Decision: The Tribunal sets aside the decision under review pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) and decides in substitution that the Applicant meets the disability requirements for access to the National Disability Insurance Scheme as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

...........................[sgd].............................................

NATIONAL DISABILITY INSURANCE SCHEME - access request - whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met - "disability requirements" under s 24 - Applicant has disability arising from Obsessive Compulsive Disorder (OCD) and psychosocial impairments - issues - whether impairments are permanent - whether impairments have resulted in substantially reduced functional capacity in the area of social interaction - whether applicant requires lifetime NDIS support - decision under review set aside and substituted

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

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

Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

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

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Becoming a Participant - Applying to the NDIS Guidelines ('the Access Guidelines').

1. This application is about whether the Applicant, Mr Matthew Rushen, should be granted access as a participant in the National Disability Insurance Scheme (**'**NDIS'). Mr Rushen seeks review of a decision made by a "reviewer" under s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') ('Decision under Review').[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency ('NDIA'), not to grant access to Mr Rushen as a participant in the NDIS.
2. In this decision, I will refer to Mr Rushen as the Applicant or Mr Rushen and the NDIA as either the Respondent or the Agency.
3. The Administrative Review Tribunal's ('Tribunal') jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act'), operating in conjunction with s 103 of the NDIS Act.
4. For the reasons set out below, the Decision under Review is set aside as it is satisfied that Mr Rushen meets the access requirements under s 21 of the NDIS Act.

1. Mr Rushen is a 38-year-old man who lives in northern Tasmania. He has several conditions as outlined below:

• Obsessive Compulsive Disorder (OCDS).
• Anxiety and Depression
• Complex trauma disorder[2]

1. He has had these various conditions since his teenage years or possibly prior to that.
2. Arising out of these various medical conditions, Mr Rushen reported that he experiences a range of symptoms:

• Racing and compulsive intrusive thoughts.
• Constant worrying.
• Compulsive need for completing tasks to perfection.
• Getting stuck while performing tasks.
• Constant negative thoughts.

• Feelings of worthlessness and feeling judged by others.
• Worrying about others' responses or reactions to what he is saying.
• Difficulty with concentrating and retaining information.

1. I note that my recording of Mr Rushen's symptoms is somewhat arbitrary, and his experience of his symptoms indicate to me an overlapping of symptoms across his conditions.
2. Prior to the commencement of the hearing, the Agency submitted that it did not accept that Mr Rushen's OCD is permanent or that he had a substantially reduced functional capacity or that he required lifetime NDIS support.

1. On 7 July 2021, Mr Rushen applied to the Agency seeking to be granted access to the NDIS.
2. The Respondent provided its decision on 28 November 2022 after assessing Mr Rushen's eligibility to access the scheme. It advised that he had not met the eligibility criteria to be granted access to the scheme ('the Initial Decision').
3. On 10 February 2023, Mr Rushen requested the Respondent conduct an internal review of the initial decision.
4. The Respondent conducted its internal review, and on 5 April 2023 advised that it had confirmed the initial decision to find Mr Rushen was not eligible to gain access to the scheme ('the Reviewable Decision').
5. The Agency advised that the basis for its decision was the following:
   • That he had not established that his OCD is permanent.
   • That he had not established that he has a substantially reduced functional capacity in the domains of communication, social interaction, learning, mobility and self-care or self-management.
   • That he had not established that he met the criteria to be approved for early intervention access to the scheme under section 25 of the NDIS Act.

DECISION UNDER REVIEW AND APPLICATION FOR REVIEW TO THIS TRIBUNAL

1. As noted in paragraph above, the Reviewable Decision is the decision by the Respondent, on 5 April 2023, that Mr Rushen had not established that he met the eligibility criteria to be granted access to the scheme.
2. On 11 May 2023, Mr Rushen applied to the then Administrative Appeals Tribunal (AAT), for the AAT to conduct an independent review of the reviewable decision.
3. In his application for review, Mr Rushen noted the following as reasons why he considered the reviewable decision was wrong:

They have twice ignored that fact that my condition is chronic, lifelong and will never finish. "Treatment" as it is healthcare management, they ignore that actual facts and play on the legality of words.

1. As part of the review process, the Tribunal was provided by the Respondent with those documents previously submitted as part of the original application process ('the T Documents'). These are the following:

• Letter dated 7 July 2021.
• Access request dated 13 September 2021.
• Discharge summary dated 13 September 2021.
• Discharge summary dated 7 January 2022.
• Discharge summary dated 11 July 2022.
• Letter dated 11 August 2022.
• Letter dated 11 October 2022.
• Evidence of psychosocial disability form dated 27 October 2022.
• Letter dated 28 February 2023.

Email of Mr David Kranz, Program Worker, Wellways to Recovery.

1. After the commencement of the application before the Tribunal the following additional documents were lodged as evidence by Mr Rushen:
   • Report from Dr Ravindran dated 27 February 2024 (provided following the provision of targeted questions by the Respondent).13

• Mr Rushen's Statement of Lived Experience (SoLE)

1. During the conduct of the Tribunal's pre-hearing procedure, the Respondent filed with the Tribunal, Statements of Issues (SOI) or Statements of Facts, Issues and Contentions (SFIC).
2. The most recent of these will be referred to throughout this decision.
3. I have listed below the documentary evidence Mr Rushen has submitted in support of his application.

1. Mr Rushen's statement is dated 7 February 2025. In it, Mr Rushen outlines the impacts of his impairments and includes a 5-day diary outlining how his conditions impact his behaviour, thoughts and daily life.
2. He stated that he experiences significant difficulties in the areas of communication, self-care, self-management, and social interaction.
3. While his OCD isn't always visible, it does control his life and impacts his daily functioning.
4. His mind races with worries, compulsions, and the need to perform actions perfectly and repeatedly. His anxiety affects his behaviour and thoughts, for example, repeatedly rubbing and cleaning surfaces or stopping conversations mid-sentence due to intrusive thoughts.
5. His level of capacity fluctuates depending upon whether he is stressed or tired or the time of day. On a bad day he cannot attend to basic tasks such as showering or cooking.
6. He provided a detailed summary of the impact of his OCD on his capacity to shower.
7. He also finds doing housework overwhelming because of the constant need to make sure it is done a certain way and repeating such tasks many times.
8. While he can do a number of tasks in the morning, by the afternoon his anxiety worsens, and his OCD behaviours overwhelm him, and this is the pattern on most days.
9. He also struggles with cooking for the same reasons. He gets caught in a cycle of repetitive actions that make the process feel exhausting and unproductive. This extends the process of cooking and exhausts him so that on many days he does not cook and relies on heating food in his microwave.
10. His intrusive thoughts make social interactions challenging and he struggles to communicate and connect with others. When he is having a conversation, he is usually fighting intrusive thoughts worrying about the other person's response and this affects his capacity to listen or engage with others. As a result, he finds social interactions draining.
11. His intrusive thoughts and anxiety affect his capacity with study or learning new information. This makes learning slower and more frustrating.
12. In the next section of his statement Mr Rushen provides his experience over 5 days and provides examples of his difficulties with self-care, self-management and social interaction and his overall feelings of guilt, shame, and worthlessness.

1. The Agency also provided a series of targeted questions to Mr Rushen which he appears to have responded to by a text or email message.
   • Responding to a question as to how far he can walk, Mr Rushen stated that on a good day he can walk a good two kilometres, however if he finds himself getting stressed to where he is experiencing compulsive thoughts, (which usually manifests as being stuck and repeating steps or freezing in an anxious state) he can find it difficult to get down the street.
   • He advised his driver's licence is suspended on medical grounds and last drove a car about 7 years ago.
   • He does not use public transport unless it's essential because of his condition.
   • Asked about what reasons he may go out from his home (other than for medical appointments) he stated this was to attend religious activities and go out for coffee with friends.
   • Asked about how he does his grocery shopping, Mr Rushen said it was usually delivered by Woolworths and sometimes at his nearest store depending upon his anxiety levels.
   • Asked if he uses any meal delivery services, Mr Rushen stated that as his OCD makes it difficult for him to cook, he tends to buy meals that are not hard to cook, or he skips meals altogether. He did use Meals on Wheels for a time, but that became untenable due to its cost and his nutritional requirements.
   • Asked what assistance he receives, he stated that currently Anglicare comes to his home once a week to help with domestic assistance including cleaning the kitchen, washing dishes, mopping the floor, wiping down benches, vacuuming, changing bed sheets, folding clothes and cleaning the bathroom.
   • He can usually manage his finances depending on his level of anxiety.
   • He can manage his own banking independently.

Asked about his capacity to self-care independently (i.e. showering/toileting/eating and drinking and dressing, Mr Rushen stated he needs reminding about his self-care needs

• He speaks with friends and family members on the phone about once a week and interacts with them in person 3 to 5 times a week.
• He does not use social media.
• He is not currently employed and does not believe that will change any time soon.

Mr Rushen's Doctor's Response to Request for Information (RfI)

1. On 7 August 2024, the Agency sent to Mr Rushen a series of questions relating to his psychosocial conditions and resulting impairments. These questions were asked to be responded to by Mr Rushen's treating psychiatrist, Dr Manoj Ravindran.
2. The requested information related to Mr Rushen's diagnoses and prognosis, their level of resulting impairment, their treatment, other possible treatment options, and Mr Rushen's functional capacity in the domains of communication, mobility, self-care, self-management, and social interaction.
3. Dr Ravindran provided the responses to both with a summary of his observations recorded in the following paragraphs.
   • Mr Rushen has diagnoses of OCD, mixed anxiety and depression and complex trauma disorder.
   • These conditions are treated with a combination of psychotropic medications, psychological interventions (counselling) and social interventions.
   • He has received all three of these treatments since 2021.
   • He has now achieved a degree of stability through these treatments with a significant reduction in the intensity of his symptoms. However, he continues to experience residual symptoms.
   • Responding to questions concerning the treatment of Mr Rushen's impairments, Dr Ravindran stated he is currently prescribed two antidepressants and has engaged in group therapy and personal therapy.
   • His individual therapy sessions have utilised a combination of cognitive behaviour therapy (CBT) and Exposure and Response Prevention (ERP) therapy.
   • As a result, he has gained some insight into his behaviours and this has reduced their intensity, however this has not fully resolved his difficulties.
   • Dr Ravindran considers that Mr Rushen's impairments are permanent, and he does not require any further investigations by other health professionals.
   • Responding to a question as to what supports would assist Mr Rushen, Dr Ravindran said he would benefit from having a support worker who could provide assistance with cooking, shopping, travelling, meeting new people and cleaning.
   • He recommended that Mr Rushen remain engaged with treatment from his psychiatrist as well as the therapeutic programs available at North West Private Hospital.
   • With the benefit of social supports over the next 5 years, Dr Ravindran considers that Mr Rushen's prognosis would drastically improve his quality of life although his impairments remain permanent.
   • In the absence of such supports, his prognosis over 5 years would leave him struggling in his daily activities and his overall level of distress.
4. From the Tribunal's file it appears that on 9 July 2024, the Agency sent some additional targeted questions to Dr Ravindran however it appears these may not have been responded to.

1. Mr Rushen has not provided a formal outline of his position, however, as I have noted above, Mr Rushen has provided a Statement of Lived Experience which I will take into account when considering whether he meets the criteria to be granted access to the scheme.
2. In summary, in my view Mr Rushen contends that:
   • His OCD is permanent.
   • That he has a substantially reduced functional capacity in the areas of self-care, self-management, and social interaction.
   • That his impairments appear to affect his capacity for social and economic participation.
   • That he is likely to require NDIS support for his lifetime.

1. The Agency provided a report prepared by Mr Prathipraj Devaraj (Occupational Therapist) acting as an Independent Medical Expert dated 26 June 2024.
2. Mr Devaraj's report is quite lengthy, so I do not propose to provide a summary here. Much of Mr Devaraj's findings will be addressed when I record his oral evidence to the Tribunal.

1. The Respondent's position was set out in its most recent SFIC dated 3 March 2025.
2. Before outlining the Respondent's contentions as to which elements of s 24(1), namely impairments, permanence, substantially reduced functional capacity, social and economic participation, and requiring lifetime NDIS support disability, had not been established, it conceded:
   • Psychosocial impairments attributable to obsessive compulsive disorder (OCD) constitute a disability under s 24(1)(a) of the NDIS Act.
   • That if the Tribunal finds that Mr Rushen's OCD is permanent, the Agency accepts that his impairments appear to affect his capacity for social and economic participation.
3. The Respondent submitted that the current evidence did not establish the following:
   • That Mr Rushen's condition of OCD is permanent or likely to be permanent (s 24(1)(b)).[3]
   • That while Mr Rushen's condition has resulted in a somewhat reduced functional capacity, that did not result in him having substantially reduced functional capacity in any of the six domains contained in s 24(1)(c).[4]
   • That he required NDIS support for his lifetime (s 24(1)(e)). In this regard the Agency submitted firstly that as it had not been established that Mr Rushen had a substantially reduced functional capacity, he would not therefore require lifetime support. Alternatively, the Agency outlined several alternative support services available to Mr Rushen and submitted his disability support needs were most appropriately met through those other support services.[5]
4. The Respondent also provided submissions addressing Mr Rushen's eligibility for early intervention under s 25 of the NDIS Act, however it is not necessary to record these here, as Mr Rushen is not asserting this.

1. Mr Rushen's advocate, Ms Jane Ogunkoya of Advocacy Tasmania provided the Tribunal with a Statement of Facts, Issues and Contentions immediately prior to the hearing.
2. The SFIC stated that Mr Rushen has the following formally diagnosed conditions:
   • Obsessive-compulsive disorder (OCD).
   • Mixed Anxiety.
   • Psychogenic seizures (formally diagnosed by Neurologist Dr Windum).
3. Due to how these conditions interact, Mr Rushen seeks admission to the Scheme based on the impairments arising from all three psychosocial conditions.
4. These conditions have been managed through a comprehensive treatment approach, including psychotropic medications, psychological interventions (such as Cognitive Behavioural Therapy and Exposure and Response Prevention), and social support strategies.[6]
5. Mr Rushen asserts that these conditions are permanent within the meaning of section 24(1)(b) of the NDIS Act based on:
   • Dr. Ravindran's reports indicating the longevity of the conditions since the age 13 and the lack of significant improvement despite various treatments being undertaken.
   • The multidisciplinary approach to treatment, including pharmacological and therapeutic interventions.
   • The stability of the conditions over time, as noted by that treating professional.[7]
6. The evidence cited for the permanence of Mr Rushen's conditions, is Dr Ravindran's reports dated, 13 September 2021, 11 August 2022 and 27 February 2024.[8]
7. Turning to the substantial reduction in functional capacity criteria required under section 24(1)(c) of the NDIS Act, the Applicant submits that the medical and other evidence establishes this.
8. It was submitted that section 24(1)(c) requires a substantial reduction in any one or more of the listed impairments and not all.
9. This is based upon Mr Rushen's lived experience statement, the Carer's statement, specialist reports and the most recent independent functional assessment conducted by the independent assessor. The applicant's position is that he meets section 24(c) of the NDIS Act, having been substantially reduced in functional capacity in all the following domains:
   • socialising;
   • self-management.
   • social and economic participation.
   • social interaction.
10. The evidence which supports that contention is:
    • His scores in the extreme disability range in the WHODAS test administered by Mr Devaraj in the life activities (Domestic Responsibilities, Leisure, Work and School) and participation (joining in the areas of activities) categories.[9]
    • Mr David Kranz, a Program Worker at Wellways to Recovery, in an email dated 23 August 2022, provided a detailed report of each of the section 24 (1)(c) domains and provided examples of the functional impacts experienced by the applicant.[10]
    • In his Evidence of Psychosocial disability form dated 27 October 2022, Dr Ravindran advised that he agrees with the information documented by David Kranz.[11]
    • On 27 February 2024, Dr Ravindran agreed with the IME Assessors' recommendations of additional supports, affirming as follows:[12]
      1. I do believe Matthew will benefit from social support provided in the form of a support worker who could enable and support Matthew to improve the quality of his activities of daily living. This would include assistance with cooking, shopping, travelling, meeting new people, and cleaning.
      2. I strongly recommend that Matthew continue engaging with his psychiatrist for regular monitoring of his mental state and medication efficacy. I strongly recommend that Matthew continue to engage with the therapeutic programmes provided at Northwest Private Hospital to maintain his degree of stability obtained over the last 3 years of sustained intervention.
      3. In my opinion, his prognosis over the next 5 years with social supports would drastically improve the quality of his life, although there is a permanence to his impairments.

In my opinion, his prognosis over the next 5 years without social supports would leave Matthew struggling in terms of the quality of his activities of daily living and the overall distress on a day-to-day basis.

• Mr Rushen's Statement of Lived Experience and his response to the targeted questions put to him by the Agency.

1. The recommendations and the areas identified by Mr Devaraj as reduced in functional capacity are the same as those identified by Dr Ravindran since 2021.
2. The submission that in order to stabilise Mr Rushen's condition and improve his quality of life, the recommendations made by the IME and Dr Ravindran are essential, and further, the recommended supports will be needed to be provided for the rest of his life
3. The submission points out several alleged inconsistencies in Mr Devaraj's report which I do propose to detail here but may be addressed in the oral evidence and any final submissions.
4. The submission concluded that it is important for the Tribunal to note that Mr Rushen's condition since the assessment has further deteriorated. All the things he could do during the IME assessment about a year ago are no longer possible. There is a great and urgent need for Capacity Building in terms of Therapy, Support, Assistance, and Community Participation to be put in place for the rest of the Applicant's life to manage his psychosocial impairments.

1. Taking account of those eligibility criteria that the Respondent has acknowledged Mr Rushen meets and those upon which Mr Rushen no longer relies, the matters to be determined by the Tribunal are the following:
   • Is Mr Rushen's Obsessive Compulsive Disorder or other psychosocial conditions permanent?
   • Does Mr Rushen have substantially reduced functional capacity in any of the domains listed in s 24(1)(c) of the NDIS Act?
   • Is Mr Rushen likely to require support under the National Disability Insurance Scheme for his lifetime?

1. Subsection 21(1) of the _NDIS Ac_t provides that a person satisfies the access criteria if they meet:
   • the "age requirements" under s 22.
   • The residence requirements" under s 23.
   • The "disability requirements" under s 24 (as set out in paragraph [64] below) or the "early intervention requirements" under s 25 (as set out in paragraph [66] below).
2. The disability requirements are contained in s 24 of the NDIS Act and provide as follows:

(5) A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

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

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

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

1. The requirements of s 24 of the NDIS Act are cumulative and all criteria must be met in order for access to be granted to the scheme.
2. The early intervention requirements are contained in s 25 of the NDIS Act and provide as follows:

(5) 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

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

1. Likewise, the requirements of s 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 (Cth) ('the Access Rules').

1. With respect to ss 24(1)(b) of the NDIS Act, concerning the 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.

1. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the Becoming a Participant - Applying to the NDIS guidelines ('the Access Guidelines').
2. There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[13] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines; however, in Drake and Minister for Immigration and Ethnic Affairs ,[14] 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, however they should not be bound by it. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection,[15] where Mortimer J (as her Honour then was) 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 being on the purpose and context of the statutory power, not the executive policy framed to guide it...[16]

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 Rushen meets the disability requirements or the early intervention requirements.
2. Whether Mr Rushen meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of the available evidence. The Tribunal is required to undertake a 'fact-finding task',[17] with a relatively high degree of precision and be positively satisfied.
3. The Tribunal notes that in Mulligan v National Disability Insurance Agency,[18], Mortimer J held that the legislation, as it relates to the access criteria, requires "a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multi-faceted".[19] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster,[20] also outlined that the legislation requires a functional, practical assessment of what a person can and cannot do.

1. The hearing of the application took place via video link over two days on 14 and 16 May 2025.
2. Mr Rushen was represented by Ms Jane Ogunkoya from Advocacy Tasmania. The Agency was represented by Mr Tim Noonan of Counsel instructed by Moray and Agnew Lawyers.
3. The witnesses who gave evidence were the following:
   • Mr Rushen.
   • Dr Ravindran (Psychiatrist),
   • Mr Prathipraj Devaraj (Occupational Therapist)

The parties agreed that the areas in contention between the parties were:

• Whether Mr Rushen's OCD is permanent or likely to be permanent under s 24(1)(b).
• Whether Mr Rushen's functional capacity in each of the six domains was substantially reduced under s24(1)(c).
• Whether Mr Rushen was likely to require NDIS support for his lifetime as required by s24(1)(e).

1. The partis jointly submitted an agreed Joint Tender Bundle which was entered into evidence as exhibit 1. This included Mr Rushen's Response to the Agency's SFIC which was received just prior to the hearing.

1. Mr Rushen provided answers to questions put to him by Mr Noonan for the Agency.
2. He confirmed that he has been receiving treatment for his OCD since he was fifteen years old.
3. He is currently prescribed three medications which he takes on a daily basis.
4. He stated that he has had several hospital admissions for treatment of his OCD. He has generally had two admissions each year since 2020, and they average about a month each time. He does receive some outpatient treatment primarily from his psychologist. He has also seen Dr Ravindran a couple of times since his last admission. He is scheduled for another admission later this year.
5. When he has been in hospital, he has had one on one sessions with his psychologist undertaking cognitive behaviour therapy (CBT) and exposure response prevention (ERP) therapy.
6. He described ERP as finding the root cause of impulsive responses and confronting those impulses in a segmented manner.
7. He has found it difficult to regularly access CBT in the community. While he has had some telehealth appointments, his psychologist has recommended he have face to face sessions.
8. He also sees Dr Ravindran usually using telehealth.
9. He had previously undertaken a weeklong Dialectic Behaviour Therapy (DBT) either in 2023 or 2024, however he did not complete the course, He stated that he found the sessions confronting as listening to others in the group triggered some of his intrusive thoughts. As a result, he became anxious and needed some time to recover.
10. Mr Noonan asked Mr Rushen about when he attended the Kingdom Hall.
11. Mr Rushen said he would usually attend twice each week. On one day he would attend a service in the morning and then attend a group session in the afternoon where a bible passage would be discussed. He said that in most cases in the bible discussion group he would be primarily observing.
12. The other day he attends would be out in the community where church members would set up a stall and speak with members of the community who may engage with them. He said that his primary role was to keep an eye on the cart and its contents and sometimes speak with members of the public, but this did not happen often.
13. He said that he usually catches up with a friend for a coffee or lunch two or three times a week, not the five times in Mr Devaraj's report.
14. Asked about whether he played video and other games, Mr Rushen said he did this usually to pass the time and he would play online games on his own.
15. Mr Noonan asked Mr Rushen about the various things Mr Devaraj asked him to do during the functional capacity assessment.
16. He said that Mr Devaraj asked him to go up and down the stairs, make a cup of coffee and use a vacuum cleaner.
17. He agreed that he had an emotional 'meltdown' when using the vacuum cleaner.
18. His cleaner is provided by Anglicare and comes once a week. He does his best do other cleaning between visits but finds this difficult due to his OCD symptoms.
19. In terms of his self-management, he pays his bills through Centrepay and sets up these payments himself. Most of the time he manages this but occasionally he forgets to do so.
20. He has a friend help him with driving so he can do his grocery shopping. He has surrendered his driver's licence based on his GP's advice.
21. He finds it difficult using public transport due to his OCD symptoms. He did take a bus last year but only because his usual community transport was not available on that day. He will generally use a local community transport service so he can attend appointments.
22. He said that he did not agree with the observation in Mr Devaraj's report that he lacked the willpower to do house cleaning and denied telling Mr Devaraj that. Rather he finds the whole process of cleaning mentally draining.
23. Asked if there had been any changes in his daily routine since Mr Devaraj did his assessment. Mr Rushen said it was largely the same although he now cooked at home less often.

1. Mr Devraraj after making his affirmation, provided an outline of his qualifications and experience, and indicated that his particular area of expertise was assessing those with psychosocial conditions.
2. He also provided an outline of his methodology including the assessment of Mr Rushen over three days, and his interview of Mr Rushen's brother and support worker.
3. Asked if he wished to alter anything in his report, he stated that he wished to change the current heading of the summary of the WHODAS assessment from 'Extreme Disability range' to 'moderate disability range.'[21]
4. Mr Devaraj was referred to page 2 of his report (JTB 116) and his observation about Mr Rushen where to break the cycle of compulsion he would contract his upper body muscles, clench his fingers and close his eyes. He was asked whether he considered it may be related to Mr Rushen's diagnosis of psychogenic seizures. Mr Devaraj said he was not in a position to comment. Similarly, he demurred from commenting on any recommendations about prescribed medications as this was best done by a psychiatrist.
5. Asked about his observation under life skills that Mr Rushen lacked motivation and interest for cleaning,[22] Mr Devaraj said by that he meant that Mr Rushen has the capacity to clean, but that would depend upon his mood and what he was going through on any given day and that this was related to his disability
6. He was asked if his views on Mr Rushen's capacity for social interaction would vary if, as Mr Rushen has indicated in his evidence, he goes out in the community usually three days a week, and not as indicated in his report, five days a week. In response he said it would not change his opinion.
7. He indicated that in the area of capacity for social interaction, Mr Rushen is moderately impacted.
8. In the domain of self-care, he considered that Mr Rushen can manage his self-care but his OCD can delay him in doing his daily tasks, but not prevent him from doing so.
9. Asked about the three recommendations he made at page 13 of his report,[23] Mr Devaraj said these could be provided either individually or in a group setting and could be provided either through mainstream or NDIS funded supports. As this may be an important aspect of my consideration, I will record that evidence as recorded in the transcript:

Can you explain to the tribunal what kind of supports those are?---So the [recommendations] I have made are both NDIS specific and mainstream specific services. The first one I have mentioned here is strategies to manage his anxiety and possibly getting him to a cognitive behaviour therapy or anxiety management, which are provided by mainstream as well as NDIS, which is technically can be (indistinct) by a psychiatrist or a psychologist. The second one I have mentioned is providing assistance with task planning and organisation, which will be working with Mathew to understand how we can balance his life with having a disability which takes a challenge in planning your task, for example, keeping with working from morning until evening so that he doesn't have to be stressed or anxious. So, if he has (indistinct) can be predicted and which he knows what's going to happen through the day, that might keep Mathew's anxiety in a manageable way and that can be a more productive day and the (indistinct) could give Mathew a bit more of a meaningful life. So the third recommendation I have made here is getting opportunities for the community program through mainstream, which is also something I would like to recommend, because having a bigger community support, especially like a self-help group or self-support groups with people with mental health needs, which happens in the community, which will be a great tool for Mathew to build strategies and support from each other in the community, which will also expand Mathew's social network.

Thank you. Mr Devaraj_, do you have a view on how these supports would or could be most appropriately provided to Mr Rushen?---In terms of size of the structure of the group - structure of the program, it could be in a group or it could be in a one-to-one, but I believe with Mathew's given capacity, Mathew would do well with a group setting - a small group setting and from there, he can progress to a bigger group for treatment. In terms of the program accessibility, I would prefer Mathew goes to program something which is within his locality, which is Burnie. That would be easy for Mathew to access independently with minimal support. Yes. Did I answer the question?_

Yes. Thank you. Can I just confirm, Mr Dev_a_raj, I'm not sure I might have misheard your before. Are all three of these categories of supports that are available through both mainstream and NDIS services or are some only mainstream and some only NDIS?---Mainstream and - so mainstream services, especially for point number 1, receiving cognitive behaviour therapy or anxiety management techniques, mainstream offers limited sessions with people with need. However, with NDIS, Mathew may receive a longer continuity of care. So, for example, the mainstream initially Mathew has to go for five psychology sessions and it will literally not be sufficient or enough to help with his needs.

Thank you. For the other supports?---The other supports are mostly through organisations which receive government funding, so that could be free of cost, or it should be NDIS base funding.[24]

1. Dr Ravindran was asked by Ms Ogunkoya what treatments were available to remedy OCD and mixed anxiety.
2. Dr Ravindran said that was a very broad question. Mr Rushen has been provided many treatments, including seven hospital admissions in the past four years, cognitive behaviour therapy (CBT) and dialectical behaviour therapy (DBT) and he considered that the treatment options have been exhausted.
3. Dr Ravindran stated that he considers Mr Rushen's concentration and ability to focus is impaired and as a result, he finds it difficult to socially engage and use public transport and needs assistance in this regard.
4. Asked by Ms Ogunkoya as to the thinking behind the supports he recommended for Mr Rushen, Dr Ravindran said the following:

Well, I think to improve his functional quality - ability and quality of life because of his impairments. There's also CBD - moderate with the anxiety, as well as when I was working with him, moderate depression. He was limited in various aspects of his daily living. His concentration and focus was impaired. He took a much longer time to complete tasks. This is because his organisation and planning is affected by his impairment, like his mental health disorder. He found it very difficult to actually engage with other people, socially engage. He found it difficult to jump on buses - purely began because his OCD and anxiety. So, there was a lot of support that I thought that he would benefit from in terms of just in social engagements and activities of daily living.[25]

1. Asked whether only a physical assessment of functional capacity can determine if a patient's capacity has been reduced, Dr Ravindran stated that such an examination has its place but has its limitations. This is because it is only a snapshot in time and is quite dependent in its timing as to what is observed. Mr Rushen on a good day, can do most things but would be unable to do so on a bad day.
2. If the OT conducted his assessment on a good day that assessment would not adequately capture his functional limitations as these are fluctuating. He has observed this variable mental state in Mr Rushen while he has been an inpatient.
3. Mr Noonan asked Dr Ravindran if he agreed that it would be good if an occupational therapist conducting a functional assessment has experience with working with those with psychosocial issues. Dr Ravindran agreed that is the case, but also noted that it was also important for such assessments be conducted longitudinally over a period of time.
4. He agreed that it would be appropriate for an assessor to obtain collateral information from Mr Rushen's brother and support worker.
5. He again confirmed that in his view, as an inpatient psychiatrist all treatment options have now been trialled, however he would recommend that Mr Rushen continue to engage with CBT sessions with a psychologist. Such treatment is evidence-based for those with OCD. He would need to remain engaged with such therapy for at least a year and preferably fortnightly at which time his case would need to be reviewed.
6. He will also benefit from being provided social supports as isolation and loneliness are important issues for Mr Rushen.
7. In terms of prognosis if he continues with the recommended treatment, it may reduce the severity of his conditions leading him to have a higher proportion of good days, reduce the severity of any relapse and improve his quality of life.
8. Asked about funding for ongoing psychology sessions Dr Ravindran stated it could be under a mental health plan or through the NDIS. He acknowledged that the number of psychology sessions under a mental health plan would be limited.
9. Asked if having such sessions conducted via telehealth would be appropriate, Dr Ravindran stated that while telehealth has been a game-changer, however knowing Mr Rushen well, he considered that he would be better served by in person, one-to-one therapy sessions with a psychologist he had developed rapport and a relationship of trust.
10. At the conclusion of evidence both Ms Ogunkoya and Mr Noonan indicated that they wished to provide written final submissions. I permitted each party to make post-hearing submissions and set out a timetable for these to be submitted with the final date being 6 June 2025.

1. As I noted immediately above, I issued directions outlining the timing of the provision of closing statements. These were:
   • The Respondent to provide its written submissions by Friday 30 May 2025.
   • The Respondent to provide its written submissions by Friday 6 June 2025.
2. Ms Ogunkoya later requested a one-week extension to 13 June to provide her submissions which I granted.

1. The Agency's submissions were provided on 30 May 2025.
2. With respect to the question as to whether Mr Rushen's impairments arising out of his OCD, are permanent, the Agency asserted that the Tribunal could not be positively satisfied that there are 'no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment', as required by r 5.4 of the Access Rules.
3. In support of that contention, the Agency referred to various aspects of Dr Ravindran's evidence at the hearing.
4. The Agency cited the evidence given by Dr Ravindran at the hearing and in particular his responses to questions put to him by the Agency's Counsel concerning the permanence of his OCD and the availability of treatment options.
5. Responding to a question as to whether there was treatment available that would 'remedy' Mr Rushen's condition, Dr Ravindran stated:

'I think I'll probably find it difficult to answer saying there is or there isn't.'

1. Dr Ravindran in his evidence indicated that he considered that all the inpatient treatment options at his clinic had been 'exhausted' however he believes that ongoing psychology sessions in the community could be beneficial in that it could:

improve the quality of his life; reduce the intensity of relapses; increase the number of good days. It's important that the bad days that he experiences - and help him with, you know - maintenance in terms of targeting his OCD and anxiety and depression

1. In terms of the frequency of those sessions, Dr Ravindran considered this should be on a weekly basis.
2. The doctor noted the shortage of psychologists in the area and acknowledged that this may necessitate some sessions being conducted via telehealth.
3. The Agency made the following submission by way of conclusion:

While it is acknowledged that the provision of this by telehealth may not be the ideal form of treatment in Dr Ravindran's view, it is submitted that at least some engagement with psychotherapy in a community setting is necessary before the conclusion can be reached that there are 'no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment'. Accordingly, the Respondent submits that the Tribunal cannot be positively satisfied that the impairment associated with the Applicant's OCD is permanent in the necessary sense.

1. Turning to the question of whether Mr Rushen has a substantial reduction in his functional capacity in each of the six domains in the NDIA Act, the Agency indicated it would rely on Mr Devaraj's evidence.
2. The Agency acknowledged that there was no doubt that Mr Rushen lives with disability in the form of impairments associated with his OCD. However, it contended that the impact of these impairments does not rise to the level of a 'substantial reduction' in functional capacity.
3. After making some preliminary observations concerning the available evidence and the relevant legal requirements in order to reach a finding that a person's functional capacity was substantially reduced, the Agency submitted that:

viewed as a whole, the evidence demonstrates that the Applicant's functional capacity in the areas of social interaction, self-care and self-management are not substantially reduced.

1. In terms of the evidence, it noted that while there were various pieces of evidence Mr Rushen provided the Tribunal which commented on his functional impairments, only Mr Devaraj's report provided the required level of detail as to his capacities in the six functional domains.
2. The Agency noted that Mr Rushen attends a number of regular activities in the community including attending his church and related activities and catching up with a friend for a coffee.
3. Although the Agency accepted that Mr Rushen's level of participation in these activities may be more limited (for example, not talking much during lunch, or largely listening to the discussion during scripture classes), it submitted that the Applicant does not have 'substantially reduced functional capacity' in terms of activities of social interaction.
4. Turning to Mr Rushen's functional capacity in the areas of self-care or self-management, it asserted that both the documentary evidence and the evidence at the hearing demonstrate that Mr Rushen is able to more than adequately manage his personal affairs, including making arrangements for transport within the community, bills, and booking and arranging medical appointments.
5. The Agency noted that while the evidence suggests Mr Rushen may experience difficulty in performing certain tasks (such as vacuuming) which may be interrupted by his OCD symptoms, it submitted that when viewed as a 'bundle of tasks and actions forming the concept of self-care', Mr Rushen does not have substantially reduced functional capacity.
6. Addressing the early intervention criteria, the Agency noted that it did not appear that Mr Rushen was seeking to rely on this second access gateway to the scheme.
7. In this regard the Agency stated:

The Applicant also does not satisfy the criteria in s 25 of the Act, even if the impairment associated with his OCD is permanent. Although Dr Ravindran's evidence was that the provision of psychology supports may benefit the Applicant in the manner set out at paragraph [4] above, this does not rise to the level of establishing that it would be 'likely to benefit the [Applicant] by reducing his future needs for supports in relation to disability', especially given the evidence does not suggest the likely trajectory of the Applicant's OCD involves an impact that is expected to increase over time in a manner that may be mitigated by the provision of early intervention supports.

1. Before concluding this section of my decision, I note that the Agency did not specifically address in its submission, section 24(1)(e) of the NDIS Act, namely whether Mr Rushen was likely to require NDIS support for his lifetime.
2. However, I am safe to assume this was not specifically addressed as it had already contended that Mr Rushen's condition was not permanent and that he did not have a substantial reduction in functional capacity.
3. As I have already noted, in order for an applicant to be found eligible for the NDIS, they must meet all the eligibility criteria in section 24 of the NDIS Act.

1. Mr Rushen's submissions were received on 16 June 2025.
2. Ms Ogunkoya on Mr Rushen's behalf contended that his impairments are permanent, and they result in a substantially reduced functional capacity in the domain of social interaction.

1. Addressing the question of permanency the submission noted that section 24(1)(b) of the NDIS Act states that:

An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment

1. Citing NDIA v Davis [2022] FCA 1002, Mortimer J clarified that for an impairment to be considered permanent, there must be "no known, available and appropriate treatment likely to remedy the impairment."
2. It contended that Mr Rushen's impairments met the criteria set out in Forbes, in that:

• He has longstanding psychosocial impairments due to severe OCD.
• He has trialled a broad range of evidence-based treatments including cognitive behaviour therapy (CBT), dialectical behaviour therapy (DBT), pharmacological interventions and inpatient programs.
• He has engaged in these treatments in good faith, with only limited or temporary improvements.
• He continues to have significant functional impairments, despite ongoing attempts to engage in care.
• His pharmacological interventions have been for maintenance only and are not curative.
• CBT was effective only in highly supported inpatient environments; outside of that, his symptoms returned to baseline
• DBT led to a worsening of symptoms and had to be discontinued.

1. The submission referred to rule 5.5 of the Access Rules:

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.

1. In this regard, the submission noted the following:
   • The Applicant's condition is enduring and recurrent. While he may exhibit short-term improvements in highly structured settings, his symptoms return to baseline upon discharge.
   • Any gains are not sustained, and impairment remains present over time.
   • The fluctuating nature of the condition does not negate its permanence, nor do the fluctuations disqualify the condition from being considered permanent as per Rule 5.5 and the tribunal's reasoning in Davis.
2. Referring to rule 5.6, which states that the impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review for its permanency or likely permanency to be demonstrated, the submission contended that:
   • Mr Rushen has undergone extensive medical and psychological treatment across multiple settings over a prolonged period including medication trials, inpatient admissions, multiple therapies and outpatient and community-based care.
   • Mr Rushen's treating psychiatrist did not identify any further medical treatment required to demonstrate permanency.
   • No new therapies have been proposed, and the Agency has not identified any outstanding reviews or treatments likely to alter the diagnosis or prognosis of the applicant's impairments.
   • Telehealth was not identified by any clinician as a suitable new treatment that would remedy the impairment.

1. Mr Rushen submitted that the evidence establishes that he has a substantial reduction in functional capacity in the domain of social interaction as it relates to his diagnoses of OCD, anxiety and depression.
2. In that regard it was noted that:
   • While Mr Rushen may be able to leave the house at times and physically attend social settings, this does not equate to possessing functional capacity for social interaction.
   • The evidence establishes that while he may be physically able to leave the house and attend some social environments (e.g., sitting silently at a Bible group two or three times a week, reading scripture, and occasionally answering questions, meeting a friend and not saying much), these actions are often conducted minimally, and marked by significant internal distress such as racing thoughts and meltdowns as set out in Mr Rushen's Statement of Lived Experience (SOLE).
   • This evidence of his level of social distress is corroborated by his psychiatrist and further explained during Dr Ravindran's re-examination with support recommendations.
3. The Applicant submitted that the evidence establishes a substantial loss of functional capacity in that:
   • He does not effectively or completely carry out social interaction tasks such as engaging meaningfully or regulating behaviour within interactions due to his impairments.
   • His impairments inhibit his ability to participate in social interaction settings such as DBT groups due to face-to-face anxiety.
   • His internal experience of impairment in social situations, as described in his SOLE, reveals ongoing functional impairment consistent with a substantial reduction in capacity for social interaction.

• The Agency's reliance on superficial indicators, such as attending church or occasionally meeting a friend, to determine functional social capacity is misplaced. These activities do not demonstrate an intrinsic ability to engage in meaningful, reciprocal social interaction.

1. The National Disability Insurance Scheme (NDIS) itself recognises this distinction. Autism Spectrum Disorder Level 2 is included in List A - conditions that are likely to meet the disability requirements, even though individuals with this diagnosis may attend community settings. This inclusion reflects the understanding that mere physical presence does not equate to functional social capacity. Although the applicant has OCD not autism, the same principle applies. Routine participation in social environments does not mean the person has the functional ability to interact socially without significant impairment. OCD can substantially limit social engagement despite outward appearances.
2. Rule 5.8 of the Access Rules represent deeming provisions that must be applied when the Tribunal is considering whether the Applicant's impairment results in a 'substantially reduced functional capacity' and provides as follows:

An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. Mr Rushen submitted that he would require lifelong support through the scheme based upon the recommendations of Dr Ravindran, the Independent Medical Assessor, and his mental health worker as outlined in his response dated 12 May 2025 to the Agency's SFIC.

1. Taking account of those eligibility criteria that the Respondent has previously acknowledged Mr Rushen meets, and those that Mr Rushen has now withdrawn, the various matters to be determined by the Tribunal are the following:
   • Is Mr Rushen's Obsessive Compulsive Disorder permanent?
   • Does Mr Rushen have substantially reduced functional capacity in the domains of communication, social interaction, learning, mobility and self-care or self-management? (s 24(1)(c))

• Is Mr Rushen likely to require support under the National Disability Insurance Scheme for his lifetime? (s 24(1) (f)).

1. I shall now consider these three questions before me.

Subsection 24(1)(b) Is Mr Rushen's OCD permanent?

1. Before addressing this element of the s 24(1) criteria, it is important to refer to other material such as the Access Rules, the Access Guidelines, and relevant case law which may assist me in making my assessment.
2. Subsection 24(2) provides that for the purposes of ss 24(1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite such variations. Subsection 24(3) also refers to impairments that are episodic or fluctuating. The expression "permanent" is not otherwise defined in the Act.
3. The meaning of "permanent" in ss 24(1)(b) was considered in detail by Mortimer J (as her Honour then was) in Davis.[26] In that case Mortimer J rejected an argument advanced by the respondent that permanent meant "irreversible" or "untreatable" (at [77]). Her Honour instead held (at [85]) that the correct meaning of "permanent" in ss 24(1)(b) is "enduring", noting that:

This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[27]

4. Further context to how to assess the permanency of an applicant's condition is contained in Part 5 of the Access Rules.
5. Part 5 of the Access Rules is headed "When does a person meet the disability requirements". Above r 5.4 to 5.7 is a subheading "When is an impairment permanent or likely to be permanent for the disability requirements?" Rule 5.4 is as follows:

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.

6. In Davis, there was significant debate and then lengthy consideration by Mortimer J as how the concept of permanence should be defined, with the learned Judge ultimately determining that the correct meaning of "permanent" was "enduring" and settled on this interpretation as this meaning took proper account of the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[28]
7. A significant consideration when seeking to establish that a condition is permanent, is whether there may be available treatment or treatments that are likely to "remedy" that condition. In Davis "remedy" was considered to mean "cure or substantially relieve", as opposed to temporary amelioration of symptoms.
8. Taking account of the guidance provided by both the NDIS Act, the Access Rules, the Access Guidelines and the case law I have cited, I have reached the following conclusions from the evidence:
   • Mr Rushen's OCD is a long-term condition having been present since at least his teenage years. He is now aged 38 years.
   • He has been in the care of his Psychiatrist, Dr Ravindran for a number of years and has required multiple lengthy hospital admissions at North West Private Hospital.
   • He has engaged in a range of evidence-based treatments including cognitive behaviour therapy, dialectical behaviour therapy, and been prescribed several psychotropic medications.
9. Despite this treatment, he continues to experience severe and debilitating symptoms that significantly affect multiple aspects of his daily life.
10. I note that Dr Ravindran in his testimony before the Tribunal indicated that he believed that Mr Rushen should continue with community-based sessions of CBT however he clearly indicated that this would be to provide continued support and maintenance and address issues of isolation and loneliness.[29]
11. Asked about Mr Rushen's prognosis with such ongoing treatment in place, Dr Ravindran said:

I think it would definitely reduce the kind of - the intensity and severity of his disorder; having more good days than bad days. It can improve the quality of his life in that manner; give him that support that he needs which is essential, as well for his anxiety and mood, not just his OCD. So, I think the prognosis with that - only thoughts is, in my opinion, you know - quite guarded, if that's the word I could use. But with supports, I think there would be a definite improvement in terms of his quality of life

1. My conclusion from the above summary is that while ongoing CBT would provide some benefit to Mr Rushen's quality of life, it will not amount to a "cure" or "substantially relieve" his symptoms which Mortimer J in D_avis_ considered appropriate synonyms for a "remedy".
2. In this regard I also note that Dr Ravindran identified such treatment as providing support and maintenance rather than offering a treatment pathway that would remedy his condition.
3. Based upon my consideration of all the evidence I consider that it has been established that Mr Rushen's impairments are permanent.
4. Therefore, I consider that section 24(1)(b) has been established.

Subsection 24(1)(c) Do Mr Rushen's impairments result in him having substantially reduced functional capacity in the domain?

1. Before considering this, I consider it useful to again refer to the relevant legislation, rules, guidelines and any applicable case law.
2. Rule 5.8 provides that:

An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(d) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(e) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(f) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by an applicant:

Does your impairment substantially reduce your functional capacity?

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

• 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.
• Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
• Learning - how you learn, understand and remember new things, and practise and use new skills.
• Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
• 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.
• Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day 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.

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

• a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

To help us decide if you're eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.

If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.

We consider how you're involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.

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

1. The Tribunal is not bound by those descriptions provided in the guidance as to the six Prescribed Activities in ss 24(1)(c) of the NDIS Act when assessing the criteria relating to "substantially reduced functional capacity". However, in general terms, the Tribunal considers that those definitions in the Access Guidelines operate as a good starting point in making that assessment.
2. As observed by her Honour Justice Mortimer (now, Chief Justice) in Mulligan,[30] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as "avowedly functional, and multi-faceted" and that:

...No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person. No qualitative judgments in that sense are called for.[31]

1. The judicial authority as outlined in Foster, calls for the Tribunal to make an assessment of the person's capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, taken as a whole.[32] This interpretation in Foster by the Full Court of the Federal Court of Australia stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity merely because they have difficulty with one task related to that activity:
2. The Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by "effectively and completely" as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows:

[83] In the overall legislative scheme, the adverb "completely" appears to be redundant, and in any event, unachievable. If "completely" is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person's impairment results in substantially reduced functional capacity to participate "wholly" or "perfectly" in the activities of communication, social interaction, learning, mobility, self-care and self-management - an impossible bar for almost everyone.

[88] Within this statutory context and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity. [33]

1. As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under ss 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of r 5.8 of the Access Rules.[34] Instead, her Honour, Justice Mortimer, made clear that the statutory task before a decision-maker was to consider whether a person's functional capacity is substantially reduced in any of the six Prescribed Activities.
2. I note that Mr Rushen has limited his submissions on this criterion to the domain of social interaction and, therefore I will restrict my consideration to this single domain.
3. As I previously noted, the Agency's position is that while it acknowledges that there is no doubt that Mr Rushen lives with disability in the form of the impairments associated with his OCD, it contended that the impact of these impairments does not rise to the level of a "substantial reduction" in functional capacity.
4. The Agency notes that he attends regular activities in the community including attending his church and related activities and catching up with a friend for a coffee
5. The Agency further noted that while it accepted that Mr Rushen's level of participation in these activities may be more limited (for example, not talking much during lunch, or largely listening to the discussion during scripture classes), it submitted that the Applicant does not have "substantially reduced functional capacity" in terms of activities of social interaction
6. Returning to the deeming provisions in Rule 5.8 my view is that it does not apply to Mr Rushen's experience with his usual social engagement activities, which primarily involve his participation with his church services and other activities or meeting a friend for coffee or a meal.
7. The reason why I don't think rule 5.8 is relevant to his circumstances is:
   • He does not require assistive technology to participate effectively or completely in social activity, or to perform tasks or actions required to undertake or participate effectively or completely in social activity.
   • He does not require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in social interaction or to perform tasks or actions required to undertake or participate in social interaction.
   • He is not a person who is unable to participate in social interaction or to perform tasks or actions required to undertake or participate in social engagement, even with assistive technology, equipment, home modifications or assistance from another person.
8. However, making that finding does not preclude me from making a finding of substantial reduction in functional capacity. I will now give further consideration to the evidence from both Mr Rushen and the Agency as it relates to social interaction.
9. Dr Ravindran in his letter of 11 August 2022 identified anxiety, interfering behaviours, and low confidence as symptoms of his OCD.
10. He gave the following examples of the functional impact of his condition as it related to social interaction.
    • Difficulties responding to conversations and interacting with his community.
    • Impact on sense of purpose in life: connecting with faith/spirituality/volunteering/community.
    • Not actively involved when attending social or recreational activities.
    • Not actively involved in social events.
    • Very limited social contacts and involvement unless these are organised for the person.
    • Extreme difficulty interacting with other people and is socially isolated.
    • Interaction affected by specific behaviours - compulsive behaviours.
    • Minimal social contact (e.g. isolated and withdrawn).
    • Unable to attend work, education or training on a regular basis/other than for a short period.
11. Dr Ravindran in the same letter recommended the following supports for Mr Rushen:
    • Person to accompany when attending social events, at least for a short period/until trust and relationships are established.
    • Assistance or support for companion to engage in social interactions.
    • Personal supports to develop skills, provide coaching.
    • Personal support to provide motivation, accompany to build confidence, provide feedback.
12. Mr Rushen in his Statement of Lived Experience stated the following concerning his experience of social interaction:

Intrusive thoughts make social interactions incredibly challenging. These thoughts make me question everything I say or do, which means I struggle to communicate and connect with others. When I speak to people, I am usually fighting intrusive thoughts, worrying what they are thinking or whether what I am saying is right, which means I can't always listen or engage with the other person. Obviously, this impacts my ability to have meaningful friendships, but even just to communicate with people I don't know in social situations or other settings. It also means social interactions are draining, and often the thought of talking to people is overwhelming as I know it will be a bad experience.

1. Mr Devaraj made the following observations about Mr Rushen's capacity for social interaction:[35]

Reduction in Functional Capacity for Social Interaction:

Mathew experiences a reduction in his functional capacity for social interaction, primarily due to his OCD and anxiety. These conditions affect his ability to participate in broader social and community activities. However, Mathew also understands his strengths and weaknesses as he is introverted and has never been outgoing enough to make new friends other than a small circle of friends from church.

Mathew is able to interact with others in various social situations, including face-to-face, by telephone, and through group environments at his church. He actively participates in church activities and community outreach programs, which involve interacting with unfamiliar people.

Mathew maintains a close-knit group of friends, primarily from his Jehovah's Witness congregation. He interacts with them regularly through church activities and social gatherings. He also uses phone calls and text messages to keep in touch and not make plans for meetings. His brother regularly checks in on him to monitor his well-being.

Mathew engages with the community through his church activities and outreach programs. He also interacts with shop workers when he needs assistance and manages these interactions independently.

Mathew does not require any specific assistance to interact with others in social situations. He manages these interactions independently without the need for aids or devices.

The support Mathew receives from his church community is likely to continue being beneficial. Participation in mental health-focused community programs could further reduce his support needs, but these are currently inaccessible due to transport limitations. Linking up Mathew with a local (Burnie) mental health organization to participate in mental health-related community events will be beneficial.

Mathew is currently unemployed with no vocational goals. He previously worked part-time jobs in a café and a fish and chip shop. His hobbies include playing computer games and watching TV. He has expressed interest in participating in community programs focused on mental health.

1. Mr Devaraj when reporting on any inconsistencies between Mr Rushen's self-reporting and what he observed stated:

Mathew's self-reported functional capacity sometimes differs from what is observed:

Anxiety and Social Outings: Mathew reports anxiety when going out, yet he regularly attends lunch at cafes with friends five days a week and engages in community outreach activities consistently. This suggests he manages his anxiety effectively in specific social contexts.

1. It does not appear from Mr Devaraj's report that he observed Mr Rushen interacting with others in the community. His report indicates all observations of Mr Rushen took place in his home. Mr Devaraj was asked during his testimony whether any of those conclusions and recommendations was based upon observing Mr Rushen in a community setting. He confirmed that he had confined his functional assessment to within Mr Rushen's home.
2. I consider that Mr Devaraj has therefore assumed that because Mr Rushen is able to participate in community outreach activities and social engagements with friends that he therefore manages his anxiety effectively while in the community.
3. Also, I note that Mr Rushen in his evidence said that he will meet up with a friend twice and sometime three times per week, not the five days as indicated in Mr Devaraj's report.
4. In my view, I consider the evidence from Dr Ravindran and Mr Rushen's statement carries greater weight than that aspect of Mr Devaraj's reports when taking into account the inherent shortcomings of that opinion in the absence of direct observation in a community setting.
5. Dr Ravindran has been Mr Rushen's treating psychiatrist for at least five years and has had the opportunity to observe him is both individual and social settings during his extended hospital admissions.
6. Mr Rushen's statement then provides the context of his inner life and how he subjectively feels when out in the community, and, in particular his level of anxiety and the debilitating effects of intrusive thoughts as he does so.
7. I have therefore concluded that Mr Rushen has a demonstrated substantial loss of functional capacity in the domain of social interaction.

Subsection 24(1)(d) Do Mr Rushen's impairments affect his capacity for social or economic participation?

1. I note that the Agency in its SFIC stated that if Mr Rushen's impairments are found to be permanent for the purpose of s 24(1)(b), then it accepts that his impairment does appear to have affected his capacity for social and economic participation.
2. Based upon that concession. I find this criterion has been established.

Subsection 24(1)(e) Is Mr Rushen likely to require NDIS support for his lifetime?

1. I have already found that Mr Rushen's impairments are permanent. Also, I do not consider based upon the evidence, that Mr Rushen is likely to reach a point in his life, where his OCD and resulting impairments is not a significant factor in his daily life.
2. In its SFIC the Agency submitted that:

In National Disability Insurance Agency v Foster, the Full Court of the Federal Court held that:

a. the focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS or whether those support needs are most appropriately met by other systems; and

b. the answer to that question depends on whether the support is required in respect of substantially reduced functional capacity to participate in an activity, as assessed in accordance with s 24(1)(c).71

The Respondent notes that a range of service providers that operate in the area in which the Applicant lives that, according to information they publish, offer services of the kind suggested as being of assistance by Dr Ravindran and Mr Devaraj. The Respondent contends that there is no evidence to suggest that these services could not provide supports to meet his access needs.[36]

1. My understanding of Dr Ravindran's recommendations as to future treatment for Mr Rushen is that he requires:
   • Long-term ongoing psychological support to address both his OCD and anxiety.
   • Community-based supports to assist Mr Rushen access the community and certain in-home supports.[37]
2. While Dr Ravindran has not specified any particular length of time such supports will be required, he has indicated that the important consideration is the consistency and stability of such psychological supports over an extended period. Dr Ravindran was unable to comment on whether NDIS or the mainstream health services was best placed to provide this support, however the important consideration was that the support was consistently available over the long-term.
3. Mr Devaraj makes similar recommendations as to Mr Rushen's future support needs. Mr Devaraj in his testimony noted that these could equally be provided through the NDIS or community based mainstream services.
4. Taking account of these recommendations, I consider that NDIS is best placed to provide both the recommended psychological support and community-based support worker assistance.
5. Taking account of the material before me and having followed the guidance provided in Foster, I am satisfied that the supports likely to be required by the Applicant are most appropriately funded through the NDIS and not through another system of service delivery. I am satisfied that the Applicant is likely to require support under the NDIS for his lifetime.

1. I have already established that Mr Rushen meets all the eligibility criteria in section 24, and therefore do not need to assess this other eligibility gateway.

1. It is not disputed that Mr Rushen meets the requirements of sections 22 and 23 of the NDIS Act.
2. For the reasons given above, the Tribunal is satisfied that Mr Rushen meets the disability requirements set out in section 24 of the NDIS Act.
3. Accordingly, the Tribunal finds that Mr Rushen meets the access criteria set out in section 21 of the NDIS Act.

1. The decision under review is set aside and, in substitution, the Tribunal decides that Mr Rushen meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

...........................[sgd].............................................

[1] Documents lodged under s 23(b) of the Administrative Review Tribunal Act 2024 (Cth) ('TD').

[2] Report of Dr Ravindran dated 27 February 2024 Joint Tender Bundle (JTB)

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

[14] (1979) 46 FLR 409 ,420.

[15] [2018] FCA 1229.

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

[18] Mulligan v National Disability Insurance Agency [2015] FCA 544 ('Mulligan') [55].

[20] National Disability Insurance Agency v Foster [2023] FCAFC 11 ('Foster').

[30] Mulligan (n 12) [55]-[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.