1. It is not in contention between the parties that the Applicant meets the requirements of section 24(1)(a) of the Act. They agree he has physical impairment of reduced range of motion in the neck (cervical spine) and shoulders, and an impairment of pain in those areas. The Agency also accepts the Applicant has "impairments to which a psychosocial disability of depression and PTSD symptoms" are attributable. Neither party articulates what those impairments are. The Applicant contends, but the Agency does not accept, the Applicant has an impairment of pain and/or limited movement in and around his elbows from inflammation of the ulnar nerves, or unresolved cubital tunnel syndrome. The parties agree the Applicant's impairments affect his capacity for social and economic participation[55].
2. The Applicant contends his impairments are permanent and that the combined impact of his permanent impairments substantially reduces his functional capacity in the activity areas of learning, social interaction, mobility, self-care and self-management[56]. He does not claim they result in reduced functional capacity to communicate. He argues that he is likely to require support under the NDIS his lifetime because there are no other government or community services able to meet his various needs[57].
3. The Agency does not accept any of the Applicant's impairments are permanent[58] or that he has substantially reduced functional capacity in any of the six activity areas[59].
4. The Applicant made no express claim to meet the early intervention requirements in his pre-hearing submissions. In response to the Tribunal's explanation of the disability and early intervention requirements at hearing, the Applicant said he thought his situation was better suited to the disability requirements, but he was not sure. Given the Applicant's uncertainty and understanding he has sought access to receive physiotherapy and psychology supports, the Tribunal considers early intervention. The Agency contends[60] the supports sought by the Applicant are not early intervention in nature given his impairments are longstanding. It contends there is no clear evidence that early intervention supports would benefit the Applicant by reducing his need for future support.

Section 24(1)(a): Does the Applicant have a disability that is attributable to an impairment?

1. The Applicant claims to meet the access criteria because of impairments arising from the psychiatric conditions of major depressive disorder and PTSD[61], and disorders of the body including cervical neuropathy (pinched nerve in the neck), and compression neuralgia affecting his ulnar nerves[62], osteoarthritis and Diffuse Idiopathic Skeletal Hyperostosis (DISH Disease)[63].

1. Dr Manish Gupta is the orthopaedic surgeon who treated the Applicant from 2016 until December 2022[64] in response to the Applicant's workplace injury. The Tribunal has 15 letters from Dr Gupta to Dr Mahzer Khan, the Applicant's longstanding GP, covering the period 2016 to 2021 that have been separately indexed in the JTB. These letters are updating Dr Khan as to the Applicant's diagnosis, treatment and progress. Dr Gupta also answered targeted questions from the Agency given to him during the ADR stage of this proceeding, in April 2025[65], which the Tribunal finds to be of assistance. He attached a bundle of reports and letters that have not been individually identified by the parties for the Tribunal in the index to the JTB and neither party took the Tribunal to those documents in written submissions or at the hearing. The Tribunal has reviewed the attachments. To the extent it finds assistance in them it references them specifically.
2. The Tribunal notes and accepts the following regarding Dr Gupta's treatment and opinion:

(a) The Applicant has been diagnosed from 2015 onwards with and treated for left and right rotator cuff tears, right rotator cuff syndrome, right subacromial bursitis, right acromial spur, left and right cubital tunnel syndrome, also known as ulna neuritis

(b) The Applicant's symptoms leading to treatment were pain, restricted range of motion and weakness in the areas of concern

(c) Dr Gupta initially treated the rotator cuff conditions with physiotherapy referral and steroid injections. He later conducted two surgical repairs of the left rotator cuff, both in 2018, left cubital tunnel release, also known as ulna nerve transposition, in September 2021, and right cubital tunnel release and surgical repair of the right rotator cuff in the same operation, in September 2022. There were delays in the surgery relating to the workers' compensation proceedings

(d) The Applicant was also diagnosed by him with significant spondylosis of the neck with radiculopathy into both arms and was referred to his GP to be treated by another specialist. Dr Gupta recommended a spinal surgeon continue to be involved in this condition as it can be a significant cause of ongoing impairment

(e) Dr Gupta prescribed physiotherapy as part of a post-surgical rehabilitation protocol[66]

(f) All of Dr Gupta's treatments resulted in good recovery of symptoms

(g) The Applicant's symptoms relating to his bilateral elbow and cubital tunnel syndrome have complete resolved, he is free of pain and has full movement and hand strength[67]

(h) Residual weakness and restriction of shoulder motion may persist bilaterally due to the severity of the initial injury and prolonged time to treatment. It is possible his shoulder will not improve significantly[68]

(i) The Applicant has had all appropriate treatments and does not need further treatment for these conditions.

1. On 10 February 2021, Dr Gupta wrote that the Applicant had an elbow ultrasound showing some thickening of the ulnar nerve. Dr Gupta concluded this was not contributory to left shoulder pain and stiffness. He concludes his cervical spine MRI scan shows no specific or likely contributory issues to his left shoulder and arm pain[69].
2. On 8 December 2021, Dr Gupta wrote to Dr Khan stating the Applicant returned to discuss shoulder girdle muscle pain. He states that "his recent ulnar nerve surgery in the left upper limb has done tremendously well and there is no concern". Dr Gupta identified some muscular tenderness, concluding that "in the absence of any structural pathology involving the cervical shoulder or otherwise, I have nothing further to add other than recommending physiotherapy, weight loss and general conditioning". He discharged the Applicant into his GP's care. Dr Gupta had earlier written, in March 2021 noting that the Applicant's "CT scan does show significant arthritis. [The Applicant] feels better when his scapula is stabilised with regard to upper limb motion and it remains poor scapular control and core weakness that is his issue. Certainly, there is no indication for surgery at this time"[70] He noted these symptoms will respond only to physical therapy if anything or less[71].
3. Dr Andrew Kam is the neurosurgeon who carried out a spinal fusion and anterior cervical discectomy in response to the Applicant's ongoing neck and shoulder pain and the results of a cervical discogram[72]. In 2019, Dr Kam recommended surgery to address the Applicant's ongoing pain in his neck[73]. There are only two documents, both 2019 letters from Dr Kam to Dr Khan, before the Tribunal. There is no evidence from Dr Kam about the conduct and results of the surgery. It is implicit in other reports before the Tribunal, and the Applicant's evidence, that the spinal surgery did occur. The Tribunal understands it occurred in about June 2020 and has been "of some benefit"[74].
4. There are two reports, both from 2019, from Dr Alex Ganora, pain specialist, before the Tribunal[75]. Dr Ganora notes:

(a) The Applicant described "persistent pain over the left side of the neck extending to the suprascapular region and around the left shoulder particularly the posterior scapula region"[76]

(b) The Applicant reports the discogram relieved the mid interscapular region pain

(c) The Applicant reports physiotherapy reduces his symptoms for only one to two days

(d) Physiotherapist David Blackburn reports any increase in motion to the neck is short lived and range of motion in the left shoulder is unresponsive to extensive therapy

(e) He is unable to recommend further changes to his pain management or rehabilitation.

1. Dr Ganora notes physiotherapy is ineffective in increasing range of motion on the left shoulder.
2. The remainder of the reports that were produced for the purposes of the Applicant's workers' compensation claim and address his physical conditions are prepared by assessing rather than treating practitioners. They include:
   • Activities of Daily Living Assessment Report, Andrew Johnson, Occupational Therapist and Rehabilitation Consultant, July 2020
   • Medicolegal Report of Dr James Bodel, Orthopaedic Surgeon, May 2021
   • Independent Medical Examination Report, Associate Professor Brett Courtenay, Orthopaedic Surgeon, March 2022
3. Andrew Johnson notes a diagnosis of "reoccurrence of cervical neuropathy, muscle tension and spasm and compression neuralgia". Mr Johnson does not set out his expertise or the sources on which he relies for the Applicant's diagnostic history. There is no assurance of abiding by expert witness guidelines or code of conduct. To the extent Mr Johnson's report is inconsistent with diagnoses recorded by the treating, diagnosing medical specialist, the Tribunal prefers the latter.
4. Dr Bodel is the orthopaedic surgeon who conducted a medicolegal assessment of the Applicant in May 2021. His report is substantially tailored to workers compensation findings. His assessment was conducted after Dr Gupta's surgical treatment of the left shoulder and Dr Kam's spinal surgery and prior to Dr Gutpa's surgical treatment of the right shoulder and bilateral ulnar nerves. He observed tenderness of the trapezius muscle at the base of the neck on the left side, tenderness over the rotator cuff in both shoulders, most marked on the left-hand side and restricted range of shoulder movement on the left side, reduced range of neck flexion, extension and rotation in all directions.
5. Associate Professor Brett Courtenay is the orthopaedic surgeon who conducted an IME of the Applicant in February 2022, prior to his right ulnar nerve and shoulder surgery. Professor Courtenay observed:

(a) quite significant restriction in all movements of the cervical spine

(b) no evidence of persisting radiculopathy

(c) full range of elbow, forearm and wrist movement

(d) restrictions with both shoulders

(e) no neurological deficit in either upper limb

(f) the left shoulder injury is work related; the others are constitutional, degenerative and age related

(g) he has residual impairment from his surgeries to shoulder and spine

(h) full recovery from his ulnar nerve in his left elbow.

"rotator cuff tears left and right shoulder and degenerative changes [to the] cervical spine. Cubital tunnel syndrome with compression of the ulnar nerve on the left elbow"

1. Amanda Lee was one of the Applicant's treating physiotherapists from 2019 to 2025[77].
2. Ms Lee wrote to Dr Gupta in December 2021[78] that the Applicant "advises his bilateral shoulders to be the main cause of functional limitation, with the left to be worse in comparison to the right". She notes her advice to the Applicant "to reduce his overhead movement and be mindful of his carrying and pushing ability in order to manage his symptoms"[79].
3. In a letter dated 7 December 2021 to Dr Gupta, Ms Lee reports her treatment has focused on symptomatic soft tissue releasing of the scapula and a generalised exercise program to increase upper limb strength and endurance. She states: "I have attempted to complete a specific motor control program to improve scapula biomechanics previously which [the Applicant] has not responded to. Focus has now shifted to a generalised upper limb program to maintain and increase function to which [the Applicant] has had a positive response"[80].
4. In her letter of support dated 16 May 2024[81], Ms Lee notes the same diagnoses as the above surgical experts and an additional diagnosis of "diffuse idiopathic skeletal hyperostosis", otherwise known as DISH, which the Tribunal understands is a form of arthritis. She notes impairments of limited range of motion in all planes of both shoulders, upper limb pain and weakness, limited range of motion in cervical and thoracic spine and poor upper limb coordination.
5. Ms Lee wrote to Dr Khan on 29 May 2024[82] stating the Applicant's ulna nerve symptoms were "ongoing" and suggesting further surgical treatment. There is no further evidence from Dr Gupta or other orthopaedic surgeon in response to this opinion.
6. Dr Mazher Khan is the Applicant's GP. He has been treating him since 2013. Dr Khan notes the Applicant was diagnosed with osteoarthritis in 2014[83]. Dr Khan's response to targeted questions dated May 2025[84] notes he has referred the Applicant to two medical specialists for pain management being rheumatologists, Dr Mark Liew and Dr Peter Johnson, and Dr Sundjaraj, pain specialist. The Tribunal has not noted evidence of these specialists having been put before it. Dr Khan reports his shoulder pain has stabilised, pain occasionally reoccurs but he has reoccurrence of cervical pain in the neck and headaches.
7. Mr Stretton, the Agency's IME, does not have a section in his report where he summarises the Applicant's impairments. He notes the Applicant's upper limb active range of motion was restricted on all planes of movement in his neck and both shoulders[85]. He concludes the Applicant displayed reduced range of motion on all places of movement in his neck and both shoulders. He confirmed this in his oral evidence. He notes "the Applicant reported constant pain at the base of his skull and neck and both shoulders. He reported pain in both elbows when performing heavy or repetitive activities or forceful gripping". Photos in his report demonstrate the restrictions in neck and shoulder extension, rotation and flexion. They also demonstrate no apparent restriction in elbow flexion.
8. The Applicant states in his November 2024 statement that he is in severe and immense pain. At hearing, he said he:

(a) lives with chronic pain, impacting his sleep and mental health

(b) is unable to bend his elbows for more than 10 to 15 seconds without pain

(c) is unable to move his neck because of pain

(d) finds only physio provides pain relief, maybe for a couple of days or a week

(e) takes pain medication and medication for his mental health, which make him drowsy

(f) his nerves in his arms are still inflamed despite surgery

(g) used to be able to go fishing, do household chores, wash his car, gardening

(h) collapsed in October 2025 at the supermarket from dizziness, was taken to hospital and discharged and was told by the doctor it was probably due to inflammation. He later stated he had been prescribed anti-seizure medication following this event. The Tribunal invited the Applicant to put forward medical records concerning his hospital admission. No records were provided.

1. The Applicant provided a report of an ultrasound of his shoulders and elbows dated 24 July 2025[86]. No oral or documentary expert evidence has been provided to the Tribunal to enable it to understand the information in this report in the context of the other reports he relies upon.
2. When asked by the Tribunal whether his pain is always present or is associated with making a movement, the Applicant said he has a dull pain most of the time in his upper back due to arthritis. He said he has had arthritis since before his first rotator cuff tear. He said that if he does more movements he may get a sharp pain and his neck will become tighter.
3. The Tribunal observed the Applicant to start the hearing sitting at a table with a laptop and move after a period to the sofa where he remained for the duration. He explained the sofa provided better support for his neck.

The Tribunal's findings regarding physical and sensory impairments

1. In summary, the above expert evidence confirms that over the period 2013 to 2022, the Applicant's experiences of pain, reduced mobility and strength in five areas of his body - bilateral shoulders, neck, and bilateral elbows - led to five surgical treatments to address those injuries, conditions, degeneration and/or symptoms.
2. There is consistency across the expert evidence that the Applicant had tears to both rotator cuffs that restricted mobility and caused weakness in his shoulders and that restriction and weakness has not been completely ameliorated by, and/or has been reinforced by, surgical repair of the tendons. The Tribunal finds the Applicant has a physical impairment of reduced range of motion and strength in all planes of the shoulders.
3. The expert evidence is also consistent that degenerative changes to the cervical spine led to cervical neuropathy that has been treated by spinal fusion. That surgical outcome has restricted the Applicant's ability to mobilise his neck. The Tribunal finds the Applicant has a physical impairment of reduced range of motion in all planes of movement of the neck.
4. The evidence of the key expert, Dr Gupta, concerning the Applicant's bilateral ulnar nerve conditions is that these were effectively treated and wholly resolved by two surgeries completed in 2021 and 2022. The Applicant's evidence that he currently experiences pain after 10 to 15 seconds of continuous flexion of his elbow or elbows is inconsistent with the evidence of Dr Gupta and Associate Professor Courtenay as is Ms Lee's report of significant limitations in bending his elbows. There is no evidence that the Applicant has taken up Dr Gupta's undertaking to conduct further investigation and evaluation should his pain return, or that he has been examined by another expert in relation to this complaint. The Applicant did not call Ms Lee or Dr Gupta as witnesses. Differences of opinion between Ms Lee and Dr Gupta and Professor Courtenay remain unresolved. The Tribunal observed the Applicant bending his elbows to take his hands to his head during the hearing. The evidence remains contradictory and incomplete. For these reasons cumulatively, the Tribunal is not satisfied the Applicant has a disability that is attributable a physical or sensory impairment relating to the use of his elbows within the meaning of section 24(1)(a).
5. The Tribunal finds based on the evidence of Dr Gupta, Dr Bodel, Professor Courtenay and Ms Lee that the Applicant's upper back or shoulder girdle pain arises from muscular weakness in that area associated with arthritis. Dr Gupta concluded there was some muscular tenderness and no underlying structural pathology or neuropathic condition. He recommended weight loss and general conditioning and opined that physiotherapy may assist. In forming his opinions, Dr Gupta was aware of Ms Lee's opinions by virtue of the letters she had sent to him. Ms Lee has prescribed a generalised upper limb program to maintain and increase scapular function. The Tribunal understands the Applicant implements this program performing band exercises at the gym and has reported a positive response to the Tribunal and to Ms Lee. Associate Professor Courtenay found no evidence of persisting radiculopathy or neurological deficit in either upper limb. The Applicant's evidence elsewhere about his pain generally was inconsistent, describing it as extreme in his November 2024 statement and to the Tribunal at hearing as bothersome and dull. Dr Khan has referred the Applicant to three specialists in relation to his pain management and an additional orthopaedic surgeon whose treatment of the Applicant, if any, is unknown. Dr Ganora is the only pain specialist whose opinion is before the Tribunal and that evidence is approximately seven years old. For these reasons cumulatively, the Tribunal is not positively satisfied the Applicant has a disability attributable to a sensory impairment of pain, in his upper back or elsewhere, or attributable to a physical impairment in his upper back, that would come within the meaning of section 24(1)(a).

Does the Applicant have an impairment to which a psychosocial disability is attributable

1. The question of whether the Applicant has one or more impairments to which a psychosocial disability is attributable is not straightforward. Other than Dr Khan's response to the Agency's targeted questions dated May 2025, there is no medical or clinical evidence from a mental health practitioner treating the Applicant that post-dates March 2020, being the date of Mr Lien's most recent report. That is six years ago.
2. Dr Khan notes in May 2025[87] the Applicant has been diagnosed with depression and "PTSD symptoms" as part of his medical history. Unlike his other diagnosed conditions, however, these diagnoses are undated. Dr Khan goes on to state the Applicant has "seen psychiatrist to manage depression, taking antidepressants. Also seeing psychologist". He states, "mental health is stable", "his mental health would deteriorate" without treatment; he recommends the Applicant "continue seeing psychologist" and the likely outcome of treatment is that "it can improve his mental health". Dr Khan does not identify any impairments to which depression is attributable despite being repeatedly asked about impairments. He does not give reasons for his opinions. As Dr Khan was not a witness at the hearing, the Tribunal finds at limited assistance in what is by and large a cursory account.
3. The most recent documentation of the Applicant's medications by Dr Khan that is before the Tribunal is dated May 2024, or almost two years old. He records the Applicant is prescribed only Venlafaxine for depression[88]. There is no other psychiatric medication noted.
4. The observations of Mr Stretton regarding the Applicant's impairments that might be attributed to a psychosocial disability, are similarly scant. He states the Applicant "reported persistent low mood and this was consistent with his presentation"[89]. Mr Stretton opines the Applicant "is able to interact socially but avoids social interaction due to low mood and lack of motivation"[90]. Mr Stretton states the Applicant "reported that he experiences some memory and concentration problems due to pain, mental health and medication"[91] but does not elaborate. At hearing, Mr Stretton described the Applicant's presentation as "a bit blunted" but they nonetheless had, in Mr Stretton's opinion, a frank discussion.
5. At hearing, the Applicant stated he takes Venlafaxine for depression and anxiety. He also stated he takes Quetiapine, an anti-psychotic, which helps him sleep. The Applicant spoke about being nervous and uncomfortable spending time with people he does not know because he thought they might look down on him. He spoke about experiencing "road rage" and deliberately blocking other drivers from changing lanes in commuter traffic, speaking badly to his wife and being forgetful about matters such as his house keys and whether he had taken his medication, He said he sometimes felt like not leaving the house or staying in bed. The Applicant told the Tribunal his daughter instigated a system for the Applicant's wife, who is a nurse, to put his medication out for him after a couple of mishaps. When this occurred was not stated. He told the Tribunal about how he had sought reassurance from Dr Khan and his current counsellor, Desiree, regarding the Tribunal hearing and Mr Stretton's in-person assessment.
6. The Tribunal notes the Applicant' accounts are similar with some of the symptoms identified in the earlier reports before the Tribunal. Mr Lien identified in March 2020 the Applicant experiences irritable and depressed mood[92]. Dr Anwar, the psychiatrist who treated the Applicant between 2017 and 2019 reported the Applicant reported symptoms of being easily aroused, low motivation, anxiety particularly surrounding public engagements and demonstrating restricted affect[93].
7. The Tribunal also observed the Applicant's presentation to be mildly flat during the hearing. He nonetheless also demonstrated sustained concentration, quick recall of events and approximate dates and capacity to actively engage in the hearing and prosecute his case across two, consecutive six-hour hearing days.
8. The Tribunal notes that the absence of recent expert evidence about the Applicant's diagnosis, presentation and treatment is far from ideal. However, considering the evidence holistically, the Tribunal is satisfied the Applicant has impairments of depressed mood, rapid arousal, reduced motivation and anxiety that are attributable to a psychosocial disability. These are some of the impairments identified by Dr Anwar writing in July 2019[94]. There are other impairments Dr Anwar identified at that time about which the Applicant has not put forward cogent evidence that he experiences them today. These include feelings of helplessness and hopelessness, nightmares, racing heart, full-blown panic attack, sustained and low levels of concentration and memory, flashbacks, psychosis, delusions and PTSD symptoms. The Tribunal is not persuaded by evidence the Applicant forgets his keys and has had a handful or less of occurrences of doubling up on his medication that he has impaired memory attributable to a psychosocial disability. The Tribunal found the Applicant's claims to be unable to self-manage his daily medication to be exaggerated.
9. It is not necessary for the Tribunal to identify the specific clinical diagnosis to reach this finding, and it discusses the Applicant's treatment and diagnostic history in its consideration of the requirements of section 24(1)(b), below.

1. The Tribunal is satisfied the Applicant has a disability attributable to the physical impairments, and impairments to which a psychosocial disability is attributable, that it has accepted above.
2. Accordingly, the Applicant satisfies the disability criteria in section 24(1)(a) and section 25(1)(a) of the NDIS Act.
3. The next question is whether these impairments are permanent.

Section 24(1)(b): Are the Applicant's impairments permanent or likely to be permanent?

1. Access Rules 5.4 to 5.7 set out the mandatory criteria the Tribunal must consider in determining whether an impairment is, or is likely to be, permanent.
   • 5.4 An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
   • 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
   • 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
   • 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
2. The courts have said that rules 5.4 to 5.6 prescribe circumstances in which an impairment is, or is likely to be, permanent.[95] Further, that rules 5.4 and 5.6, whilst appearing to be framed in positive language, are in substance exclusionary[96]. That is, for an impairment to be permanent, the Tribunal must be positively satisfied that neither of the exclusionary circumstances in these two rules apply. Even if rules 5.4 and 5.6 are satisfied, the Tribunal must still make a finding as to the permanence of the impairment[97]. Rules 5.5. and 5.7 may not apply in all cases. Their relevance depends on the facts of the matter. The Tribunal observes that rule 5.5 is relevant to the Applicant's psychosocial impairments.
3. As to the meaning of the adjectives in rule 5.4, Mortimer J in Davis observed[98]:

(a) "remedy" "should be understood to mean something approaching a removal or cure of the impairment"[99] > > (b) the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment"[100] > > (c) the word "appropriate" "connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo"[101] > > (d) the word "available" "should be understood as directed at what treatments an individual can, in reality, access"

4. In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence of the courts and relevantly states:
   • We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
   • We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
   • 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, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
   • Generally, we'll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
   • Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy 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 - the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
     • available to you - we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
     • appropriate for you and your impairment - we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
     • evidence-based - there's proof the treatment is likely to be effective.
   • When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
   • If you're still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
   • 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 are likely to have a permanent impairment.
5. The Tribunal notes that the focus of Rules 5.4 and 5.6 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and if so, the likely outcomes of the Applicant undertaking it. Consideration of any treatment Applicant has had to date for his impairment is integral to that assessment. This is emphasised by references to the importance of information from treating professionals in the above extracts from the Access Guideline.

Assessment of permanency: the Applicant's physical impairments

1. Regarding the Applicant's impaired mobility and strength in the shoulders, the Tribunal places weight on Dr Gupta's opinion noted above that "residual weakness and restriction of shoulder motion may persist bilaterally due to the severity of the initial injury and prolonged time to treatment. It is possible his shoulder will not improve significantly[102]. Dr Gupta opines the Applicant has had all appropriate treatments for his shoulder and does not require further. This treatment includes the Applicant having completed his rehabilitation physiotherapy. The Tribunal places weight on the opinion of physiotherapist David Blackburn, who the Applicant identified as his preferred physiotherapist and the owner of the practice he has been attending for many years, as stated in the report of Dr Ganora, that the Applicant's left shoulder is unresponsive to extensive therapy. This is reinforced by Ms Lee's more recent evidence that her attempt to improve the Applicant's scapula biomechanics has been unsuccessful and her treatment has since at least December 2021 has focused on symptomatic release of soft tissue. It is evident from Ms Lee's and the Applicant's evidence that physiotherapy treatment is ineffective in treating shoulder and neck impairment. The Applicant attends the physiotherapist every five days on average due to the short-lived nature of any gains to his mobility and strength. The Applicant is identified back in 2019 as reporting to Dr Ganora that physiotherapy reduces his symptoms for only one to two days. His evidence more than six years on is that this is largely unchanged. The photos in Mr Stretton's report demonstrate that despite his surgical and clinical treatment and the Applicant's general exercise program of regularly attending the gym his shoulder abduction, flexion and rotation remai impaired. The reports before the Tribunal are peppered with findings of reduced active strength in the shoulders.
2. The evidence before the Tribunal regarding the Applicant's neck mobility is similar. The Applicant has had two levels of cervical vertebrae fused[103]. Before the surgery took place, physiotherapist Mr Blackburn reported to Dr Ganora any increase in motion to the neck from physiotherapy is short-lived. Associate Professor Courtenay opines the Applicant has residual impairment from his surgeries to shoulder and spine and there is quite significant restriction in all movements of the cervical spine[104]. He concludes regarding the Applicant's physical impairments[105]:

I do not believe that there is any benefit for any future treatment. I believe at this stage he can really do his own physiotherapy. I do not believe he needs to have that supervised. He has had a lot of physiotherapy over a long period of time, and he knows now what he needs to do.... I would not recommend any alternative treatments... I do believe that he has reached maximum medical improvement"

1. Doctors Gupta and Ganora also could not recommend any further treatment. Dr Bodel, orthopaedic surgeon, opines the Applicant's clinical condition is stable and static; it has stabilised and he has reached maximum medical improvement[106]
2. Mr Stretton's photos confirm the Applicant's neck impairments have persisted despite surgery and physiotherapy.
3. The Tribunal does not accept the Agency's contention the evidence demonstrates there is potential for further improvement in the Applicant's physical impairments, and to the level of approaching a cure.
4. Tribunal is positively satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy these impairments. It is satisfied medical treatment and review is not required before a determination of permanency or likely permanency can be made regarding the Applicant's physical impairments.
5. The Tribunal is accordingly satisfied that the Applicant's physical impairments are or are likely to be permanent within the meaning of section 24(1)(b).

Assessment of permanency: the Applicant's impairments to which a psychosocial disability is attributable

1. The Applicant explained, and the Tribunal accepts that following his workplace injury he was initially referred by Dr Khan to a psychologist only, Mr Lien, in about 2014. He was not prescribed pharmaceutical treatment at that time. That occurred upon him commencing treatment with psychiatrist Dr Anwar, in January 2017[107]. In October 2017, Dr Anwar referred the Applicant to second psychologist specifically for EMDR (Eye Movement Desensitization and Reprocessing) for PTSD symptoms. The Applicant attended 10 sessions with the EMDR psychologist but did not continue because he did not feel comfortable with them. In about 2019, his treatment from Dr Anwar and his psychiatric treatment ceased. He received psychiatric assessment but not treatment from Associate Professor Michael Robertson in 2019 and another assessment from Dr Brian Parsonage in 2020. The Applicant continued to see psychologist Jospeh Lien until 2025. In December 2025, Dr Khan has referred the Applicant to "Desiree" at "White Star" for mental health support. The Applicant provided no documentary evidence from White Star or from Dr Khan regarding this referral and the Tribunal is not assured that Desiree is a psychologist. The Applicant ceased going to Mr Lien because his family told him his road rage and the rough way he spoke to them had not changed. He works on these behaviours with Desiree and he has improved them. The Applicant appeared to the Tribunal to be motivated to improve his conduct for the benefit of his family and their relations with him.
2. The Tribunal makes the following observations about the evidence of the Applicant's psychosocial disability.
3. Firstly, the expert reports and opinions of the abovementioned clinicians were contingent on the information before them about the Applicant's functional capacity and environmental factors as reported by the Applicant. They included that the Applicant[108]:

(a) has no social life, no friends and no contact with his friends

(b) does not see his family

(c) often goes more than a week without showering and does not shower without prompting from his wife

(d) at home does not interact with his family and moves to another room if his family approach him

(e) no longer goes to the gym

(f) does not leave the house to undertake social and recreational activities

(g) has lost interest in reading about politics and reading the newspaper

(h) no longer has interest in his and his wife's investment properties

(i) is dishevelled in his appearance

(j) eats only takeaway unless his wife prepares food for him

(k) would say he was not home if a friend wanted to come over

(l) requires a companion to travel further than the local shops.

1. In the Tribunal's view, the Applicant's current circumstances and functional capacity has markedly changed from that described in these expert reports. The Applicant told the Tribunal that a normal day for him would involve getting up and making coffee, taking his dog to the park for 90 minutes, he walks around the park, his dog plays with other dogs and he plays ball with her. When he gets home, he showers and then reads the newspaper and makes himself a light breakfast. Every couple of days he walks to the local shops, a little under a kilometre away, to buy bread and milk. Around midday he may have an appointment such as physio, which he drives to. He may drive to Westfield Shopping Centre if his daughter wants him to get something for her, which he then posts to her as she works overseas. He will rest on the lounge if his appointment has been painful. He goes back out to the park with his dog in the afternoon or evening. For dinner, he will heat up a meal prepared by his son and his son's girlfriend, order UberEATS or go to an eatery at the local shopping centre. He does not like grocery shopping but sometimes he will go with his son and son's girlfriend, and they will have a meal out afterwards. Once or twice a week he has an old friend who comes over in the evening, or he will go to his friend's place. They sometimes go to the gym together or meet there and socialise together after. The Applicant's son comes over several times a week, sometimes with his girlfriend and they cook in his kitchen leaving some meals for the Applicant and taking some home for themselves. The Applicant said he could plan and cook for himself provided someone else chops the ingredients. He is not motivated to cook for one because he is used to cooking for very large numbers of people and he does not like to waste food. The Applicant's son was with him at the start of the hearing, helping him get onto the Teams App, which the Applicant managed himself thereafter. He was neatly dressed and Mr Stretton found him to be the same. It appeared to the Tribunal that some of the reasons the Applicant may not undertake daily activities concern his personal values and preferences, those of his wife and children, and the division of labour amongst him and his family members rather than his impairments. The Applicant waters the garden, cleans the pool to the extent he is physically able to, talks to the neighbours and sometimes grows vegetables.
2. The Applicant goes to the gym four times a week to do his physiotherapy exercises as well as 45 minutes of cardio exercise on a bike and treadmill for his general fitness. He enjoys the sauna.
3. The Tribunal finds the Applicant is actively involved in the management of the investment properties he co-owns with his wife. This was evident from his argument with the insurance company the week before the hearing. Later in the hearing, when asked about his involvement in the management of the investment properties, the Applicant told the Tribunal he was not involved and his wife did everything, however the more the Tribunal inquired, the more his account became difficult to follow and his interest remained apparent. The Tribunal finds he was continuously tailoring his evidence to the Tribunal's questions to have his claims seen in a more favourable light.
4. The Applicant said that he can become unmotivated, not shower and stay in bed for a few days when an incident happens where he gets into an argument. The Tribunal found the Applicant evasive in response to its attempts to explore the frequency of such downturns, saying only that it depended on how much he went out and he preferred not to go out for this reason. The Applicant referred the Tribunal to two such instances in the last nine months or so. On his own evidence, the Applicant goes out and interacts with people daily in a variety of contexts and environments.
5. Secondly, there are some differences of opinion amongst the assessing experts as to the Applicant's diagnosis and psychosocial impairments.
6. Dr Anwar, in 2017, stated his impression was Chronic Adjustment Disorder/reactive depression with depressive and anxiety symptoms in the context of on-going psycho-social stressors and possible PTSD. The Tribunal notes that an adjustment disorder may be short term. In 2019, he diagnosed PTSD and depression and possibly psychotic depression. He suggested that if the Applicant's condition worsened, he should be admitted to hospital. There is no evidence the Applicant was hospitalised for his mental health. Dr Robertson, in 2019, diagnosed a major depressive disorder with previous psychotic features. Dr Parsonage in August 2020 diagnosed Persistent Depressive Disorder which subsumes chronic Major Depressive Disorder. Dr Parsonage refers to a further report by a Dr Jager, which evidently concluded the Applicant's psychosocial impairment was not significant. That report has not been given to the Tribunal. Mr Lien, in 2020, favoured a diagnosis of adjustment disorder with depressed mood.
7. Thirdly, in the case of all relevant expert reports, their diagnoses and opinions on prognosis are not intended to be enduring. Dr Anwar concluded the Applicant's short-term prognosis, of six to 12 months, was not promising. In terms of the long term, he could only outline positive and negative prognostic factors. He concluded the Applicant had fair prognosis of returning to work. The Tribunal observes that several of the negative prognostic factors identified by Dr Anwar are no longer present. Dr Robertson stated he did not anticipate further improvement in the next 12 months and given the Applicant's disappointing progress to date, his prognosis for the future is quite poor. Dr Parsonage concludes the Applicant's impairment is permanent, however that conclusion is directed to a workers compensation finding and workers compensation law.
8. The Tribunal concludes from Dr Anwar, Dr Robertson and Mr Lien that the Applicant's psychosocial conditions were in a state of flux, their diagnoses and prognoses were based on his current and recent presentation and environmental factors, and they were looking no further ahead than approximately 12 months.
9. Fourthly, the Applicant has not put forward relevant evidence at his disposal, including but not limited to reports and records from Mr Lien. The Tribunal does not accept the Applicant's claim that he could not afford to do so. The Tribunal explained to the Applicant at the hearing that it may have difficulties being positively satisfied of the matters it must be regarding his psychosocial impairments in the absence of more recent evidence than 2020. The Applicant said that he understood and did not present a counter argument beyond the claims regarding the Agency's involvement that the Tribunal has addressed above.
10. Fifthly, the Applicant has only had psychiatric treatment for a period of approximately two and half to three years and none since 2019. He has now been referred to a practitioner who the Tribunal cannot be satisfied is a psychologist and whose focus, according to the Applicant is on the Applicant learning ways to manage his irritability to have better relationships with his family.
11. For these reasons cumulatively, whilst these expert reports remain relevant to the Tribunal's deliberations, they are not reports on which the Tribunal can alone rely on to reach reliable findings about the matters in rules 5.4 and 5.6 it must come to a position on. That is, whether there are no known, available and appropriate treatments that would be likely to remedy the impairment, and whether the Applicant's impairments require further review, and potentially further treatment, for their permanency or likely permanency to be demonstrated. Being unable to be positively satisfied the Applicant overcomes these threshold requirements, the Tribunal is not satisfied the pre-conditions to permanency are established. In reaching these findings, the Tribunal has taken into consideration the Applicant's psychosocial impairments may fluctuate and there are prospects the severity of the impact of those impairments on his functional capacity, including his psychosocial functioning, may and has improved.

1. The Tribunal is satisfied the Applicant's physical impairments are permanent. It is not satisfied his impairments to which a psychosocial disability is attributable, are permanent.
2. Accordingly, the Applicant satisfies the element of permanency in the disability and early intervention requirements, in section 24(1)(b) and section 25(1)(a)(i) of the Act respectively.

Section 24(1)(c): Does the Applicant have substantially reduced functional capacity in a specified life activity area?

1. Section 24(1)(c) requires that the Applicant's impairments result in substantially reduced functional capacity to undertake one or more of the following life activities: communication, social interaction, learning, mobility, self-care or self-management. He need only establish he experiences substantially reduced functional capacity in one life activity area[109].
2. Given the cumulative nature of section 24, the Tribunal must answer this question only with respect to the impairments it has found to be permanent or likely to be permanent, in satisfaction of section 24(1)(b), being the Applicant's physical impairments only.
3. Rule 5.8 of the Access Rules is the only rule that applies to the assessment under section 24(1)(c). The courts have determined Rule 5.8 is a "deeming provision"[110]. It deems the Applicant to meet the requirements of section 24(1)(c) if one of the three alternative scenarios stated therein applies[111]. Rule 5.8 states:

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

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

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

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

1. The Tribunal must first consider in addressing the life activity areas whether the Applicant's circumstances are within those sections set out in one of the three alternative limbs of Rule 5.8. If they are, he will be deemed to have a substantially reduced functional capacity[112] and the requirements of section 24(1)(c) are met. If they are not, the Tribunal must go on to holistically assess whether the Applicant's functional capacity is nevertheless substantially reduced in any of the life activity areas applying the test in section 24(1)(c)[113]. The Access Guideline provides further content to the type and range of tasks and actions that comprise each life activity area. This approach has been summarised recently in Foster and NDIA[114]:

Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of "substantially reduced functional capacity". The purpose of the Rule, in my opinion, is to enable the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. However, the Rule is not exhaustive of the circumstances in which substantially reduced functional capacity resulting from an impairment may be found. The statutory task therefore is to determine, first, if the prospective participant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, it is, second, to determine in accordance with the Act if the person otherwise has substantially reduced functional capacity in any of these life activity areas.

1. The Applicant confirmed at hearing that he did not claim any reduction in functional capacity in the domain of communication. Regarding the domains of learning and social interaction, he claimed only to have reductions in his functional capacity by reason of his psychosocial impairments, which the Tribunal has found not to be permanent. Further, by virtue of the Full Federal Court's decision in Lampard and NDIA[115], approving the approach of the AAT in Madelaine and NDIA that the activity of social interaction is "directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills"[116], it cannot be said that the Applicant's physical impairments give rise to substantially reduced functional capacity in social interaction. The Tribunal concludes the same must be said for the activity of self-management, in respect of which the Access Guideline provides is concerned with the Applicant's mental or cognitive ability to manage his life, not his physical ability to do these tasks. The Tribunal has previously endorsed this approach in the decision in Burrows and NDIA[117].
2. This leaves only the possibility the Applicant may satisfy the requirements of section 24(1)(c) in respect of the activity areas of mobility and self-care. The Tribunal considers these below.

1. The Access Guideline describes mobility as follows:

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

1. In Madelaine, the AAT held that the threshold requirements to achieve functional capacity with respect to mobility are "relatively modest":[118]

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

2. The Applicant's evidence concerning walking to the shops, taking the dog to the park, going to the gym and watering the garden is summarised above.
3. Mr Johnson writes in July 2020 the Applicant has limitations in his ability to ambulate independently around the home and transfer between sitting and standing[119]. The Tribunal notes these assertions are unclear and no observations on which they are based are stated. The Tribunal notes Mr Johnson's report pre-dates his surgeries in 2021 and 2022. It notes its other concerns about this report, stated above. For these reasons, the Tribunal gives no weight to Mr Johnson's opinions of the Applicant's functional capacity.
4. Ms Lee writes in May 2024[120] the Applicant has limited ability to reach for objects above his head, turn his head and trunk, lift and carry items and transfer from static positions.
5. The Tribunal accepts that by virtue of the reduction in all planes of movement in his neck and shoulders, and weakness in those areas, the Applicant experiences a degree impairment in his mobility. The tasks of transferring on and off furniture, using stairs, of turning his head while driving, are tasks or actions he may do more slowly, and in the case of driving, drive only short distances, because of limits to his upper body range of movement and strength and because sharp movements that take him to or beyond the edge of his ranges cause him pain.
6. Nonetheless, the Applicant's evidence is that he can carry out these tasks, and he was observed by Mr Stretton to mobilise safely and independently around his home, including transferring on and off furniture and ascending and descending the stairs. The Tribunal observed the Applicant transferring on and off the sofa and mobilising in his living room during the hearing independently. His evidence is that he walks over a kilometre most days.
7. There is no reliable evidence before the Tribunal that the Applicant requires the support of another person, assistive technology or equipment in the activity of mobility because of his permanent impairments. For this reason, the Tribunal finds the Applicant does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility.
8. The Tribunal finds the Applicant's circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in the Applicant's functional capacity to undertake the activity of mobility is substantial. Accordingly, the Tribunal finds the Applicant's impairments do not result in substantially reduced functional capacity to undertake the activity of mobility.

1. With respect to the activity of self-care, the Access Guideline provides:

Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.[121]

1. The Tribunal notes the position in Burrows that the tasks of washing clothes and performing housework do not come within the activity area of self-care[122]. It adopts that position in so far as they constitute more than maintaining essential hygiene.
2. The evidence before the Tribunal indicates that the Applicant has awareness of what socially accepted norms are in all the tasks in the activity area of self-care.
3. In his oral evidence, the Applicant told the Tribunal he can dress and undress himself, shave, brush his teeth, shower, heat up food and eat without assistance. He said he usually wears t-shirts, shorts and clogs. Although not explicitly stated, the Tribunal understands a reason for this is that they are easier to don and doff given the restrictions in his neck and shoulders. Regarding shopping, the Tribunal understands this responsibility rested previously with his wife[123] and is now done mostly by his son for reasons the Applicant does not like shopping. Similarly with house cleaning and washing, this was until their separation a task carried out by the Applicant's wife according to their arranged division of family responsibilities[124]. The Applicant now pays a cleaner. Regarding clothes washing, the Applicant can wash small loads and place clothing to dry on the airer. He is unable to hang sheets because of the weight and need to lift the items above shoulder height. The same is so for changing bed linen. The Applicant is independent in toileting. This is consistent with the observations of Mr Stretton in his report[125]
4. The Tribunal adopts the WHO International Classification of Functioning Disability and Health description of the task of eating as[126]:

feeding oneself: that is, cutting food, and getting food or drink from a plate or glass to the mouth • swallowing both food and drink • mental or emotional factors that may contribute to difficulty in eating, such as anorexia, bulimia, or depression. This item does not refer to meal preparation.

1. Regarding food preparation, the Tribunal's understanding in any event is that the difficulties the Applicant experiences arise in some part because of his preference for cooking large batches of food and the associated additional strain of carrying large pots and pans. For this reason, his son and son's girlfriend come to the house and carry out the batch cooking.
2. The Tribunal accepts the Applicant has minor reduced functional capacity in the tasks of getting dressed and hygiene associated with maintaining a basic level of cleanliness in the home. For these reasons, it accepts he has a reduction in his capacity for self-care. However, there is no one self-care task he forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. The Tribunal considers that the Applicant experiences impairment in only discreet components of the range of tasks or actions that comprise the activity of self-care. For this reason, the Tribunal finds he does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity.
3. The Tribunal finds the Applicant's circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in the Applicant's functional capacity to undertake the activity of mobility is substantial. Accordingly, the Tribunal finds the Applicant's impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.

Conclusions on substantially reduced functional capacity and the disability requirements

1. The Tribunal is not satisfied the Applicant's permanent physical impairments results in substantially reduced functional capacity to undertake any of the activities in section 24(1)(c). Accordingly, the requirement in s 24(1)(c) is not met.
2. It follows that the Applicant does not meet the disability requirements in section 24.

Does the Applicant meet the early intervention requirements in relation to his physical impairments?

1. It remains to be considered whether the Applicant's permanent impairments, not being found to give rise to substantially reduced functional capacity in any of the six activity areas in section 26(1)(c), would cause him to meet the early intervention requirements.
2. The Tribunal has found above that the Applicant meets the requirements of section 25(1)(a)(i) of the Act by reason of his physical impairments only.
3. The next question is whether there are early intervention supports likely to reduce his future needs for supports in relation to his disability, pursuant to section 25(1)(b), and whether they are likely to do so in one or more of the four ways required by section 25(1)(c).
4. Rule 6.9 of the Access Rules sets out the mandatory considerations for the Tribunal in answering this question, being:

(a) the likely trajectory and impact of the person's impairment over time; and

(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

1. As the Tribunal has noted above, the Tribunal must be able to identify with sufficient precision the early intervention supports being sought by an applicant or recommended by practitioners to be able to address the requirements under sections 25(1)(b) and (c).
2. The only support so identified by the Applicant is physiotherapy treatment.
3. The Access Guideline provides the following regarding early intervention:

We need to decide that getting early intervention supports means you'll likely need fewer disability supports in the future (section 25(1)(b))

We need to know that early intervention supports will help you with at least one of the following (section 25(1)(c)):

• addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
• preventing your functional capacity from getting worse
• improving your functional capacity
• supporting your informal supports, which includes building their skills to help you.

To help us decide if the early intervention will help you in these ways, we look at (Rule 6.9):

• how your impairment might change over time
• how long you've had your impairment
• if there's been a significant change to your impairment
• if your needs are likely to change soon, such as if you're finishing school.

1. As a preliminary step in its approach to assessing whether the Applicant meets the early intervention requirements, the Tribunal has considered the notes in the Supplementary Explanatory Memorandum to the NDIS Bill, which relevantly state about clause 25 (which became section 25):

This clause recognises that a person may need support to help minimise the impact of a disability from its earliest appearance, and that the provision of support may improve the person's functioning or prevent the progression of their disability over their lifetime.

2. As the Tribunal has discussed and concluded above in its consideration of permanency, the expert opinion before Tribunal is that further treatment will not be of benefit, and specifically no further physiotherapy treatment is needed or likely to result in enduring improvement to the Applicant's mobility and strength in his neck and shoulders. The Applicant's current and recent physiotherapy treatment provides only short-term symptomatic relief.
3. There is also no current or recent medical evidence that goes directly to the likely trajectory and impact of the Applicant's permanent physical impairments over time and how early intervention would reduce the Applicant's need for supports over his lifetime. The medical evidence there is indicates that the impairments are fully treated and stable. The Tribunal notes the view of Associate Professor Courtenay in particular that would have been pre-existing issues with the Applicant's cervical spine and the constitutional, degenerative and age-related nature of his impairments[127].
4. For the above reasons, the Tribunal is not satisfied the provision of early intervention supports to the Applicant is likely to benefit him by reducing his future needs for supports in relation to his permanent impairments. Accordingly, the requirement in section 25(1)(b) is not met and it follows from there that the Applicant does not meet the early intervention requirements in section 25 of the Act in relation to his physical impairments.
5. As the Tribunal has concluded the Applicant does not meet the requirements for access to the NDIS, it must affirm the decision under review.

[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024

[8] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1

[9] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the NDIS Access Rules), paragraph 2.5(a)

[10] NDIS Access Rules, paragraph 2.5(b)

[12] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201(Mulligan), at [18]; Lampard and National Disability Insurance Agency [2024] AATA 3150 (Lampard), at [19]

[13] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis); Davis at [69]; Mulligan at [18]

[16] Davis, at [82], Lampard, at [21]

[24] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), Foster, at [88]

[28] Garcia Albiol and NDIA [2024] AATA 496A

[30] Foster and the NDIA [2025] ARTA 718

[31] NDIA v Jones [2025] FCA 877, decision 31 July 2025 per Collier J (Jones), at [27]

[34] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]

[36] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

[37] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]

[38] Applying to the NDIS (Pre-legislation changes) 14 October 2024

[39] The Tribunal requested but was not provided with a copy of the access request. The Tribunal was advised by the Agency at hearing the request was unavailable due to change in its internal procedures. The Agency acknowledged receipt of the request on 10 April 2024

[42] JTB, page 201. The Tribunal was not provided with a copy of the internal review request. Receipt of the request was acknowledged by the Agency on 4 July 2024

[48] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access

[52] Agency 13 February 2025, JTB 4; Applicant undated, JTB 26

[62] JTB, page 31, 304. It appears this description comes from Andrew Johnson's July 2020 report and is repeated in Dr Khan's medical summary in a referral to Ms Amanda Lee, physiotherapist, dated 20 May 2024 (at JTB page 189)

[63] Applicant's Oral submissions; JTB, page 20

[74] JTB, page 170, report of Dr James Bodel

[77] JTB, page 192; Applicant's oral evidence

[95] Davis, at [71]; Kelly v National Disability Insurance Agency (Kelly), [2024] FCA 1462 at [48]

[114] [2025] ARTA 725, at [51]

[115] Madelaine and National Disability Insurance Agency [2020] AATA 4025, At [50]

[118] Madelaine, at [104]-[105].

[124] JTB, pages 92 to 93 and Applicant's oral evidence