Decision: Pursuant to subsection 105(a) of the _Administrative Review Tribunal Act 2024 (_Cth), the Tribunal affirms the decision under review.

NATIONAL DISABILITY INSURANCE SCHEME - access - physical impairments - psychosocial impairments - whether applicant meets disability requirements - NDIS Act s24(1)(c) - whether impairments substantially reduce functional capacity - communication - social interaction - mobility - learning - self-care - NDIS Act s25 - whether applicant meets early intervention requirements - decision under review affirmed.

Administrative Review Tribunal Act 2024 (Cth) section 105

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

National Disability Insurance Scheme Act 2013 (Cth_) sections 21,22, 23, 24, 27, 29_

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

G v Minister for Home Affairs [2019] FCAFC 79

G v Minister for Immigration and Border Protection [2018] FCA 1229

National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Davis [2022] FCA 1002

Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

Re Schwass and National Disability Insurance Agency [2019] AATA

Rooney and National Disability Insurance Agency [2021] AATA 3523

PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66

Madelaine v National Disability Insurance Agency [2020] AATA 4025

Kilgallin v National Disability Insurance Agency [2017] AATA 186

Garcia Albiol v National Disability Insurance Agency [2024] AATA 496

Moxham v National Disability Insurance Agency [2025] ARTA 290

National Disability Insurance Agency v Lampard [2025] FCAFC 139

Burrows v CEO, National Disability Insurance Agency [2025] ARTA 607

Sutherland v National Disability Insurance Agency [2026] FCA 3

NDIS - Applying to the NDIS access guidelines - 10 December 2024

International Classification of Functioning Disability and Health

1. Mr Soheil Rahmani is a 40-year-old man. He seeks access to the National Disability Insurance Scheme ('the scheme') so that he can receive supports on the basis of impairments due to multiple conditions.
2. Mr Rahmani's application for access was refused at first instance by the National Disability Insurance Agency ('the Agency') and again upon internal review.[1]
3. Mr Rahmani subsequently applied to the Administrative Appeals Tribunal ('AAT') on 25 July 2024 for review of the Agency's internal review decision ('the decision under review'). In his application to the AAT he stated:

despite all documents i have provided by 2 doctors and 2 spinal surgeon 2 physiotherapists base on my disability and permanent injury that i have which have stopped me from any activities they have rejected me and claim they don't think injury is permanent and all available treatment option has been done. I would like to talk on the phone or in person to get in details about that. Thanks'

1. 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 ('Transitional Act'), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
2. At the hearing Mr Rahmani was self-represented. The Agency was represented by Mr Nolan of Counsel instructed by Maddocks Lawyers.
3. For the reasons set out below, the Tribunal affirms the decision under review and finds that Mr Rahmani does not meet disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth) ('NDIS Act') or the early intervention requirements under section 25 of the NDIS Act. Mr Rahmani therefore does not meet the access criteria under section 21 of the NDIS Act and cannot be granted access to the scheme.

1. On 3 October 2024 and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 ('the Amending Act') made a range of 'amendments' to the NDIS Act including the provisions relating to access to the scheme. These amendments included amendments to sections 21, 24 and 25 of the NDIS Act ('the access provisions').[2]
2. The Amending Act included transitional provisions under Items 125 and 126 in Part 3 of Schedule 1 to the Amending Act. The effect of these transitional provisions is that the amendments made to the access provisions apply only to a person who makes an access request on or after 3 October 2024. On this basis Mr Rahmani's application will be determined in accordance with the access provisions as they existed before the commencement of the Amending Act on 3 October 2025.
3. Item 126(3) in Part 3 of the Amending Act addresses the status of rules made under section 27 of the NDIS Act prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force.
4. On this basis, the version of the Access Rules in existence prior to 3 October 2024 continue to apply to Mr Rahmani's request for access.

THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. Access to the scheme requires Mr Rahmani satisfy that he meets the 'access criteria' under section 21 of the NDIS Act. The access criteria impose a series of thresholds on obtaining access to the scheme.[3] Section 21 of the NDIS Act provides as follows:

(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. The Agency accepts that Mr Rahmani meets the age requirements[4] and the residence requirements.[5]
2. The issue before the Tribunal is therefore whether Mr Rahmani meets the 'disability requirements' under section 24 of the NDIS Act or the 'early intervention requirements' under section 25 of the NDIS Act.[6]
3. The disability requirements are contained in section 24 of the NDIS Act and provide 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 requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
5. The early intervention requirements contained in section 25 of the NDIS Act provide as follows:

1. A person meets the early intervention requirements if:

(a) the person: > > > (i) has one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent; or > > > > (ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or > > > > (iii) is a child who has 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 > > (d) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

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

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

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

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

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

1. Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
2. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 ('the Access Rules').
3. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The Guidelines are 'administrative tools' and exist to provide assistance as to the context of each of the activities listed in s 24(1)(c) of the NDIS Act.[7]
4. The relevant guidelines in this review are the NDIS - Applying to the NDIS Guidelines ('the Access Guidelines').[8]
5. There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[10] the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual's case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it.[12]

1. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Rahmani meets the disability requirements or the early intervention requirements.
2. Whether Mr Rahmani meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a 'fact-finding task'[13] with a relatively high degree of precision and be positively satisfied.[14]

1. Mr Rahmani seeks access to the scheme on the basis of having a disability due to the following:

(a) A psychosocial impairment as a direct result of chronic pain which involves the following impairments: > > * a reduced capacity to engage in activities of daily living, including work, study or manage his life; > * severe depression and anxiety; > * adjustment disorder with depressed mood; > * a reduced capacity to socialise.[15] > > (b) physical impairments due to chronic and severe lower back pain with right-sided radiculopathy (nerve pain radiating down leg) as a consequence of Grade 1 spondylolisthesis of L4 on L5, with severe bilateral foraminal narrowing compressing the exiting nerve roots.[16]

2. Mr Rahmani contends that all of these impairments are permanent for the purposes of section 24(1)(b) of the NDIS Act.
3. As a consequence of these impairments Mr Rahmani also contends that he has a substantially reduced functional capacity in relation to his communication, social interaction, learning, mobility, self-care and self-management for the purposes of section 24(1)(c) of the NDIS Act.[17]
4. Mr Rahmani also contends that his impairments affect his capacity for social and economic participation for the purposes of section 24(1)(d) of the NDIS Act. Also, that he is likely to require supports under the scheme for his lifetime for the purposes of section 24(1)(e) of the NDIS Act.[18] In this regard Mr Rahmani states 'I require support to manage my personal care, domestic tasks, and to have some chance of participating in the community.'[19]
5. Finally, Mr Rahmani contends that he meets the early intervention requirements pursuant to section 25 of the NDIS Act.

1. The Agency accepts that Mr Rahmani sustained a flexion-extension injury to his cervical spine and a soft tissue injury to his lumbar spine, with non-verifiable radiculopathy symptoms in his right leg as a result of two motor vehicle accidents. In particular, the Agency accepts the opinion of Dr Bruce Low, orthopaedic surgeon[20] which is that Mr Rahmani has non-verifiable radiculopathy symptoms related to L4/5 foraminal narrowing which affects his right L4 nerve root.
2. The Agency also accepts that Mr Rahmani has subsequently developed an adjustment disorder with depressed mood, as a consequence of chronic pain.[21]
3. For the purposes of section 24(1)(a) of the NDIS Act the Agency refers to the International Classification of Functioning Disability and Health (ICF) as extrinsic material to which the Tribunal may have regard in ascertaining with objective precision, the impairment of body structure or function which is at issue in each case for the purposes of section 24.[22] In doing so, the Agency accepts and identifies that Mr Rahmani has:
   • physical impairments which include:
     • restricted range and ease of movement of the vertebral joints in the neck and lower back;
     • pain in the head and neck;
     • pain in the lower back;
     • pain in the upper limbs: and
   • psychosocial impairments which include a:
     • reduction in temperament and personality functions, namely optimism and confidence;
     • reduction in attention functions, namely sustaining attention; and
     • reduction in memory functions, namely short-term memory.[23]
4. The Agency does not accept that:

(a) Mr Rahmani's physical and psychosocial impairments are permanent for the purposes of subsection 24(1)(b) of the NDIS Act;[24] > > (b) Any of Mr Rahmani's impairments result in a reduced functional capacity in the activities of social interaction, self-care, self-management, learning, communication and mobility for the purposes of subsection 24(1)(c) of the NDIS Act;[25] > > (c) Mr Rahmani is likely to require support under the scheme for his lifetime for the purposes of subsection 24(1)(e) of the NDIS Act.[26]

5. The Agency further contends that the evidence is insufficient to establish that the provision of 'early intervention support' is likely to benefit Mr Rahmani within the meaning of subsection 25(a), (b) and (c) of the NDIS Act.[27]

1. I have considered all the written evidence filed with the Tribunal, the oral evidence provided at the hearing on 11, 12 and 13 February 2026, and the parties' closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

1. Mr Rahmani is 40 years of age and is on a disability pension. He has qualifications as an engineer which were obtained in Iran. I accept that Mr Rahmani is highly intelligent.
2. In February 2019 Mr Rahmani had a low-speed motor vehicle accident in which[28] he sustained a whiplash injury. The report of Dr Peter Gan, neurosurgeon dated 31 October 2010 states that Mr Rahmani sustained a 6% whole person impairment as a consequence of this injury.[29]
3. In 2020 Mr Rahmani was involved in a further motor vehicle accident. As a result of this accident he sustained a severe permanent spondylolisthesis of his lumbar spine. Spondylolisthesis is a spinal condition where one vertebra slips forward over the one below it, often in the lower back, causing back pain, tight hamstrings, and sometimes leg pain, numbness, or weakness, especially with activity.
4. In September 2021 Dr Low assessed Mr Rahmani. Dr Low considered that Mr Rahmani had a 7% whole person impairment for the lumbar spine and 0% impairment for his cervical spine. This accorded with a 7% whole person impairment.[30]
5. Mr Rahmani contends that he has pursued all reasonable and available treatments for his back pain and in respect of his mental health. These treatments have included:
   • 7 cortisone injections;
   • Over 60 physiotherapy sessions;
   • Weight loss surgery involving the insertion of an Orbera gastric balloon in December 2022;
   • Physiotherapy exercises at home including TENS treatment;
   • Treatment with a variety of pain and nerve medications;
   • Treatment with a variety of psychiatric medications for his anxiety and depression.
6. Mr Rahmani states that he has also consulted with multiple spinal surgeons who have advised there to be no guarantee that surgical intervention would provide pain relief from his symptoms. He has also sought advice from a pain management clinic.
7. Mr Rahmani contends that he now spends the most part of his day lying in bed in order to manage his symptoms.[31]
8. Mr Rahmani provided oral evidence at the hearing. His evidence included the following:

• The assessment by Mr Stretton, occupational therapist took less than one hour, estimating a time of approximately 45 minutes for the assessment;
  • He used artificial intelligence (AI) to assist him to prepare his written material including his statements;
  • The x-ray and MRI reports contained in the joint bundle of documents confirm in 'plain English' the problems that he has with his back and 'clearly mention the permanent impairment';[32]
  • He has had more than 40 physiotherapy sessions, multiple steroid injections and also consulted two spinal surgeons;
  • He has had 'all the available treatment possible in the world' for his back;
  • Historically he has taken a lot of medications, however they have resulted in 'side effects' and on this basis were ceased;
  • Currently he now only takes supplements which include Magnesium, Omega-3 and high dosage Vitamin D. He also takes ibuprofen a few times a week and when 'the pain is just really, really high'. In this regard he referred to having developed an ulcer as a result of taking ibuprofen in the past;
  • Historically he has taken duloxetine, however ceased taking this medication in 2024 due to side effects of dizziness, problems focussing, constipation and hypertension;
  • He did not discuss the side effects of duloxetine with Dr Michael Likely, psychiatrist, because he had only seen him once;
  • His General practitioner advised him to stop taking duloxetine if it was causing him side effects;
  • He has also been prescribed and has taken amitriptyline[33] and pregabalin.[34] Side effects also occurred with these medications which included increased appetite and weight gain. Also lethargy and sleeping up to 16 hours each day. He explained that medications 'are just killing me in another way';
  • Other prescribed medications have included Panadeine Forte, mirtazapine,[35] escitalopram, temazepam and Mobic;
  • He moved into new accommodation approximately a fortnight before the hearing which he described as a 'share house'. He has his own bedroom and bathroom which he shares with his partner Ms Phoebe Impang. They shares the kitchen facility with a family who also live in this accommodation;
  • He has been in a relationship with Ms Impang for approximately twelve (12) months;
  • He generally wakes each day at around 3am. He will then lie in his bed until five or six am and read the news on his Iphone. He will also use headphones to watch Instagram and YouTube. He will often have a short nap at around 6.30 am before waking up again and getting out of bed to start his day;
  • He is interested in 'news', particularly what is happening in Iran 'Because these days in Iran we are fighting with the government';
  • He also watches Australian and USA news, particularly if it contains news in relation to Iran;
  • He is able to use a toilet independently;
  • He spends most of his day in bed. He experiences a lot of pain in terms of sitting and standing and must frequently alter his position;
  • He is able to leave his bedroom and go 'upstairs' to the kitchen to make coffee, get snacks and pre-prepared meals which are often in cans;
  • He is able to make himself a bowl of vegetables for dinner, which involves washing and cutting the vegetables and placing them in a bowl;
  • He will often add spices, salt and lemon juice to food contained in cans before eating;
  • He can feed himself using a knife, fork and spoon;
  • He enjoys drinking tea and can make himself tea and coffee. This includes using stairs to access milk which is in a fridge located in the kitchen;
  • He has a microwave in his bedroom and can heat meals. He can also pour milk which he uses with coffee;
  • There are approximately 10 stairs between his bedroom and the kitchen;
  • His partner takes care of domestic tasks like vacuuming and cleaning;
  • He has a brother who lives in Belarus and he speaks to him on the telephone two or three times each week;
  • He has a laptop which he is also able to use to watch YouTube;
  • He showers around three times a day with water to 'freshen up', relax himself and improve his 'mood';
  • He is able to dress and undress himself, but with pain;
  • His partner, Ms Impang, assists him with washing and using soap in the shower. This is because he can't bend or reach the lower parts of his body, including his feet and toes;
  • He has never used a shower chair or a long handled shower brush to assist him with washing the lower parts of his body and avoid the need for bending. He accepts however that these items 'could be helpful';
  • There are no 'handrails' in his shower;
  • He can dry himself after a shower;
  • He can use an electric razor to shave;
  • He drives himself to a local Barber for a haircut, every 40 days approximately. On occasions he will cut his own hair;
  • He can transfer independently in and out of his bed and a chair, but with pain;
  • He regularly uses a TENS machine to assist with pain management;
  • On 'bad days' he can hardly stand on his feet;
  • He is able to independently attend appointments with his general practitioner, both in person and using telehealth;
  • He is able to communicate his health concerns with his general practitioner and will sometimes use AI to do so when he has English translation difficulties;
  • He is also able to make appointments with his general practitioner using an online app. He can drive himself to his doctor's surgery;
  • He regularly drives Ms Impang to the supermarket. Sometimes he will remain in the car while Ms Impang shops for groceries. On other occasions he will go into the supermarket and use a trolley for support;
  • He is able to help carrying lighter groceries from the car into the house;
  • In terms decisions about what is purchased at the supermarket Mr Rahmani described this as a 'joint effort' by himself and Ms Impang;
  • He can speak on a mobile telephone, also text photographs using his phone. He provided an example of texting Ms Impang a photograph of magnesium tablets and requesting her to purchase them for him;
  • He and Ms Impang use English to speak to each other. If there are any issues with their communication he is able to use AI to translate English to Filipino and also English to Farsi;
  • He can walk to the bathroom, toilet and to his car but with severe pain;
  • He describes himself as a 'highly educated person' explaining that he did 'a lot of study' when referring to these proceedings;

• He assisted Ms Impang with the preparation of her written statement by typing it for her on a computer; * That Ms Impang was 'not good in speaking English' and that 'I would say her worst problem is understanding.[36]

9. I will refer subsequently to further oral evidence which was also provided by Mr Rahmani at the hearing.

1. Mr Stretton is an occupational therapist. He assessed Mr Rahmani in his home in March 2025 and provided a report.[37]
2. In his report dated 21 August 2025 Mr Stretton stated that on the day of the assessment that Mr Rahmani advised that he was having an 'average day with respect to his functional abilities'.[38]
3. In his report Mr Stretton stated that Mr Rahmani's 'psychosocial impairments impact his mood and motivation to engage in activities but do not prevent him from completing his daily activities to a large extent.'[39]
4. Mr Stretton also provided oral evidence at the hearing. This oral evidence was in part also in response to written questions prepared by Mr Rahmani.[40] In his oral evidence Mr Stretton refuted that his assessment of Mr Rahmani took only one hour and he maintained that his assessment took two hours as was stated in his report. Mr Stretton also referred to the following matters:
   • He does not consider Mr Rahmani requires assistance showering. In this regard any difficulties with standing in a shower could be managed by using a shower chair and alternating between standing and sitting. Any difficulties with bending in the shower could be managed with a long handled shower brush. Mr Rahmani would also be assisted by a handheld shower hose; Mr Stretton stated that these items can be purchased at an independent living centre or a pharmacy and were relatively inexpensive.[41]
   • His assessment was based on a review of the material provided to him, his clinical observations and Mr Rahmani's self-reporting. In this regard Mr Stretton confirmed that Mr Rahmani specifically advised him that his function on the day of the assessment 'was representative of an average day';
   • He observed Mr Rahmani open the shower door, transfer in and out of the shower and simulate washing his body;
   • That during the assessment Mr Rahmani reported to him, the ability to walk 100 metres and drive for a period of 30 minutes before needing a break;
   • That he had no reason 'to doubt' or disbelieve the veracity of any of Mr Rahmani's self-reporting. Mr Stretton stated, 'I just reported what he told me'.
5. I will refer subsequently in this decision to other aspects of Mr Stretton's evidence.

1. Ms Impang is Mr Rahmani's partner. She provided a written statement to the Tribunal[42] and also oral evidence at the hearing, utilising a Filipino.
2. Ms Impang's relevant oral evidence can be summarised as follows:
   • Mr Rahmani typed her statement because she does not know how to use a computer;
   • She told Mr Rahmani what to type for her statement;
   • Ms Impang was able to demonstrate to the Tribunal that she could read her statement that was written in English;
   • Mr Rahmani has over time allowed her to assist him with showering;
   • Mr Rahmani is unable to do any cleaning, laundry, shopping or personal care;
   • He is however capable of putting his shirt in the washing machine, but he does not;
   • He spends most of his time lying on his bed;
   • He is not capable of wiping a bench because he would 'feel pain';
   • She was not present in the home when Mr Stretton conducted his assessment of Mr Rahmani;
   • In respect of the assertion in her statement that Mr Stretton's assessment was undertaken in 45 minutes she is unable to recall how she came to that length of time.

1. Dr Michael Likely, psychiatrist, assessed Mr Rahmani in November 2021. In his report dated 18 November 2021 Dr Likely provided the following diagnoses: 'Adjustment disorder with depressed mood which has evolved in the context of chronic pain'.[43]
2. Mr Rahmani reported to Dr Likely that historically he had been prescribed escitalopram and mirtazapine. Mr Rahmani reported side effects of postural hypotension, weight gain and sedation with mirtazapine.
3. Dr Likely stated:

In my opinion, Mr Rahmani would benefit from prescription of the serotonergic and noradrenergic reuptake inhibitor (SSRI), Duloxetine, since this drug has been shown to be of benefit in treating patients suffering from mood disturbance associated with chronic pain.'

Mr Rahmani should remain on the dose of this drug which brings about full remission in symptoms of Adjustment Disorder with depressed mood for 12 months thereafter. It is therefore likely that the course of treatment with Duloxetine will be at least 16 months. [44](Tribunal emphasis)

Mr Rahami would benefit from treatment with a hypnotic agent, for example Zopiclone, in order to assist him with sleep'.[45]

1. Dr Likely explained the medication recommended by him was as a replacement for escitalopram and mirtazapine.
2. Dr Likely also recommended treatment with psychotherapy, stating that Mr Rahmani 'should attend a Clinical psychologist well versed in the treatment of mood disorders associated with chronic pain, on a monthly basis and for at least 16 months.'
3. Dr Likely's opinion was that psychotherapy combine with duloxetine treatment for at least 16 months 'should bring about full remission in symptoms of adjustment disorder with depressed mood leading to Mr Rahmani being restored to premorbid psychological functioning.'

1. Mr Rahmani was reviewed by Dr Larrisa Cowley at the Pain Rehabilitation Centre ('PRC'), Princess Alexandra Hospital on 9 July 2025 and again on 23 September 2025.[46]
2. Dr Cowley stated in her report that Mr Rahmani:

'feels he has a strong understanding of his pain and what is likely to help his situation, and as a result was unwilling to consider the supports that PRC has to offer...'

1. Dr Cowley identified the following supports as being offered to Mr Rahmani:
   • Medication strategies;
   • Pain education;
   • A pain rehabilitation approach including physiotherapy.
2. Dr Cowley also stated:

'When asked what he would like/thinks would work Soheil reports that home help (cooking, cleaning, transport, finances) would be of most assistance, and as a result he is pursuing NDIS application and appeal.

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

After a long discussion we agreed that there was nothing further the persistent pain team could offer him at this time.

He was content with this outcome and did not wish to attend further follow up.

1. Mr Chun-Sing Lung is a physiotherapist and has provided treatment to Mr Rahmani.
2. He provided a number of reports to the Tribunal[47] as well as oral evidence at the hearing.[48]
3. Mr Rahmani prepared written questions for Mr Chun-Sing Lung which were put to him during the hearing.[49] Mr Chun-Sing Lung's oral evidence can be summarised as follows:
   • That most of Mr Rahmain's pain is caused by nerve compression;
   • That clinically Mr Rahmani has not improved and his symptoms have not changed despite physiotherapy;
   • He should avoid carrying items in excess of two kilograms;
   • He does not consider that Mr Rahmani can complete 'daily activities to a large extent';
   • He disagrees with the opinion of Mr Stretton that Mr Rahmani has a walking tolerance of 100 metres. Mr Chun-Sing Lung's opinion is that Mr Rahmani's walking tolerance is 50 metres (which he equated to around 10 minutes) before he needs to rest;
   • Mr Rahmani is able to complete self-care tasks such as showering, dressing, toileting, shaving, applying deodorant, brushing his hair and teeth independently, but only if he takes rests and uses a 'modified technique or pace';
   • He recommended that Mr Rahmani use a walking stick which would provide stability when he walked and support to his spine. Mr Rahmani, would however need to be instructed on how to use a walking stick correctly;
   • He would defer to the opinion of an occupational therapist in relation to Mr Rahmani's functional capacity for daily activities;
   • He confirmed that his assessment of Mr Rahmani concluded that Mr Rahmani had bed mobility including the ability to re-position himself. Also that Mr Rahmani could:
     • sit to stand with support;
     • get in and out of a bed and his car with some support. That such 'support' was by way of Mr Rahmani using his arms to grip onto something to allow him to perform these tasks;
     • mobilise independently indoors;
       • could undertake all self-care tasks but only to the extent of 10 minutes before requiring a break;
   • That Mr Rahmani would be assisted by using a shower chair and a long handled shower brush when showering.
   • He recommended Mr Rahmani use a walking stick when mobilising outdoors.

**_Does Mr Rahmani have a disability which is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?

Does Mr Rahmani have one or more impairments to which a psychosocial disability is attributable?_**

1. It is a common perception of many prospective participants, that access to the scheme is based on a 'medical model' whereby the focus is upon 'conditions' or 'diagnoses', that they may have. This perception is misguided. Instead, the focus of the 'disability requirements' and the 'early intervention requirements' as pathways for access to the scheme is based upon on a prospective participant's 'impairments' which arise as a consequence of conditions and diagnoses.
2. Mr Rahmani sustained injuries to his neck following a motor vehicle accident in 2019. He sustained further injuries to his lower back in a motor vehicle accident in 2020. I accept that these injuries were sustained.
3. I also accept that Mr Rahmani's lumbar and cervical spine is affected by structural changes and disc conditions. In this regard the CT report by Dr Bradley Way, radiologist dated 28 September 2021 in respect of Mr Rahmani's lumbar and cervical spine states that Mr Rahmani has a 'Grade 1 spondylolisthesis of L4 on L5 with a concentric disc bulge which is impinging both exiting L4 nerve roots. Mild non neuro-compressive disc disease is noted at C5/C6 and L3/L4.' [50]
4. As a result of structural changes and disc disease of his spine the evidence establishes that Mr Rahmani has developed physical impairments. I accept that these impairments include restricted range and ease of movement of the vertebral joints in the neck and lower back. Also pain in the head, neck, lower back and upper limbs.
5. The evidence also establishes that Mr Rahmani has a psychosocial impairment as a consequence of adjustment disorder with a depressed mood. These psychosocial impairments include a reduction in his temperament and personality function, (namely optimism and confidence), a reduction in sustaining attention and his short-term memory. He also has a lack of motivation and low mood with distress and anxiety.
6. The Agency accepts that Mr Rahmani has a disability that is attributable to a psychosocial impairment and a physical impairment. Based on the evidence I am satisfied that the Agency's concession is reasonable and proper.

1. I am satisfied that Mr Rahmani has a disability that is attributable to a psychosocial impairment as stated above. I am also satisfied that Mr Rahmani has a disability that is attributable to a physical impairment as stated above.
2. Subsection 24(1)(a) of the NDIS Act is satisfied.

Subsection 24(1)(c): Do Mr Rahmani's impairments result in a 'substantially reduced functional capacity' for him to engage in the activities of communication, social interaction, learning, mobility, self-care and self-management?

1. Mr Rahmani's focus for the purposes of this review was predominately upon a contention of the 'permanence' of his conditions, in particular the structural changes and disc disease of his spine. As stated 'permanence' for the purposes of the scheme is a concept that does not relate to a prospective participants conditions or diagnoses. 'Permanence' for the purposes of the scheme relates only to a prospective participant's 'impairments'.
2. As the disability requirements are cumulative, this means that each of the five criteria must be met. On this basis, the satisfaction that Mr Rahmani's impairments 'are, or are likely to be, permanent' for the purposes of subsection 24(1)(b) of the NDIS Act is of no consequence, if any of the remaining criteria under section 24(1) of the NDIS Act are also not satisfied.
3. For the following reasons I am satisfied that Mr Rahmani's impairments do not result in a substantially reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act. On this basis Mr Rahmani does not satisfy the disability requirements.
4. The Tribunal's task for the purposes of subsection 24(1)(c ) of the NDIS Act is to consider whether Mr Rahmani's impairments 'substantially' reduce his functional capacity to undertake the activities of communication, social interaction, learning, mobility, self-care and self-management.
5. In respect of the operation of subsection 24(1)(c) of the NDIS Act, in Mulligan Mortimer J held:[51]

Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted. > > ------ > > ... No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. (Tribunal emphasis)

6. More recently in Lampard[52] the Full Court considered the Tribunal's task in determining a prospective participant's 'functional capacity' to carry out a task or action in the activity domains of subsection 24(1)(c) of the NDIS Act. In doing so, the Full Court emphasised that 'functional capacity' must be distinguished against a prospective participant's 'functional performance', which is, of itself not relevant to the task under subsection 24(1)(c) of the NDIS Act.
7. In Lampard the Full Court also confirmed that the 'tasks' that make up each of the activities in subsection 24(1)(c) of the NDIS Act should have a 'determinate meaning'.[53] In this regard the Tribunal should look to the Agency's Operational Policy to ascertain exactly what are the 'tasks' that make up each of the activities in subsection 24(1)(c) of the NDIS Act.[54] In my view this approach provides prospective applicants with a level of clarity in the context of a transparent application process whereby they may be fully informed of the relevant 'tasks' that make up each of the activities in subsection 24(1)(c) of the NDIS Act for the purposes of access to the scheme.
8. In Sutherland, Horan J held in respect of subsection 24(1)(c) of the NDIS Act that,

While it is necessary to assess the person's functional capacity with respect to "the bundle of tasks and actions forming the concept of 'self-care'" (Foster at [65]), the fact that the person remains capable of carrying out some tasks and actions does not itself prevent him or her from meeting s 24(1)(c).[55]

1. In Sutherland Horan J also identified that the appropriate task of the Tribunal was to carry out,

a "functional, practical assessment" of what Ms Sutherland could and could not do in relation to various tasks and actions within the concept of self-care'[56]

'assume that there is a dichotomy between the tasks or actions that may be relevant to the activities of mobility and self-care respectively.'[57]

'In assessing whether Ms Sutherland had substantially reduced functional capacity to undertake the activity of self-care, it was permissible for the Tribunal to have regard to the impact of her limited mobility on the bundle of tasks that comprise self-care, which include personal care, hygiene, showering or bathing, and going to the toilet (see, for example, the description set out in the Operational Guidelines extracted at T [90])[58]

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

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

Accordingly, the effect of an impairment on a person's mobility may be relevant to the ability to carry out tasks or actions that form part of the activity of self-care. The fact that the impairment does not result in a substantially reduced functional capacity to undertake the activity of "mobility" per se (which was described in the Operational Guidelines as encompassing "how easily you move around your home and community, and how you get in and out of bed or a chair" or "how you get out and about and use your arms and legs" (T [80])) does not mean that any such limitations on mobility must be ignored when considering whether the person has substantially reduced functional capacity to undertake "self-care".[59]

1. In Madelaine[60] the Tribunal referred to the following Operational Guidelines for guidance in relation to fluctuations in a prospective participant's functional capacity:

When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

1. Those Operational Guidelines have been superseded. The current Access Guidelines however provide as follows:

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MR) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

1. Therefore in determining Mr Rahmani's functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act the following is relevant to the Tribunal's consideration:
   • The 'bundle of tasks' contained within the Operational Guidelines that fall within each of the activities in subsection 24(1)(c) of the NDIS Act;
   • A functional and practical assessment of what Mr Rahmani 'can' and 'cannot' do in respect of these 'bundle of tasks' so as to determine his overall 'functional capacity' in each of the 'activities' in subsection 24(1) (c) of the NDIS Act.[61] This functional and practical assessment is done as a whole and over time, taking into account fluctuations in his ability;
   • Regard also to the impact that one activity may have on the bundle of tasks that comprise another activity. For example regard maybe had to the impact of a prospective participant's limited 'mobility' on the bundle of tasks that comprise 'self-care', which include personal care, hygiene, showering or bathing, and going to the toilet.
2. The following however is not relevant to the Tribunal's consideration in determining Mr Rahmani's functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act:
   • The fact that Mr Rahmani is no longer able to perform the tasks in the activities in subsection 24(1)(c) of the NDIS Act as often, as freely or as easily as he did previously in his lifetime;
   • The fact that Mr Rahmani performs the tasks in the activities in subsection 24(1)(c) of the NDIS Act, differently to others, at a slower pace or using a modified technique;
   • The fact that Mr Rahmani performs the tasks in the activities in subsection 24(1)(c) of the NDIS Act using 'commonly used items'[62] such as a walking stick, long handled shower brush or a handheld shower hose;
   • Any comparison of Mr Rahmani's function with that of another person;
   • Mr Rahmani's functional capacity to perform tasks that are not referred to in the Agency's Operational Guidelines;
   • Mr Rahmani's financial circumstances; and
   • How much better Mr Rahmani's life would be if he were to receive supports under the scheme.
3. The Tribunal's task requires an 'evaluative exercise' of fact.[63] In this regard an Applicant's inability to undertake 'one task' which may form part of any activity (e.g. the task of brushing teeth as part of the activity of self-care) cannot be treated as an Applicant having a 'substantially reduced functional capacity' to undertake that activity.[64] Simply put, an Applicant 'does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity' [65] Likewise, the fact that an Applicant remains capable of carrying out some of the tasks and actions in an activity does not prevent an Applicant from establishing a substantially reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act.[66]
4. Previously in the decision of Garcia Albiol v NDIA[67] I considered the use of the word 'substantially_'_ as a descriptor of 'reduced functional capacity' in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term 'substantially' in the context of reduced functional capacity carries a 'high threshold'. That decision has not been appealed and has in fact been adopted in this Tribunal.[68]
5. My view of a 'high threshold' for reduced functional capacity remains unchanged.
6. The Tribunal's consideration of Mr Rahmani's functional capacity relates specifically to his 'daily life activities'. Relevantly, the Access Guidelines state as follows:

You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities. > > ................ > > Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.

7. In relation to his functional capacity Mr Rahmani contends as follows:

I do have a substantial reduction in functional capacity in all areas of my life. The Agency's position relies almost entirely on a single, flawed functional capacity assessment, while ignoring a mountain of contradictory evidence from my treating doctors, specialists, and physiotherapists who have known me for years.[69]

1. In this regard Mr Rahmani refers particularly to the assessment by Mr Stretton, occupational therapist at his home on 23 July 2025.

1. When asked by the Tribunal whether he has a substantially reduced functional capacity for communication Mr Rahmani stated, 'I would say sort of'.[70]
2. The Operational Guidelines describe communication as follows:

Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

3. At the hearing Mr Rahmani advocated for himself and gave oral evidence. He was able to speak clearly and state his position and point of view. He explained his history of treatment with medication, including the side effects. He also explained the advice that has been provided to him in respect of his spinal condition and his pain by a variety of medical specialists.
4. Throughout the hearing process Mr Rahmani was independent with his verbal communication which was clear and entirely comprehendible. At times he used a Farsi interpreter to assist with the translation of some words into English. This aspect related to the translation between two languages it did not relate to any inability to speak per se.
5. I found Mr Rahmani to be articulate and intelligent. He was also open and honest in the provision of his evidence.
6. Mr Rahmani provided written statements and submissions to the Tribunal, demonstrating also his ability to communicate in written form. He was also able to draft and prepare questions for both Mr Chun-Sing Lung and Mr Stretton.
7. Insofar as is relevant to his ability to undertake the activity of communication, Mr Rahmani provided the following oral evidence:
   • He prepared all of his material, including his Statement of Lived experience, himself. In doing so he was assisted by AI for formatting and the use of certain technology; and
   • He assisted Ms Impang by typing her statement on a computer using Microsoft Word;
8. Mr Stretton referred in his report to the following matters in respect of Mr Rahmani's ability to communicate:
   • Mr Rahmani did not report to him any functional communication difficulties;
   • Mr Rahmani understood all of Mr Stretton's questions;
   • Mr Rahmani did not display any obvious impairment to his receptive communication abilities;
   • Mr Rahmani communicated verbally to Mr Stretton throughout the assessment;
   • Mr Stretton considered that Mr Rahmani's speech was clear and fluent and he was easily understood;
   • Mr Rahmani engaged in reciprocal conversation;
   • Mr Rahmani does not have a communication impairment;
9. In Madelaine v National Disability Insurance Agency ('Madelaine') the Tribunal considered 'communication functionally' in respect of an earlier (and not dissimilar) version of the Agency's Operational Guidelines.[71] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on'. (Tribunal emphasis).
10. In Burrows v National Disability Insurance Agency[72] the activity of 'Communication' was referred to as relating to the:

- expressive language tasks (how you speak, write or use sign languages and gestures to express yourself and how others understand you); and

- receptive language tasks (how well you understand people).

1. I am satisfied, based on the evidence, that Mr Rahmani's functional capacity to communicate, is not substantially reduced. He is able to effectively engage in the expressive and receptive language tasks that form the bundle of tasks within the activity of communication.[73] These tasks include the ability to communicate and express himself both orally and in writing using technology such as a mobile phone and a computer. He is able to express his opinions, views and concerns to other persons, including medical practitioners and allied health professionals. He is also able to be understood by others and to understand what is being communicated to him.

1. When asked by the Tribunal whether he has a substantially reduced functional capacity for social interaction Mr Rahmani stated, '100 percent'.[74]
2. The Operational Guidelines describe social interaction as follows:

Socialising - how you make and keep friends or interact with the community...We also look at your behaviour, and how you cope with feelings and emotions in social situations.

1. In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[75]

Social interaction as referred to in 24(1)(c)(ii) doesn't, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.

2. In Ghezzaoui and NDIA[76] the Tribunal also made the observation that this 'domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.'
3. In Burrows[77] the activity of 'Social interaction' was referred to as relating to the,

- tasks associated with making and keeping friends,

- tasks associated with interacting with other people in the community (who are not friends),

- tasks associated with behavioural and emotional regulation in a social context.

1. In his oral evidence Mr Rahmani referred to the following:
   • He confirmed his relationship with Ms Impang which has been ongoing for some time;
   • He regularly speaks with his brother who resides overseas;
   • He accesses the community to attend the supermarket, barber and his medical practitioner.
2. Based on his clinical observations Mr Stretton also referred in his report to the following matters in respect of Mr Rahmani's ability to socially interact:
   • Mr Rahmani reported to Mr Stretton that he is able to interact with people in the community and in social situations but that he lacks motivation to socialise due to chronic back pain, right lower leg pain and poor psychological health.
   • He also reported that he keeps in contact with family and friends 'online'.[78]
   • During the assessment he was able to engage in a reciprocal conversation with Mr Stretton and interact appropriately. There were also no behaviours of concern noted by Mr Stretton.

1. As stated in Madelaine and Ghezzaoui the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am therefore satisfied that whilst Mr Rahmani no longer socialises to the same extent as he did previously when he was able to lead a more active lifestyle, he does still have the personal skills to interact socially with other people and also in the community.
2. I am satisfied based on the evidence that Mr Rahmani's functional capacity to interact socially is not substantially reduced. I am satisfied that Mr Rahmani has the personal skills to undertake the tasks associated with social interaction. This includes the ability to engage with his family and Ms Impang and behave appropriately. He has the ability to make and maintain meaningful and lasting relationships and in fact described Ms Impang as his 'girlfriend'.
3. Mr Rahman also has the ability to interact appropriately with others in the community and behave appropriately. In this regard he attends the supermarket, the barber and his medical practitioner.

1. When asked by the Tribunal whether he has a substantially reduced functional capacity for learning Mr Rahmani stated, 'I got no motivation to learn, but I have ability to learn if I want'.[79]
2. The Operational Guidelines describe learning as follows:

Learning - how you learn, understand and remember new things, and practise and use new skills

1. In Madelaine the activity of learning was explained as having the cognitive capacity to absorb and apply new skills. Furthermore, that the activity of learning should not be confused with higher order issues.[80]
2. In Burrows[81] the activity of 'Learning' was referred to as relating to the,

- tasks associated with acquiring knowledge, skills or understanding (how you learn, how you practice and use new skills),

- tasks associated with cognition (how you understand),

- tasks associated with memory (how you remember things).

1. Mr Rahmani reports difficulties with his 'motivation' to learn. In his oral evidence Mr Rahmani also referred to the following matters:
   • He considers himself to be highly intelligent;
   • He is a very educated person, stating 'I could be a lawyer' and 'don't underestimate me';
   • He stated 'I can learn, my head is ok';
   • He has read all of the 'NDIS criteria' and considers that he meets all of the criteria.
2. Mr Stretton stated in his report, that Mr Rahmani did not report to him any functional limitation with respect to the activity of learning. Mr Stretton's opinion is that based on his clinical observations Mr Rahmani does not have a learning impairment. Mr Stretton stated that Mr Rahmani remained engaged and maintained his concentration for the duration of the assessment. He also did not display any obvious impairment to his ability to learn.

1. I am satisfied based on the evidence that Mr Rahmani's functional capacity for learning is not substantially reduced. I am satisfied that Mr Rahmani has the skills to acquire and understand new knowledge. This includes the ability to understand the criteria for access to the scheme, and prepare and provide both written and oral submissions. This also includes the ability to learn and repeatedly use technology such as AI and technology on his phone. He has no problem with the retention of information, including remembering things such as his history of treatment, also news and world events. He also has no problem understanding the significance of news and world events.

1. When asked by the Tribunal whether he has a substantially reduced functional capacity for mobility Mr Rahmani again stated, '100 percent'.[82]
2. The Operational Guidelines describe mobility as follows:

Mobility, or moving around - how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.

3. In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are 'relatively modest' stating that:[83]

A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move. > > The use of the phrase move around ... to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park - the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport. > > No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.

4. In Burrows[84] the activity of 'mobility' was referred to as relating to the,

- tasks associated with moving around within the home,

- tasks associated with moving around within the community (how you get out and about),

- tasks associated with getting in and out of bed, and

- tasks associated with getting in and out of a chair.

1. Dr Woo, general practitioner stated that Mr Rahmani was unable to walk more than 5 minutes uphill or 7-8 minutes on flat ground. Also that he could not bend forward to vacuum or sit for longer than 5 to 10 minutes.[85] He also stated that Mr Rahmani needed assistance with cleaning and mowing the lawn.
2. In his report Mr Stretton stated the Mr Rahmani reported to him the following matters:
   • He is able to mobilise unaided in his home and in the community;
   • He does not use any walking aids;
   • He walks with a slight limp;
   • He estimated to Mr Stretton that he can walk 100 metres before needing a rest;
   • He can complete chair, bed, toilet, shower and car transfers independently, but has difficulty the lower the surface is;
   • He uses armrests and grab rails when they are available for these transfers;
   • He manages stairs but will use a handrail when available;
   • He has a driver's licence and drives in his local area;
   • His driving tolerance is 30 minutes before requiring a break.
3. In his report, based on his observations, Mr Stretton stated that Mr Rahmani:
   • Was able to walk unaided in and around his home with a slight limp, during the assessment;
   • Can transfer on and off the couch independently;
   • Was able to demonstrate transferring on and off the mattress he sleeps on, which was on the floor;
   • Was able to demonstrate bending forward to reach the floor;
   • Was able to demonstrate a full squat, but when doing so experienced radicular symptoms which include pain in his right buttock and leg;
   • Displayed full and functional range of motion in his upper and lower limbs. His range of motion in his lumbar spine was slightly reduced due to pain. He displayed no abnormal movement patterns;
   • Has a lifting capacity in a 'functional sense' limited to approximately 3-4kg, being commensurate with a light shopping bag or the vacuum cleaner.
4. In his oral evidence Mr Stretton referred to the following:
   • There are a number of aids which are commonly used items that Mr Rahmani could use. These included a shower chair, long handled shower brush and a handheld shower hose;
   • My Rahmani advised on the day of the assessment that he was having an 'average day';
   • His mobility is affected by constant and severe pain;
   • Mr Rahmani was able to mobilise to the shower, including opening the shower door and simulate showering.
5. In his oral evidence Mr Rahmani also referred to the following matters:
   • His mobility is affected by constant and severe pain;
   • He can only walk 20 to 50 metres before resting. On a good day he can walk 100 metres, but with pain. On a bad day he may only be able to walk 5 metres;
   • He uses a single point walking stick when he is in pain. He feels 'ashamed' when he uses a walking stick;
   • He can access the stairs between his bedroom and the kitchen in his home;
   • He can drive a car. He drives to the supermarket, the barber and his medical practitioner;
   • He can walk around the Aldi supermarket, using a trolley for support;
   • He can walk to the bathroom and toilet of his home;
   • He can mobilise to make tea and coffee, retrieve snacks and prepare meals.

1. I am satisfied based on the evidence that Mr Rahmani's functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced. He is clearly able to engage in the tasks associated with moving around and within his home and also his community, which include to the supermarket, the barber and his medical practitioner. He is also able to engage in the tasks associated with transfers in and out of his bed and on and off chairs. He is also able to engage in the tasks associated with mobilising around his home for the purposes of his self-care including showering, toileting, meals and dressing himself. This includes the ability to use his arms to feed, toilet and dress himself. Also, to use his arms to operate a mobile phone and a computer.

1. When asked by the Tribunal whether he has a substantially reduced functional capacity for self-care Mr Rahmani stated: 'For shower, yes, I do have issue, but for the rest, I can do'.[86]
2. The Operational Guidelines describe self-care as follows:

Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

1. In Madelaine the Tribunal stated: 'having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one's capacity to maintain personal health, safety and well-being'[87] (Tribunal emphasis)
2. In Burrows[88] the activity of 'Self-care' was referred to as relating to the,
   • tasks associated with personal care, including personal hygiene and grooming,
   • tasks associated with eating and drinking, and
   • tasks associated with health care.
3. In his oral evidence Mr Rahmani advised that he can:
   • Independently make tea and coffee, retrieve snacks and prepare a meal;
   • Make his own medical appointments and attend them independently;
   • Feed himself and use cutlery including a knife, fork and spoon;
   • Drink fluids independently;
   • Shampoo his hair and wash the upper part of his body. He is unable to bend to wash the lower parts of his body but accepts that a shower brush may help him to do this. Also that shower chair would assist him;
   • Shave himself and trim his hair with an electric shaver;
   • Use a toilet independently.
4. Mr Stretton stated in his report that Mr Rahmani reported to him that he is able to complete all self-care tasks such as showering, dressing, toileting, shaving, applying deodorant and brushing his teeth and hair independently.
5. In respect of his clinical observations Mr Stretton's report stated that Mr Rahmani demonstrated during the assessment independent shower and toilet transfers. He receives informal support from Ms Impang for household domestic tasks but is capable of engaging in some light tasks.

1. I am satisfied based on the evidence that Mr Rahmani's functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced. Mr Rahmani is able to undertake a range of tasks in respect of his personal hygiene, grooming, eating and drinking. He is also able to manage independently his health care and does so.
2. I have given little weight to Mr Rahmani's difficulties in washing the lower parts of his body. This is because it is open to Mr Rahmani to manage this task with commonly used items which would include a shower stool, a long handled shower brush and a handheld shower hose.

1. When asked by the Tribunal whether he has a substantially reduced functional capacity for self-care Mr Rahmani stated 'Yes, it's affecte_d'.[89]_
2. The Operational Guidelines describe self-management as follows:

Self-management - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

1. In Burrows[90] the activity of 'Self-management' was referred to as relating to the,

- cognitive tasks associated with personal organisation,

- cognitive tasks associated with personal planning,

- cognitive tasks associated with personal decision-making,

- cognitive tasks associated with problem solving, and

- cognitive tasks associated with personal financial management.

1. In his oral evidence Mr Rahmani also referred to the following:
   • He is able to manage his finances using an online banking app;
   • He goes to the supermarket when he is 'up to it';
   • He makes his own medical appointments;
   • He has input into decisions regarding grocery items to be purchased;
   • He manages the 'supplements' that he takes.
2. Mr Stretton stated in his report that Mr Rahmani reported to him that:
   • He can stand for short periods to make a snack or wash dishes but avoids most household tasks;
   • He receives the DSP and manages his own finances;
   • He makes and attends appointments independently. This includes medical appointments when he considers and recognises that medical review is necessary;
   • He is capable of making his own decisions.

1. I am satisfied based on the evidence that Mr Rahmani's functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced. Mr Rahmani is highly intelligent and clearly able to make his own decisions, including in relation to his health.
2. He has the cognitive ability to independently undertake a range of tasks in respect of his personal organisation and planning, personal decision-making, self-care, problem solving, and personal financial management.[91]

Conclusion - subsection 24(1)(c) of the NDIS Act

1. Mr Rahmani does not appreciate that the satisfaction of the threshold for a 'substantially reduced functional capacity' in the activity areas of subsection 24(1)(c) of the NDIS Act equates to a level of functional capacity which is significantly lower than his current level of functional capacity. The fact that his current level of functional capacity is lower than the level he once enjoyed does not of itself establish that he meets this threshold.
2. Subsection 24(1)(c) of the NDIS Act is not satisfied.
3. Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 24(1) of the NDIS Act. Mr Rahmani does not meet the disability requirements.

Section 25 NDIS Act: The Early Intervention Requirements

1. Mr Rahmani contends as a broad submission that he satisfies the early intervention requirements of section 25 of the NDIS Act.
2. For the purposes of subsection 25(1)(b) of the NDIS Act there is no evidence to persuade me that the provision of early intervention supports are likely to benefit Mr Rahmani by reducing his future needs for supports in relation to his disability. In particular I accept the opinion of Dr Woo contained in the NDIS Access application dated 11 March 2024. Dr Woo states that early intervention supports are not likely to reduce Mr Rahmani's future needs supports.[92]
3. Further I note that Mr Rahmani does not identify any early intervention supports that may assist him. In National Disability Insurance Agency v Jones[93] held the consideration referred to subsection 25(3) of the NDIS Act could not be properly assessed in circumstances where early intervention supports are not identified. Therefore in the absence of the identification of any proposed early intervention supports the Tribunal is unable to consider whether the provision of such early intervention supports are most appropriately funded or provided under the scheme.
4. As stated, the early intervention requirements in section 25 of the NDIS Act are cumulative. Having determined that subsection 25(1)(b) and subsection 25(3) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under Section 25 of the NDIS Act. Mr Rahmani does not meet the early intervention requirements.

1. Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements. Mr Rahmani therefore does not meet the access criteria and will not be granted access to the scheme.

1. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).

1. I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

[2] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

[3] National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [19].

[4] Subsection 21(1)(a) of the NDIS Act, Respondent's FSIC at [17].

[5] Subsection 21(1)(b) of the NDIS Act, Respondent's FSIC at [17].

[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [62], National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [40].

[8] National Disability Insurance Agency, Applying to the NDIS 10 December 2024.

[9] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].

[11] G v Minister for Immigration and Border Protection [2018] FCA 1229.

[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].

[14] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].

[15] Applicant's statement dated 17 September 2025, Applicant's confirmation Day 1 of hearing.

[16] Applicant's confirmation Day 1 of hearing.

[17] Opening submissions by Applicant - Day 1 of hearing.

[18] Opening submissions by Applicant - Day 1 of hearing.

[19] Applicant's statement dated 17 September 2025 at 1.3.1.

[21] Exhibit 3 - List of Impairments. Report Dr Michael Likely - T13.

[22] Burrows v CEO NDIA [2025] ARTA 607 at [26].

[24] Respondent's SFIC at [26] and [36].

[26] Respondent's SFIC at [88], Respondent's opening submissions.

[41] Shower chair at approximately $100-$150; long handled sponge at $10.00

[52] NDIA v Lampard [2025] FCAFC 139 at [51].

[53] NDIA v Lampard [2025] FCAFC 139 at [41]

[54] Burrows v NDIA at [87] cited with approval in National Disability Insurance Agency v Lampard [2025] FCAFC 139 (10 October 2025), [41].

[55] NDIA v Sutherland [2026] FCA 3 at [57].

[63] Mulligan [2015] FCA 544 at [101], Sutherland at [89]

[64] Sutherland v NDIA [2026] FCA 3 at [42]

[65] Sutherland v NDIA [2026] FCA 3 at [42], Sutherland v National Disability Insurance Agency [2024] AATA 411 at [83]

[67] Garcia Albiol v NDIA [2024] AATA 496.

[68] Moxham v CEO,NDIA [2025] ARTA 290_; Foster v NDIA_ [2025] ARTA 718_; TZQP v CEO, NDIA_ [2025] ARTA 839_; Coffey v CEO, NDIA_ [2025] ARTA 634_; Burrows v CEO,NDIA_ [2025] ARTA 607_; BFYK v NDIA_ [2025] ARTA 1006_; KNNW v NDIA_ [2025] ARTA 1033_; Foster v NDIA_ [2025] ARTA 718_._

[69] Applicants statement dated 17 September 2025

[71] Madelaine v National Disability Insurance Agency [2020] AATA 4025 at [79].

[73] Burrows v NDIA [2025] ARTA 697 at 87

[75] Kilgallin and NDIA [2017] AATA 186 at [18].

[76] [2023] AATA 2835, [79].also Madelaine at [87]