NATIONAL DISABILITY INSURANCE SCHEME - access request - whether applicant meets the access criteria - whether applicant meets the disability requirements - whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable - whether impairments are, or are likely to be, permanent - whether applicant meets the early intervention requirements - whether treatment available - impairments not permanent -- disability and early intervention requirements not met - reviewable decision affirmed.

National Disability Insurance Scheme Act 2013 (Cth)

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

National Disability Insurance Agency v Davis [2022] FCA 1002

Our Guidelines - Becoming a participant - Applying to the NDIS, 14 October 2024

1. The issue before the Tribunal is whether the applicant, Mr Yadago, meets the access criteria to be a participant of the National Disability Insurance Scheme ('the NDIS') in accordance with section 21 of the National Disability Insurance Act 2013 (Cth) ('the Act').
2. Mr Yadago is a 29 year old man who lives with his parents and brother in outer metropolitan Sydney. He was represented at the hearing by Mr Nicholas Blaxell, but also took a very active part in the hearing himself.
3. By application dated 22 September 2023, Mr Yadago sought access to the NDIS[1]. The impairments he relies upon arise from his conditions of major depressive disorder (MDD), germaphobia, obsessive compulsive disorder (OCD) and general anxiety disorder.
4. On 1 May 2024, a delegate on behalf of the CEO of the National Disability Insurance Agency ('the Agency') decided that although Mr Yadago satisfied the age and residency access criteria, he did not meet the disability requirements under section 24, or the early intervention requirements under section 25 of the Act with respect to the conditions identified in the material provided.
5. On the same day, Mr Yadago sought internal review of the decision that he did not meet the access requirements. On 31 May 2024, a delegate of the CEO affirmed the original decision.[2]
6. The Tribunal ultimately held a hearing by video over two days, 18 and 19 November 2025. The Agency was represented by counsel, Mr Nicholas Swan.
7. I will first outline the applicable legislative framework before identifying and addressing the issues with more precision.

1. To become a participant of the NDIS, an applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

(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. There is no dispute that Mr Yadago satisfies the age and the residence requirements. What the Tribunal must decide is whether he also satisfies the access criteria in section 24 ('the disability requirements') or section 25 ('the early intervention requirements').
2. I should note that although sections 24 and 25 have since been amended, those amendments only apply to access requests made to the Agency after 3 October 2024.[3] Accordingly, I am required to apply the Act as in effect prior to 3 October 2024.
3. At the relevant time, section 24 of the Act relevantly stated:

(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:

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

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

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

1. If Mr Yadago does not meet the disability requirements, the Tribunal must consider whether he meets the early intervention requirements set out in section 25 of the Act, which relevantly stated:

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

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

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

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

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

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

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

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

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

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

1. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in Mr Yadago's case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('the Access Rules'), which form part of the legislative framework.[4]

1. In respect of subsection 24(1)(b) of the Act, concerning permanency of an impairment, the Access Rules provide:

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. > > 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve. > > 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated). > > 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

2. Part 6 of the Access Rules relevantly describes the early intervention requirements under section 25 of the NDIS Act as follows:

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.

6.4 An impairment is, or is likely to be, permanent (see paragraphs 6.2(a)(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.

1. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[5] The relevant Operational Guideline at time of this decision is Our Guidelines - Becoming a participant - Applying to the NDIS (14 October 2024) ('the Access Guideline').[6]

1. For Mr Yadago to gain access to the Scheme, the Tribunal must be positively satisfied that all the disability requirements or all the early intervention requirements are met. Mr Yadago carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[7]

1. The Agency accepts that Mr Yadago meets the disability requirements in subsection 24(1)(a) with respect to the following diagnosed conditions:

(a) MDD; > > (b) Germaphobia; > > (c) OCD; and > > (d) Anxiety.

2. Irritable bowel syndrome and some other conditions were mentioned in his original application.[8] However, Mr Yadago has not provided any evidence directed to impairments arising from these conditions and did not rely on them at the hearing.
3. Consistently with the position taken by the Agency, I am satisfied that Mr Yadago suffers from the conditions of MDD, germaphobia, OCD and anxiety and has a range of impairments attributable to those conditions.
4. Accordingly, Mr Yadago satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the Act with respect to these impairments.
5. The next question is whether these impairments are permanent.

1. As explained above, for Mr Yadago to qualify for access to the NDIS, it must be established that his relevant disabilities, being impairments attributable to MDD, germaphobia, OCD and/or anxiety, are permanent in the relevant sense.

When will an impairment be considered permanent?

1. In the decision of Davis[9] Mortimer J (as she then was) said of the meaning of "permanent" in section 24(1)(b):

[85]...In my opinion, the correct meaning of "permanent" in s 24(1)(b) is "enduring". This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability. > > [86] The critical point is that "permanent" is used as an adjective in s 24(1) to the noun "impairment" (or in the plural, "impairments"). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme. > > ... > > [130] ...I explained ...above my view about the correct construction of "permanent" in s 24(1)(b). The phrase "permanent impairment" in s 24(1)(b) means an impairment which is of an enduring nature. In other words, the question for the decision-maker is whether the impairment(s) experienced by an individual (rather than the cause of the impairments or the specific diagnoses made about a medical condition) has or have an enduring quality so as to require supports funded and/or provided under the NDIS Act on an ongoing basis.

2. In Davis, Mortimer J also observed that rules 5.4 and 5.6 were exclusionary, in the sense that they "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 section 24(1)(b)".[10]
3. As to the adjectives in rule 5.4, her Honour observed that**:**

(a) the word 'remedy' "should be understood to mean something approaching a removal or cure of the impairment".[11] > > (b) the word 'known' connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment".[12] > > (c) the word "appropriate" "connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo".[13] > > (d) the word "available" "should be understood as directed at what treatments an individual can, in reality, access"[14] and what treatment a person can afford will be relevant to this.[15]

4. In relation to whether an impairment is likely to be permanent, the Access Guideline states:

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 (s 24(3)). 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. > > ... > > We don't fund supports to treat your impairment. > > Instead, the supports we fund can help you reduce or overcome the impact your impairment has on your daily life. They can also help you increase your functional capacity, independence, and your ability to work, study or take part in social life. > > 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 (NDIS Rules rr 5.4, 6.4.) > > • 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 (Rules rr 5.6, 6.6) > > 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: Rules (rr 5.5, 6.5.)

1. In December 2022, Mr Yadago saw a psychiatrist, Dr Wael Wahaib, who noted he had not seen a psychiatrist before.[16]
2. Dr Wahaib reported to Mr Yadago's General Practitioner on 16 December 2022 that Mr Yadago was suffering from severe OCD and depression. In addition to psychoeducation, Dr Wahaib recommended medication, namely clomipramine and risperidone. He also indicated that Mr Yadago would "need expert psychologist help with his severe debilitating OCD".[17]
3. Dr Wahaib saw Mr Yadago again via telehealth on 5 April 2023 and noted in his report "no medication side effects reported".[18] There also appears to have been a further consultation on 1 April 2023 with Dr Wahaib again stating "no medication side effects reported", although on the following line Dr Wahaib also stated "He couldn't tolerate his clomipramine dose, made him sleepy".[19]
4. Dr Wahaib spoke with Mr Yadago again on 17 June 2023 and noted Mr Yadago was experiencing side effects from taking risperidone.[20] Dr Wahaib also spoke with Mr Yadago on 4 October 2023 when Mr Yadago apparently reported no medication side effects.[21] On this occasion Dr Wahaib recommended Mr Yadago's dose of fluoxetine be increased and noted again that he "will need psychology sessions." He also noted Mr Yadago was applying for the NDIS and stated:

"His illness is complex OCD/MDD, which is chronic, resistant, and permanent, which is severely impairing her function, performance, communication, social skills, and learning abilities, with guarded prognosis, supporting his application to NDIS." [22]

1. Dr Wahaib spoke with Mr Yadago again on 21 February 2024 and noted in his report that Mr Yadago was still depressed, his OCD symptoms were still severe and he was "spending hours in bathroom trying to clean himself"[23]. Dr Wahaib again noted that no medication side effects were reported.
2. In addition to reporting to Mr Yadago's general practitioner, Dr Wahaib also provided a separate report dated 21 February 2024 in support of Mr Yadago's NDIS application.[24] In that report, he stated as follows:

"I can confirm that had the diagnosis of severe OCD, MDD, which was confirmed, and it is my professional opinion that impairments related to this diagnosis are permanent or likely to be permanent.

I can confirm that in my professional opinion, all available treatments and therapies for this condition have been, or are currently being, undertaken and no further treatment is currently available that will alleviate the level of impairment in his daily functioning. I expect him to remain functionally impaired for a lifetime."[25]

1. Dr Wahaib later provided a very similar report dated 14 September 2024 in which he added under the heading "Prognosis" - "His severe OCD/MDD is chronic, resistant and permanent, with poor prognosis."[26]
2. The evidence also indicates that in June 2024, having been referred by his GP Dr Salwa, Mr Yadago presented to the Liverpool Fairfield Aged and Mental Health Care Service for mental health support. This referral was apparently prompted by Dr Salwa's concerns for Mr Yadago's mental state in the context of a "reported suicide attempt by stabbing last week."[27]
3. A mental assessment was undertaken, and a discharge summary prepared. It was noted that Mr Yadago was "inconsistently compliant with current medication and receives nil psychological therapy."[28] The Discharge Summary also recorded that Mr Yadago was referred to "TARS psychology" and was accepted. As there was a long wait list, he was advised to seek referral to "Head to Health" in the meantime, though Mr Yadago's GP referred him to MCHP Psychology. The Discharge Summary also noted that Mr Yadago's discharge medications were risperidone and fluoxetine.
4. Mr Yadago subsequently did seek treatment from a psychologist and first saw Maysa Tiba, a Generalist Psychologist, in July and September 2024. She subsequently provided a report dated 8 October 2024 at the request of the Respondent.[29]
5. Ms Tiba's assessment of Mr Yadago indicated that he was suffering extremely severe levels of depression, anxiety and stress, extremely severe Post Traumatic Stress Disorder (PTSD) symptoms, extremely severe OCD symptoms, and a high level of social anxiety.[30]
6. In terms of treatment, Ms Tiba reported that the primary component of Mr Yadago's treatment plan was Cognitive Behavioural Therapy, which incorporated a number of different elements. However, she reported that:

Despite engaging in therapy, Mr Yadago has not yet made significant progress due to the severity and complexity of his conditions. His OCD and PTSD remain severe, and he continues to struggle with compulsive behaviours, sleep disturbances, and trauma-related symptoms. While he has shown a willingness to implement some of the psychoeducational strategies discussed in the initial sessions, the interplay between his OCD, PTSD, and anxiety has made the treatment process more challenging.

His extreme germaphobia and social anxiety are limiting his ability to fully engage in exposure-based interventions, and his high levels of anxiety continue to interfere with consistent progress. These challenges have resulting in only partial engagement with the initial stages of therapy."[31]

Although Mr Yadago has shown engagement in therapy, including assessment and psychoeducation thus far, his progress has been hindered by the severity of his symptoms. The ongoing nature of his compulsions, anxiety and trauma responses suggest that long-term therapeutic support will be required to manage his mental health and promote meaningful improvement."[32]

"Given the chronic and complex nature of Mr Yadago's OCD and PTSD, along with the limited progress observed in therapy thus far, it appears that his symptoms are likely to persist over time. While ongoing treatment may provide some symptom management and improvement, the severity of his condition, compounded by his high anxiety levels and lack of adequate support, presents significant challenges to achieving full recovery. It is anticipated that he will continue to require long-term support to manage his symptoms effectively".[33]

1. On 14 February 2025, a further report was provided by a different psychologist from the same practice, Ms Azra Sayeed[34]. That report is consistent with the report of Ms Tiba. Ms Sayeed reported that since engaging in therapy, Mr Yadago had participated in '9 sessions of ...CBT and psychiatric medication management." However, despite "consistent attendance and engagement, Mr Yadago has not yet made significant progress and continues to report ongoing distress and impairment in multiple areas of daily life due to the complex nature of his conditions."[35]
2. On 3 March 2025 Ms Sayeed also provided a "discharge summary" to Mr Yadago's general practitioner. She stated:

"Despite engaging in therapy, he faced significant difficulties with participating effectively, which limited his progress. He has expressed that he does not wish to continue receiving support from our service at this time."[36]

"During treatment, Mr Yadago engaged in CBT strategies, including emotion regulation, cognitive restructuring, behavioural activation, and Exposure and Response Prevention (ERP). However, progress was limited due to avoidance, overwhelming anxiety, and difficulty tolerating distress."[37]

1. In terms of further treatment, Ms Sayeed stated:

"Given the severity of his symptoms, ongoing mental health support is strongly recommended. A structured intensive OCD program (IOP or residential) would provide targeted ERP and distress tolerance training. Additionally, trauma-focussed therapy (EMDR or Prolonged Exposure Therapy) may be beneficial when he is stable. A psychiatric review is advised to address persistent compulsions, anxiety, and depression......

If he chooses to re-engage in treatment, a multidisciplinary approach involving therapy, psychiatry, and community support would be most beneficial."[38]

1. In his oral evidence, Mr Yadago indicated he was not currently taking any medications for his mental health conditions, having ceased his medications more than 3 months ago. His reasons for ceasing his prescribed medications were twofold. First, he said he had suffered a range of very significant side effects from these medications, including disturbed sleep, reduced appetite and nausea, daytime drowsiness and emotional numbing. In addition, he said he did not notice any improvement in his conditions while he was taking the medications. He said he was reluctant to expose himself to the side effects of these medications when there did not seem to be any benefit to taking them.
2. During cross-examination, it was put to Mr Yadago that many of Dr Wahaib's reports record that he did not complain of any side effects. However, Mr Yadago indicated he did not consider these parts of Dr Wahaib's reports to be accurate. He contended that many of Dr Wahaib's reports appeared to be written in haste, and also appeared to be based around a standard template with only minor variations between reports. I accept there is some force in this contention, and some of Dr Wahaib's reports do refer to adverse side effects. I note in at least two reports Dr Wahaib refers to Mr Yadago having side effects and in the same report also states that there were "no medication side effects reported."
3. Mr Yadago also confirmed in his oral evidence that he had ceased attending sessions with Tiba Psychology, with his last session in February 2025. No entirely clear reason was given for this, although he stated that he did not find the sessions especially helpful as they also had not resulted in any noticeable improvement in his conditions.
4. Mr Yadago also referred to financial barriers which increased his reluctance to see Dr Wahaib. He said that initially Dr Wahaib's fees were fully covered by Medicare, but Dr Wahaib subsequently began imposing an additional fee which it was difficult for him to afford. Partly in response to this, he indicated that at times his GP would prescribe his medications for him.
5. It is abundantly clear from this evidence that Mr Yadago has not fully engaged with all of the treatments available to him, and further treatment, both psychiatric and psychological, is likely to be beneficial for him and may improve his functioning. However, the real question is whether his conditions are nevertheless "permanent" in the relevant sense.

1. As outlined above, in addressing this issue I am required to apply the Access Rules relating to permanency. The Respondent's submissions focussed on Rule 5.4 and Rule 5.6, and I agree those are the rules which are potentially applicable here. I will first address rule 5.6.

Need for further treatment before an assessment as to permanency can be made?

1. Rule 5.6 states that an impairment may require medical treatment and review before a determination can be made with respect to its permanency or likely permanency. It also provides 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. As I have already acknowledged, there is little doubt there is further treatment available to Mr Yadago which may improve some of his conditions. It would have been open to him to continue to see a psychologist (albeit for limited sessions pursuant to a mental health care plan). He could also have continued seeing Dr Wahaib or another psychiatrist, although I accept this it was more difficult for him to afford Dr Wahaib once he began imposing an additional fee not covered by Medicare.
3. However, the real issue in this context is whether Mr Yadago has undergone sufficient treatment and review for an assessment as to permanency or likely permanency to be able to be made.
4. I accept this is a finely balanced question in this matter. Much of the medical evidence is to the effect that Mr Yadago's conditions, in particular his MDD and OCD are extremely severe, chronic and treatment resistant. His OCD has been present at a very severe level for many years, and his mother also suffers from this condition, which may have contributed to the intractability of the condition. Although Mr Yadago has tried medication and psychological treatment, all the evidence is to the effect that neither of these interventions has had much impact on the severity of his conditions.
5. In addition, Dr Wahaib and both the psychologists who have treated him have expressed opinions to the effect that his conditions and the resultant impairments are severe, chronic, complex and difficult to treat. They have also indicated that, even with treatment, at least some of Mr Yadago's impairments are likely to be ongoing. I note Ms Tiba has indicated that Mr Yadago faces "significant challenges to achieving full recovery" and is likely to continue to need long-term support to "manage his symptoms effectively"[39].
6. Ms Sayeed has also stated that given the severity of Mr Yadago's symptoms, "ongoing mental health support is strongly recommended." She has referred to the possibility of an intensive program, and suggested that a multidisciplinary approach is likely to be "most beneficial".
7. As Mr Yadago's treating specialist and the only doctor in a position to express a view on this issue, Dr Wahaib's opinion on this question assumes particular importance. He has expressed strong opinions to the effect that the impairments related to Mr Yadago's diagnoses are "permanent or likely to be permanent", and that "all available treatments and therapies for this condition have been or are currently being, undertaken and no further treatment is currently available that will alleviate the level of impairment in his daily functioning."[40]
8. However, as the Agency has pointed out, there are a number of difficulties relating to the reliability of these opinions and the weight which can therefore be given to them.
9. Unfortunately, Dr Wahaib was not called to give oral evidence, and therefore it has not been possible to clarify his opinions or explore the basis for them or the extent to which they are well-founded or not. This causes particular difficulties in circumstances where his opinions are expressed in very strong but extremely brief terms, with little explanation as to the basis for them. It also results in a degree of unfairness to the Agency, which has not been able to test or challenge these opinions.
10. In addition, as I have alluded to, Dr Wahaib's letters appear to have been written in haste, without a great deal of attention to their content. In many cases the letters appear to be based on a standard template which is modified slightly for each use, often very imperfectly and with significant inaccuracies remaining. No doubt this is the product of him being a very busy treating psychiatrist, but the poor quality of his reports nevertheless detracts from their value.
11. Another problem with Dr Wahaib's opinions is that in some instances they appear not to be well founded. At times they are inconsistent with the known facts or other parts of his letters. For example, Dr Wahaib first expressed the view that Mr Yadago's conditions had been fully treated and could not be improved in February 2024. However, that was prior to Mr Yadago undergoing any treatment from a psychologist, which Dr Wahaib had previously indicated would be necessary for him. It is very difficult to reconcile these conflicting aspects of Dr Wahaib's letters or understand how Mr Yadago could be considered to have undergone all available treatments without any treatment whatsoever from a psychologist.
12. The Agency has also directed my attention to an email from Mr Yadago to Dr Wahaib on 21 February 2024. This email enclosed a copy of the original decision letter from the Agency declining Mr Yadago's application for access to the NDIS and asked Dr Wahaib to write a new report specifying various matters including that "I have exhausted all possible treatment options and there are NO more treatment options to explore and that I need support from the NDIS."[41] Dr Wahaib's letter of 21 February 2024 appears to have been written in response to this email and reproduces parts of Mr Yadago's email almost verbatim.
13. In these circumstances, I do not consider Dr Wahaib's apparent opinions with respect to permanency are reliable or accurate and I am unable to accord them any weight. This leaves me in the position of having no reliable expert medical opinion directed to the issue of the permanency of Mr Yadago's conditions or impairments.
14. The reliable evidence I do have clearly indicates there are a range of treatment options available to Mr Yadago which have yet to be explored, either fully or at all. In particular, the evidence suggests that consistent psychological treatment is a critical component of the treatment Mr Yadago requires. Although a complete cure may be unrealistic, the evidence suggests it offers a strong possibility of significant improvement in his symptoms and impairments.
15. To date, Mr Yadago has only attended 8 or 9 psychology sessions, which have not yielded significant benefit. However, given the severity and chronicity of his conditions, it is clear consistent longer-term treatment is required. Until this is undertaken, it will remain unclear to what extent this treatment, perhaps in conjunction with other measures such as medication, may result in significant improvements in Mr Yadago's impairments and functional capacity.
16. As there is treatment available to Mr Yadago which offers the prospect of significant improvement in his symptoms but has not yet been undertaken to the extent recommended, I have ultimately concluded that further treatment is required before the permanency or likely permanency of his impairments, as well as the extent of any permanent impairments, can be determined. Should the recommended treatments, particularly psychological treatment, be consistently undertaken for an adequate period with no improvement, it is likely a conclusion could then be drawn that the impairments are likely to be permanent. However, given the inadequacy of treatment to date, I consider it is not possible to determine permanency at this stage.
17. For these reasons, I am satisfied that rule 5.6 applies here, and therefore Mr Yadago's impairments are not currently permanent for the purposes of the Act and the Access Rules.
18. Having reached that conclusion, it is unnecessary for me to proceed to consider whether rule 5.4 also applies, or whether Mr Yadago meets the other requirements of s 24.
19. As rule 6.6 of the Access Rules is in the same terms as rule 5.6, I am also satisfied that Mr Yadago's impairments are not permanent for the purposes of the early intervention requirements.

1. On the evidence before me, Mr Yadago has only pursued the treatment available for his conditions to a very limited extent. Those treatments, in particular treatment from a psychologist, offer the possibility of significant improvement in his conditions, impairments and functional capacity. Further it is not clear on the evidence that treatment from a psychologist, together with some psychiatric management, is not available to Mr Yadago, noting he has accessed treatment from both a psychiatrist and psychologist over the last few years.
2. In these circumstances, I am satisfied that rule 5.6 of the Access Rules applies and Mr Yadago's impairments cannot currently be regarded as permanent. As rule 6.6 is in the same terms as rule 5.6, I am also satisfied that his impairments are not permanent for the purposes of the early intervention requirements.
3. It follows that neither the requirements of s 24(1)(b) or the requirements of s 25(1)(a) are met and I am therefore obliged to affirm the decision under review.

[3] The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024, Schedule 1, s 126.

[4] I note s 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track) Act 2024 provides that the Rules made pursuant to s 27 remain in force.

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

[6] National Disability Insurance Agency, Our Guidelines - Becoming a participant - Applying to the NDIS, (14 October 2024).

[7] See Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

[9] National Disability Insurance Agency v Davis [2022] FCA 1002 at [85-86] and [130] ("Davis").

[10] See Davis at [75] and [131]. See also [158].