NDIS, through the disability requirements in the NDIS Act and the Access Rules, require such available treatments to be undertaken before a determination can be made about the resulting impairments and their permanency.
3. I therefore find that Mr Grant's physical impairments cannot be considered to be permanent, or likely to be permanent, for the purposes of section 24(1)(b) of the NDIS Act.
4. Given the long-standing nature of Mr Grant's physical impairments, the early intervention requirements of the NDIS were not advanced in any detailed way during the review as a pathway for Mr Grant to access the NDIS. The early intervention requirements under the NDIS Act cannot be met unless, among other things, a person has identified impairments that are or are likely to be permanent.[70] As such, for clarity, I find that Mr Grant does not meet the early intervention permanency requirement for the NDIS.
5. The disability and early intervention requirements are cumulative. As Mr Grant has not met the permanency requirement for either pathway, it is unnecessary for me to further consider whether he meets other requirements, such as that in section 24(1)(c) of the Act, as to substantially reduced functional capacity in one or more of the specific activities.

1. The Tribunal affirms the decision under review, pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), that the Applicant does not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth).

2. I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of General Member W Strange.

[1] Hearing Bundle, Document T1, Access Request Form, 16 May 2023, pages 58-85.

[2] Hearing Bundle, Document T9, Access Decision Letter, 5 October 2023, pages 107-111.

[3] Hearing Bundle, Document T10, NDIS Interaction Notes, 20 October 2023, pages 112-113.

[4] Hearing Bundle, Document T1A, Internal Review Decision, 2 January 2024, pages 32-44.

[5] Hearing Bundle, Document T1, Application for Review, 23 January 2024, pages 24-31.

[6] Hearing Bundle, Functional Capacity Assessment Report of Mateusz Miszczuk, Occupational Therapist, dated 9 December 2024, pages 263-311.

[7] This and some following sections of this decision dealing with the applicable law have been adapted from prior NDIS access decisions of this Tribunal Member.

[9] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi), 324-325, 327 (Kiefel J).

[10] Administrative Review Tribunal Act 2024 (Cth), s 54.

[11] Shi 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).

[12] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Scheme [2024] AATA 411 [53].

[13] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s. 2.

[14] The following excerpts reflect how these provisions read prior to 3 October 2024.

[15] Hearing Bundle, Document A1, the Agency's Statement of Facts, Issues and Contentions (Agency's SFIC), dated 24 February 2025, pages 4-23, at [18]-[27], [28]-[72], and [74]-[77].

[17] Again, these excerpts relate to the Rules as they were before 3 October 2024.

[18] See https://www.ndis.gov.au/about-us/operational-guidelines

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

[20] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).

[24] Ibid, [18]-[27], and Counsel's submissions at the hearing.

[25] Hearing Bundle, Document T3, NDIS Access Request Form, pages 58-85, at p.67.

[26] Hearing Bundle, Document T3, NDIS Access Request Form, p.70.

[28] Hearing Bundle, Document T5, Letter of Support from Dr Revelle, 25 May 2023, pages 87-88, at p.87.

[29] Hearing Bundle, Document T8, Supporting Evidence Form completed by Dr Revelle, 13 September 2025, pages 94-106, at p.96.

[30] Hearing Bundle, Document T4, Report of Dr Mackenzie, 18 May 2023, page 86.

[32] Hearing Bundle, Document T15, Letter from Dr Revelle, 1 December 2023, pages 129-130, at p.129.

[33] Hearing Bundle, Document T17, Letter from Dr Mackenzie, 1 December 2023, page 132.

[34] Hearing Bundle, Document A4, Letter from Dr Revelle, 27 June 2024, page 247.

[35] Hearing Bundle, Summonsed records of Dr Mackenzie (Summons Records), pages 312-327; Letter from Dr Revelle to Dr Mackenzie dated 27 January 2023, at 312.

[36] Hearing Bundle, Document T4, Report from Dr Mackenzie to Dr Revelle dated 18 May 2023, page 86.

[42] Hearing Bundle, Document R4, Letter to Dr Mackenzie from Maddocks Lawyers, 19 May 2025, pages 328-329, at p.329.

[43] Hearing Bundle, Document R5, Letter from Dr Mackenzie to Maddocks Lawyers, page 330.

[44] Hearing Bundle, Document A2, Statement of Mr Grant (Confirmation of supports), undated, pages 243-244.

[45] Hearing Bundle, Document A3, Statement of Mr Grant (Statement of Support), 25 September 2025, pages 245-246.

[47] Evidence of Mr Grant, 16 July 2025.

[48] As expressed in Dr Mackenzie's letter of 1 December 2023; Hearing Bundle, Document T17, page 132

[53] Hearing Bundle, Document T15, Letter from Dr Revelle, 1 December 2023, page 129.

[54] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51]

[62] Mortimer J's explanation of the meaning of the word 'remedy', as already noted above, has been omitted here.

[65] Hearing Bundle, Document T3, NDIS Access Request Form, Part 2 - Treating Professional's Information, completed by Dr Revelle and signed 13 April 2023, pages 70-82.

[67] Hearing Bundle, Document R5, Letter from Dr Mackenzie to Maddocks Lawyers, 22 May 2025, page 330.

[69] Richardson and National Disability Insurance Agency [2024] AATA 3505; at [49].

[70] Section 25(1)(a) of the NDIS Act, and see also Part 6 of the Access Rules.