1. By way of a form dated 17 December 2020 and received by the Agency on 1 March 2021, RYWQ applied to access the NDIS.[1] This application was made by RYWQ's mother, who will be referred to as 'Ms R' in this decision.[2]
2. On 2 November 2021 a delegate of the Chief Executive Officer (CEO) of the Agency refused that application, finding that RYWQ had not met the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), or the early intervention requirements under section 25 of the NDIS Act.[3] These requirements are explained in detail in following sections of this decision.
3. In January 2022 Ms R asked the Agency to conduct an internal review of that decision.[4] On 19 March 2022 another delegate of the CEO upheld the original decision that RYWQ did not meet the access requirements for the NDIS.[5] This is the 'reviewable decision' (the decision under review) that is now before the Tribunal.
4. In providing reasons for that decision to RYWQ/Ms R, the Agency's decision-maker advised that while RYWQ met the age and residency requirements in the NDIS Act:

... the main issues in considering your access to NDIS are that the evidence provided does not conclude that you meet the permanency component of the NDIS access criteria at this time and that the evidence does not demonstrate that your impairment results in a substantial reduction in functional capacity as defined by the NDIS access criteria.[6]

1. On 29 March 2022 RYWQ lodged an application with the former Administrative Appeals Tribunal (the AAT) seeking review of this decision.[7]
2. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
3. Ms R represented RYWQ throughout the review and at the final hearing. The Agency was represented by internal officers, instructing Mr Philip Nolan of Counsel at the hearing.
4. The review was heard by video (by Microsoft Teams) on 31 March, 1 April and 5 June 2025. The final day was added after the initial listing, and became necessary in order for the Tribunal to, among other things, hear evidence from RYWQ. This occurred as RYWQ was unable to secure permission from her workplace to be absent for the purpose of attending the initial hearing dates of her review, due to her employer's requirement that she attend an essential training course.
5. At the hearing, the Tribunal had before it the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents), and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which also contained relevant excerpts from legislation and the NDIS Rules and Guidelines, and relevant case-law referred to by the Agency in its submissions. The Hearing Bundle also contained documents produced under summonses, issued by the Tribunal at the request of the Agency, from four practices that had provided treatment to RYWQ over a period of some years. The Hearing Bundle became Exhibit 1 in the proceedings.
6. An email from Ms R dated 24 March 2024, providing information about RYWQ's income and expenses and attaching some materials relating to her pay and the training commitment noted above, became Exhibit 2 in the review.
7. Additionally, both parties filed some written submissions during the review.[8]
8. Ms R and RYWQ gave evidence at the hearing. The Agency called as witnesses Ms Catherine Cummings, an Occupational Therapist who had undertaken an independent functional assessment of RYWQ at the Agency's request, and also Dr Monika Walia, a psychiatrist who had undertaken an independent examination of RYWQ at the Agency's request.
9. Ms Cumming's report dated 17 September 2024, and Dr Walia's report, dated 26 September 2024 (Dr Walia's report), were in evidence and included as parts of the Hearing Bundle,[9] as were the briefing letters provided to them by the Agency.[10]
10. During the hearing I sought the views of the parties on the making of an order pursuant to section 70 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act), restricting the publication of information tending to reveal the identity of RYWQ. This was raised due to the nature of some of the evidence concerning RYWQ and the possible harm that might occur if such an order was not made, and also because of statutory restrictions applying to evidence and information relating to RYWQ's involvement with the youth criminal justice system. The parties supported the making of such an order and, having regard to the factors required to be considered under section 71(2) of the Act and also the requirements of the Tribunal's Common Procedures Practice Direction,[11] I was satisfied that it was appropriate to make an order. As a result, pseudonyms are used to identify RYWQ and her mother, and also some medical practitioners, in this decision.
11. Additionally, because of the statutory restrictions resulting from RYWQ's involvement in the criminal justice system as a child, any references in this decision to evidence relating to that aspect of RYWQ's history are expressed in a limited way; for example, to not identify specific practitioners involved with RYWQ, or the contents of reports made about RYWQ for the purpose of proceedings relating to RYWQ or provided to a responsible agency. For these reasons, a further order pursuant to section 70(2) has also been made restricting the publication of evidence and information relating to this review.

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

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[13]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[14] In undertaking its review, the Tribunal may exercise all the powers and discretions that are conferred on the maker of the decision under review.[15] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[16]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[17]
2. In the recent appeal decision of National Disability Insurance Agency v Lampard [2025] FCAFC 139 (Lampard) the Full Court of the Federal Court cited with approval the following observations made by Senior Member French of the Tribunal in Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718, a remittal decision following the Full Court decision in National Disability Insurance Agency v Foster [2023] FCAFC 11; 295 FCR 521 (Katzmann, Perry and Sarah C Derrington JJ):

Section 21(1) provides that a prospective participant will meet the access criteria for the NDIS if the CEO is 'satisfied' that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically. Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the access criteria are met.[18]

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

1. After RYWQ filed her application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note are the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[19] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when RYWQ applied to access the NDIS, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
2. The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, RYWQ's application must be determined in accordance with the provisions of the NDIS Act existing before that date.
3. Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.

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

21 When a person meets the access criteria > > (1) A person meets the access criteria if:

(a) the CEO is satisfied that the person meets the age requirements (see section 22); and

(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

(c) the CEO is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25).

1. Section 9 of the NDIS Act defines 'meets the disability requirements' to have the meaning given by section 24, which provides as follows:

1. A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

1. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
2. For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
3. Subsection (3) does not limit subsection (2).
4. The five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met. In this review, the Agency submitted that the evidence did not support findings that RYWQ met the following disability requirements:[21]

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

5. Section 25(1) provides as follows, in relation to the early intervention requirements:
   1. Early intervention requirements

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

(a) the person:

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

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

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

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

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

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

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

(iii) improving such functional capacity; or

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

(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:

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

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

(a) Her impairments are not permanent, within the meaning of section 25(1)(a). > > (b) With respect to subsections (b) and (c) of section 25(1), RYWQ's impairments have been longstanding, and it cannot be said that the impairments are at an early stage of their trajectory. > > (c) The recommended early intervention supports are clinical in nature, and are more appropriately provided under the health system, and not the NDIS, so section 25 (3) is not met.[22]

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

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

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

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

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

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

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

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

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

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

209 The National Disability Insurance Scheme rules

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

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

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

1. NDIS Rules relating to the disability and early intervention requirements have been made; namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules). Relevantly, Part 5 of those Rules addresses '[W]hen does a person meet the disability requirements?' and the requirements of 'permanency' and 'substantially reduced functional capacity to undertake relevant activities.'
2. Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements. These Rules provide as follows:[23]

When is an impairment permanent or likely to be permanent for the disability requirements?

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

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

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

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

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

When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

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

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

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

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

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

1. The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the Agency as guidelines that set out some of the Agency's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation.' [24] The guidelines of relevance to this review are those entitled Applying to the NDIS (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.

Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[25] As such, the Guidelines set out the Agency's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[26]

DOES RYWQ MEET THE ACCESS REQUIREMENTS FOR THE NDIS?

1. RYWQ was 17 years old when she applied, through Ms R, to access the NDIS. She is an Australian citizen, living permanently in this country.[27] As such, the Agency accepted,[28] and I find, that RYWQ meets the age and residence requirements in sections 22 and 23 of the NDIS Act.

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

1. The first of the section 24 disability requirements is that the person applying for access to the NDIS has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or the person has one or more impairments to which a psychosocial disability is attributable.
2. In the case of Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), Mortimer J (as her Honour then was) said the following about the concepts of 'disability' and 'impairments', in the context of the section 24 requirements:

... The term "disability" is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.[29]

1. The Agency's primary written submission in this review was its Amended Statement of Facts, Issues and Contentions, dated 18 March 2025 (the Agency's Amended SFIC). Therein, the Agency noted Dr Walia's report and particularly her diagnosis that RYWQ was suffering from mixed anxiety and depressed mood, and complex PTSD, with a 'background diagnosis' of ADHD and conduct disorder, which impacts on her mental function.[30]
2. On the basis of Dr Walia's above opinion, the Agency accepted in its Amended SFIC that RYWQ has an impairment attributable to a psychosocial disability and meets the requirement of section 24(1)(a) of the NDIS Act.
3. Given that the section 24 requirements operate by reference to an applicant's impairments, rather than their disability, the precise nature of RYWQ's impairments was explored further in the evidence at the hearing, including with Dr Walia,[31] who confirmed that the specific impairments attributable to RYWQ's psychosocial disabilities were those outlined in a section of her report headed '[i]mpact on activities of daily living.' In the Agency's further written submissions, the Agency's counsel summarised the impairments identified by Dr Walia in these terms:

Difficulties in motivation, reduced efficiency, difficulties going anywhere by herself, and need for reminders to take care of herself.[32]

1. Additionally, the Agency's written submissions also noted the accepted meaning of the term impairment, as explained in Mulligan above, and further submitted (footnotes omitted):

This concept of impairment is consistent with the explanation of impairment in the World Health Organisation's International Classification of Functioning, International Disability and Health (ICF), which has as one of its objectives to 'provide a standard language and framework for the description of health and health-related states'.

The Respondent submits that some interpretive assistance with section 24 can also be obtained from the ICF, however the wording in the ICF should not be replacing, or be determinative over, the wording of the statutory language in section 24. The wording of the Statute, Rules and Operational Guidelines should be given primacy.[33]

1. In conclusion, the Agency noted that the descriptions of RYWQ's impairments by Dr Walia were also consistent with the wording used in the ICF, '... with "energy level",[34] "motivation",[35] "sustaining attention",[36] and "memory" (short and long term)[37] all being suitable descriptions of the mental health impairments in this case.'[38]
2. I note also that there was consistency between the impairments identified by Dr Walia, and those described by RYWQ when she gave evidence about how her mental health impacts her day-to-day life,[39] and Ms R's evidence about her own observations of her daughter.[40]
3. Noting the above evidence and the Agency's acceptance that RYWQ meets the requirement of section 24(1)(a), I find that RYWQ has the specific impairments identified by Dr Walia as listed above, which are attributable to psychosocial disability. Accordingly, RYWQ meets the requirement of section 24(1)(a) of the NDIS Act.

1. Throughout the review the Agency contended that RYWQ did not meet the requirement in section 24(1)(b) of the NDIS Act; namely, that her relevant impairments are, or are likely to be, permanent.
2. It was common ground in the evidence about RYWQ's history and treatment that RYWQ was not currently taking any medication relating to her impairments, and was not seeing a psychologist or a psychiatrist.
3. As detailed below, the Agency submitted that section 24(1)(b) was not met because of the application of Rules 5.4 and 5.6 of the Access Rules.

The evidence about RYWQ's impairments and their treatment

1. To understand RYWQ's impairments and her treatment history, it is helpful to begin with a broader history of RYWQ.

1. The Tribunal had before it an extensive amount of information relating to RYWQ's relevant personal and medical history. Much of this material had been briefed to Dr Walia for the purpose of her examination of RYWQ and report,[41] including all the materials lodged by RYWQ and Ms R when applying to the NDIS. To prepare her report, Dr Walia conducted a conference by video with RYWQ, with Ms R also attending and contributing information at times. In her report, Dr Walia provided a useful summary of RYWQ's personal and psychiatric history. [42] This history noted the following:
   • RYWQ lives with Ms R, who receives a Carer's Allowance to look after RYWQ.
   • RYWQ was placed in care with Ms R, when eight weeks of age. There were no reported behavioural concerns or physical health issues during RYWQ's early childhood.
   • When RYWQ was around eight years of age, concerns regarding her focus and attention and her behaviour at school were raised. At ten years of age RYWQ was suspended from school, and there were issues with her absconding from class and non-attendance.
   • When RYWQ was 12 years of age her sister left home, and ceased contact with RYWQ, causing significant distress. RYWQ relates her diagnosis of complex PTSD to these events. Around the time of these events, she began engaging in substance use, as a trauma response, which she continued 'on and off' until ceasing at age 18.
   • At 13, RYWQ was excluded from her school because of disruptive behaviour. She transferred to another school for about six months, before being again excluded because of her behaviour.[43] Her education after that time involved some distance education and short course activities.
   • At the age of 17 RYWQ connected with her biological parents. This experience was difficult and led to RYWQ not having further contact with them. At this time RYWQ attempted an overdose and was admitted to hospital. RYWQ also reported other episodes of self-harm, the last being when she was 17 years-of-age.
   • As a result of the concerns regarding RYWQ's behaviour at school when she was around ten years-of-age, RYWQ saw her General Practitioner for treatment. When RYWQ was 12 years-of-age, she was referred her to a child psychiatrist (who will be identified in this decision as 'Dr S'), whom she continued to see until she turned 18. RYWQ was also referred to and saw psychologists, receiving psychotherapy at times.
   • When RYWQ was 14, Dr S diagnosed her with ADHD, conduct disorder, complex PTSD and anxiety and depression. During his treatment of RYWQ Dr S prescribed various medications; however, RYWQ stated she did not take any of these medications on a regular basis.
   • RYWQ also became engaged in the criminal justice system as a juvenile, leading to a probation order and requirements to attend relevant programs, including psychological assessment, which she completed successfully.
   • RYWQ is employed as a cleaner and usually works between 15 to 20 hours each week, although she finds the work exhausting.

1. As noted, Ms R gave evidence at the hearing. In doing so, she affirmed the contents of some statements provided by her during the review, being a 'Carer's Statement', written in 2021;[44] a 'Statement of Lived Experience' dated 2 August 2022;[45] and her written response to the Agency's SFIC, dated 7 January 2025.[46]
2. Ms R's evidence about RYWQ's history was consistent with the above summary. Additionally, in her written materials and at the hearing, Ms R provided evidence about RYWQ's impairments and how they impact on the lives of RYWQ and herself, noting the following:
   • RYWQ's 'disabilities' have had a far-reaching and ongoing impact on RYWQ's daily life, and on those around her, affecting every aspect of her life, and have done so 'for a very long time'.[47]
   • RYWQ's behaviour makes it difficult for her to maintain friendships and interpersonal relationships.[48]
   • RYWQ's capacity for learning, and her employment opportunities, have been impacted.[49]
   • RYWQ is unable to self-regulate or self-control; is prone to anger, and has no regard for routine,[50] although Ms R acknowledged in her evidence at the hearing that there had been improvements in more recent times.
   • Ms R no longer works, as caring for RYWQ, and ensuring her safety, is a full-time commitment. This includes assisting RYWQ to wake, preparing many of her meals, doing most of her laundry and prompting her to attend to self-care tasks, such as showering and brushing her teeth.[51]
   • RYWQ does not drive and has had difficulty in maintaining concentration during driving lessons. As a result, Ms R drives RYWQ to places she needs to attend.[52] RYWQ's anxiety prevents her from using public transport.[53] Ms R gave evidence that RYWQ now will use Ubers for transport, if Ms R is unavailable to drive her.[54]
3. Ms R accepted that RYWQ had never taken the medication prescribed for her mental health conditions on a regular basis. Ms R also addressed why RYWQ was not always compliant in attending appointments with mental health professionals. Ms R explained that while taking prescribed anti-psychotic medication, specifically Risperidone, RYWQ experienced substantial weight gain,[55] and that she had not been advised by the prescribing doctor of this as a possible side-effect. Consequently, RYWQ was hurt, experienced shame about her body and bullying from other young people, and her trust in the doctor diminished. Her complex PTSD further impacted her trust issues. This became a barrier to RYWQ adhering to her medication, and her ongoing trust issues impacted on her attendance at appointments with psychologists. Additionally, RYWQ experienced bullying from another attendee at one psychology service, which further discouraged her from attending appointments.[56]
4. Before the hearing Ms R was taken to some of the medical records in evidence,[57] which noted appointments which Ms R had attended, where RYWQ's medications and progress had been discussed. Ms R accepted, on the basis of these notes, that at the time of these appointments in 2016 and into 2017, RYWQ was 'tolerating' her prescribed medication (which was Risperidone) and that it was assisting her, stating that:

I accept ... it was an improvement on where [RYWQ] was prior to the commencement of the medication.[58]

1. The records also reflected that after reducing RYWQ's dosage of Risperidone in 2016, by late 2017 there was a discussion about 'metabolic side effects' and a decision was made to stop Risperidone, and trial another medication. There are also regular notes from this period describing RYWQ as 'oppositional and defiant' and having 'poor compliance with medication.'[59] Ms R accepted that from around early 2018 RYWQ's substance use was escalating, and because of this, she was not confident that RYWQ was complying with her treatment and attending consultations with Dr S or taking her prescribed medication. Ms R also accepted the accuracy of notes from June 2018 [60] recording that she (Ms R) was seen 'on her own', and that she had reported at that time that RYWQ was 'making a choice not to attend appointments.'[61]
2. Ms R gave evidence that she was aware of RYWQ's subsequent attendance to receive psychology services from other providers, although Ms R did not attend these sessions with her daughter. Records before the Tribunal reflected that RYWQ attended programs in 2019 and 2021.[62]
3. Ms R stated that since completing a program in 2021, RYWQ had not further engaged in substance use, to her knowledge, but had not received further psychological services as she was no longer involved in the youth justice system, nor eligible for some previously free of charge psychological services, due to her now being an adult.[63]
4. Ms R also explained that she encouraged RYWQ to be accepting of psychotherapy as treatment for her impairments, although the cost of attending these appointments was 'prohibitive',[64] and beyond what RYWQ could afford, having regard to her income and expenses. This evidence is addressed at further length in a later section of this decision.
5. Additionally, Ms R provided, in her email that is Exhibit 2, information about RYWQ's income from her employment and her regular expenses. This reflected that RYWQ's fortnightly income, after tax, amounted to $1030 and, after paying for her board and other expenses for transport, utilities, communications, food, clothing and entertainment, RYWQ was left with approximately $185 each fortnight. Ms R gave evidence that RYWQ had endorsed this information.
6. In that email Ms R also provided information about her inquiries with providers of psychology services, noting that sessions were an 'average cost of between $220-$260, with Medicare rebates ranging from $96.65 to $141.85.[65]
7. In giving evidence Ms R accepted that in budgeting, health needs should be a priority for a person, although she noted her daughter's young age, the 'moderate' nature of her expenditure, and that her income was only slightly above the 'Jobseeker' allowance. Ms R also noted that her daughter would face more expenses, such as rent, if she lived elsewhere, and that RYWQ had limited capacity to plan and manage her own budget.[66]

1. RYWQ gave evidence at the hearing on 5 June 2025. Relevant to the issues about her impairments and their treatment, RYWQ agreed generally with the treatment history outlined by her mother and as recorded above by Dr Walia.
2. RYWQ also accepted that there were probably 'quite a lot' of consultations with Dr S, and with psychology practitioners, that she missed over the years. RYWQ also agreed that at times she did not take her prescribed medications on a regular basis.
3. When asked what she was seeking from the NDIS by way of supports, RYWQ answered that 'financial' support was the main thing for her.[67]

1. In her report, Dr Walia made the following comments about her examination of RYWQ:

She seemed to have reasonable attention and concentration in the session. Her cognition was grossly intact. She appeared to recollect events from the past and was able to remember recent events too. Her insight was partial as she still seemed quite ambivalent and uncertain about fully committing to treatment. Her understanding of her various mental health conditions appeared limited as well. She seemed to have reasonable judgment.[68]

1. Further, in responding to a specific question posed by the Agency as to whether RYWQ has insight into her impairments, Dr Walia commented:

[RYWQ] appears to have limited insight into her impairment. She acknowledges that she has mental health issues of low mood, anxiety, complex post-traumatic stress disorder and ADHD. However, she has not been compliant with her treatment. While RYWQ has engaged intermittently with mental health services, suggesting some recognition of her difficulties, her limited insight into her mental health needs indicates a lack of full awareness of the nature and extent of her conditions.

RYWQ appears to recognise some impacts of her condition, such as her need for support in transportation and difficulties with household tasks. However, she does not fully grasp the broader implications on her social functioning and long-term prospects.

She is aware that she requires treatment and needs to follow through with her management plan but has been quite inconsistent in her biological treatment as well as in applying skills from psychotherapy. She lacks full appreciation for the importance of ongoing care. She struggles to appropriately recognise the ongoing nature of her mental health challenges.[69]

1. When asked about other factors that may impact on RYWQ's current presentation, Dr Walia wrote:

There are various factors that maintain RYWQ's current presentation. RYWQ has been diagnosed with various co-morbid conditions like complex post traumatic stress disorder, attention deficit hyperactivity disorder which complicate her clinical picture and her disability thereof. Her difficulty in focus and concentration arising from the attention deficit hyperactivity disorder is likely to impact on her ability to engage with any psychotherapeutic treatment consistently. The trauma response from the complex post traumatic stress disorder is likely to affect her ability to trust people. She has in the past been dependent on substances due to her trauma response and as a coping mechanism. Her history of intermittent engagement with mental health services has also compromised her improvement. The lack of a consistent integrated treatment option for her has hindered her progress and prevented the development of effective coping strategies.

RYWQ also presents with self-limiting behaviour where she has not applied herself to the skills learnt in the psychotherapeutic setting. These behaviours continue to reinforce her anxiety and impact on her ability to improve ... RYWQ has not participated regularly in intense comprehensive and trauma focused therapy tailored to her complex presentation.

There has been a lack of consistent medication management which also exacerbates her symptoms of ADHD and mood disturbance. Her unresolved childhood trauma continues to impact her current functioning and relationships.[70]

1. Dr Walia also wrote, in answer to a question from the Agency that asked '[I]n your opinion, has the Applicant exhausted all mainstream treatment options for her reported impairments including pharmacological, psychotherapy history and consideration of other treatments?'

In my opinion, I do not believe that RYWQ has exhausted all mainstream treatment options for her reported impairments. RYWQ has not consistently tried any of the antidepressant medications. She is likely to benefit from the introduction of an SSRI medication[71] like Fluoxetine that she has previously been prescribed but has been inconsistent in her use of the medication. She would require ongoing regular monitoring for the compliance therapy and to assess her response.

Another option could be the introduction of an SNRI[72] like Duloxetine to help with her mood and anxiety symptoms. These medications can be managed under primary care if RYWQ struggles to book an appointment to see a psychiatrist.

RYWQ would also benefit from ongoing intense psychotherapy to focus on her mood and anxiety issues as well as her self-esteem, confidence, exposure to society and development of skills to improve her learning. After she has attained some independence skills and life skills, further therapy around trauma can then be initiated. A more structured, intensive and integrated approach to her care, combining appropriate pharmacotherapy and evidence based psychotherapeutic interventions should be considered to achieve further improvement in her presentation.[73]

1. When giving evidence at the hearing Dr Walia confirmed that her recommendations were directed towards treatment intended to address RYWQ's impairments. Dr Walia also stated that it was unlikely that such treatment would 'remove or cure' RYWQ's underlying mental health issues (describing such an outcome as akin to a 'dream'), and while residual symptoms may continue to exist, treatment may ensure they do not impact on functioning.[74]
2. Dr Walia noted in her report that the expected outcomes for RYWQ of these treatments was:

The expected outcome is for RYWQ to be able to manage her mood and anxiety symptoms reasonably, achieve reduction in PTSD symptoms, improve emotional regulation, interpersonal effectiveness, and distress tolerance. She is likely to experience enhanced social functioning, enhanced attention, improved executive functioning, and better daily life management with improved independence in daily activities and enhanced work performance. Her social confidence is likely to improve too with enhanced communication skills, and expanded social network.[75]

1. When asked to comment on RYWQ's capacity to engage in cognitive and behavioural psychology interventions, Dr Walia stated in her report:

RYWQ appears to have capacity to engage in cognitive and behavioural psychological interventions as evidenced by previous intermittent engagement with mental health services, ability to participate in the psychiatric assessment and development of some level of daily structure and functioning with regular employment.

There are, however, potential challenges that may require specific adjustments and support.

She's likely to engage more if she is able to build a good relationship and rapport with her treating team. A case management approach with integrated trauma focused treatment provided within a health setting will be beneficial. Involvement of her foster mother in setting boundaries and negotiating exposure therapy and social skills training is recommended for improved outcomes.

With these adjustments and support in place, RYWQ should be able to engage meaningfully in cognitive and behavioural interventions, which have the potential to significantly improve her psychosocial functioning.

However, as highlighted by her foster mother, funding is a huge barrier in RYWQ being able to access private psychiatric care and services. Voluntary organisations and primary care settings that offer psychology services are the realistic options.[76]

1. Finally, Dr Walia commented in her report that RYWQ's 'psychosocial trajectory at this stage appears to be chronic and stable', and that 'her functional impairments have been persistent across multiple domains for a considerable time.'[77] Dr Walia concluded that RYWQ 'requires ongoing intensive psychological treatment and support services to improve her quality of life.'[78]
2. In her evidence at the hearing Dr Walia reiterated her opinion that there are treatment options that can be offered to RYWQ, being the combination of those recommended in her report, together with RYWQ continuing to abstain from substance use and continuing her employment, 'to improve from where she is' and to 'succeed in getting a better functioning life and get a better quality of life.' Dr Walia stated:

These are the treatments that I think she will need to help her condition not be permanently impaired ...[79]

1. In both her report and also in answering questions asked by Ms R, Dr Walia acknowledged that RYWQ was engaging in some alternate therapies, such as Reiki, hypnotherapy, yoga, acupuncture and meditation.[80]
2. In her evidence Dr Walia also outlined how psychological support and medication is available under the primary health system, through suitable General Practitioners and a mental health care plan, Medicare and a guiding psychiatrist.

1. Dr S is a child psychiatrist who treated RYWQ for a number of years. Ms R sought to rely on Dr S's opinion in contending that RYWQ's impairments are permanent. Some materials prepared by Dr S, in support of RYWQ's NDIS access application, were included in the T-Documents before the Tribunal.
2. In a letter dated 20 August 2020, Dr S advised that he had seen RYWQ since 11 August 2016, and that 'she has a long standing history of complex mental health needs.' He referred to the conditions diagnosed (as has been noted above) and stated 'her symptoms have not improved despite ongoing psychological and psychiatric support' and stated that RYWQ 'will require ongoing and longitudinal support to prevent further deterioration.'[81]
3. Dr S also completed an NDIS 'Evidence of psychosocial disability' form, dated 24 October 2020. In that form he noted the treatments provided to RYWQ as including medication, psychological counselling, youth support and family therapy', noting that all were ongoing but none was effective on RYWQ's impairments, concluding that there were no 'known, available and appropriate evidence-based clinical, medical or other treatments likely to remedy the impairments.' By way of further explanation Dr S commented 'long standing difficulties and impairments with further deterioration despite support and help.'[82]

1. Another NDIS form of that same type was completed on 17 December 2020 by a Registered Nurse (who will be identified in this decision as Nurse C) who was involved in RYWQ's treatment through a community health service. This report also concluded that there were no treatments likely to remedy RYWQ's impairments.[83] A covering letter of that date was also provided, which noted Dr S's conclusion, as cited above.[84] A further and similar letter, dated 13 October 2021, was also provided by Nurse C.[85]

1. As noted, Ms R contended on behalf of RYWQ that RYWQ's impairments were permanent, placing reliance upon the above evidence provided by Dr S.
2. In responding to Dr Walia's evidence about the treatment options recommended by her, Ms R relied on the evidence noted above as to why at times RYWQ had not been fully compliant in attending appointments with mental health professionals, and in taking her medication.
3. In addressing why RYWQ was not currently engaging in those treatment options, Ms R pointed to RYWQ making 'very positive inroads' through the natural or adjunct therapies that she has undertaken, in the context of losing faith, for the reasons explained already, in the mental health system. Ms R submitted that it was expecting a lot of a young person in RYWQ's situation to now have 'a sudden trust' in a system 'that has actually caused her great harm.'[86]
4. Ms R also stressed that the cost of the recommended psychological treatments was beyond what RYWQ could afford, and took issue, when making her final submissions at the hearing, with Dr Walia's evidence as to the availability and affordability of those treatment services, noting the results of her own inquiries and the levels of demand for such services and also the frequent existence of waiting lists to receive mental health treatment.

1. The Agency contended that RYWQ did not meet the requirement in section 24(1)(b) of the NDIS Act; namely, that her impairments are permanent or likely to be permanent.
2. In its further written submissions, the Agency noted subsections (2) and (3) of section 24:

Section 24(2) states that impairments that vary in intensity may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation. This suggests that if the intensity of the impairment varies to the point where the person does not require support under the NDIS, then the impairment is not permanent.

Section 24(3) states that 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 NDIS for the person's lifetime, despite the episodic or fluctuating nature of the impairments. This suggests that an impairment may still be permanent, even if there are transient periods whereby the person is not suffering from an impairment. However, there needs to be evidence to support the contention that there are likely to be episodes in the future that require NDIS support.[87]

1. The Agency also referred to case law considering the word 'permanent', being the decision of Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis),[88] that the concept of 'enduring' was appropriate. More will be said about the guidance arising from this case in a later section of this decision.
2. Reliance was placed by the Agency upon Dr Walia's evidence, specifically her opinions that:
   • RYWQ has not exhausted all mainstream treatment options (noting the recommendations made by Dr Walia for further treatment, as above).
   • While RYWQ's psychosocial disabilities are permanent, all her conditions are 'chronic and stable'. However, the treatments recommended are targeted toward RYWQ's impairments, to reduce her functional difficulties, with the expected positive outcomes that have been noted above.[89]
3. The Agency submitted:

It follows from the above evidence that the Applicant's impairment is not "enduring" because, with appropriate treatment, she is not likely to have any impairment that requires support under the NDIS for the Applicant's lifetime.[90]

1. The Agency also relied on the Access Rules, in that Rule 5.4 states that an impairment will only be considered permanent if there are no 'known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment', noting again the guidance arising from the decision in Davis as to the meaning in this context of the word 'remedy.'[91] The Agency contended that:

... the evidence of Dr Walia confirms the existence of mainstream treatments that the Applicant should undergo, which has the potential to remedy the "impairment", that is an impairment that requires support under the NDIS for the Applicant's lifetime.[92]

1. Noting Ms R's contentions and evidence about RYWQ's limited financial means, the Agency submitted that the 'affordability' of the costs of the recommended treatment should not be a matter for consideration. However, if it was considered, the evidence supported a conclusion that the treatment recommended by Dr Walia was not beyond RYWQ's financial means.[93]
2. The Agency also referred to Rule 5.6 of the Access Rules, submitting that if the Tribunal was left in a state of uncertainty about whether the recommended treatment was likely to remedy RYWQ's impairments, the application of this rule required the treatment to be undertaken before a determination about permanency could be made.[94]
3. In its earlier submission, being its Amended SFIC, the Agency made similar contentions, also noting the potential assistance available through the Medicare and Pharmaceutical Benefits Schemes (footnotes omitted) in relation to the recommended treatment:

The Health Insurance Act 1973 (Cth) (Medicare Scheme) involves an entitlement to receive a "medicare benefit" in respect of each "professional service" rendered in Australia, to Australian residents. Under the Medicare Scheme, the Applicant has access to mental health general practitioner, psychological and psychiatry services, which would include the provision of psychological strategies of CBT[95] and EMDR.[96]

Further, the Pharmaceutical Benefits Scheme (PBS) is established under the National Health Act 1953 (Cth) and provides Australians with timely, reliable and affordable access to necessary and cost-effective medicines. This includes fluoxetine.

1. The Agency contends that RYWQ does not satisfy the requirements for permanence in section 24(1)(b), having regard to the application of the Access Rules. This contention is made, in the language of Rule 5.4 of the Access Rules, on the basis that the treatment recommended by Dr Walia, which is a combination of appropriate medications and evidence-based therapies (pharmacological and psychotherapeutic treatment), amounts to 'known, available and appropriate' treatment for RYWQ, which is likely to remedy her impairments. Additionally, the Agency contended that if uncertainty arose as to whether this treatment would remedy RYWQ's impairments, Rule 5.6 requires the treatment and further review to be undertaken before a determination about permanency can be made.
2. It is to be noted that the concept of 'impairment', within section 24 of the NDIS Act, is generally understood 'as involving the loss of or damage to a physical, sensory or mental function.' [97]
3. As mentioned above, in the decision of Lampard, the Full Court of the Federal Court has recently emphasised the important and fundamental distinction between a disability and impairments in the context of the NDIS, with the term 'disability' used as a broad descriptor for the effect of a person's impairments (to be understood as explained above in Mulligan), on that person's ability to participate in aspects of their personal and community life. In Lampard, the Full Court noted that the focus of sections 24(1)(b) to (d) of the NDIS Act is ' ... upon the permanency and severity of a prospective participant's impairments, not their disability.'[98] This is an important aspect of this review, given the common ground between the parties, and the weight of evidence, that RYWQ's psychosocial disabilities are chronic or permanent in their nature.
4. The NDIS Act does not define the term 'permanent'. However, the meaning of that term, and also the relevant rules in Part 5 of the Access Rules, have been considered in previous Federal Court decisions, including as noted above by Mortimer J in Davis, and more recently by McEvoy J in Kelly v National Disability Insurance Scheme [2024] FCA 1462 (Kelly). In that latter decision, McEvoy J said the following of Mortimer J's decision in Davis:

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

... This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[99]

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

"The focus of the text, consistently with the purposes of the scheme, is whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme." [100]

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

In this context, "remedy" should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word "remedy" should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase "permanent impairment", as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.[101]

1. Kelly dealt with a challenge to the validity of Rule 5.4 of the Access Rules; McEvoy J finding that the Rule was valid.[102] The decision of the Tribunal that was appealed to the Federal Court in Kelly had found that the applicant in that matter had satisfied s.24(1)(a) of the NDIS Act, in that she had a disability attributable to a physical impairment, with the Tribunal then going on to consider section 24(1)(b) and the question of the permanence or likely permanence of that physical impairment. The Tribunal's consideration of the meaning of the word "likely" was as follows:

One key word that appears in the legislation and the rules [that] does not appear to have been addressed in the authorities is 'likely'. The Macquarie Dictionary defines likely as: 'probably or apparently going or destined (to do, be, etc.)'_. Likewise, the Oxford English Dictionary defines the word as '_probable' _in the sense of '_having a high chance of occurring'. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation.[103]

1. McEvoy J found that in defining 'likely' by reference to probability, in contradistinction to possibility or mere speculation, the construction adopted by the Tribunal accorded with the ordinary meaning of the word 'likely', and also appropriately reflected the beneficial and remedial nature of the NDIS.[104]
2. The Access Guidelines also help in assessing permanency (footnotes omitted):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment "would be likely to remedy the impairment".[105]

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

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

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

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

Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is "available" to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is "available" to that individual, even if it might be "available" to a person without agoraphobia. [106]

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

... prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person's impairment will be excluded from meeting the permanency criterion in s 24(1)(b).[107]

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

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

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

Therefore, what the Rules, and relevantly r 5.6 in particular, guide, is the formation of a state of satisfaction.[108]

1. The Agency contends, in reliance primarily upon the evidence of Dr Walia, that the combination of pharmacological and psychotherapeutic treatments recommended by Dr Walia amount to known, available and appropriate treatment for RYWQ, that would be likely to remedy her impairments.
2. As noted, there is no dispute in the evidence that RYWQ is at this time not receiving any treatments of this type and has not received such treatments for some years, although there is some participation in alternate therapies which, to be clear, are not in the nature of the treatments recommended by Dr Walia.
3. It is useful here to restate the accepted impairments that RYWQ has, being difficulties in motivation, reduced efficiency, difficulties going anywhere by herself, and need for reminders to take care of herself.
4. The treatments recommended by Dr Walia are consistent with past treatments provided to RYWQ when she was younger, as reflected in the evidence noted above; for example, from Dr S, who treated RYWQ for a number of years through prescribing medication and providing (or making referrals for) therapy. As such, they are clearly 'known', and also potentially 'appropriate' treatments for RYWQ's impairments, at least in the sense that they are suitable treatments for RYWQ to undergo. This was not challenged by Ms R, who accepted the potential benefits of such treatments for her daughter. Whether these treatments are likely to 'remedy' RYWQ's impairments is addressed below.
5. However, whether these treatments are 'available' for RYWQ is a matter of contention, particularly in light of the concerns raised by Ms R about the 'affordability' of the treatments, given RYWQ's limited financial means. In response, the Agency first contends that affordability does not come into consideration of whether a treatment is available.
6. As can be seen from the above passages from Davis, Mortimer J considered that the affordability of a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
7. Schwass and National Disability Insurance Commission [2019] AATA 28 was a Tribunal decision delivered some years before Davis was decided. In that case, a Deputy President of the Tribunal, in dealing with a submission that a specific surgical procedure was not 'available' to an applicant because it was not funded in the public health system and it was not 'affordable' to the applicant through the private health sector, stated:

I cannot accept this submission. I consider that available in this context has the meaning of accessible or within reach; had the drafter intended it to mean affordable it would have been a simple matter to indicate that.[109]

1. A similar approach was taken in FBJV and National Disability Insurance Agency [2021] AATA 93, relying on the above analysis in Schwass:

In accordance with the Tribunal's analysis of Rule 5.4 in Schwass and National Disability Insurance Agency [2019] AATA 28, the fact that a recommended treatment is not affordable does not mean it is not available.[110]

1. Different approaches have been taken in later Tribunal decisions, delivered after Mortimer J's decision in Davis, and reflecting the approach that the affordability of a treatment will form part of the factual circumstances that the Tribunal may need to examine in deciding if an applicant can, in reality, access a treatment.
2. In Butic and National Disability Insurance Agency [2025] ARTA 76, Counsel for the Agency accepted that a particular impairment of the applicant was permanent:

... because the recommended treatment was not available to [the applicant] because it was not likely to be affordable to him on account of [the applicant] being on a disability pension and having no other available sources of income.[111]

1. In CBFP and National Disability Insurance Agency [2023] AATA 3425, another access case, an issue arose as to the proposed cost of a certain treatment and whether that was affordable to the applicant, in the context of whether the applicant's impairments were permanent. Given the state of the evidence before the Tribunal, further submissions about that issue were sought by the Tribunal, going to the factual aspects of the cost of the treatment and the applicant's financial circumstances.[112]
2. Returning to Davis, at first instance in that matter the Tribunal had found that it could not be satisfied that certain treatments were available to the applicant, on account of her financial position.[113] On appeal, Mortimer J was dealing with a specific contention by the Agency, which she explained in the terms below, that equates in nature to the present issue in this review:

The Agency contends that neither s 24(1)(b) nor r 5.4 (nor for that matter any of rr 5.5-5.7) permit a decision-maker to take into account the financial means of an applicant in deciding whether a treatment is "known, available and appropriate". Nor, it contends, can a decision-maker take into account whether a treatment is "affordable" for a person in deciding if an impairment is or is likely to be permanent.[114]

The Agency contends "available" in r 5.4 simply means the treatment exists, whether or not an individual is, in reality, able to access the treatment. I infer the Agency contends it means available in Australia, although the Agency did not expressly limit its submissions in this way. As I understand it, the Agency contends "appropriate" refers to the relationship between the treatment and the prospect of improvement (or "remedy") of an individual's impairment, rather than any sense of the treatment being "suitable" for a person in terms of their lifestyle, and where they live.

The Agency is correct that entry into and participation in the NDIS is not means tested ... I accept that there may be some potential disconformity in introducing considerations of affordability into a determination of the criterion in s 24(1)(b). The same potential disconformity might exist if the phrase "known, available and appropriate" is understood to refer to practical accessibility.

These matters might be capable of indicating that r 5.4 is inconsistent with s 24(1)(b), but as I have observed, that is not an issue before the Court. Assuming the rule is valid, some meaning and operation must be given to it as an exclusionary circumstance, in terms of when an impairment will not be a "permanent impairment".[115]

1. There followed in her Honour's judgment the paragraphs already set out above explaining Her Honour's views as to how the terms 'known', 'available' and 'appropriate' should be interpreted. It followed that Mortimer J found no error of construction or application in the Tribunal's approach (at first instance) to Rule 5.4, and the Agency's challenge failed on that ground.[116]
2. In its further written submissions in this review, the Agency referred to observations made on this issue by McEvoy J in Kelly,[117] submitting that McEvoy J concluded 'that to the extent that affordability is something that the [NDIS] Act does not allow to be taken into account, the reference to 'available' in Rule 5.4 should not be construed as including affordability.'[118]
3. In making the observations referenced in the Agency's further written submission, McEvoy J was primarily dealing with a challenge to the validity of the Access Rules (which was not a contention made in Davis). He noted Mortimer J's above comments about 'potential disconformity' and continued (footnotes omitted):

Insofar as the affordability point is concerned, it must first be observed that r 5.4 says nothing about affordability. Just as it does not require decision-makers to investigate how a person came to be disabled, nor does it purport to introduce some form of means-testing. Inasmuch as the applicant advances ways in which r 5.4 might be interpreted in a manner which is inconsistent with the scheme of the Act, I accept the NDIA's submission that it should be assumed, in determining whether the rule is valid, that it will be reasonably administered: Kruse v Johnson [1898] UKLawRpKQB 101; [1898] 2 QB 91 at 99 (Lord Russell of Killowen) as quoted by Weinberg J in Vanstone at 333. As Weinberg J makes clear in Vanstone (at 333), courts have cautioned against erecting hypothetical examples of abuse as a basis for finding that by-laws are invalid. His Honour's observation in this regard applies equally to delegated legislation of the present kind.

As senior counsel for the NDIA explained orally at the hearing, to the extent that affordability is something that the Act does not allow to be taken into account, the reference to "available" in r 5.4 should not be construed as including affordability. A construction should be adopted which is open and which stays within the limits of the power granted. Insofar as Mortimer J refers in Davis at [133] to some "potential disconformity" in r 5.4 if it introduces considerations of affordability into a determination of the criterion in s 24(1)(b) of the Act, I accept the submission of the NDIA that her Honour's analysis is properly to be regarded as going to the construction of the rule, not the validity.[119]

1. Clearly, access to the NDIS and the supports that may be funded through it is not means-tested. The relevant sections of the NDIS Act dealing with access to the NDIS do not expressly refer to the affordability of treatment. Nor does Rule 5.4. However, I am not persuaded that McEvoy's above comments, which I have reproduced in their entirety, necessarily support the conclusion advocated for by the Agency in this review; namely, that rule 5.4 should not be construed as including 'affordability.' As can be seen, the distinction was drawn by McEvoy J that Mortimer J's analysis in Davis went to the construction of the rule, rather than its validity, in terms of whether it was inconsistent with the NDIS Act, thus giving rise to 'potential disconformity.'
2. Mortimer J's observations in Davis as to how the term 'available' should be interpreted in the Access Rules were made in the specific context of a factual situation, and ground of appeal, which concerned the issues of whether the financial means of an applicant, and whether the treatment was affordable for them, could permissibly be taken into account in construing Rule 5.4 and deciding if a treatment was 'known, available and appropriate.' I am satisfied that the approach taken by Mortimer J in Davis is the preferable position and the one I should adopt, that being:

Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.[120]

1. Turning to the consideration of that issue here, I accept the evidence provided by Ms R about RYWQ's income and expenses. RYWQ fortnightly earnings are low. However, on the information provided, there is some 'disposable' income left each fortnight after RYWQ meets all her stated expenses, including some expenses which might be categorised as more discretionary in their nature, such as the costs of streaming services and an online language learning program.
2. I accept Ms R's contentions that there are generally high demand levels and often waiting lists to obtain psychotherapeutic services. I also acknowledge the contentions of Ms R about the evidence Dr Walia gave as to the level of services that may be available through the primary health system at a lower cost to RYWQ.
3. The Agency's secondary submission was that if the affordability of the recommended treatment was taken into consideration, the Tribunal could not be positively satisfied that there are no available treatments, and that the evidence ' ... belies any suggestion that the highly recommended treatment suggested by Dr Walia is beyond the Applicant's financial means.'[121]
4. I note also, as to the availability of service providers, that RYWQ does not live in a regional or remote area. I accept that there may still be limited options and perhaps some delay in RYWQ identifying and obtaining services from providers where only a gap payment is required. However, this does not mean that these therapy services are not 'available' for RYWQ. As the Agency has noted in its Amended SFIC, access to mental health general practitioner, psychological and psychiatry services are available under the Medicare Scheme, which would include the provision of the psychotherapeutic services recommended by Dr Walia.
5. Further, on the limited evidence before me concerning the cost of psychotherapeutic services and contributory Medicare benefits and gap costs, as provided by Ms R, I accept the Agency's submission that the cost of this treatment is not beyond RYWQ's financial means.
6. Additionally, access to the medications suggested by Dr Walia is available under the Pharmaceutical Benefits Scheme. As Dr Walia noted, these medications can be managed under primary care (for example, from a General Practitioner), if there is difficulty in accessing a psychiatrist for that purpose.[122] Again, I am not satisfied that this treatment is beyond RYWQ's means.
7. Accordingly, I am satisfied that the pharmacological and psychotherapeutic treatments recommended by Dr Walia are known and also available treatments for RYWQ.
8. Turning to the 'appropriateness' of those treatments and the guidance provided in Davis, as noted above I am satisfied, on the basis of the evidence about RYWQ's past treatment, including Dr S's recommendations for 'longitudinal support', and also Dr Walia's recommendations, that these treatments are suitable ones for RYWQ to undergo.
9. However, from Davis, as explained above, the word 'appropriate' also connotes a treatment which has a capacity to 'remedy' the impairment.
10. I am not satisfied that the evidence supports a finding that such treatments would be likely (adopting the interpretation of 'likely' approved in Kelly), to remedy RYWQ's impairments, for the purpose of making a finding that Rule 5.4 applies to exclude her impairments as not being permanent or likely to be permanent.
11. In this regard, it has been some years since RYWQ received treatment of the types now recommended by Dr Walia. Dr S and Nurse C indicated in their evidence that the treatment provided to RYWQ in the past had not been fully effective in addressing her impairments. However, this outcome must also be viewed in the context of the evidence about RYWQ's situation at the time that some of those treatments were provided; that is, that RYWQ was then a teenager, engaging at times in substance use, and was at times oppositional in her attitude, with a history of at least periodic non-compliance with both medication and therapy treatments. As Dr Walia noted, in the context of the treatments recommended by her:

RYWQ has been exposed to most of these interventions in the past. However, she was not as motivated to comply with them and follow through with the recommendations. In addition to that, in the past, she has struggled with polysubstance abuse which is also likely to have affected her judgment on consistency with treatment. Now she is in regular employment and has managed to abstain from illicit substances. She no longer has contact with her biological parents who were also impacting on her mental health. Given these positive changes in her life, it is likely that now if she engages with these interventions, she can maintain her job and work towards a better independent living lifestyle.[123]

1. RYWQ's position is indeed now quite different to that which existed when she last engaged, albeit irregularly, in treatments of the types now recommended. As Dr Walia noted, RYWQ now has regular employment and no longer engages in substance use.[124] Additionally, Dr Walia noted:

There is no evidence of any recent exacerbations in her mental health and she has not had any recent hospital admission, identifying any major changes in her psychological symptoms.[125]

1. RYWQ receives caring and extensive support from her mother. In this regard, one of the guiding principles of the NDIS Act provides that the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.[126] The evidence in this review, together with Ms A's advocacy on behalf of RYWQ, clearly reflects, and I acknowledge, the lifelong love and support that Ms R has provided for her daughter.
2. Dr Walia opines that the treatments recommended by her are likely to result in positive outcomes for RYWQ. These have been listed above, and include predicted likely reductions and improvements in RYWQ's impairments.
3. However, I am mindful of the long-standing history of RYWQ's impairments and the complex nature of her disability. The most recent medical evidence available in this review arises from Dr Walia's examination in September 2024 where, as noted, Dr Walia concluded that RYWQ's presentation was complex, and that her psychosocial disability is chronic, although stable:

Based on the evidence available and on my assessment and history taken, RYWQ's psychosocial trajectory at this stage appears to be chronic and stable. Her functional impairments have been persistent across multiple domains for a considerable time leading to a chronic course of functional difficulties. The chronicity of her condition is evident in her ongoing struggles with daily living tasks, social interaction, and emotional regulation. [127]

1. There is no recent history of treatment which might inform the position further, in terms of evaluating whether the recommended treatments are likely to remedy RYWQ's impairments. I also note Dr Walia's evidence about the limited insight RYWQ has regarding her mental health impairments, and the impacts of her Complex PTSD and ADHD in developing relationships with treatment providers and engaging effectively with psychotherapy.
2. In summary, on the current state of the evidence and having regard to the long-standing nature and complexity of RYWQ's impairments, I cannot be satisfied that at this time there is a sufficient evidentiary basis to support a conclusion that the proposed pharmacological and psychotherapeutic treatments would be likely to remedy RYWQ's impairments, to the required nature of 'something approaching the removal or cure' of those impairments.[128]
3. I am however satisfied that this is an application where Rule 5.6 applies. I am not satisfied that RYWQ's impairments are permanent, due to Dr Walia's evidence about the recommended pharmacological and psychotherapeutic treatments offering the possibility of significantly reducing and improving her impairments. As was noted by Senior Member Bean in the Tribunal decision of Richardson and National Disability Insurance Agency [2024] AATA 3505:

While an impairment can be permanent notwithstanding fluctuations or positive changes in its impact on a person's functional capacity, it is not tenable in my view to regard an impairment as permanent in circumstances where treatment offers the possibility of a dramatic and lasting improvement which will substantially increase a person's functional capacity. Where this is the case, in my view it is simply not accurate to say that the person's current impairment is permanent. The concept of 'impairment' has both a qualitative and a quantitative dimension. Even where it is likely a person's impairment will persist but at a much lower level, it would not be accurate, or consistent with the aims and objectives of the Act, to regard their current impairment as permanent.[129]

1. I am satisfied Rule 5.6 applies to RYWQ's impairments attributable to her psychosocial disability as further treatment, in the form of the recommended pharmacological and psychotherapeutic treatment, and review, is required before a reliable determination can be made as to the permanence or likely permanence of her impairments. The operation of Rule 5.6 excludes RYWQ's impairments from being regarded as permanent at this time.
2. It may be that if RYWQ pursues the recommended treatment, she will still experience impairments afterwards, which may be permanent. However, the NDIS, through the disability requirements in the NDIS Act and the Access Rules, require such available treatments to be undertaken before a determination can be made about the resulting impairments and their permanency.
3. I therefore find that RYWQ's impairments due to her psychosocial disability cannot be considered to be permanent, or likely to be permanent, for the purposes of section 24(1)(b) of the NDIS Act.

1. Appropriately, given the long-standing nature of RYWQ's impairments, the early intervention requirements of the NDIS were not advanced by Ms R during the review as a pathway for RYWQ to access the NDIS.
2. As noted, the Agency did address the early intervention requirements in its Amended SFIC, particularly in light of Dr Walia's responses to some questions asked of her by the Agency in its briefing letter.[130]
3. The early intervention requirements under the NDIS Act cannot be met unless, among other things, a person has identified impairments that are or are likely to be permanent - section 125(1)(a) of the NDIS Act.[131]
4. As such, for clarity, for the reasons outlined already in relation to section 24(1)(b) of the NDIS Act, I find that RYWQ does not meet the early intervention permanency requirement for the NDIS.

1. The disability and early intervention requirements are cumulative. As RYWQ has not met the permanency requirement for either pathway, it is unnecessary for me to further consider whether she meets other requirements, such as that in section 24(1)(c) of the Act, as to substantially reduced functional capacity in one or more of the specific activities.

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

1. I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for the decision herein of General Member W Strange.

[1] Exhibit 1, Hearing Bundle, Document T9, Access Request Form, 17 December 2020, pages 101-110.

[2] Evidence in the review established that Ms R was not RYWQ's birth mother. RYWQ and Ms R both referred to their relationship as that of mother and daughter and I will do the same.

[3] Hearing Bundle, Document T15, Access Decision Letter, 2 November 2021, pages 133-138.

[4] Hearing Bundle, Document T16, Extract of NDIS Interaction Notes, 24 January 2022, page 139.

[5] Hearing Bundle, Document T1A, Internal Review Decision, 19 March 2022, pages 50-59.

[6] Hearing Bundle, Document T1A, Internal Review Decision, 19 March 2022, page 50.

[7] Hearing Bundle, Document T1, Application for Review, 29 March 2022, pages 36-49.

[8] Hearing Bundle, Document H1, Agency's Statement of Facts, Issues and Contentions 22 November 2024, pages 1-19; Document H2, Applicant's Response to the Agency's Statement of Facts, Issues and Contentions, 7 January 2025, pages 20-32; Agency's Amended Statement of Facts, Issues and Contentions, 18 March 2025 (Agency's Amended SFIC); and the Agency's further written submissions, 4 June 2025 (Agency's further written submissions).

[9] Hearing Bundle, Document H23, Functional Capacity Assessment Report of Catherine Cummings, Occupational Therapist, dated 17 September 2024, pages 243-289 (Ms Cummings' report); and Document H24, Medico-Legal Report, Dr Monika Walia, Psychiatrist, 26 September 2024, pages 290-313 (Dr Walia's report).

[10] Hearing Bundle, Document H25, Briefing letter from the Agency to Ms Cummings, 19 August 2024, pages 314-322; Document H28, Supplementary briefing letter from the Agency to Ms Cummings, 20 August 2024, page 337; and Document H27, Briefing letter from the Agency to Dr Walia, 20 August 2025, pages 333-336.

[11] Administrative Review Tribunal (Common Procedures) Practice Direction 2024, Part 6.

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

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

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

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

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

[18] National Disability Insurance Agency v Lampard [2025] FCAFC 139, per Bromwich, Neskovcin and Vandongen JJ, [31].

[19] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s2.

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

[21] Agency's Amended SFIC, at [17]-[24A], [25]-[74], and [76]-[79]; and Agency's further written submissions, [10] - [43].

[22] Agency's Amended SFIC, [80]-[82].

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

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

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

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

[27] Hearing Bundle, Document T9, Access Request Form, page 102.

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

[30] Agency's Amended SFIC, [15], citing Dr Walia's report.

[31] Dr Walia gave evidence on 1 April 2025.

[32] Agency's further written submissions, [9].

[33] Agency's further written submissions,[6], [7].

[34] World Health Organisation's International Classification of Functioning, International Disability and Health (ICF), Mental Functions, b 1300, page 53.

[38] Agency's further written submissions, [9].

[40] Evidence of Ms R, 31 March 2025; Hearing Bundle, Document T14, Carer's Statement of Ms R, received by the NDIS on 25 October 2021, pages 130-132; Hearing Bundle, Document H22, Statement of Lived Experience (Ms R), 2 August 2022, pages 241-242; Hearing Bundle, Document H2, Applicant's responses to Agency's SFIC, 7 January 2025, pages 20-32.

[41] In her report Dr Walia listed the material briefed to her; see pages 292-294.

[43] Ms R gave evidence (on 31 March 2025) that RYWQ was excluded from school after the first term of Year 8.

[44] Hearing Bundle, Document T14, Carer's Statement of Ms R, received by the NDIS on 25 October 2021, pages 130-132 (Carer statement).

[45] Hearing Bundle, Document H22, Statement of Lived Experience (Ms R), 2 August 2022, pages 241-242 (Statement of Lived Experience).

[46] Hearing Bundle, Document H2, Applicant's responses to Agency's SFIC, 7 January 2025, pages 20-32 (Ms R's written submission).

[48] Carer Statement, page 130; Statement of Lived Experience, page 241; Ms R's written submissions, pages 25-26.

[49] Carer Statement, page 130; Ms R's written submission, page 26.

[50] Carer Statement, page 131, and Statement of Lived Experience, page 241.

[51] Carer Statement, pages 131-132; Statement of Lived Experience, page 241; Ms R's written submission, pages 28-31.

[52] Statement of Lived Experience, page 242.

[53] Ms R's written submission, pages 27-28.

[54] Evidence of Ms R, 31 March 2025; also see evidence of RYWQ, 5 June 2025; and Ms Cummings' report, page 258.

[55] This was also reflected in a report made by Dr S to RYWQ's General Practitioner, dated 11 August 2016; Hearing Bundle, Document H44, Summons material from Dr S's clinic, page1510.

[56] Ms R's written submission, pages 21-22; evidence of Ms R, 31 March 2025.

[57] Hearing Bundle, Document H44, Summons material from Dr S's clinic, pages 1508-1623.

[59] Hearing Bundle, Document H44, Summons material (from Dr S's practice), pages 1510 and 1544-1546.

[62] Hearing Bundle, Document H45, Summons records, pages 1624-1817, at pages 1639-1645 and page 1815.

[64] Ms R's written submission, page 23; evidence of Ms R 31 March 2025, and Exhibit 2, Email from Ms R dated 24 March 2025, detailing RYWQ's income and expenses.

[65] Exhibit 2, Email from Ms R, dated 24 March 2025.

[71] SSRI - Selective Serotonin Reuptake Inhibitor.

[72] SNRI - Serotonin-Norepinephrine Reuptake Inhibitor.

[74] Evidence of Dr Walia, 1 April 2025.

[79] Evidence of Dr Walia, 1 April 2025.

[80] Ibid, and see also Ms Cummings report, page 251.

[81] Hearing Bundle, Document T6, Letter from Dr S, 20 August 2020, page 82.

[82] Hearing Bundle, Document H9, Evidence of Psychosocial Disability Form, completed by Dr S, 29 October 2020, pages 83-91.

[83] Hearing Bundle, Document H10, Evidence of Psychosocial Disability Form, completed by Nurse C, 17 December 2020, pages 92-100.

[84] Hearing Bundle, Document H12, Letter from Nurse C, 17 December 2020, pages 110-113.

[85] Hearing Bundle, Document H15, Letter from Nurse C, 13 October 2021, pages 127-129.

[86] Closing submissions of Ms R, 5 June 2025.

[87] Agency's further written submissions, [11] and [12].

[89] Agency's further written submissions, [14]-[16].

[94] Agency's further written submissions, [26]-[27].

[95] CBT - Cognitive Behavioural Therapy.

[96] EMDR - Eye Movement Desensitisation and Reprocessing Therapy.

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

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

[109] Schwass and National Disability Insurance Agency [2019] AATA 28, [47].

[110] FBJV and National Disability Insurance Agency [2021] AATA 93, [120].

[111] Butic and National Disability Insurance Agency [2025] ARTA 76, [138].

[112] CBFP and National Disability Insurance Agency [2023] AATA 3425, at [121]-[128].

[113] Davis and National Disability Insurance Agency [2023] AATA 40.

[117] Agency's further written submissions, [24]-[25].

[121] Agency's further written submissions, [25].

[122] Dr Walia's report, page 306, and Agency's further written submission, [22].

[124] Corroborated by RYWQ in her evidence, 5 June 2025.

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

[130] Dr Walia's report, pages 309-311.

[131] See also Part 6 of the Access Rules.