3. The NDIA considers that RVTJ does not meet the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act') because he does not meet either of the "disability requirements" under s 24, or the "early intervention requirements" under s 25 of the NDIS Act.
4. On 27 January 2022, RVTJ lodged an application for review with the Administrative Appeals Tribunal ('AAT').[1] On 14 October 2024, the AAT became the Administrative Review Tribunal ('this Tribunal') following the abolition of the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the AAT that were not finalised before 14 October 2024, are to be continued and finalised by this Tribunal. Anything done in relation to this proceeding before 14 October 2024, is taken to have been done by this Tribunal. Neither party disputed that this Tribunal has authority to deal with the present application.
5. The Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act'), operating in conjunction with s 103 of the NDIS Act.
6. In this proceeding and at the substantive hearing, RVTJ was self-represented. The NDIA was represented by Sparke Helmore Lawyers and Ms Kate Stowell of counsel.
7. For the reasons set out below, the Tribunal affirms the Decision Under Review.

1. The primary issue arising for consideration in this application is whether RVTJ meets the access criteria under s 21 of the NDIS Act.
2. The NDIA accepts that RVTJ meets the "age requirements" under s 22, and the "residence requirements" under s 23 of the NDIS Act.
3. Accordingly, the focus of this application is whether RVTJ meets either the "disability requirements" under s 24 of the NDIS Act, or the "early intervention requirements" under s 25 of the NDIS Act. The NDIA contends that RVTJ does not meet either of those requirements.
4. The Tribunal will need to decide whether RVTJ has any impairments which meet the requirements under subsection 24(1)(a) (or subsections 25(1)(a)(i) or (ii)) of the NDIS Act) and if so, to identify any such impairments.
5. The Tribunal also will need to decide whether any one or more of RVTJ's impairments are, or are likely to be, permanent under subsection 24(1)(b) (or subsections 25(1)(a)(i) or (ii)) of the NDIS Act.
6. The NDIA contends that RVTJ's current impairments do not meet the required threshold under subsection 24(1)(c) of the NDIS Act because they do not result in "substantially reduced functional capacity" in RVTJ undertaking any one or more of the six prescribed activities under subsections 24(1)(c)(i) to (vi) of the NDIS Act, namely, "communication", "social interaction", "learning", "mobility", "self-care" and/or "self-management" (to be referred to collectively in this Statement of Reasons as the 'Prescribed Activities'). The Tribunal will need to consider what RVTJ can and cannot do and make findings about the degree to which RVTJ's functional capacity to undertake any one or more of the Prescribed Activities has been reduced as a consequence of his permanent impairment/s and specifically, whether any such reduction has reached the required threshold of being "substantial".
7. If the Tribunal is satisfied that each of the criteria under subsections 24(1)(a), (b) and (c) are met, the Tribunal will need to decide whether RVTJ's impairment/s affect his capacity for social and economic participation under subsections 24(1)(d) and (e) of the NDIS Act.
8. Regarding the early intervention requirements under s 25 of the NDIS Act, if the Tribunal concludes that the mandatory criterion under subsection 25(1)(a) has been met (in this case, relating to whether any impairment/s are, or are likely to be, permanent), it will also need to decide:

(a) whether the remaining two mandatory criteria under subsection 25(1)(b) and (c) of the NDIS Act have been met; and if so, > > (b) whether the circumstances prescribed in subsection 25(3) of the NDIS Act apply to RVTJ to otherwise exclude him from meeting the early intervention requirements.

1. Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:

and, at the time of considering the access request;

(b) the "residence requirements" under s 23 of the NDIS Act; and

(c) the "disability requirements" under s 24 or the "early intervention requirements" under s 25.

1. The NDIS Act was amended by the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 including provisions dealing with eligibility to access the NDIS. These amendments apply to access requests under s 18 of the NDIS Act that were made after the date of effect of these legislative changes, that is, on or after 3 October 2024. RVTJ's access request was made before 3 October 2024_._ Accordingly, the Tribunal must undertake its review of the Decision Under Review based on s 24 and s 25 of the NDIS Act as those provisions were worded before the legislative changes took effect on 3 October 2024.[2]
2. The applicable rules dealing with eligibility to be granted access as a participant in the NDIS are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('Access Rules').
3. The NDIA has issued guidelines relating to requests for access to the NDIS made before 3 October 2024, namely, National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024) ('Access Guidelines'). The Tribunal will consider and apply this policy guidance, unless it is inconsistent with the NDIS Act and the Access Rules.

1. On 16 May 2022, the NDIA lodged a set of documents with the Tribunal pursuant to s 37 of the former AAT Act, totalling 174 pages ('T-Documents').[3]
2. On various dates, RVTJ lodged evidentiary documents and written submissions in the form of letters to the Tribunal.
3. Specifically, on 2 August 2022, RVTJ lodged:

(a) a set of photographs relating to an issue that arose about the date of submission of his original access request;[4] and > > (b) a statement prepared by RVTJ focused on the date of submission of the original access request and other matters about his circumstances and claimed impairments.[5]

4. On 12 January 2023, RVTJ lodged a statement of medical conditions prepared by RVTJ.[6]
5. On 20 April 2023, RVTJ lodged an NDIS form entitled "Evidence of psychosocial disability form" completed by his treating psychiatrist, Dr DG,[7] on the same date.[8]
6. On 20 March 2024, RVTJ lodged a letter he had sent to the Tribunal and the NDIA dated 20 March 2024, about an issue which arose regarding the NDIA's request for RVTJ to submit to an independent medical examination.[9]
7. On 7 April 2024, the NDIA lodged a set of documents, totalling 45 pages, comprising documents downloaded from links embedded in a functional capacity assessment report prepared by an independent occupational therapist, Mr EM.[10]
8. On 14 August 2024, RVTJ sent a letter to the Registry of the Tribunal which has been received into evidence.[11]
9. On 16 August 2024, the NDIA lodged an individual hearing tender bundle with the Tribunal totalling 93 pages ('NDIA's HTB').[12] The NDIA's HTB comprised medical records and reports extracted from the sets of documents produced by third parties to the Tribunal under a number of summonses issued by the AAT and directed to RVTJ's former and treating doctors and clinicians.
10. On 28 August 2024, RVTJ lodged a copy of a letter he had received from My Aged Care dated 28 August 2024.[13] On 2 September 2024, RVTJ lodged a set of "My Aged Care" documents regarding RVTJ's My Aged Care "support plan" generated on 26 July 2024.[14]
11. On 30 January 2025, the NDIA lodged an expert medical report of the same date prepared by Dr JH,[15] an independent psychiatrist engaged by the NDIA to examine RVTJ.[16]
12. On 25 February 2025, the NDIA lodged a functional capacity assessment report of the same date prepared by Mr EM.[17]
13. On 6 March 2025, the NDIA lodged its Statement of Facts, Issues and Contentions ('NDIA's SFIC').
14. On 23 March 2025 (one business day before the substantive hearing day), RVTJ sent an email to the Tribunal attaching 12 documents, including his (unsigned) Statement of Facts, Issues, and Contentions and a list of documents as referred to in his SFIC.[18]
15. The substantive hearing of this matter took place at the Tribunal over three days on 25 and 26 March 2025 and 14 April 2025.
16. On 25 March 2025, RVTJ lodged a signed Statement of Facts, Issues and Contentions dated 23 March 2025 ('RVTJ's SFIC').[19]
17. On 26 March 2025, RVTJ lodged a set of documents totalling nine pages relating to investigations as to whether RVTJ had the condition of "peripheral neuropathy".[20] Those investigations revealed that RVTJ does not have this condition.
18. On 8 April 2025, the NDIA lodged a set of documents totalling 326 pages ('NDIA's Third HTB'), comprising:

(a) the Australian Government Commonwealth Home Support Programme Program Manual 2024-2025 Version 2 December 2024; > > (b) the Australian Government Home Care Packages (HCP) Program Operational Manual A guide for home care providers Version 1.5 November 2024; and > > (c) the Australian Government Schedule of fees and changes for residential and home care from 20 March 2025.

19. With permission from the Tribunal, the NDIA lodged further submissions and a set of annexures with the Tribunal on 23 April 2025 ('NDIA's Final Submissions'). RVTJ lodged submissions and a set of annexures in reply with the Tribunal on 28 April 2025 ('RVTJ's Final Submissions').

1. RVTJ did not to call any of his treating health practitioners to give evidence at the hearing of this matter. In the case of Dr RE, RVTJ's treating clinical psychologist who had diagnosed RVTJ with ASD, RVTJ said that Dr RE had told him RVTJ was reluctant to attend the Tribunal, because he had "given everything on the papers". In RVTJ's SFIC he stated as follows:[21]

I also make very clear point that [Dr RE] has always been available to be contacted in relation to his diagnosis. No one from the NDIA has bothered to make contact to ask for any clarification. The same issue applies to [Dr DG], [Dr AM], [Dr MP], etc. none of my doctors have been contacted.

2. At earlier case management conferences before the Tribunal when this matter was being prepared for the substantive hearing, RVTJ was made aware by the Tribunal that if he wanted his treating health professionals to give evidence in support of his application at the hearing, he would need to make those arrangements. The Tribunal also explained to RVTJ that if his treating health professionals were not willing to attend the hearing, that it was open to RVTJ to request that a summons to give evidence be issued by the Tribunal directed to any of those individuals. The Tribunal did not ever receive any such request by RVTJ for such summonses to give evidence.
3. As this matter progressed before the Tribunal, the NDIA requested that RVTJ submit to independent medical examinations by a psychiatrist and an occupational therapist. At first, those requests were resisted by RVTJ because he had had negative experiences with independent medical examinations previously. Subsequently, RVTJ provided his consent to undergo those assessments and they took place with:

(a) Dr JH, via video link. Dr JH issued a detailed medical report dated 28 January 2025 ('Dr JH's Report'); and > > (b) Mr EM, via a face to face functional capacity assessment at RVTJ's home. Mr EM issued a detailed medical report dated 24 February 2025 ('Mr EM's Report').

4. At the substantive hearing of this matter, RVTJ, Dr JH and Mr EM were called to give evidence.

1. RVTJ is currently 68 years old. The NDIA accepts that RVTJ meets the "age requirements" under s 22 of the NDIS Act because RVTJ made his request to access the NDIS shortly before his 65th birthday.[22] Accordingly, the Tribunal finds that RVTJ meets the "age requirements" under s 22 of the NDIS Act.
2. The NDIA also accepts that that RVTJ meets the "residence requirements" under s 23 of the NDIS Act and the Tribunal finds accordingly.
3. RVJT's speech is unimpaired. He has an Australian accent and English is his first language. He was self-represented at the hearing and was able to present his case and navigate the process in a capable manner. He was personable and able to control his emotions. He clearly articulated his position, could understand the questions being asked of him and was able to answer them. He was able to maintain his concentration during lengthy sessions. Throughout the hearing process, RVJT was respectful and polite towards to the Tribunal, its staff, and to the NDIA's representatives.
4. In terms of RVTJ's family history, his mother died about 35 years ago (when RVTJ was in his 30s), and his father died about 15 years ago. RVTJ has stated he had a good relationship with his parents.[23] At the hearing, RVTJ was asked if his parents were abusive to him. He answered, "No" and then added, "they were not supportive either". RVTJ does not have any siblings and he was raised as an only child.
5. RVTJ has been married twice. RVTJ has four children: his three eldest children from his first marriage and his youngest son ('S') from his second (current) marriage. RVTJ gave evidence at the hearing that he has seven grandchildren but that he is "not close to any of them".
6. RVTJ said his first marriage to his ex-wife ('Ex-W') ended at a time when RVTJ's mother and grandparents all died within the same 12-month period. RVTJ recounts this as being a very difficult time for him, as reflected in the reports issued by his treating health practitioners. Specifically, after the breakdown of his first marriage, RVTJ said he was left to care for his three children who, at that time, were all aged between four and eight years. RVTJ reported to Mr EM that Ex-W had assisted him to care for their children on the weekends.[24]
7. At the hearing, RVTJ confirmed that he was separated from his current wife ('W') for a period of time. During this period of separation, they continued to live under the same roof. RVTJ told the Tribunal that he has now reconciled with W and they are living together again as a couple. S, and his daughter from his first marriage ('D') aged in her 30s, also live in the family home presently with RVTJ and W. S is aged in his early 20s and is reported to have significant disabilities arising from ASD, ADHD, oppositional defiance disorder ('ODD'), global learning disability, Klinefelter syndrome/surgery to club foot, learning disabilities, anxiety, depression, suicidal thoughts and self-harm.
8. RVTJ and his family live in a four bedroom, three bathroom, single level home on a large suburban block of land,[25] in an outer suburb of Melbourne. There is a pool in the backyard, which RVTJ told the Tribunal that he maintains. The photographs contained in Mr EM's Report shows there is quite a lot of land and gardens around RVTJ's home, including an outdoor paved staircase leading up to the entrance of the home and areas of lawn.
9. RVTJ was obese when he was younger. RVTJ reports that he was taunted, beaten up, spat on, and the subject of schoolyard bullying when he was at secondary school. RVTJ believes that this has had a grave impact upon him. He said he did not feel well supported by the school, or his parents, during this period of bullying. RVTJ believes that he has PTSD and that this is likely to have arisen from the schoolyard bullying and subsequent reported workplace bullying at the end of his working career.
10. RVTJ is reported by his treating doctors to be in remission from a longstanding alcohol abuse disorder. RVTJ has managed to break this habit with support from a program at Hospital D.[26] RVTJ says he no longer drinks alcohol. The Tribunal accepts this evidence.

1. RVTJ is reported to have left school at the end of Year 12 and began an apprenticeship as a motor mechanic.[27] Reportedly, he did well in this role. His employer also owned a helicopter company so part way through his apprenticeship, his employer offered him a position as an apprentice aircraft mechanic. He finished the apprenticeship and was made leading hand of processes involving the overhaul of helicopter engines and components.[28]
2. Subsequently, over the next decade, RVTJ worked at three different companies working as a maintenance fitter. RVTJ stated that the reason he changed his employers during this time, was to increase his pay and to have varied experiences.
3. Then, RVTJ worked in the position of senior production manager for a milk company for about three years. Subsequently, RVTJ was employed as production manager at a company for about 21 years and held various roles over that time. RVTJ was made redundant from this company and took a year or two of leave. Then, he worked for a company in an outer suburb of Melbourne.[29] RVTJ worked at this company for two and half hours before the alleged "workplace bullying" took place which eventually led to his cessation of work at this workplace, and generally, in May 2018 for mental health reasons.[30]

1. RVTJ made a workers' compensation claim in relation to the alleged workplace bullying that occurred in about 2018. At first, this claim was contested. Subsequently, the claim was accepted. RVTJ's workers' compensation income payments have now ceased upon him reaching retirement age, but he continues to receive payment for some medical expenses under his WorkCover claim.[31]

1. As mentioned above, shortly before RVTJ reached the age of 65, he made a request under s 18 of the NDIS Act for access as a participant in the NDIS ('Access Request').[32]

1. On 14 January 2022, a delegate of the CEO decided that RVTJ does not meet the access criteria under the NDIS Act ('Access Decision').[33]
2. RVTJ sought an internal review of this decision under s 100 of the NDIS Act.[34]

1. On 1 April 2022, a different delegate of the CEO confirmed the Access Decision.[35] This is the Decision Under Review.

1. On 27 April 2022, RVTJ sought review of the Decision Under Review by lodging an "Application for Review of Decision" form with the AAT.

(a) he sees his treating general practitioner, Dr AM, once every two months; > > (b) he is seeing Dr RE for six sessions per year because of his "communication and ASD issues". RVTJ said those six sessions are subsided by Medicare and that he will pay the gap in fees, which is between $100 and $200 per one-hour session; > > (c) he sees Dr DG once every three to four months, funded by WorkCover, and would like to increase the frequency of those sessions; > > (d) he has stopped seeing the "lymphedema specialist" because it was too expensive (he said it would cost more than $300 for five minutes); and > > (e) he sees a physiotherapist every three to four weeks and will travel there by car. He said he attends about half of those sessions on his own. RVTJ said he does not have any issues getting into his car which he said he is able to drive.

1. At the hearing, RVTJ gave evidence that he takes the following medication as prescribed to him by his doctors:

(a) one tablet of Lisdexamfetamine (slow release) in the morning and then he takes Dexamphetamine between 12 noon and 1pm, for ADHD; > > (b) Propranolol which is a beta-blocker, "for adrenaline spikes/meltdowns for ASD". The Tribunal notes that in a medical report by Dr SGK (referred to in more detail below), RVTJ had told Dr SGK that the Propranolol was take to "relieve the physical symptoms of anxiety";[36] > > (c) Zyban, 150mg once in the morning, which RVTJ said was effective in helping with his depression; > > (d) Finasteride, for lymphedema, to reduce the build-up of fluid in his legs which he said are due to non-reversible valves. He said he sometimes gets pain in his legs but that it is "bearable"; > > (e) Terbinafine, for toe fungal control; > > (f) Nexium, for reflux issues since the bariatric surgery; > > (g) Valsartan, for his blood pressure; > > (h) Cilicaine, as a preventative antibiotic relating to his condition of lymphedema; > > (i) Cialis, for erectile dysfunction; and > > (j) Atorvastatin, for his cholesterol.

1. On 2 November 2021, Dr DG completed an NDIS "Access Request - Supporting Evidence Form" ('SEF'), in respect of RVTJ in support of his Access Request.[37]
2. On the SEF, Dr DG:

(a) described RVTJ's "primary impairment (i.e., the impairment with the most impact on daily life)" as being "autism spectrum disorder";[38] > > (b) stated that RVTJ has had this condition since birth;[39] > > (c) indicated that this impairment was not time limited and/or degenerative in nature;[40] > > (d) indicated that this impairment was currently being treated and the treatments include daily medication;[41] > > (e) stated that RVTJ's conditions are "stabilised and maintained";[42] > > (f) stated that RVTJ has had the following past treatments: "Medications, therapies - ACT, CBT, mindfulness". "ACT" is a reference to acceptance and commitment therapy. "CBT" is a reference to cognitive behavioural therapy. The medications were recorded as being taken daily;[43] > > (g) opined that there were no available, evidence-based treatments/interventions that were likely to substantially relieve RVTJ's impairment;[44] > > (h) opined that there were no early intervention supports likely to reduce RVTJ's future support needs;[45] and > > (i) indicated that a "DSM-5" assessment had been administered with RVTJ, and one other assessment (unspecified).[46]

3. On the SEF, Dr DG stated that RVTJ's other impairments include "ADHD" and "Psychosocial disabilities".
4. On the SEF, Dr DG stated that RVTJ's disability had substantially impacted his functional capacity in the domains of:

(a) "mobility" because Dr DG stated that RVTJ has difficulty using public transport, going to shopping centres, and leaving the house (which she said he only does so rarely and never for recreational activities);[47] > > (b) "communication" because Dr DG stated that RVTJ has difficulty interpreting communications and particularly nuances and non-verbal cues, which leads to miscommunications and frustrations. Dr DG stated that RVTJ also finds communication to be exhausting and requires a high level of concentration;[48] > > (c) "socialising" because Dr DG stated that he is "severely limited" and has "difficulty initiating and responding to conversations". Dr DG stated that RVTJ has "difficulty making and keeping friends" and has "no friends outside of the family". Dr DG described RVTJ's family life as "fractured and dysfunctional" and that he has little or no contact with his older children and grandchildren. She reported that RVTJ felt "lonely and awkward" and was "lacking in cinfidence [sic] socially". She stated that RVTJ lived an "eremite, solitary life";[49] > > (d) "learning" because Dr DG stated that RVTJ has severe difficulty organising tasks, planning, remembering, learning new information, concentrating, participating in group learning (classes, tutorials), and focussing on complex tasks. She reported that he has difficulties completing education or training and finds it very difficult to follow complex instructions, or concentrating on any task for more than a few minutes;[50] > > (e) "self-care" because Dr DG stated that RVTJ has issues with personal care/grooming, coping strategies, maintaining physical health, non-accidental self-injury, managing his medications, sexual health, and general well-being. She reported that RVTJ lived independently but may sometimes neglect self-care, grooming, or meals and needed some support (that is, occasional visits by or assistance from a support worker) to live independently and maintain adequate hygiene and nutrition;[51] and > > (f) "self-management" because Dr DG stated that RVTJ has "extreme difficulties in coping in situations involving stress, pressure, or performance demands". She reported that he has occasional behavioural or mood difficulties ranging from moderate to severe (such as temper outbursts, deeper depression, total withdrawal and isolation or poor judgement).[52]

WHETHER RVTJ MEETS THE DISABILITY REQUIREMENTS UNDER S 24

1. The "disability requirements" under s 24 of the NDIS Act are made up of five mandatory criteria 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:

(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. In the introduction to RVTJ's SFIC, RVTJ contends that he has provided sufficient evidence to meet the disability (and early intervention requirements), including impairment such as spinal cord damage, cervical myelopathy, MDD, ASD and ADHD. RVTJ states "Evidence that any fair-minded individual will agree positively satisfies every fact relevant to the statutory criteria for access into the NDIS".

1. The first criterion, under subsection 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have a "disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable".
2. In National Disability Insurance Agency v Davis ('Davis'), Mortimer CJ of the Federal Court of Australia made the following judicial observation (emphasis added):[53]

What the legislative scheme focuses on is not the name of a person's disability, nor the diagnosis given to a person - but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the "functional capacity" of a person.

1. The Access Guidelines provide the following guidance to decision-makers considering this criterion under subsection 24(1)(a) of the NDIS Act (footnotes omitted):

When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.

An impairment is a loss or significant change in at least one of:

To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below

• intellectual - such as how you speak and listen, read and write, solve problems, and process and remember information
• cognitive - such as how you think, learn new things, use judgment to make decisions, and pay attention

• neurological - such as how your body functions

• physical - such as the ability to move parts of your body.

You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.

It doesn't matter what caused your impairment, for example if you've had it from birth, or acquired it from an injury, accident, or health condition.

It also doesn't matter if you have one impairment, or more than one impairment.

1. RVTJ was previously obese for an extended period of time, including when he was young. In January 2018, RVTJ underwent gastric bypass surgery. The operation was successful. RVTJ is no longer obese, nor does he have any physical impairment/s arising from his former bodily condition of obesity.
2. RVTJ gave evidence that he suffers from daily urinary leakage due to a "weakness in the urinary tract". He uses continence products. RVTJ's My Aged Care support plan provides a referral code to allow RVTJ to receive support when sourcing the continence products. RVTJ says he pays for them privately and buys them from Chemist Warehouse. This condition does not cause RVTJ any physical impairment.
3. RVTJ also experienced problems with his knees. RVTJ said he underwent a left knee replacement in 2015, and that his knee is made of titanium. He said the other knee is "not good". This operation was successful and it remedied his knee problems. When asked whether he had any impairment arising from his knee conditions, he said that it is "not major" and will "restrict him sometimes".
4. RVTJ also previously suffered from carpel tunnel syndrome ('CTS') in both of his hands. He underwent surgery for this condition. The surgery was successful and RVTJ confirmed at the hearing that "it's fixed". In RVTJ's SFIC, he stated that the surgery had "remediated any impairments".[54] The Tribunal finds that RVTJ does not have any physical impairment arising from CTS.
5. RVTJ told the Tribunal at the hearing that he suffers from lymphedema which can result in fluid retention in his lower limbs and which can cause infections. RVTJ told the Tribunal he uses compression stockings at times. RVTJ also takes regular medication to reduce fluid retention in his legs, and antibiotics to prevent infections. Given the medical management of this condition, based on RVTJ's own evidence, RVTJ's lymphedema does not cause him any physical impairment/s.
6. In 2022, RVTJ experienced a sudden onset of severe neurological symptoms affecting his limbs and caused him to suffer vertigo and nausea, which was later discovered to arise from nerve compression in his cervical spine caused by canal stenosis. He was referred for specialist treatment by Dr SN, neurologist, Dr CT, neurosurgeon, and Dr SL, neurologist and clinical neurophysiologist.
7. On 2 May 2022, Dr SN issued a medical report stating that an MRI of RVTJ's spine had revealed significant spinal cord compression at the C3/4 and L2 to L5 levels. At that time, Dr SN opined that RVTJ's current issues included "a possibility of" cervical myelopathy and lumbar radiculopathy. He stated that RVTJ's symptoms (at that time) were disabling. He referred RVTJ to see Dr CT, who performed C-spine decompression surgery on RVTJ's spine on 10 May 2022. RVTJ later underwent a spinal procedure on his lumbar spine.
8. Dr SN reviewed RVTJ after the surgery. In Dr SN's letter dated 1 July 2022, he stated that RVTJ had regained "much of his strength and sensation" following the operation. Dr SN remarked that RVTJ's core strength, hand dexterity, and lower limb sensation had improved. Dr SN referred to the results of the nerve and muscle biopsies, which he described as showing minor nerve damage, as well as non-inflammatory myopathy. However, Dr SN offered no specific treatment for those issues, and instead, opined that "the bulk of [RVTJ's] problems" emanated from RVTJ's cervical spine. Dr SN noted that RVTJ was having rehabilitation (at that time) and was "doing exercises". He also noted, at that time, that RVTJ "required a walker to help with his balance".[55]
9. At the hearing, RVTJ told the Tribunal that he no longer required a walker to mobilise. RVTJ agreed that the C-spine decompression surgery/laminectomy procedures were a success.
10. More recently, RVTJ reported the return of some of his symptoms, for which he said he intends to return to see his treating specialists. Specifically, RVTJ stated in his SFIC as follows:

The Applicant does not accept the view that my lumbar myelopathy and peripheral neuropathy do not meet the access criteria under s24(1)(a).

Over the past 4 months there has been an alarming deterioration in my lumbar Myelopathy and peripheral neuropathy conditions' it is a recurrence of the same functional lose that lead to my near total loss of capacitance two years ago. To halt the deterioration, I am currently attending twice weekly chiropractic adjustments and physiotherapy every third week. I am waiting for written reports from both my chiropractor and my physiotherapist. I will also arrange for a referral from my GP [Dr AM] to a neurologist for follow up tests and MRI to be then sent to my neurosurgeon [Mr CT] for his comment and advice.[56]

At the hearing, RVTJ gave evidence that he is no longer seeing a chiropractor but he continues to see a physiotherapist every three to four weeks. Despite the indication above, RVTJ did not tender any clinical reports either from his physiotherapist or his chiropractor, nor call them as witnesses at the hearing of this matter.

1. RVTJ said that the main issues are his balance and stability. He says he still has "a little bit" of sciatica causing pain down into his legs. At a later point during the hearing, RVTJ said that his sciatica had been "reduced to virtually nothing". When asked whether he experiences neck pain, RVTJ said this is "not an issue". When asked whether he experiences lumbar pain, he said "this doesn't restrict me", except that he "can't walk for long distances". RVTJ gave evidence that the spinal surgery had "helped [him] enormously" and that he was "starting to progress again".
2. At the time of the spinal surgery, further investigations (muscle and nerve biopsies) were undertaken by his medical specialists to explore whether he had the condition of peripheral neuropathy. The biopsies did not reveal any positive finding of "peripheral neuropathy". There was no clear diagnosis of RVTJ having "cervical myelopathy".
3. At the hearing, Ms Stowell expressly acknowledged RVTJ's challenges in relation to his spinal problems. Specifically, Ms Stowell acknowledged that in 2021 and 2022, RVTJ had experienced a loss of bodily function in relation to his spinal cord condition causing numbing of the legs and loss of strength of his arms and legs. Ms Stowell said that the NDIA accepts that this led to a loss of function at that time including RVTJ's capacity to undertake activities of daily living ('ADLs'), such as getting dressed. However, Ms Stowell contends that in 2022, RVTJ underwent successful spinal decompression surgery and a series of functional rehabilitation sessions which have resolved those impairments. Ms Stowell contends that RVTJ's loss of function is restored and referred to Dr SN's report as referred to in paragraph [79] above. Ms Stowell also noted RVTJ's own evidence that those spinal surgeries were successful and that he is now independent in undertaking ADLs, including dressing, cooking, shopping, doing the laundry, undertaking home duties and maintenance, and being able to use his computer and iPad.
4. Ms Stowell said that the NDIA does not accept that there is sufficient evidence for the Tribunal to find that RVTJ had a "permanent physical impairment" attributable to the conditions referred to above.
5. In relation to the "residual physical medical conditions", Ms Stowell said that RVTJ gave evidence that he receives physiotherapy through My Aged Care. She said the NDIA accepts that this physiotherapy would be of benefit to him. Ms Stowell also acknowledged that RVTJ gave evidence that he is currently consulting with his doctors and suspects the return of his spinal cord issues. However, Ms Stowell notes that that such consultation is "ongoing". The Tribunal asked RVTJ whether he had scheduled an appointment with his doctors in relation to the return of some of his symptoms. RVTJ answered in the negative, and that he had not made contact with his doctors, as yet, to arrange an appointment. RVTJ was asked whether the symptoms stopped him from performing daily tasks. RVTJ answered, "probably not yet" and that he "might be slower". He said he cannot carry a load of washing but he added that he "can work around it".
6. Bearing in mind RVTJ's age, Ms Stowell contends that, on the evidence, he does not have any physical impairments. The Tribunal agrees and finds that there is no definitive medical or clinical evidence before it to conclude that RVTJ has any identifiable physical impairment/s. Fortunately, RVTJ's capacity for physical activities has greatly improved as a result of the following:

(a) RVTJ is no longer obese; > > (b) RVTH has had the benefit of several successful surgeries to this left knee, cervical and lumbar spine and to treat his CTS; > > (c) RVTJ's alcohol use disorder has been addressed, and he has remained in remission; > > (d) RVTJ's core strength has improved as a result of his evidence that he engages in some exercises. RVTJ is significantly more active since the spinal surgery which serves to increase his general core strength; and > > (e) RVTJ uses compression stockings and medication to effectively control fluid retention in his legs as a consequence of his condition of lymphedema, as well as taking preventative antibiotics to prevent infections from arising.

7. Direct observations made of RVTJ on the first day of the hearing demonstrated that he does not have any apparent problems with his physical capacity which would be out of place for a person in their 68th year of life. RVTJ appeared to be concerned about his future and specifically, whether his spinal cord problems would re-emerge, given the reported return of some of his symptoms. The Tribunal acknowledges RVTJ's concerns about this. However, RVTJ has not yet returned to see his treating specialists, Dr SN and Dr CT, or made any appointments to see them. There is not positive medical or clinical evidence before the Tribunal about his re-emerging symptoms upon which the Tribunal can make any findings. In fact, the Tribunal considers that it can be reasonably inferred that the symptomatology is not as severe or problematic as it was previously or RVTJ would have by now, made an appointment to see his specialists about it.
8. All of RVTJ's other physical ailments appear to have been remedied. At the moment there is insufficient medical evidence to support a finding that RVTJ has any current identifiable physical impairments. For a 68-year old, RVTJ is appropriately mobile and active. He owns and is able to drive his car. He regularly travels long distances (those trips are between 17km and 56km) to visit his sister-in-law or two close friends. Sometimes he will make those trips with W and sometimes, he will visit his two friends alone. He will also go out for meal with W on occasion, albeit infrequently.
9. At other times, RVTJ will drive to Bunnings to buy chemicals for his pool and place them into his pool. RVTJ gave evidence that he is able to bend down to the pool water to collect samples. RVTJ gave evidence that he can undertake the task of removing leaves from his pool. He undertakes those tasks independently, except that he said that sometimes he might ask the person at Bunnings to help him lift the pool chemicals into his car. RVTJ told the Tribunal that the maintenance around the house was not being done and things were "falling apart". The Tribunal considers that this is a problem that many persons of RVTJ's age may face when continuing to live on a large suburban block with all the maintenance associated with that. This is a reason why many persons of RVTJ's age will either downsize or arrange to get some people in to assist with the ongoing maintenance.
10. By RVTJ's own evidence and Mr EM's evidence, RVTJ is able to attend to most physical ADLs and he does so independently, as set out in detail below.
11. The Tribunal concludes that there is insufficient evidence before it at the present time to conclude that RVTJ currently has any physical impairment/s. Even if the Tribunal is found to be wrong about this, and even if any of RVTJ's physical impairment/s are considered to be permanent, the Tribunal is not satisfied that they have resulted in substantially reduced functional capacity in undertaking any one or more of the Prescribed Activities, for the reasons set out below under the heading, "Subsection 24(1)(c) - Substantially reduced functional capacity".

Impairments which are attributable to psychosocial disabilities

1. RVTJ has had a long history of mental health problems, including depression, anxiety, and an alcohol use disorder (now in remission). RVTJ continues to receive ongoing treatment from several different health practitioners in relation to his psychosocial functioning.[57] RVTJ claims that he has impairments attributable to a number of psychosocial disabilities including MDD, ASD, ADHD, PTSD, and "Acute Anxiety".
2. At the commencement of the hearing, RVTJ was asked to describe his psychosocial impairments. He said that he has "an inability to have friends", "cannot communicate well" and that he is "inappropriate, in the things [he] says", specifically, that he will "over-share" or "crack jokes in the wrong company". RVTJ said he would like to be more social but he is terrified how to do it and does not know how to go about it. He said he is open to receiving support to help him to develop his skills with social interaction. However, RVTJ said a social support group is not what he is looking for. He said he is fearful of social groups. He said he is "not social". He said he is "fearful of failure" and of "being ridiculed, as he has been in the past". RVTJ confirmed that his My Aged Care support plan included a referral code for support to link him to men's groups or local community groups. RVTJ confirmed that he has not availed himself of such services for the reasons above, and also because he has "other things on [his] plate as well", including S's and W's health issues.
3. While the NDIA accepts that RVTJ has "MDD with anxiety", it contends that the medical evidence does not support findings that RVTJ has ASD, ADHD, or PTSD, and further contends that "Acute Anxiety" is not a recognised psychiatric condition under the Diagnostic and Statistical Manual of Mental Disorders,[58] based on the opinion of the independent psychiatrist, Dr JH, who recently examined RVTJ_._ The Tribunal will address below, a summary of RVTJ's medical and clinical history in relation to his mental health conditions.
4. On 26 February 2017, Dr JLB, consultant psychiatrist, saw RVTJ at the request of RVTJ's treating general practitioner, Dr AM, and issued a letter.[59] In this letter, Dr JLB stated that RVTJ had been "abstinent from alcohol" since March 2016. Dr JLB stated that RVTJ had reported a history of "bullying at school" and "the life catastrophe" in 1990 when his grandmother and mother died and his first wife left him, leaving him with three children who "went off the rails and DHS became involved". Dr JLB concluded that RVTJ was "clearly damaged" by his "experience of ostracism at school" and "possibly more subtle factors in his family of origin". Dr JLB stated that RVTJ had "displayed difficulty in emotional processing" and "may have a vulnerable narcissism" which left him "depleted and dysphoric". Dr JLB added that RVTJ's "disorder of personality had been complicated by a non-melancholic depression with emergent suicidal intent". Dr JLB stated that this "was a worry" and "mitigates for a poor progress". Dr JLB added that, "nevertheless [RVTJ] is managing work and is still in a relationship". Dr JLB concluded that, at that time, he was content to give RVTJ a trial of psychotherapy.[60]
5. On 11 October 2018, Dr SGK, treating psychiatrist based at Hospital D's consulting suites, issued a report addressed to the Accident Compensation Conciliation Service stating that RVTJ had attended him since June 2016 ('Dr SGK's Report').[61] Dr SGK diagnosed RVTJ with "Major Depressive Disorder with anxiety" and recorded RVTJ's symptoms as including "despondency, anhedonia, difficulties with focus and concentration". Notably, Dr SGK did not state in this letter that her diagnosis for RVTJ also included ASD, ADHD, or PTSD. Dr SGK opined that the aggravation of RVTJ's pre-existing injury had a "strong negative impact" on his capacity to adequately fulfil his work role. Dr SGK referred to RVTJ continuing to use medication and supportive psychotherapy, and that he attended the program at Hospital D on a regular basis. Dr SGK described this as remaining as a "work in progress" and that she was unable to provide a clear timeframe for "its needed duration".
6. In September 2018, RVTJ was assessed at the request of a workers' compensation insurer by Associate Professor PD ('A/P PD'),[62] independent psychiatrist, who issued a medical report dated 12 September 2018 ('A/P PD's Report').[63] In A/P PD's Report, he stated that RVTJ did not appear to have any cognitive impairments and that his insight and judgement were not impaired by any psychiatric state. A/P PD stated that there did not appear to be "any significant features of traumatisation". Notably, A/P PD did not diagnose RVTJ as having, or being suspected as having, ASD, ADHD, or PTSD. A/P PD stated that RVTJ had told him that he had been seeing Dr SGK for two years, on a weekly basis, that he had needed help to "give up alcohol", and that he "had had twenty years of drinking".[64] A/P PD stated that RVTJ had told him that he was "an alcoholic but has not drunk alcohol for two and half years", that he is "a recovering alcoholic", and that he had "previously regularly drank whisky up to 720mls daily and maybe some cans of other alcohol".[65] The Tribunal notes that A/P PD stated that "there is a psychiatric condition present, which could be diagnosed as a major depressive disorder" and that "the depressive disorder is associated with some anxiety".[66] He stated, "The disorder is occurring in a person who has significant psychological and personal vulnerabilities. He is shy, avoidant, unassertive person who is threatened by confrontation".[67] A/P PD stated that RVTJ had improved since cessing work and that RVTJ intended to return to work. A/P PD stated there would be significant barriers to him doing so and at the time he examined RVTJ, A/P PD did not consider him to be fit for work. However, A/P PD considered that RVTJ "will progressively remit, and he will have a capacity for work within weeks to months".[68]
7. On 20 November 2018, Dr MP, treating clinical psychologist, issued a report addressed to the Accident Compensation Conciliation Service ('Dr MP's 2018 Report').[69] Dr MP stated that he started treating RVTJ under a GP Medicare Mental Health Care Plan on 5 July 2018 and had since that date, until the date he issued his report, seen RVTJ once or twice a month. He said Dr AM referred RVTJ to Dr MP for treatment for (emphasis added) "...long standing MDD that has recently been complicated by workplace circumstances that appear to be consistent with harassment and inappropriate administration of his remuneration structure. These actions have been implemented by his supervisor".[70] At this time, RVTJ held the position as an operations manager with responsibility for "planning, manufacturing and distribution", maintenance, quality standards, and occupational health and safety.
8. In Dr MP's 2018 Report, he stated that:

(a) RVTJ had told him that he had been abstinent from alcohol for three years; > > (b) RVTJ had told him that he had seen a psychologist for eight months, "went back to" Dr SGK, and had continued to attend the men's group; > > (c) when RVTJ was assessed by direct questioning, according to the "DSM-4" criteria, he "was found to be suffering from a major depressive disorder and panic attacks";[71] > > (d) Dr MP administered a Beck's Depression Inventory ('BDI-II') test[72] and Beck Anxiety Inventory ('BAI')[73] tests on RVTJ. RVTJ's scores rated his depression under the BDI-II as "severe", and his anxiety under the BAI as "severe"; > > (e) Dr MP attempted to treat RVTJ's depression with CBT-based procedures which relied on cognitive restructuring techniques, to assist RVTJ to "identify and challenge faulty thinking";[74] and > > (f) due to the severity of RVTJ's depression, it was clear that he required pharmacological treatment (anti-depressant medication) which, at that time, Dr MP noted was being prescribed by Dr SGK.

9. In Dr MP's 2018 Report, he referred to RVTJ experiencing panic attacks. Dr MP stated that he had attempted to treat RVTJ's panic disorder with CBT, incorporating a variety of different components comprising cognitive restructuring, breathing techniques, and relaxation techniques. Dr MP stated RVTJ had been "encouraged to engage in regular exercise appropriate to his physical".[75] Dr MP stated that when RVTJ was assessed by direct questioning according to "DSM IV" criteria, "he was found to be suffering from a major depressive disorder and panic attacks". Dr MP did not make any statement/s indicating a view that he may also have ASD, ADHD, or PTSD. Dr MP opined that RVTJ's conditions (or MDD and panic attacks), at that time, were having a significant detrimental effect upon RVTJ's emotional, interpersonal, and social functioning and were adversely affecting his potential for occupational functioning.[76]
10. RVTJ considers that he has the condition of ASD. RVTJ relies upon the diagnosis/medical opinion of Dr RE, treating clinical psychologist, as set out in his report issued on 23 February 2023 ('Dr RE's 2023 Report').[77] In Dr RE's 2023 Report, Dr RE stated that he "formally assessed" [RVTJ] on 15 February 2013 using the Wechsler Adult Intelligence Scale - Third Edition ('WAIS-III') assessment tool. Dr RE also stated that "After many years [RVTJ] felt he needed to complete the diagnostic process and attended an interview on the 23rd of December 2019 to determine whether his history was consistent with ASD". RVTJ described Dr RE, at the hearing, as being their "family psychologist" and that he had treated S for a long period of time (since S was about four years old). Following this assessment, Dr RE diagnosed RVTJ with ASD. Specifically, Dr RE stated as follows in Dr RE's 2023 Report:[78]

[RVTJ] has the history of impairments in social interaction and communication, and the restricted range of interests that fulfil a diagnosis of Autism Spectrum (DSM V - Level 2, requiring substantial support).

11. In December 2019, RVTJ started seeing Dr VM, psychiatrist, who is based at D Consulting Suites,[79] as addressed in further detail in paragraphs [106] and [107] below.
12. On 30 December 2019, Dr AM referred RVTJ to Dr DG ('Dr AM's Referral Letter').[80] In Dr AM's Referral Letter, Dr AM stated that RVTJ had long-standing issues of poor concentration, wandering thought processes (being a pervasive issue for him), impulsive behaviours, a history of substance abuse (alcohol), and that he had been abstinent for three years.[81] Dr AM stated that RVTJ thought that he had ASD. Dr AM does not express a view in this letter about whether he considers that RVTJ has ASD, except to remark that it was "certainly plausible". Notably, Dr AM does not make any clear reference to RVTJ having ASD or that Dr AM suspect's that RVTJ may have this condition (in addition to ADHD). Dr AM referred to RVTJ's condition of MDD as being "long-standing", "reasonably stable", and "under the case and management" of Dr SGK.[82]
13. On 6 February 2020, Dr VM issued a medical report (addressed to Dr SGK) ('Dr VM's Feb 2020 Report'),[83] describing RVTJ as being "very unsettled", requiring the help of a "CATT team frequently", and requiring Police involvement "because of his behavioural disturbance".[84] Dr VM stated that, in 2010, RVTJ had an "episode of depression and anxiety" in the context of the death of RVTJ's father. Dr VM stated that in 2017/2018, RVTJ's symptoms of depression and anxiety increased in the context of work-related stress and as a result was seeing Dr SGK. Dr VM stated that at the time he saw RVTJ in February 2020, RVTJ reported that his symptoms had increased in the previous few months because of stress related to his relationship difficulty with his wife, and the mental illness of his son. RVTJ reported symptoms of feeling sad and being exhausted, with decreased energy, interest, motivation, and concentration. Dr VM stated RVTJ's "anxiety symptoms" comprised of RVTJ feeling apprehensive, edgy, churning in the stomach, shortness of breath, and shakiness, which lasted the whole day but varied in intensity. Dr VM stated there was "no evidence of mania or psychosis". Dr VM noted that, at that time, that RVTJ was seeing a psychologist once a month.[85]
14. Upon examination of RVTJ in February 2020, Dr VM diagnosed RVTJ with "Major depressive disorder with anxiety".[86] Dr VM recommended that RVTJ should increase his dosage of Mirtazapine to 30mg.[87] In neither of Dr VM's Feb 2020 Report or a later report by Dr VM dated 1 September 2020 ('Dr VM's Sept 2020 Report') did Dr VM diagnose RVTJ as having, or being suspected as having ASD, ADHD, or PTSD.
15. In support of RVTJ's claim that he has ASD (and impairments arising from ASD), RVTJ also relies upon the medical opinions of Dr DG as contained her following two reports:

(a) Dr DG's report dated 21 October 2021 ('Dr DG's Oct 2021 Report').[88] The subject line of this report states "RE: Letter in Support of Psychosocial Disability NDIS Access"; and > > (b) Dr DG's report dated 8 April 2023 ('Dr DG's Nov 2023 Report'),[89] described in the first line as being provided in support of RVTJ's application for the NDIS.

16. As stated in the table on page 1 of Dr DG's Oct 2021 Report, Dr DG has diagnosed RVTJ with the medical conditions of ADHD, ASD, PTSD, MDD, and "Acute Anxiety". It would seem that RVTJ was diagnosed by Dr DG for the first time as having ADHD in about 2020/2021. Dr DG listed the earlier diagnoses made other doctors/clinicians as follows:

(a) Dr RE had diagnosed RVTJ with ASD; > > (b) Dr AM, Dr SGK, Dr VM, A/P PD, Dr MP, and Dr RR, independent psychiatrist, had each diagnosed RVTJ with MDD and "Acute Anxiety".[90]

17. In Dr DG's Oct 2021 Report, she stated that RVTJ has "severe and permanent mental illness with complex and diverse health and social needs".[91] Dr DG stated that RVTJ required intensive support to prevent further deterioration.[92] Dr DG stated that RVTJ's mental health conditions continued to "significantly impact his functional capacity" and his ability to function at home, in the community, and to undertake ADLs. Dr DG stated that RVTJ was an inpatient for ten days at Hospital D[93] in July 2018, where he received extensive therapy for MDD and "Acute Anxiety". Dr DG said that RVTJ attended inpatient group therapy twice a week at Hospital D over an extended period of five years from 2014 to 2019.[94] Notably, Dr DG does not mention in her report that RVTJ had a long-standing alcohol use disorder (in remission).[95]
18. Dr DG stated that RVTJ was taken to Hospital M in August 2020 for "attempted self-harm", but no further details were provided in this report about this event. The Tribunal notes Dr VM's Sept 2020 Report in which Dr VM referred to RVTJ having taken 100 tablets of dexamphetamine two weeks prior upon becoming depressed and suicidal, and that he was admitted to Hospital M's emergency department. Dr VM stated that RVTJ was stressed about "WC[96] issues, IME[97] report, relationship difficulties with wife and son's issues". Dr VM stated that RVTJ agreed to increase his dosage of Mirtazapine.[98]
19. In Dr DG's April 2023 Report, she stated that RVTJ was receiving ongoing treatment from herself, Dr RE, Dr MP, and Ms FS, mental health care nurse.[99] Dr DG stated that RVTJ has the conditions of ADHD, ASD, "severe and persistent" MDD, PTSD, and an "acute anxiety and panic disorder". She stated that the impact of RVTJ's various conditions fluctuated, although the impact remained "significant". Dr DG stated that RVTJ's impairments would have a life-long impact on his functional status, including (self-care), participation in the community, and ability to work. Dr DG stated that those "illnesses" have "created disability" in the domains of "learning", "mobility", "communication", "social interaction", "self-management", and "self-care".[100]
20. Dr DG completed an NDIS "Evidence of psychosocial disability form" on 20 April 2023 ('Dr DG's NDIS Form 2023') stating that she has been treating RVTJ since 27 February 2020. Dr DG noted that in 2018, RVTJ was diagnosed with "Major Depressive Disorder, severe, persistent", "Acute anxiety, Panic Attacks", and "Post Traumatic Stress Disorder".[101] Dr DG stated that RVTJ suffered from "acute and chronic social anxiety" and "agoraphobia induced isolation".[102] Dr DG stated that RVTJ's self-management has been affected by his impaired decision-making and management of his financial affairs.[103] She stated RVTJ is prone to "procrastination" and "occasional severe impulsivity".[104] Dr DG stated that RVTJ has "adequate self-care skills but they are poorly implemented as a result of chronic difficulties with energy, insomnia, motivation".[105] Dr DG stated that RVTJ has "significant difficulty with direct verbal communication".[106] Dr DG stated the RVTJ has significant impairments which inhibits his "functional moderation" and that he can become obsessive in relation to a special subject or project to the detriment of key life domains.[107] Dr DG stated that paradoxically, RVTJ is easily distracted and struggled with concentration.[108] Finally, Dr DG stated that RVTJ struggled with "significant mobility issues associated with the deterioration of the spine, peripheral neuropathy and associated pain, imbalance and weakness".[109] The Tribunal notes that this is no longer the case since RVTJ's surgeries on his spine. Further, as a psychiatrist, Dr DG is not suitably qualified to make statements about RVTJ's physical condition and the Tribunal prefers instead to place weight on the medical reports provided by Dr SN, Dr CT, and Dr SL, as well as RVTJ's own evidence about his physical issues.[110]
21. Dr DG was not called as a witness at the hearing. Her diagnoses and opinions about whether RVTJ's medical conditions, including her diagnoses of ASD, ADHD, PTSD, and "Acute Anxiety", were unable to be tested.
22. At the request of the NDIA, the Tribunal issued a number of summonses compelling the production of RVTJ's medical reports and information relating to his medical and clinical history of psychiatric conditions and treatments, including those held by Dr DG. The parties extracted selected summonsed documents and tendered them as evidence. Of note, the NDIA tendered two additional earlier medical reports issued by Dr DG in 2020, specifically:

(a) Dr DG's report dated 15 February 2020 ('Dr DG's Feb 2020 Report');[111] and > > (b) Dr DG's report dated 6 June 2020 ('Dr DG's June 2020 Report).[112]

23. In Dr DG's Feb 2020 Report, she provided further detailed information about RVTJ's earlier medical history. Dr DG stated that RVTJ was referred to her by Dr AM, "for suspected ADHD and known comorbidities of ASD, MDD, PTSD". Dr DG noted that before she saw RVTJ, he had completed "pre-assessment documents", and "attended an assessment interview" with Ms FS, Mental Health Care Nurse.
24. In Dr DG's Feb 2020 Report, she states as follows: "Trigger for this referral: wife and son diagnosed with ADHD, now feels that he may have this diagnosis as well".[113] The Tribunal notes that the impetus for obtaining a diagnosis of ASD arose from RVTJ's opinion that he has this condition.
25. In Dr DG's Feb 2020 Report, she set out the "DSM5" criteria for ADHD and referred to RVTJ's symptoms at that time, as he reported them to her. Dr DG also set out the results of a brief test (comprising six questions only) entitled "Adult ADHD Self-Report Screening Scale for DSM-5 (ASRS-5)". This test is based entirely on self-reported information.[114] RVTJ scored 17 out of 24. A score above 14 is "suggestive" of a person having ADHD.[115]
26. In Dr DG's Feb 2020 Report, she stated that RVTJ had reported a "mental breakdown/shut down" in 1993/1994 when Ex-W left him with three children and his mother and grandmother had passed away.[116] Dr DG reported that RVTJ was first diagnosed with "depression" in 2010 after his father died and he was treated with Pristiq (50mg).[117] Dr DG stated this was "sufficient until workplace discord".[118]
27. In Dr DG's Feb 2020 Report, she stated that RVTJ had "struggled for four years with alcoholism" and with "the children being truant, stealing, destruction".[119] Dr DG reported that RVTJ was treated by Dr SGK for "alcoholism", continued on Pristiq (50mg) and attended Hospital D's weekly men's group therapy.[120] Dr DG stated that RVTJ "used to drink one bottle of whisky per night and more on the weekend for approx. 15 years duration".[121] She states that he has had "nil in past 4 years".[122]
28. In Dr DG's Feb 2020 Report, she stated that RVTJ's other "addictive behaviours include internet games in the past which involved gambling/buying".[123] Dr DG stated that RVTJ was formerly a smoker and that he had previously smoked 60 cigarettes a day. Dr DG also recorded that for a limited time when RVTJ was a young adult, he reported taking marijuana and "pills/MDMA/GHB/mushrooms" between the ages of 18 and 21 (and nil since that time).[124] Fortunately, RVTJ has managed to control his alcohol use disorder which is now in remission. There was no evidence before the Tribunal of him experiencing a continuing gambling problem or that he takes other illicit substances.
29. In Dr DG's Feb 2020 Report, she stated that between 2014 to 2019, RVTJ reported to have participated in a biweekly inpatient group therapy at Hospital D. RVTJ received treatment therapies which included ACT, dialectical behaviour therapy ('DBT'), CBT, mindfulness, and that he attended a men's support group.[125]
30. In Dr DG's Feb 2020 Report, she stated that:[126]

(a) Dr AM had diagnosed RVTJ in 2018, with "MDD and severe anxiety"; > > (b) Dr MP had assisted RVTJ to develop psychological supports; and > > (c) Dr SGK changed RVTJ's antidepressant with reported limited success and pharmacogenomic DNA testing indicated that Fluoxetine and Mirtazapine were more compatible with RVTJ's "CYP450" enzyme.

31. In Dr DG's Feb 2020 Report, she stated that RVTJ was "often suicidal" and "sometimes experienced visual or auditory hallucinations".[127]
32. In Dr DG's June 2020 Report, she lists RVTJ's "pleasurable activities" as including "reading, investigating ancient civilisations, learning guitar, music, gardening, attending AFL".[128] At the hearing, RVTJ said he no longer attends AFL matches and that there were not many things growing in his vegetable garden. He confirmed that he had planted some fruit trees in his backyard, as this was referred to in one of the reports before the Tribunal. In Dr DG's June 2020 Report, she noted that RVTJ's "alcohol use disorder" was in response to the loss of his mother and grandmother, and marital separation "leaving him" to raise three children.[129] Dr DG stated that four weeks before she saw RVTJ (that is, in about May 2020), there was a "suicide attempt" by RVTJ during a family crisis in relation to S. Dr DG stated that RVTJ reported to her that he took 15 tablets of Oxycodone.[130] He was not hospitalised in relation to this incident.
33. At the hearing, RVTJ gave evidence that he no longer considered that he is a suicide risk which aligns with his earlier reporting to Dr DG in June 2020 (see two paragraphs below). Nor is there any recent evidence of RVTJ experiencing hallucinations.
34. In Dr DG's June 2020 Report, she diagnosed RVTJ with ADHD ("inattention presentation"), with co-morbidities for ASD, MDD, PTSD, and "severe psychosocial stressors". She described RVTJ has being "depressed" and "anxious but not suicidal".[131] Dr DG noted that RVTJ told her that, "I have severe anxiety. I suffer from PTSD as an adolescent (bullied, shamed, beaten physically and mentally). I can have panic attacks but mainly manage them through mindfulness techniques and through a better understanding of CBT and ACT".[132] Dr DG recorded that RVTJ attended three "coaching sessions" with Ms FS, mental health care nurse, on 9 and 30 April 2020 and 28 May 2020.[133]
35. In Dr DG's June 2020 Report, Dr DG referred to a "mental state examination" of RVTJ which took place on 6 August 2020.[134] Dr DG described RVTJ as follows (emphasis added):[135]

Cheerful. Becoming more confident. Depression - always there, knows the mental strategies (live in the now). No risk. Working with [Ms FS] on loss and grief around symptoms of ASD and ADHD prior to diagnosis and the effect of these undiagnosed conditions on relationships and self-esteem. Since Feb has realised that fear was his driver. Learning how Neurotypical people work. Philosophical about his future.

36. In Dr DG's June 2020 Report, she indicated that at least by June 2020 (or August 2020),[136] RVTJ's mental state/condition had vastly improved after the breakdown that he experienced in 2018.
37. The summonsed documents included a further earlier report issued by Dr RE on 21 April 2021 ('Dr RE's 2021 Report').[137] In Dr RE's 2021 Report, he stated that RVTJ had referred himself to Dr RE and that W and S had both been diagnosed with ASD. Dr RE referred to the WAIS-III assessment having been administered on RVTJ on 15 February 2013, which is a general intelligence test for adults. Dr RE explained that the WAIS-III was a "good instrument" to determine whether an adult has the profile of strengths and weaknesses over a range of cognitive skills, that are commonly found in a person with ASD.
38. In Dr RE's 2021 Report, he stated that RVTJ was assessed as having an overall IQ of 127 which is in the "superior" range of intelligence.[138] Dr RE stated as follows (emphasis added):

There was considerable variation across the various subtests, making the overall score somewhat unreliable. He showed better skills with long term memory, word knowledge, and mental arithmetic, and struggled with abstract thinking and short-term auditory memory. In the visual domain, [RVTJ] demonstrated very strong skills with attention to detail and visual organisation skills, with a relative weakness in the area of processing speed. [RVTJ]'s results display a characteristic pattern of strengths and weaknesses across his cognitive profile that is consistent with Autism.

39. Dr RE reports that RVTJ has had "a long history of elevated anxiety and self-medicated with alcohol for many years", and that RVTJ had reported having a "very busy mind" and "can't stop thinking".[139] Dr RE stated that RVTJ "now has additional diagnoses" of ADHD, MDD, "Acute Anxiety", and "Complex PTSD".[140] Dr RE did not provide particulars of who made those diagnoses or indicate whether he was making them as part of his assessment of RVTJ in 2021. Dr RE confirmed that RVTJ had a history of impairments in social interaction and communication and a restricted range of interests which are "characteristic of disorders on the Autism Spectrum (DSM V - Level 2, requiring substantial support)".[141]

Whether RVTJ has impairment/s from MDD or "MDD with anxiety"

1. At the conclusion of the substantive hearing, Ms Stowell informed the Tribunal that the NDIA accepts that RVTJ has an impairment attributable to psychosocial disability arising from his condition of "MDD with anxiety". The Tribunal notes that RVTJ has been diagnosed with MDD by several treating and independent psychiatrists and psychologists who have examined RVTJ, as outlined above under the heading "Impairments which are attributable to psychosocial disabilities" (see, in particular, paragraphs [98] to [100] and [102], [105], [107], [123(a)] and [127]), and that RVTJ's symptoms have consistently been described as including "depression" and "anxiety". In Dr JH's Report, he stated that RVTJ has a clear history of MDD and continued to suffer from depressive episodes. At the hearing, Dr JH opined that RVTJ's "main diagnosis" is MDD. Dr JH said he concurred with the multiple other reports from psychiatrists and psychologists which had been provided to him diagnosing RVTJ with MDD.
2. The Tribunal finds that RVTJ has the condition of "MDD" and also experiences symptoms of "anxiety".
3. During closing submissions, Ms Stowell contended that there is an ongoing medication regiment in place for RVTJ's depression and anxiety, which can be adjusted if his symptoms become "more substantial or change over time". Ms Stowell highlighted that RVTJ gave evidence at the hearing that he is independent in respect of taking this medication and he has a plan in place, of consulting with doctors and following their advice, if difficulties arise. Ms Stowell referred to having put this "course of treatment" to Dr JH at the hearing, and that Dr JH opined that this was an appropriate course of treatment for MDD.
4. The Tribunal finds that RVTJ has the psychiatric condition of MDD and that he also experiences symptoms of anxiety. The Tribunal finds that this condition and these symptoms are optimally medically and clinically managed by his treating general practitioners, psychiatrist, psychologist, and mental health nurse. RVTJ receives regular therapy by those health practitioners and takes psychotropic medication as prescribed by his treating general practitioner under the supervision of his treating psychiatrist, Dr DG. Dr DG also prescribes psychostimulants to RVTJ intended to assist him with the ADHD condition that Dr DG considers RVTJ to have.
5. Despite the above treatment regime, the Tribunal finds that RVTJ has residual impairments attributable to his psychosocial disability arising from his condition of "MDD, with symptoms of anxiety".

1. RVTJ was diagnosed with ADHD for the first time in about 2020/2021 by Dr DG. RVTJ is adamant that he has ADHD and says he is sure about this, because if he stops taking the ADHD medication (psychostimulants) which Dr DG prescribes to him, his concentration and focus will deteriorate.
2. RVTJ referred to "Dr DG's report" in relation to her diagnosis of ADHD and specifically, that Dr DG had "applied the DSM-5", had indicated that "the symptoms are present", and that Dr DG's report "is thorough". When RVTJ was asked by the Tribunal whether his treating general practitioner was "on board" with Dr DG's diagnosis of ADHD, RVTJ answered in the affirmative. RVTJ highlighted that Dr DG, being a psychiatrist, has prescribed psychostimulant medication to him and that it is a restricted medication.[142]
3. In Dr JH's Report, he stated that from the perspective of an "IME psychiatrist", he was unable to "clearly identify features of the condition" of ADHD. However, he noted that RVTJ was medicated for ADHD. In Dr JH's Report, he opined that "it is possible" that RVTJ suffers from this condition.
4. At the hearing, Dr JH continued to express some reservations about whether RVTJ has the condition of ADHD. He said that in his view, while it is possible that RVTJ has ADHD, his view is that "it is less likely that he suffers from it". Dr JH explained that this condition would have been apparent earlier in RVTJ's life and he noted that RVTJ had progressed satisfactorily at school and during his working life. Dr JH also provided the following clinical reasons for why he doubted that RVTJ had ADHD. Dr JH said that he did not detect from RVTJ any "sense of hyperactivity", nor did he detect any "sense of attention issues". Dr JH said that his medical examination of RVTJ was lengthy and that RVTJ was attentive throughout. Dr JH said that he did not "feel that [RVTJ] had lost track of the conversation". Dr JH acknowledged that RVTJ was taking medication for ADHD so he reflected that perhaps, RVTJ may have been more focussed than he would have been had he not been taking that medication.
5. RVTJ said that Dr DG, who had diagnosed him with ADHD, was not called to give evidence at the hearing because she had declined to give evidence. When asked why, RVTJ said that she had told him that she "doesn't do medico legal stuff". At an earlier case management directions hearing, the Tribunal had explained to RVTJ that he could request that the Tribunal issue a summons directed to his key treating health practitioners, if they were not willing to attend the Tribunal to give evidence. RVTJ acknowledged this and added that he "would rather keep the relationship".
6. Despite this, the Tribunal has taken into account that Dr JH was not firm in his views about whether RVTJ has ADHD. By contrast, it would appear that Dr DG is firm in her opinion about whether RVTJ has this condition, because she has made a critical decision to prescribe psychostimulants, being a restricted medication, to RVTJ, to assist him to manage what she considers to be symptoms of ADHD. The Tribunal also accepts RVTJ's evidence that this medication has a positive effect in terms of assisting with his focus and concentration.
7. In conclusion, while the Tribunal acknowledges that the medical evidence about whether RVTJ has the condition of ADHD is less than clear, on balance, the Tribunal finds that RVTJ has this.
8. However, the Tribunal finds that RVTJ's ADHD is effectively managed, medically and clinically, by the use of psychostimulants and by the provision of supportive therapy by his treating medical and allied health practitioners. Based on RVTJ's own evidence, those treatments have proven to be effective in treating RVTJ's ADHD-related symptoms. Further, the Tribunal observed that RVTJ was able to remain focussed, calm and to concentrate for the duration of the substantive hearing of this matter and to capably represent his own interests throughout. On balance, the Tribunal finds that RVTJ does not have any impairments arising from his condition of ADHD, which is managed effectively by his medication and other therapeutic supports.
9. For these reasons, the Tribunal concludes that RVTJ does not have any impairments attributable to any psychosocial disability resulting from ADHD.

1. Both Dr DG and Dr RE have diagnosed RVTJ with PTSD. RVTJ believes that he has PTSD. It is less clear what may have caused such a condition. RVTJ described that his primary school years were uneventful but at secondary school, he was treated poorly by his peers including being beaten up and spat on. The next distressing period appears to have been in the early-1990's when he separated from Ex-W and his mother and grandparents died all within the space of 12 months. RVTJ also became depressed when his father died in 2010. RVTJ was reportedly subjected to distressing workplace bullying in his last place of work in about 2017/2018. Finally, in about 2020, RVTJ experienced distress as a result of marital difficulties and upon S experiencing mental health difficulties.
2. Dr RE's PTSD diagnosis of RVTJ is contained in Dr RE's 2023 Report. The NDIA provided Dr JH with a copy of Dr RE's 2023 Report, for his comment. In Dr JH's Report, he stated that he does not support a diagnosis of PTSD for RVTJ. Dr JH acknowledged that RVTJ has had "some unpleasant experiences with bullying in his school years". However, Dr JH opined that those experiences do not meet the diagnostic criteria for a PTSD. At the hearing, Dr JH confirmed that he does not agree with Dr RE's opinion that RVTJ has PTSD.
3. At the hearing, Dr JH elaborated that he does not consider that the events that RVTJ has experienced in his life, are sufficiently traumatic to meet Criterion A in the DSM-5-TR for PTSD. Dr JH explained that Criterion A in the DSM-5-TR require a person to have been exposed to actual or threatened death, serious injury, or sexual violence. Dr JH explained that he did not think that RVTJ had PTSD because he has not experienced such "high level trauma". Dr JH explained that "numerous children and adults are bullied" and that this would rarely meet Criterion A, even in the context of the person being obese at the time they were bullied. Dr JH added that "bullying because of being overweight is common" and that to meet Criterion A, the "event needs to be outside of the range of normal experiences". Dr JH explained that if the bullying experience resulted in the person nearly being killed by their peers or severely assaulted or being close to the death where the person needs to spend time in hospital, then one might consider PTSD in those circumstances.
4. At the hearing, RVTJ gave evidence that the PTSD symptoms he experiences, relate to an association with his final workplace. He said he "has a major issue with it", and "can't go near the place" (that is, near the area where his final workplace is located). RVTJ said that if he does so, he will experience tightness in his stomach and shortness of breath. When describing what happened at this workplace, RVTJ said that his supervisor wanted to replace him and had continuously humiliated him in meetings, screamed at (and about) him, and had threatened RVTJ about his remuneration. When asked why RVTJ had reason to travel near his old workplace, he explained that it is near Eastlink and he will go near there on his way to visit his sister-in-law who lives in an outer South-Eastern suburb of Melbourne. When asked how often he will visit his sister-in-law, RVTJ said "they" (that is, W and RVTJ) will go about once every few months. When asked how long these symptoms last, RVTJ said the symptoms are momentary and will pass within about 30 minutes. He said he applies "CBT - mindfulness" to stop himself from "thinking about those things". RVTJ said that it reminded him of what happened at school, that he "copped it" at school, and that this has "affected" him. RVTJ said, when asked, that as far as he is aware, he is not taking any medication for his PTSD.
5. The NDIA does not accept that RVTJ has PTSD, on the basis of Dr JH's medical opinion.
6. The Tribunal acknowledges that RVTJ has reported having some symptoms which might arise when a person is suffering from the condition of PTSD. In relation to the workplace bullying he experienced, RVTJ reported having difficulty travelling to the area where his former workplace is located. There were also some references in the evidence to RVTJ having nightmares, however, the Tribunal notes from the medical records on the file that this may be attributable to various types of pharmaceutical medication RVTJ has taken over the years since 2010, and the possible side effects of such medication which can include nightmares. On the current evidence, the reported nightmares are also not reported by RVTJ to occur on a regular basis or to cause disruption to his functional capacity. The Tribunal considers that the impacts of the reported bullying of RVTJ at his secondary school and then at his final place of work, are likely to be lasting and may well have impacted RVTJ's self-esteem. However, the Tribunal does not consider that those reported symptoms are disruptive to RVTJ's day-to-day functioning. The Tribunal is inclined to accept the evidence of Dr JH that the severity of the distressing events that RVTJ has experienced during his life, as referred to in paragraph [147] above, are not sufficiently traumatic to meet the Criterion A for the condition of PTSD.
7. The Tribunal prefers the medical opinion of Dr JH that RVTJ does not have PTSD, over the medical opinions of Dr DG and Dr RE that he does have this condition. The Tribunal notes that Dr DG or Dr AM has not prescribed medication to RVTJ for the condition of PTSD, nor has RVTJ ever received any exposure therapy for PTSD even though he has received extensive mental health treatments and services by psychiatrists and psychologists for well over a decade. The Tribunal notes that other psychiatrists and psychologists who have examined RVTJ previously did not diagnose RVTJ with PTSD or suggest that he might be further assessed to explore whether he had this condition (that is, Dr SGK at paragraph [98], A/Prof PD at paragraph [99], Dr MP at paragraph [100] and Dr VM at paragraph [107]).
8. The Tribunal finds that RVTJ does not have the condition of PTSD on the basis of Dr JH's medical opinion that he does not meet Criterion A for this condition in respect of the several distressing life experiences he has had, as described in paragraph [147] above.

1. RVTJ is adamant that he has ASD. RVTJ contended that "from the beginning, [his] diagnosis of ASD has been repeatedly questioned without a clear reason".[143] Primarily, RVTJ relies upon the medical opinion of Dr RE, as described at paragraph [103] above, which was subsequently adopted by Dr DG.
2. The Tribunal notes that in Dr RE's 2023 Report that he does not particularise the criteria for ASD as set out in the DSM-5-TR (or any earlier version), nor does he provide an indication of the basis upon which he concluded that RVTJ has met those criteria. Dr RE stated that based on the assessment he undertook of RVTJ, he "strongly supports an application for assistance through the NDIS" and recommends that RVTJ should receive speech therapy, occupational therapy, and psychological services to assist him with "his myriad of difficulties".[144]
3. As mentioned above, RVTJ did not call Dr RE as a witness at the hearing and so his clinical opinions, and any clinical rationale for them, were unable to be clarified or tested.
4. The NDIA contended that the Tribunal should place a "significant amount of weight" on Dr JH's evidence that RVTJ does not meet the diagnosis for ASD. The NDIA contended Dr JH is "appropriately qualified". In response, RVTJ referred to the diagnosis of ASD made by Dr RE. RVTJ contended that Dr RE is a "leading autism specialist in Australia", has been the direction of the ASD Clinic in East Melbourne for over 30 years, has created an autism ASD, co-authored several books on autism, published over 12 peer-reviewed articles on Autism, and regularly speaks on autism at schools and annual autism conferences in Australia and abroad.[145] RVTJ said that Dr RE had been "doing this" for 40 years.
5. RVTJ said he was disappointed Dr RE had not attended the Tribunal "to get heard". RVTJ said that Dr RE had suggested that RVTJ obtain another ASD diagnosis. When RVTJ was asked why he had not done so, RVTJ said it would cost him $1,000 and he would need to attend over three sessions to get a diagnosis. RVTJ contended at the hearing that Dr RE was a "good psychologist" and was "helpful to us". RVTJ said "I think he has a high reputation" and in particular, "if stacked up against" Dr JH.
6. RVTJ contended that Dr JH's assessment of him was more of a "clinical appraisal rather than a medical opinion" and that Dr JH does not have "any qualifications" in relation to the conditions of ASD (or ADHD). The Tribunal rejects this contention. At the hearing, Dr JH gave evidence that he has been practising as a psychiatrist for about 30 years and holds a Bachelor of Medicine and Bachelor of Surgery conferred by the University of Adelaide. Dr JH has had extensive past experience working in a general adult psychiatry practice. He said he had also worked in the public mental health system for "a couple of decades". Dr JH said that he now works in the medico-legal field undertaking independent medical examinations. The Tribunal considers that a duly qualified and experienced psychiatrist, such as Dr JH, is expertly qualified to assess and express a medical opinion about whether RVTJ has any psychiatric conditions, including the condition of ASD (or PTSD, or ADHD, for that matter), due to his many years of specialist medical training and practice in psychiatry. The Tribunal does not accept RVTJ's contention that Dr JH is not qualified to make a diagnosis of ASD.
7. It was less clear to the Tribunal as to what significance, if any, it should attach to RVTJ's contention that Dr JH's assessment is "more of a clinical appraisal rather than a medical opinion". At the hearing, RVTJ said that he would accept the opinion of his treating doctors, over that of Dr JH. The Tribunal understands RVTJ to be suggesting that the Tribunal should place less weight on Dr JH's opinions because Dr JH is not RVTJ's treating psychiatrist and has not spent as much time with him as Dr RE or Dr DG has. The Tribunal notes that RVTJ stated in his SFIC as follows:[146]

Unfortunately, with the time allocated, and my strong tendency to camouflage and mask my impairments it would be extremely difficult for [Dr JH] to extract a complete picture of my complex issues; I have an in-build (learned) safety mechanism and I find it extremely difficult to fully open up and allow someone to see my vulnerable true self and witness my idiosyncrasies. In this instance it will be a mistake to rely upon the assessment of consultant psychiatrist [Dr JH].

8. The fact that Dr RE has spent much more time with RVTJ than Dr JH, is certainly one factor which the Tribunal has taken into account. However, this point of distinction must be weighed against the fact that RVTJ did not call any of his treating psychiatrists or psychologists to give evidence at the hearing and so they were not available to be questioned about their reports or the opinions and clinical rationale expressed in them.
9. During cross-examination, RVTJ expressed to Dr JH that he had "a lot of concerns" about Dr JH's Report. RVTJ said that there were "a lot of things [he] had not presented well to you". RVTJ referred Dr JH's criticism of the method by which Dr RE had diagnosed RVTJ with ASD. RVTJ put to Dr JH that Dr RE's process was extremely exhausting, lasting a couple of days, and that he had discussed his history and his life with Dr RE. In RVTJ's SFIC, he stated that "The ASD diagnosis was conducted over several sessions and many hours, entailing an in-depth personality and IQ assessment along with family interviews".[147] RVTJ said that Dr RE had used the WAIS-II test "as an adjunct to diagnosing" him with ASD. RVTJ suggested that if one is to read through Dr RE's report, he has identified RVTJ's "strengths and weaknesses". RVTJ suggested that Dr RE had applied the "DSM-5" and that Dr RE's diagnosis was based on the "DSM-5". RVTJ put to Dr JH that when he goes to the pharmacy and supermarket, he will keep his communication to minimum. RVTJ said that he does not talk to people. Dr JH did not change is opinion about whether RVTJ had ASD, based on the matters referred to in the paragraph that RVTJ put to Dr JH at the hearing. Dr JH confirmed that he disagreed with the diagnosis of ASD in RVTJ's case.
10. RVTJ also suggested that Dr JH may be biased towards forming an opinion that a person does not have ASD, based on his stated belief that the condition of ASD is "over-diagnosed". Specifically, in RVTJ's SFIC, he stated as follows:[148]

I also make specific note that [Dr JH] both in his interview with me and in his report noted that there has been a very significant increase in the diagnosis of autism and ADHD in recent years. He then goes on to state, there is contention that these conditions are now over diagnosed. This, to me, seeming bigoted view is at odds with his statement to impartiality.

11. RVTJ also raised a concern about how the NDIA's expert witnesses were selected. In RVTJ's Final Submissions, he asserted that the NDIA had "rejected any OT professionals we deemed suitable and manipulated circumstances to offer only two experts who are employed by medico-legal firms. This raises concerns regarding the fairness and impartiality in the selection of the Respondent's expert medical witnesses".[149] At a case management directions hearing before the Tribunal, the Tribunal explained to RVTJ that ultimately it is a matter for each party as to which expert witnesses they arrange to give evidence in this matter and that the Tribunal would make an assessment of how much weight to give to their evidence. Apart from the matters already raised in this Statement of Reasons, RVTJ did not say whether there are any further specific reason/s why Dr JH did not reach his opinions of RVTJ in an objective and unbiased manner. The Tribunal considers that the fact that the NDIA, and not RVTJ, selected Dr JH as an expert witness, is not a reason, alone, for the Tribunal to reject his expert evidence.
12. The Tribunal acknowledges RVTJ's concern in this regard, however, the Tribunal's decision about how much weight to place on the evidence of Dr JH and Dr RE came down to an assessment of the clinical reasons for how each of them reached the conflicting opinions that they did about whether RVTJ has ASD.
13. In RVTJ's SFIC he quotes from an Aussie Med Ed podcast hosted by Dr GN interviewing Dr JH about who is best qualified for a person with a significant mental health condition to use - that is, that they should use a clinical psychologist.[150] The Tribunal is not persuaded by this podcast evidence that Mr JH is not appropriately qualified as a psychiatrist to provide an opinion about whether RVTJ has the condition of ASD, for the reasons set out in this Statement of Reasons. Nor is the Tribunal persuaded that Dr JH is not appropriately qualified only by reason that he is not approved by a third party organisation (that is, Autism SA) as a "diagnostician". Dr JH is registered with the Federal Government Australian Health Practitioner Regulation Agency ('AHPRA') as a Medical Practitioner with a speciality in psychiatry and is a Fellow of the Fellowship of the Royal Australian and New Zealand College of Psychiatrists. The Tribunal is satisfied that Dr JH is appropriately qualified for the reasons set out in these Statement of Reasons.
14. RVTJ sought to place reliance on the evidence of Mr ME in relation to the question of whether RVTJ has the condition of ASD, specifically:[151]

As noted by the independent OT [Mr ME], the applicant 'frequently spoke in tangents, providing long winded, often irrelevant answers to questions, talking over questions, and frequently requiring redirection to the questions that were asked'. 'I consider these characteristics to be consistent with reports from himself and his practitioners that he has difficulty developing and maintaining friendships and social connections, and I attribute this to his ASD and ADHD'.

15. The Tribunal does not place any weight on the opinion of Mr ME as to whether RVTJ has the condition of ASD as he is not appropriately qualified, as an occupational therapist, to provide such opinions. The Tribunal has before it, opinions provided by psychiatrists and clinical psychologists and will consider those opinions about whether RVTJ has ASD.
16. At the hearing, RVTJ referred the Tribunal to paragraphs [77], [80] and [85] of the decision of the former Administrative Appeals Tribunal in XKGN and Comcare [2020] AATA 291 where the presiding member had expressed an opinion about an expert who had only seen the patient for a short period of time. The Tribunal's main difficulty with this criticism raised by RVTJ is that he did not make available any of his treating medical professionals to give evidence at the hearing to test the opinions set out in their medical reports which were lodged with or produced to the Tribunal.
17. In relation to Dr RE's diagnosis of ASD, RVTJ contends that in addition to the WAIS-III testing process, Dr RE had made a proper assessment. The Tribunal considers that it is not apparent from Dr RE's report that his assessment of RVTJ specifically relating to the task of assessing whether he had ASD could be characterised as comprehensive.
18. The Tribunal asked RVTJ to say why he thought that he had the condition of ASD. RVTJ said that he has "ups and downs" typical of ASD, sensory issues in relation to noise and lights, he has difficulty making friends, he had "quirky likes" and "special interests", he has "an excessive vocabulary", "hates small talk", he "likes structure and routine", and "dislikes surprises". RVTJ said that these are all aspects of ASD. RVTJ contended that Dr RE had applied all of those things to the "DSM-5" even if, as RVTJ put it, his report is "not well written". RVTJ said that he thinks that Dr JH "got it wrong" and that RVTJ would prefer his current doctors' opinions over Dr JH's opinion, "any day of the week".
19. Dealing with the attributes referred to by RVTJ in the above paragraph, the Tribunal does not accept that RVYJ has difficulty making friends. He has two friends whom he sees once or twice each month. He is also content to visit his sister-in-law once every two months in the company of W. The Tribunal does not think that RVTJ's dislike for "small talk" is necessarily determinative of a person who has ASD and that a person's like (or not) for "small talk" can vary from one individual to the next and is inconsequential. RVTJ demonstrated a functional capacity for engaging in reciprocal conversation during several hearing days before the Tribunal. The "ups and downs" which RVTJ attributes to ASD, may equally be the result of ongoing symptoms of his longstanding condition of "MDD with symptoms of anxiety". The Tribunal does not think that RVTJ's self-described "quirky likes" or "special interests" are a sufficient reason to diagnose a person with ASD, noting that many neurotypical persons in the community may have "quirky likes" or "special interests". Further, the Tribunal finds that RVTJ's interest, hobbies and activities, referred to in paragraph [181] below, are not unduly narrow, "special" or "quirky".
20. On balance, the Tribunal is not persuaded that RVTJ has an impairment arising from a psychosocial disability as a result of ASD. Dr RE did not reference and apply the criteria in the DSM-5-TR (or any earlier version) when making his diagnosis. The Tribunal prefers the evidence of Dr JH that RVTJ does not have ASD, based on the coherent clinical reasoning set out by Dr JH in his report and upon which he elaborated at the hearing of this matter as explained in paragraph [188] below. Critically, the Tribunal did not have an opportunity to test the evidence of Dr DG, Dr RE, and Dr AM as to their options about whether RVTJ has ASD.
21. Further, the report of Dr DG appeared to include some assertions about RVTJ as explained below, which did not line up with RVTJ's own evidence at the hearing. Even RVTJ himself, remarked at the hearing that Dr DG might have gone a bit too far on some things.
22. For instance, Dr DG stated in her reports that RVTJ was reclusive, does not leave the home for recreational purposes, and that he had no friends. Dr DG omits to disclose that RVTJ will leave the home once or twice a month to visit his two friends quite a distance away from his home, visit his sister-in-law once every two months (who also lives quite a distance away from his home), and that RVTJ will occasionally go out for a meal with W. Each of those outings fit the description of RVTJ leaving the home "for recreational purposes". Further, Dr DG also omits to describe the several other instances when RVTJ will leave the home including to attend Bunnings, to go to medical appointments, the chemist, the physiotherapist, or to simply go to the supermarket which he does on a frequent basis to shop for grocery items. The Tribunal considers that RVTJ has accessed the community, independently and sometimes, in the company of W, at a frequency which is commonplace for a retired man of his age living at home with three other immediate family members, including W, with whom he can socialise should he choose to do so.
23. Another example is Dr DG's description in Dr DG's Oct 2021 Report, of RVTJ's communication skills. Dr DG asserts that RVTJ has "severe difficulty interpreting communications particularly nuances and non-verbal cues which leads to miscommunications and frustrations on both sides", he "has a strong tendency to inappropriately finish other people's sentences", and that "he had difficulty communicating needs/wants, lacks assertiveness skills, can be very passive-aggressive".
24. During the three days of the hearing of this matter and at an earlier case management directions hearing, the Tribunal was directly communicating with RVTJ as he was self-represented. The Tribunal was also able to directly observe, over that extensive period of time, how RVTJ was communicating with Ms Stowell, including during reasonably lengthy periods of cross-examination.
25. The description given by Dr DG as referred to in paragraph [177] above, is inconsistent with the direct observations of the Tribunal of the communication skills that RVTJ exhibited during the hearing process. The Tribunal observed that RVTJ did not finish people's sentences for them, as asserted by Dr DG, or noticeably interrupt them while they were talking. He did not lack assertiveness and as appropriate, would speak up and have his say. The Tribunal did not observe any "passive-aggressive conduct" by RVTJ as asserted by Dr DG, nor did the Tribunal observe any problems being experienced by RVTJ to express his needs and wants. To the contrary, RVTJ was patient, respectful, personable, and extremely easy to communicate with during the entire hearing process.
26. When Dr DG described RVTJ's social interactions in her Oct 2021 Report, she stated that RVTY has "no friends". This is incorrect. RVTY has two friends who he visits on a regular basis, being once or twice a month, and travels quite a distance to do so.
27. Finally, one of the reasons why RVTJ considered himself to have the condition of ASD is because he says he has a limited range of interests upon which he says he is hyper focussed. However, this is at odds at RVTJ's other evidence at the hearing. Specifically, RVTJ gave evidence about his engagement in several interests, activities, and hobbies such as the following:

(a) tinkering with and fixing electronics; > > (b) learning about ancient civilisations; > > (c) learning about the NDIA's plan review processes and the Tribunal's review processes and researching past decisions; > > (d) catching up with his two friends once or twice each month; > > (e) going to visit his sister-in-law in the company of W once every two months; > > (f) going out for an occasional meal with W; > > (g) attending to ADLs; > > (h) sourcing and managing his medications; > > (i) sourcing and cooking meals, including sometimes in tandem with W which he said was "nice"; > > (j) gardening (albeit to a lesser extent than he might have done so previously but including the planting of some fruit trees); and > > (k) ongoing pool maintenance and attending to sourcing and adding chemicals to the pool as required.

28. The medical reports indicated that RVTJ was learning to play the guitar and enjoyed blues music. At the hearing, RVTJ said he no longer played the guitar and that he did not go out to listen to blues music. He said he will sometimes tinker with fixing guitar amplifiers.
29. In conclusion, the Tribunal is not satisfied that Dr DG has an accurate appreciation about various aspects of RVTJ's interpersonal interactions with others, or about his capabilities and current personal circumstances and activities. Accordingly, the Tribunal considers that the basis upon which Dr DG has adopted Dr RE's diagnosis that RVTJ has ASD, is questionable.
30. Further, the Tribunal is not satisfied that the medical opinion of Dr RE that RVTJ has ASD is reliable because, as identified by Dr JH, Dr RE did not undertake a full and proper ASD assessment of RVTJ before making a diagnosis, as explained in greater detail below. He also does not explain how he reached the diagnosis of ASD despite having included observations in his report of RVTJ in relation to capacity for social reciprocity.
31. Dr JH stated that in 2013, he noted that the diagnosis of autism was made by "a psychologist" who used the WAIS-III. In this regard, the Tribunal notes that Dr JH is a psychiatrist and has specialist medical training in diagnosing psychiatric conditions. In Dr JH's opinion, the WAIS-III is not used as a routine way of diagnosing ASD. Dr JH stated that there are more standard tools to diagnose ASD and he noted that the "NICE Guidelines" recommend the use of the Autism Quotient for screening purposes. The Autism Quotient is a 50 item self-report questionnaire which was originally developed as a means to quantify ASD symptoms.
32. In Dr JH's Report, he opined that he does not support the diagnosis of RVTJ as having ASD. Dr JH pointed out the "the diagnosing psychologist" has, in fact, mentioned in his report that RVTJ is able to engage in social reciprocity, referring to eye contact and facial expressions (being inconsistent with a diagnosis of ASD).
33. At the hearing, Dr JH was asked about the approach by Dr RE when making a diagnosis of RVTJ having ASD. Firstly, Dr JH said that the primary function of the WAIS-III test is to assess "IQ". Dr JH said that while it is correct that people with autism "perform and give a particular look on the scales", "other patients might also produce those results". He said that the WAIS-III is "not diagnostic" and "academics" do not use WAIS-III. Dr JH concluded that it was "inappropriate" to use the WAIS-III to diagnose autism. Dr RE was not called as a witness at the hearing so it was not possible to put this proposition to him and to seek his view about it. The Tribunal accepts this proposition and does not consider it appropriate to place weight on Dr RE's diagnosis in 2019 which was primarily based on the WAIS-III test results and fairly cursory assessment of RVTJ, and without undertaking the other more comprehensive assessments identified by Dr JH in his report.
34. At the hearing, Dr JH was asked to cite the main reasons for his opinion that RVTJ does not have ASD. Dr JH said that the central issue is reciprocity, including whether a person makes good eye contact and appears to understand what is happening emotionally. Dr JH said that in the case of severe autism, the person will seem distant in conversation and you may need to say their name a few times but "they are not in touch with you". Dr JH said that when he was with RVTJ during the assessment, RVTJ understood what was going on and he did not observe any "reciprocity issues". Dr JH also said that people with autism "have difficulty in the world around them", whereas, RVTJ has engaged with his family, went to the supermarket, interacted with people after an incident when his house was flooded, went down into the basement, and did some work himself. Dr JH considers that RVTJ does not need help with social skills, he can adequately communicate and will go to the chemist shop and the doctor's appointments regularly.
35. As Ms Stowell pointed out, RVTJ has several different interests and not only a select few. RVTJ made good eye contact during the hearing. His communication skills were excellent. He was able to take turns when conversing with others. He understood the questions being asked of him and answered them. He had a good sense of humour during a few lighter moments throughout the course of the hearing process. Apart from the incidents of bullying at the end of his working career, RVTJ appeared to have a solid working career and reached the senior position of an operations manager within an organisation that involved the supervision of other employees (albeit small in number). Specifically, RVTJ held one position in a company for an extended period of 21 years. All of these matters are consistent with the opinion given by Dr JH.
36. The Tribunal accepts Dr JH's evidence about the clinical reasons why he is not of the opinion that RVTJ has ASD. Dr JH's observations of RVTJ aligned with the Tribunal's direct observations of RVTJ at the hearing. RVTJ contends that Dr JH's opinion should not be accepted because he is biased in making his assessment because he made a statement that he considers that the condition of ASD, generally, is "over-diagnosed". The Tribunal does not consider that it should disregard Dr JH's opinion for this reason and instead, the Tribunal has considered the clinical reasoning for the views Dr JH formed about RVTJ. The Tribunal considers that Dr JH's clinical reasoning is sound and prefers his evidence over the untested documentary evidence authored by Dr RE, Dr DG, and as appearing in the medical records of Dr AM. The Tribunal considers that Dr JH's clinical reasoning for his opinion about whether RVTJ has ASD is superior to those of Dr RE, Dr DG, and/or Dr AM.
37. On balance, the Tribunal finds that RVTJ does not have the condition of ASD and consequently, the Tribunal finds that RVTJ does not have any impairments which arise from the condition of ASD.

Whether RVTJ has impairment/s from "Acute Anxiety" or other anxiety-related disorder

1. Dr DG has diagnosed RVTJ with "Acute Anxiety". Dr JH correctly pointed out that this is not a condition specified as a psychiatric condition in the DSM-5-TR. There are other anxiety-based conditions listed in the DSM-5-TR such as "Generalised Anxiety Disorder" ('GAD'), as referred to by Dr JH. However, there was no recent medical evidence of RVTJ having been diagnosed with GAD. Despite this, the clinical evidence is clear that there is a strong theme of anxiety-related symptoms in RVTJ's ongoing presentation. There have been a number of life stressors arising in RVTJ's life history as set out above, and while he seems to have learnt some skills to become better at coping with those stressors, his coping mechanisms in the past (prior to receiving therapeutic and pharmacological intervention) appear to have been limited.
2. It is also unclear from the evidence whether RVTJ's anxiety-related symptoms may arise from his other conditions, such as MDD or ADHD. At the hearing, Dr JH gave evidence that 70 per cent of patients who have the condition of MDD, will also experience anxiety symptoms. The Tribunal had taken into account RVTJ's anxiety-related symptoms when considering the impairments arising from RVTJ's conditions of MDD but there is no persuasive evidence before it upon which to find that RVTJ of a stand-alone anxiety-related psychiatric condition, such as GAD. Nevertheless, the Tribunal finds that RVTJ suffers from anxiety-related symptoms arising from his psychiatric condition of MDD.

Conclusion in relation to whether s 24(1)(a) is met

1. The Tribunal concludes that RVTJ has an impairment attributable to psychosocial disabilities as result of the conditions of MDD with anxiety ('RVTJ's Psychosocial Impairment').
2. For this reason, the Tribunal concludes that RVTJ meets the first mandatory criterion under subsection 24(1)(a) of the NDIS Act by reason of RVTJ's Psychosocial Impairment.

1. The second mandatory criterion under subsection 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that "are, or are likely to be, permanent". The word "permanent" is not defined in the NDIS Act or in the Access Rules. The meaning of this term was considered in Davis. At [87], Mortimer CJ of the Federal Court of Australia, held as follows (emphasis added):

The usual approach to construction, in the absence of a contrary intention, means the Court should construe a term consistently throughout a single legislative scheme, assuming Parliament intended it to have the same meaning wherever it was used. The term "permanent" is also used in s 25, dealing with threshold criteria for early intervention supports. I agree with the respondent's submissions that ascribing the term the meaning of "irreversible" does not sit easily with the context and purpose of the early intervention threshold requirements. The reference to "permanent basis" in s 29(b) is another example where ascribing the meaning of "irreversible" would not fit easily with the context and purpose of the provision. Section 29 relates to a person ceasing to be a participant as a result of entering a residential care service, or being provided with home care, "on a permanent basis". A meaning commensurate with "enduring" is more compatible.

2. The Tribunal has found that RVTJ has RVTJ's Psychosocial Impairment. Accordingly, the Tribunal will consider whether RVTJ's Psychosocial Impairment is, or is likely to be, permanent, in that it is "enduring", rather than focussing on whether it is "irreversible".
3. Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or 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".
4. Rule 5.5 of the Access Rules provides that:

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. Rule 5.6 of the Access Rules provides that 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". This rule also provides that:[152]

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

6. Rule 5.7 of the Access Rules provides that 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".
7. The NDIA accepts that RVTJ's Psychosocial Impairment is permanent within the meaning of subsection 24(1)(b) of the NDIS Act.
8. The medical evidence before the Tribunal shows that RVTJ has had MDD and anxiety-related symptoms since at least 2010, that this condition has been extensively and fulsomely treated, and that there are no available treatments for this condition and the anxiety symptoms remaining. On this basis, the Tribunal finds that RVTJ's Psychosocial Impairment is, or is likely to be, permanent.
9. Accordingly, the Tribunal concludes that RVTJ meets the second mandatory criterion under subsection 24(1)(b) of the NDIS Act.

Subsection 24(1)(c) - Substantially reduced functional capacity

1. For a person to meet the next mandatory criterion under subsection 24(1)(c) of the NDIS Act, their impairment or impairments must result in substantially reduced functional capacity to undertake one or more of the six Prescribed Activities referred to in paragraph [13] above: "communication", "social interaction", "learning", "mobility", "self-care", or "self-management".
2. Rule 5.8 of the Access Rules sets out a number of circumstances in which it will be deemed that an impairment results in substantially reduced functional capacity to undertake one or more of the Prescribed Activities. Rule 5.8 provides as follows:

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

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

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

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

1. The Tribunal is required to consider whether as a result of RVTJ's Psychosocial Impairment he meets the requirements of s 24(1)(c) of the NDIS Act. The NDIA contends that RVTJ does not meet this requirement. The Tribunal must consider whether Rule 5.8 applies. Even if it does not apply to "deem" RVTJ to have met the criterion under s 24(1)(c), the Tribunal must still decide whether RVTJ's Psychosocial Impairment results in substantially reduced functional capacity of RVTJ to undertake one or more of the Prescribed Activities. This will call for a close consideration of whether RVTJ has the capacity (or not) to do the range of tasks making up each of the Prescribed Activities.

1. The NDIA's operational guidelines describe the first Prescribed Activity of "communication" as follows:[153]

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.

2. At the hearing RVTJ identified that "communication" was one of the Prescribed Activities that he struggled with the most (as well as "social interaction"). RVTJ gave evidence that he "does not communicate well".
3. It is not in dispute that RVTJ is, and always has been able to, speak to other people, hear what other people are saying to him, and that he can read and write to enable him to communicate in writing. He is able to ask questions and he is able to answer questions as the Tribunal was able to directly observe of RVTJ throughout the duration of the hearing.
4. RVTJ has experienced marital problems during his life. His first marriage did not last. He also has a history of disputation with W which at one stage led to their temporary separation. However, the Tribunal notes that they have since reconciled their differences. This demonstrates that RVTJ's communication skills have allowed him to resolve disputation with his spouse and to maintain his longstanding marriage to W.
5. RVTJ will also speak to S and D in the family home. He said that he usually waits for S to speak to him, in light of S's disabilities. At the hearing, RVTJ was asked whether he spoke to family members in the home about feeding their family pets (one dog and two cats). RVTJ agreed "they generally talk to each other".
6. At the hearing, RVTJ gave evidence that when he meets up with his friends once or twice a month, he will talk to them about "problems in his life". He said, "for me, it is a check in" and that he will "get things off his chest".
7. The Tribunal put to RVTJ that the emails received by Registry from RVTJ seemed to demonstrate that RVTJ has a good level of written communication skills. RVTJ said his written communication skills were "reasonable" and that he could "get by". He added, "I am not sure how good" that written correspondence was. The Tribunal has reviewed RVTJ's various submissions, statements, and emails to the Tribunal and they are legible and coherent.
8. At the hearing, RVTJ confirmed that he had an iPad and when asked, he said that he knew how to use it. He confirmed that he can open and close emails, look at the internet to search and find out information about a subject, and to "do basic things". He agreed that he can search for, find, and listen to podcasts. He confirmed that he knows how to use and observe content (mostly entertainment content) on YouTube.
9. At the hearing, RVTJ said he had a Facebook account but did not have an Instagram account or a TikTok account. He said he had about 10 or 15 friends of Facebook and mainly used Facebook "for news". RVTJ said he will use the Messenger platform to message W, and one of his daughters.
10. At the hearing, Dr JH was asked to describe RVTJ's ability to communicate. Dr JH said that his ability to communicate was "quite good". Dr JH remarked that RVTJ was "able to provide a good history", "the language he used was good", and that "he could focus well".
11. The Tribunal has outlined above at paragraphs [176] and [177] the stated opinions of Dr DG about RVTJ's ability to communicate. Dr DG's opinions do not align with the Tribunal's direct observations of RVTJ's ability to communicate as explained above at paragraphs [45] and [179] above.
12. Mr EM, who undertook a two-and-a-half-hour functional capacity assessment of RVTJ at the request of the NDIA, stated in his report that RVTJ is "independent in the domain of communication and no formal support or interventions are recommended".[154] Mr EM observed RVTJ to express himself clearly throughout the assessment and to ably discuss his symptoms, the treatments he has received, how he responded to the treatments, the difficulties and challenges and symptoms he experiences, his emotions and his relationships with his family, and former work colleagues. Mr EM stated that RVTJ had reported that in previous employment, he managed a team of people in a management position. Mr EM observed RVTJ to use his iPad and phone, and that RVTJ confirmed he is able to use the internet and technology. The Tribunal also directly observed RVTJ at the hearing to use his mobile phone to search for something. Mr EM stated that in the assessment with RVTJ, he had observed RVTJ receive a phone call and he "scheduled a call back for later in the day". RVTJ acknowledged the "self-reports" from RVTJ and his treating practitioners about RVTJ's "incapacities in his capacity for communication", however, Mr EM opined that this predominantly impacted RVTJ's social interactions and his ability to develop and maintain friendships and social connections.[155] Mr EM's observations aligned with the direct observations of the Tribunal at the hearing and the observations of Dr JH during his medical examination of RVTJ.
13. The Tribunal finds that RVTJ is able to undertake all of the tasks required when undertaking the activity of communication and that he can do so independently, without the need for any person or any disability-related assistive technology to assist him to do so. The Tribunal acknowledges that W might choose to assist RVTJ to improve the standard of his written communications on some occasions when he had corresponded with the Registry. However, the Tribunal is not satisfied that this is necessary and that RVTJ is able to communicate effectively by written communication acting alone, if he is required to do so.
14. The Tribunal finds that that the circumstances set out in Rule 5.8 of the Access Rules do not apply in RVTJ's case when he is undertaking the activity of communication. For this reason, the Tribunal concludes that RVTJ is not deemed to have met subsection 24(1)(c) of the NDIS Act.
15. Further, based on the Tribunal's finding that RVTJ has capacity to undertake all of the tasks required when undertaking the activity of communication as outlined above, the Tribunal is not satisfied that RVTJ meets the required threshold of having a substantially reduced functional capacity in undertaking the activity of communication as a result of RVTJ's Psychosocial Impairment.

1. The NDIA's operational guidelines describe the second Prescribed Activity of "social interaction" as follows:[156]

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.

2. RVTJ perceives that he has a substantially reduced functional capacity to undertake the activity of "social interaction". RVTJ is concerned about having only two friends outside of his family who he is able to socialise with. He perceives himself as being unable to make friends. He says that he "over-shares" and that he will say "inappropriate things sometimes", for instance, he said he will "crack a joke in the wrong company". He explained that if he is sitting at a bus stop, he does not know how to make "small talk" with other people.
3. In Mr EM's Report, he observed that RVTJ "spoke in tangents" and that he "provided long-winded, often irrelevant answers to questions, talking over questions and frequently requiring redirection to the questions that were asked".[157] This was not consistent with the direct observations the Tribunal made of RVTJ's style of oral communication at the hearing, as explained above. Mr EM records in his report that RVTJ reported he had lifelong difficulties with developing and maintaining friendships, stating, for example, that he is able to discuss formal matters related to work processes but he is not able to "make small talk" or "participate in meaningful conversations", which he believes has "impacted his capacity for making friends". In Mr EM's Report he referred to RVTJ's two friends as referred to in the above paragraph and stated that this demonstrates that RVTJ has "some capacity to establish and maintain friendships".[158] Mr EM also stated that RVTJ had told him that he is typically able to cope with his feelings and emotions when in a social context and that on occasion, he might become overwhelmed and have a panic attack when in the community and if this occurs, he is able to remove himself from the situation or environment.[159]
4. Mr EM recommended that RVTJ be provided with some assistance by an OT to help build his capacity to link him to social groups related to his interests.[160] At the hearing, RVTJ said this is not what he is looking for. He said he is fearful of social groups and he said he does not know how to be social. He said he is "fearful of failure" as he has been "ridiculed in the past". He said he has not availed himself of being linked with social groups in the past under his My Aged Care referral because aside from being fearful of going to them, RVTJ said that he has had other things on his plate with S's and W's health issues, as well as car issues (W's car was stolen), financial issues, and D's problems.
5. The Tribunal acknowledges RVTJ perceives himself as not being able to interact socially with others as well as he considers that other people are able to do so. However, despite this, RVTJ has remained in a long-standing marriage with W, he is on good terms with S and D, and the Tribunal infers he is on good terms with his sister-in-law if he continues to visit her once every two months and that he has close friendships with the two friends who he travels quite some distance to catch up with socially once or twice a month.
6. The Tribunal finds RVTJ does not require the assistance of another person or assistive technology to enable him to have the above social interactions. While there may be scope for RVTJ to improve his social confidence, the Tribunal is not satisfied that RVTJ is unable to undertake the activity of social interaction and on a regular basis, he had positive and meaningful social interactions with the family members with whom he resides and his two close friends.
7. At paragraphs [176] and [177] above, the Tribunal has outlined the opinions of Dr DG about RVTJ's ability to interact socially including that he does not leave the home for recreational purposes and that he does not have any friends. Dr DG's opinions do not align with RVTJ's own evidence about his regular social interactions with his two close friends, his sister-in-law, and his immediate family members as set out above. They also do not align with Dr RE's statements in Dr RE's Report, that RVTJ "displayed good eye contact and reactive facial expressions" and is "able to detect obvious emotions in others and can read non-verbal cues".[161] Dr RE stated that RVTJ is "exhausted by social events where he has to constantly 'read' people". The Tribunal considers this is not an uncommon experience and that it is commonplace for an individual's endurance for any social interaction to vary from person to person and may, indeed, vary depending on the general mood, the person, or their energy levels at the time of the event. Even if a person might become fatigued by social interaction, this does not mean that the person is incapable of or unable to engage in the activity of social interaction.
8. Dr RE records that RVTJ had friends at primary school and a few friends who he described as being "on the social outer" at secondary school. The Tribunal takes from this that RVTJ was capable of making friends when he was at both primary and secondary school and based on RVTJ's own evidence, that he also had two friends at the present time.
9. For these reasons, the Tribunal does not accept Dr DG's opinions about RVTJ's capacity to undertake the activity of social interaction. The Tribunal acknowledges that RVTJ may experience some low level challenges in the area of undertaking the activity of social interactions. However, the fact he has two friends who he sees on a regular basis once or twice a month and with whom he has a close relationship, and that he converses with W, S, and D in the family home, demonstrates that RVTJ is able to undertake the activity of social interaction and to do so without the assistance of another person or the need to use assistive technology.
10. The Tribunal finds that that the circumstances set out in Rule 5.8 of the Access Rules do not apply in RVTJ's case when he is undertaking the activity of social interaction. For this reason, the Tribunal concludes that RVTJ is not deemed to have met subsection 24(1)(c) of the NDIS Act.
11. Further, based on the Tribunal's finding that RVTJ has capacity to undertake the activity of social interaction as outlined above, the Tribunal is not satisfied that RVTJ meets the required threshold of having a substantially reduced functional capacity in undertaking the activity of social interaction as a result of RVTJ's Psychosocial Impairment.

1. In Mr EM's opinion, RVTJ is independent in undertaking the activity of "learning". At the hearing, Mr EM explained that RVTJ can read and understand the NDIS legislation and case law, that he had completed TAFE courses, and that he has a work history of having worked at different plants. This is consistent with RVTJ's own evidence. At the hearing, RVTJ said that he has "no trouble" with learning except to say that he cannot stop doing certain things and will "achieve the learning at the cost of other domains". RVTJ made detailed contentions about this point in his SFIC. RVTJ stated as follows:[162]

The key miss by the independent psychiatrist and OT is the extreme hyper-focus that is in play and present. During the interviews both the IME psychiatrist and occupational therapist did not ask any questions or in a manner that allowed insight into the impact of my hyper-focus on my health and functional capacity during the interviews. This is one critical area identified by my clinical psychologist and attendant psychiatrist that needs urgent support and help. When I start a project, I often neglect eating, sleeping, self-care and self-management. The current disagreement with the NDIA is a perfect example. Since this began over 3 years ago I have hyper focused on legislation, parliamentary processes both House of Reps and Senate, the mechanisms of review and oversight, the Senate standing committee into the NDIA, their culture and capabilities, how the NDIS came to be, the work and ideology of the drivers (Julia Gillard), the effect and influence of the WHO, the signatories to the WHO disability doctrines, the legislation around the AAT and now ART. How successive governments have mishandled, what is a great concept and huge improvement from the broken and financially wrought old system. And much more. The process is exhausting and all-pervading and has led my mental health professionals to recommend that I reconsider the request for access. Not because my application is invalid but because of the mental and physical harm this process has perpetuated. It's frustrating for me as the applicant to have my application for access into the NDIS denied particularly when there is clearly documented signed evident by medical professionals who are specialists in these particular fields, and who also meet the NDIS approved medical clinicians list.

2. The Tribunal notes those submissions. However, the fact remains that RVTJ has accepted that he is able to undertake the activity of learning. The fact that he considers that he might engage in this activity more than he should, or to an excessive degree, is irrelevant to the finding the Tribunal is called upon by subsection 24(1)(c) of the NDIS Act to make. Based on RVTJ's own evidence, the Tribunal concludes that the deeming provisions under Rule 5.8 of the Access Rules do not apply to RVTJ, and that RVTJ does not have any impairment in respect of the activity of "learning".

1. The NDIA's operational guidelines describe the second Prescribed Activity of "mobility" as follows:[163]

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.

2. The Tribunal has found that RVTJ does not have a physical impairment.
3. RVTJ's own evidence that he is able to walk about in his home and when he is in the community. RVTJ said that when he is at the supermarket, he will use a shopping trolley to help him. He said that if he is using a four-wheeled walker he is able to "keep up with anyone". He said he can walk between 500 and 1,000 metres with a four-wheeled walker. He also said he is able to drive a car which he does from time to time. RVTJ said he can catch public transport independently and he told the Tribunal that to attend the hearing at the Tribunal, W had driven him to his local train station and he had caught a train into the city and then walked to the Tribunal's premises from the train station. He did the same on the return journey. He was not using a four-wheeled walker to mobilise when he was inside the Tribunal hearing room on the first day of the hearing. RVTJ said that he is able to climb some stairs. The Tribunal notes that there are a set of paved stairs at the entrance of his home based on the photographs in Mr EM's Report. RVTJ gave evidence that he has built up his core strength. He said he was given a set of exercises to do in early-2023 which he did until 2024 but he is no longer doing them. However, the evidence revealed the RVTJ is actively engaged in daily activities involving mobilisation and weight bearing, including cleaning the pool, tending to his garden, cooking, shopping and undertaking light cleaning tasks. These activities require physical exertion on a regular daily basis and act to condition his core strength.
4. In Dr DG's Oct 2021 Report, she stated that RVTJ is reluctant to travel alone to unfamiliar environments, goes out alone infrequently, only travels alone in familiar areas, and has heightened anxiety which can result in disagreements with others when travelling on public transport. Dr DG described RVTJ has being a "severe risk to himself and others".[164] This evidence did not align with the Tribunal's impression of RVTJ at the hearing, about his self-described ability to get out and above around his home and in the community, as addressed in detail above.
5. In Mr EM's Report, he stated that RVTJ was observed mobilising independently throughout his home and yard areas. Mr EM stated that this included RVTJ "ascending and descending approximately 12 steps at the front of his home, navigating through the cluttered intervals of his home and walking on unsealed lawns and gardens". Mr EM stated that RVTJ "mobilised independently, without mobility aids". Mr EM said RVTJ showed signs of reduced balance when using steps and on unsealed or uneven ground. RVTJ said he had insight into this and "was observed taking extra time and moving slower when navigating narrow walkways and when using steps". The Tribunal notes that Mr EM stated that RVTJ presented as a falls risk due to the reduced balance he experiences, however, he added that the incidents of RVTJ falling had reduced since he underwent the spinal decompression surgeries.[165] When asked by the Tribunal, Mr EM said he did not administer a falls risk assessment on RVTJ.
6. Mr EM stated in his report that RVTJ told him that he could perform bed transfers independently. Mr EM stated that he observed RVTJ performing chair transfers with full independence, using the arm of the chair for support.[166] Mr EM said he observed RVTJ performing toilet transfers with modified independence in that he would use the seat of the toilet during the transfers. Mr EM stated that he observed RVTJ to perform shower transfers with full independence and transfers into and out of an Isuzu D-Mux utility vehicle. Mr EM said his usual car was a Jeep, which he reported to Mr EM that he could transfer into and out of independently.[167]
7. Mr EM stated that RVTJ had told him that his lifting tolerance was about 10kg. The Tribunal considers RVTJ's lifting tolerance to be quite good.
8. Mr EM opined that RVTJ would be able to use public transport with full independence, which is consistent with RVTJ's own evidence.
9. When mobilising in the community, RVTJ told Mr EM that he used a four-wheeled walker and that he often used this when mobilising in the community. Mr EM stated that he did not observe RVTJ using the four-wheeled walker during the assessment. The Tribunal did not observe RVTJ using a four-wheeled walker during the first day of the in-person hearing process to assist him to mobilise. Mr EM recommended falls risk education for RVTJ and suggested that he use equipment over his toilet seat to "reduce the risk of falls".[168]
10. Based on RVTJ's own evidence, he is able to mobilise in and around his home and in the community even if there is a limit to him walking long distances. He can move his arms and legs and use his body in a way which enables him to walk, climb stairs, manipulate and lift objects with his hands, bend over to collect water from his pool, go to shops to buy items and to bring them back to his home, and to undertake a range of different transfers independent of assistance from another person. The only area where RVTJ may need additional assistance is in relation to undertaking safe toilet transfers and avoiding falls as he mobilises. RVTJ gave evidence that on the exterior of his home, the surfaces comprised "grass, concrete, paving and asphalt". When asked if he could move across those surfaces without assistance, he answered "Yes".
11. The Tribunal finds, on balance, that that the circumstances set out in Rule 5.8 of the Access Rules do not apply in RVTJ's case when he is undertaking the activity of mobility when considering all of the tasks comprising this activity as a whole. For this reason, the Tribunal concludes that RVTJ is not deemed to have met subsection 24(1)(c) of the NDIS Act.
12. Further, based on the Tribunal's finding that RVTJ has capacity to undertake the activity of mobility as outlined above, the Tribunal is not satisfied that RVTJ meets the required threshold of having a substantially reduced functional capacity in undertaking the activity of mobility as a result of RVTJ's Psychosocial Impairment.

1. The NDIA's operational guidelines describe the second Prescribed Activity of "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.

2. RVTJ's own evidence is that he is independent with most ADLs. This is consistent with the Tribunal's finding that RVTJ does not have any physical impairments.
3. RVTJ said he can shower and use the taps and vanity, independently. RVTJ gave evidence that he can hang and use towels in the bathroom, independently. He confirmed that he can dry himself when he comes out of the shower. He remarked that he does not shower very much. RVTJ gave evidence that he showered once every couple of weeks. When asked why that is so, he said he does not think about it much. When asked if this worried him, RVTJ said it does not, unless he is going to the shops. The Tribunal considers this to be a matter of personal prerogative for RVTJ how often he showers, given that RVTJ does not suffer from any cognitive deficits. The Tribunal finds that RVTJ is able to shower himself independently as and when it is his personal preference to do so.
4. RVTJ's own evidence at the hearing was that when he steps out of the shower, he is able to dry himself. He also confirmed he is able to go to the toilet without support from another person. RVTJ gave evidence that he experiences urinary leakage everyday due to a weakness in the urinary tract. He said he uses incontinence pads which he says he buys from Chemist Warehouse.
5. RVTJ is able to brush is teeth and his hair independently. He does not require assistance to eat his meals. His arms and hands are dextrous as the Tribunal could observe as RVTJ handled objects such as his phone and documents during the hearing process. RVTJ can use his hands and arm to feed himself independently.
6. Dr DG stated that RVTJ needed "regular support with daily activities and self-care particularly in view of previous severely disturbed behaviour which may include self-harm, suicide attempts, unprovoked and provoked aggression towards others or manic behaviours/excitement". This does not reflect RVTJ's own evidence about his capacity to attend to virtually all everyday tasks required for him to take care of himself.
7. At the hearing, Dr JH said that based on his examination of RVTJ (which took place by video link) he considered that RVTJ was "a little bit down in self-care and presentation" but based on his visible appearance and the information he provided about his ability to do certain tasks, he formed the view that RVTJ was able to care for himself and did not need the assistance of others. Dr JH said he was able to see RVTJ relatively clearly through the video link. Dr JH said that RVTJ had a "mild requirement for prompting" in respect of showering. Dr JH said he did not think RVTJ needed any particular support with self-care.
8. In Mr EM's Report, he would support that RVTJ may "further improve and maximise" his functional capacity in the domain of self-care if he were to receive assistance from a hoarding service and also if he were to discuss the continence aids program with his treating GP. At the hearing, Mr EM withdrew the first of those recommendations on the basis that this is a support that is required by W's hoarding issues and is unrelated to RVTJ. Mr EM told the Tribunal he wished to strike out this first recommendation from his report. The second recommendation is a non-issue in the context of this proceeding, because RVTJ gave evidence that he currently sources and uses continence aids which he has sourced and funded privately. The important point is that RVTJ is receiving the identified support at the present time (irrespective of who is funding it).
9. The Tribunal finds, on balance, that that the circumstances set out in Rule 5.8 of the Access Rules do not apply in RVTJ's case when he is undertaking the activity of self-care when considering all of the tasks comprising this activity as a whole. For this reason, the Tribunal concludes that RVTJ is not deemed to have met subsection 24(1)(c) of the NDIS Act.
10. On balance, the Tribunal finds that RVTJ had no reduced capacity in respect of his ability to undertake the activities of self-care as a result of RVTJ's Psychosocial Impairment.

1. The NDIA's operational guidelines describe the second Prescribed Activity of "self-management" as follows:

...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.

2. As mentioned at the hearing, the Tribunal does not agree with this description of what "self-management" encompasses in that it should not be limited to the mental or cognitive ability of the person to undertake that task, but rather the Tribunal should consider whether the person can undertake the tasks within the activity of self-management or whether they are unable to do so because of one or more of their permanent impairments. The Tribunal considers that this includes all aspects of doing each task whether they be the mental or cognitive aspect of it, or the physical aspect of doing the task.
3. In Dr DG's Oct 2021 Report, she stated that RVTJ's "judgement, decision-making, planning and organisation functions can be disturbed, sometimes severely, but not often". She also stated that RVTJ's "behaviours, thoughts and conversations are significantly and on occasion, disturbed". She stated that he "exhibits poor judgement" and that his activity levels are "noticeably decreased or reduced". Dr DG stated that RVTJ has "difficulties in attending to responsibilities due to lack of motivation, interest, concentration, organisation, or different priorities, easily overwhelmed". Dr DG stated that RVTJ "requires prompting, needs assistance managing household responsibilities (paying bills, house cleaning and laundry)". In conclusion, Dr DG stated that RVTJ needed:

(a) "daily support for one to two hours to help get control in his environment and into healthy routines"; > > (b) "to regularly work with a psychologist and mental health coach to identify systems that need to be put in place to help him take control of his life" and > > (c) "to monitor stress levels as there is extreme change occurring in his life". Dr DG did not specify what those changes were.

4. Dr DG stated that RVTJ had engaged in a "long fight with WorkCover for permanent impairment benefit, NDIS access and son's [disability support pension] application". Dr DG stated that RVTJ has adopted a "responsible approach to taking medication". Dr DG stated that RVTJ was able to "cook and shop locally".
5. RVTJ's main concern about being able to engage in the activity of self-management is that he says he becomes hyper focused on his special interests to the detriment of attending to other daily tasks he needs to do.
6. RVTJ's own evidence is that he:

(a) goes to the shops to buys groceries; > > (b) is able to use a washing machine unassisted by another person; > > (c) is able to use a tumble dryer; > > (d) is able to hang clothes on the clothes line; > > (e) is able to lift baskets of wet laundry without assistance from another person. He said prior to the spinal surgery, he could not undertake this task but that he can do so now; > > (f) goes to Bunnings to buy pool maintenance items (chemicals) as required; > > (g) takes the leaves out of his pool; > > (h) goes to the Chemist to source his medication and continence pads; > > (i) make arrangements and meets up with his two friends once or twice a month; > > (j) make appointments with his health specialists and makes it to those appointments; and > > (k) manages his medication regime using a webster pack.

7. When asked whether he can cook, RVTJ's reply was that he can put a meal on the table but that it may not be a "cordon bleu". He said sometimes he cooks on his own, or sometimes he will cook with W (as he described as being "nice"). When asked whether RVTJ is able to access all areas of the kitchen, he said, "Yes, pretty well, I am". RVTJ confirmed that he can use the oven independently and that he can bend down and put an oven dish in the oven. When asked whether he can "handle boiling water", RVTJ said he can put it onto his walker. RVTJ referred to having worked with the "rehabilitation people" (OTs) after his spinal injuries. He confirmed they had assisted him to identify hazards in his home and that he could "problem solve" in his home if problems presented themselves.
8. RVTJ's manages his own finances and bank account. At the hearing, RVTJ gave evidence that both W and he will pay the bills. He said the bills are paid from their bank account and that they use BPay. When asked whether RVTJ was "tech savvy", he answered "reasonably". The Tribunal acknowledges that RVTJ gave oral evidence about having been scammed out of a sum of $20,000 indicating some vulnerabilities in this area but there were not enough details about this to draw any conclusions from this incident and in particular, whether this event could be attributed to any of RVTJ's claimed impairments.
9. RVTJ said he would like some help with his finances. The evidence revealed that he still has a mortgage over his home, he has ceased working, his WorkCover had ceased, and his superannuation is running low. It does not seem surprising that RVTJ had financial issues in these circumstances but there was no evidence before the Tribunal that those financial difficulties arise as a result of RVTJ's Psychosocial Impairment. There was no evidence before the Tribunal that RVTJ suffers from a gambling addiction at the present time.
10. RVTJ has demonstrated that he has been able to manage a crisis situation involving the flooding of his home and is navigating the process of making and pursing an insurance claim in respect of the reparation work required as a result of the flooding. RVTJ gave evidence that this incident occurred in October 2021 when there was a major storm flooding the downstairs of his home. RVTJ said that he is still working with the insurance company about this and that his insurer had put forward a building proposal and contract. RVTJ said that he wanted a clause taken out which would give the builder the right to access his property. RVTJ said that the mould issue is now resolved but there are still unrepaired structural issues.
11. RVTJ has demonstrated that he is able to manage the tasks required to regularly maintain his pool. Occasionally, he will feed his pets to ensure they remain fed and alive.
12. In Mr ME's opinion, RVTJ is independent in the activity of "self-management" with one qualification being that RVTJ and W struggle to managed their budget. This is a difficulty that many unemployed people may face, regardless of whether they have a disability.
13. RVTJ has MDD with symptoms of anxiety so the Tribunal expects that RVTJ may, when he is experiencing a depressive episode, experience a reduction in functional capacity in respect of the activity of self-management if his motivation and energy levels decrease. However, based on the evidence before the Tribunal and in particular, RVTJ's own evidence, the Tribunal is not satisfied that he has reached the threshold of having a substantially reduced functional capacity in undertaking the activity of self-management. The Tribunal also concludes that none of the circumstances in Rule 5.8 of the Access Rules apply in RVTJ's case in relation to this activity, which would deem him to have met the criterion under subsection 24(1)(c) of the NDIS Act.

1. Although the Tribunal has found that RVTJ meets subsection 24(1)(a) and (b), he does not meet the third mandatory criterion under subsection 24(1)(c) of the NDIS Act. The criteria under subsection 24(1) are cumulative so it is not necessary for the Tribunal to proceed to a consideration of the other mandatory criteria under subsections 24(1)(d) and (e).
2. The Tribunal concludes that RVTJ does not meet the "disability requirements" under s 24 of the NDIS Act because he does not meet the mandatory criterion under subsection 24(1)(c) of the NDIS Act.

Whether RVTJ meets the early intervention requirements under s 25

1. RVTJ made his access request to the NDIA prior to the legislative amendments on 3 October 2024. The Tribunal must decide whether RVTJ meets the early intervention requirements under s 25, based on the wording of this provision as it existed prior to the legislative amendments on 3 October 2024.
2. Prior to the legislative amendments, s 25 of the NDIS Act provided as follows:

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

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

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

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

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

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

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

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

(iii) improving such functional capacity; or

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

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

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

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

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

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

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

1. In RVTJ's Final Submissions, he asserted that he fulfils all criteria for early intervention support under the NDIS. RVTJ "maintains that early intervention is the appropriate pathway to mitigate and diminish future harm, alleviate pain, and reduce both future costs and the burden on himself, his family, and the healthcare system".[169]
2. For this same reasons as set out above, the Tribunal concludes that RVTJ has met subsection 25(1)(a)(ii) because the Tribunal has found that he has RVTJ's Psychosocial Impairment as referred to in paragraph [194] above. This impairment is attributable to psychosocial disabilities arising from RVTJ's diagnosed conditions of MDD and his symptoms of anxiety. RVTJ has had those conditions for a very lengthy period of time. Dr DG stated that his depression started after RVTJ's father died in 2010. However, the Tribunal notes (and accepts as likely to be more accurate), that RVTJ's MDD commenced before this time - see Dr MP's statement as referred to in bold highlight in paragraph [100].
3. The Tribunal has also found that RVTJ's conditions of MDD and his symptoms of anxiety have been optimally medically and clinically managed for quite a long period of time as set out in the medical history set out in this Statement of Reasons. He has been taught comprehensive psychological strategies and tools to assist him if he becomes overwhelmed or has a panic attack. He referred to using some of those strategies when he gave evidence at the hearing upon encountering a distressing situation such as travelling close to his old workplace. RVTJ's and his treating doctors also refer to his depression being stable under his current medication regime. Dr DG opined that there were no early intervention supports likely to reduce RVTJ's future support needs.[170]
4. In those circumstances, the Tribunal is not satisfied that there are any interventions which could be provided to RVTJ which could appropriately be described as early interventions at this late stage of the trajectory of RVTJ's treatment history for his MDD and anxiety symptoms, and which are likely to reduce RVTJ's future needs for support. The Tribunal is satisfied that the impairments arising from his MDD and symptoms of anxiety have stabilised.
5. For this reason, the Tribunal is not satisfied that the provision of early intervention supports for RVTJ's Psychosocial Impairment is likely to benefit RVTJ by reducing his future needs for supports in relation to this disability. The Tribunal concludes that RVTJ does not meet the mandatory criterion under subsection 25(1)(b) of the NDIS Act.
6. The criteria under subsection 25(1) are cumulative and so it is not necessary for the Tribunal to consider the remaining criteria under subsection 25(1) of the NDIS Act. Nor does the Tribunal need to consider whether the circumstances set out in subsection 25(3) apply in RVTJ's case.
7. Accordingly, the Tribunal concludes that RVTJ does not meet the "early intervention requirements" under s 25 of the NDIS Act.

1. The Tribunal has concluded that RVTJ does not meet the "disability requirements" under s 24 of the NDIS Act. The Tribunal has also concluded that RVTJ does not meet the "early intervention requirements" under s 25 of the NDIS Act.
2. For these reasons, the Tribunal concludes that RVTJ does not meet the access criteria under s 21 of the NDIS Act. This means RVTJ will not be granted access as a participant in the NDIS.
3. The Tribunal affirms the Decision Under Review.

1. I certify that the preceding 284 (two-hundred-and-eighty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

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

[1] T-Documents, T1. The 'T-Documents' are a set of documents lodged by the NDIA under s 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth).

[2] NDIA's Statement of Facts, Issues and Contentions lodged with the Tribunal on 6 March 2025, paragraphs [12] to [14] inclusive. This issue was not in dispute between the parties.

[10] Name of occupational therapist withheld.

[26] Name of this hospital omitted. Hospital D offers a range of services within both inpatient and day programs including substance use and addiction, aged, and general psychiatry.

[53] National Disability Insurance Agency v Davis [2022] FCA 1002, [69] ('Davis').

[57] Specifically, Dr AM, Dr DG, Dr RE, Dr MP and Ms FS as referred to below. Names of these health practitioners withheld.

[58] The current version of this manual is the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, published by the American Psychiatric Association, 2022 ('DSM-5-TR').

[72] The BDI-II is a 21-question multiple choice self-report inventory.

[73] The BAI is a 21-question multiple choice self-report inventory.

[79] Name of consulting suites withheld. These consulting suites are based at Hospital D.

[93] Name of this hospital withheld. Hospital D is a private psychiatric hospital.

[95] It is apparent from Dr DG's two reports issued in 2020 (see paragraphs [115] to [120] below), which were produced under summons, that Dr DG was aware when she issued her Oct 2021 Report that RVTJ had an alcohol use disorder (in remission), as she referred to this condition in those earlier 2020 reports.

[96] WC would appear to be a reference to WorkCover.

[97] IME would appear to be a reference to Independent Medical Examination.

[134] The Tribunal notes that either the date of this examination as stated by Dr DG in this report, is a typographical error, or the date of Dr DG's June 2020 Report is a typographical error.

[136] The Tribunal notes that either the stated date of this examination is a typographical error, or the date on Dr DG's June 2020 Report is a typographical error (most likely the latter).

[138] The mean IQ for a person is 100.

[142] RVTJ gave evidence at the hearing that he had tried taking other stimulant medication, such as Ritalin, but it had not worked. He said he had weird dreams and hot sweats.

[149] RVTJ's Final Submissions, page 2.

[152] The Tribunal notes that in Davis at [64] - [75] that Mortimer CJ raised a question about the validity of Rules 5.4 and 5.6 being exclusionary in effect. No submission was made by either party in this application as to the validity of these two rules. As an aside, the Tribunal notes that this issue was considered recently in Kelly v National Disability Insurance Agency [2024] FCA 1462 and McEvoy J is of the view that Rule 5.4 is valid.

[169] RVTJ's Final Submissions, page 2.

[170] SEF completed by Dr DG and lodged in support of the Access Request.