Zohiab and National Disability Insurance Agency (NDIS) [2025] ARTA 984 | Case summary

Zohiab and National Disability Insurance Agency (NDIS) [2025] ARTA 984 | Case summary | Zoe

[65]

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d) for supports that involve the provision of equipment or modifications:

(i) the comparative cost of purchasing or leasing the equipment or modifications; and

(ii) whether there are any expected changes in technology or the participant's circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek expert opinion.

Reasonable family, carer and other support

3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

(a) for a participant who is a child:

[89]

The evidence overwhelmingly supports, and it is not disputed, that Mr Zohiab has:
- A sensory impairment as a result of his hearing loss: and
- A psychosocial impairment as a result of PTSD.
As a result of his impairments Mr Zohiab contends that he is adversely affected in the following ways:[29]
- Impaired ability to leave the house because 'I don't drive anymore, I use a maxi-taxi with my assistance dog to attend appointments';
- Impaired ability to process sensory stimulation, 'I use a hearing aid and specialised headphones';
- Inability to regulate his behaviours.[30] Mr Zohiab reported a history of acting aggressively and sleepwalking but it has 'decreased due to my impaired mobility;'[31]
- Limited physical mobility and balance, 'I cannot move, because of my joint and muscle pain, so I use a 'transfer board,' a wheelchair, and a four wheeled walker. 'It takes me 20-30 minutes to move from my bed to the wheelchair with support worker help. From my bed to the shower takes 2 hours. From my wheelchair to the toilet takes 2 hours';
- Impaired ability to attend to some self-care[32], 'my wife helps me, because I can't feel it when I touch things, I feel numb, tingle and I have function issues;'
- Impaired ability to perform manual household tasks;
- 'Mental health issues, I panic because I trained in combat, I want to kill people';
- Impaired ability to self-manage 'my wife is my fulltime carer and she helps me.'
Mr Zohiab elected not to attend an Independent Medical Examination (IME) organised by the Agency because it was 'a repetition to see practitioners again and again I will not do it, I am tired of it.'[33]
Relevantly, Mr Zohiab's funding under the scheme includes the following supports:[34]
- Core support - Assistance with self-care activities at the weekday daytime support worker assistance rate of $65.47 for 6 hours per week;
- Core support - Access Community Social and Recreational Activities Standard Saturday rate of $92.12 for 2 hours per week
- Core support - Short Term Accommodation and Assistance, including respite weekday 10 days per year; Saturdays 2 days per year; and Sundays 2 days per year;
- Capacity Building - occupational therapy assessment and report writing at hourly rate of $193.99 for 32 hours per year; and
- Capacity Building - Support Coordination - psychosocial recovery coaching at rate of $98.30 per hour for 100 hours per year.
Mr Zohiab contends that he requires 8 hours each weekday of support worker assistance and 6 hours on a Saturday and Sunday totalling 52 hours each week of support worker assistance. Mr Zohiab contends he requires this support in order to:
- Assist him to move out of his bed up to four times each day;
- Wash once or twice a day;
- Toileting;
- Wash his sheets and clothes;
- Heat up meals;
- Undertake the administration for his weekly appointments; and
- Provide him with his medication with lunch.
The goals included in Mr Zohiab's plan[35] are that he would like support to:
- Be safe at home and in the community;
- Find more suitable accommodation to meet my needs;
- Learn Auslan Signed English so I can communicate better with others;
- Have a property with a suitable fence for my Assistance Dog;
- Build my independence and capacity to complete my daily activities and be able to safely access the community for social activities I enjoy; and
- Build a garden so that I can spend time in my yard.
Mr Zohiab's work history has included employment as a: retail security officer, cook, small business owner and also around three years' service in various states of Australia with the Australian Defence Force (ADF), and a 'quartermaster' managing warehouse assets as part of the Royal Australian Army Ordnance Corps (RAAOC). Mr Zohiab requested medical discharge from the ADF in 2020 and this process was completed around January 2021.[36]
The Department of Veterans Affairs (DVA) listed over 20 conditions that are covered for treatment for Mr Zohiab.[37] Mr Zohiab contends he has 'symptoms from the following conditions...which result in significant upper and lower limb dysfunction, severe pain, numbness, tingling, shooting pain and overall weakness:'[38]
- Bilateral ankle sprain;
- Bilateral hip gluteal tendinopathy;
- Bilateral Hoffa's syndrome;
- Bilateral infrapatellar bursitis;
- Bilateral plantar fasciitis;
- Bilateral rotator cuff tendinopathy;
- Bilateral sacroiliac joint degeneration;
- Cervical spondylosis;
- Erectile dysfunction;
- Left hand adductor pollicis strain;
- Obstructive Sleep Apnoea;
- Lumbar Radiculopathy;
- Cervical Radiculopathy;
- Lumbar spondylosis;
- Major depressive disorder;
- Panic disorder;
- Post traumatic stress disorder;
- Pseudofolliculitis barbae;
- Psoriasis;
- Right distal quadriceps tendinopathy;
- Right leg varicose veins of the lower limb;
- Sensorineural hearing loss;
- Thoracic spondylosis;
- Tinea;
- Tinnitus; and
- Alcohol use disorder-in remission.
Since his January 2021 medical discharge from the ADF, Mr Zohiab and his wife have lived in a private rental property in Queensland. Since October 2024, DVA funded an assistance dog to live with Mr Zohiab.[39] Mr Zohiab reported that his wife works at a supermarket and wakes early to assist him with his needs before she attends work.
Mr Zohiab receives a specialist Veterans' Disability Pension.[40] In addition to this pension and his assistance dog, Mr Zohiab receives the following support from the DVA:[41]
- Household services approved for the period 27 July 2023 until 26 July 2028:[42]
  - Meal preparation, 1 service of 3 hours per week;
  - Indoor domestic cleaning, 1 service of 1.5 hours per week;
  - Gardening, excludes tree maintenance, removal, tip fees and chemicals, 1 hour per service up to 12 services per year;
  - Gutter cleaning the ground level gutters, only 2 services per year at 3 hours per service; and
  - Window cleaning on ground level internal and external, upper level internal, only 1 service per year at 3 hours per service.
- Attendant Care personal care services was approved for the period 16 September 2024 until 15 September 2025. This is defined as 'assisting with managing personal care needs...and can include assistance with personal hygiene (bathing and toileting, grooming, dressing and feeding)[43];
  - 7 hours per week at a cost of $68.40 per hour; and
  - Mr Zohiab confirmed he can use the hours as he chooses and that the determinations are usually made annually.
- The following treatments for Mr Zohiab are also funded by the DVA:[44]
  - General Practitioner, Dr Alam (around one to two visits per month);
  - Occupational therapy (three times per month);
  - Physiotherapy (twice per week);
  - Psychology (once per month);
  - Psychiatry (two visits per month and two sessions of 3-5 weekly Transcranial Magnetic Stimulation sessions per year);
  - Podiatrist (once every one to two months); and
  - Ear, Nose and Throat (ENT) specialist for once per month ear clearing.

[95]

Ms Nicholls provided a 'file review' to the Tribunal dated 6 November 2024[57] and also oral evidence at the hearing. I am satisfied that Ms Nicholls' evidence was honest and truthful and in accordance with her obligations as an expert witness. I am satisfied that Ms Nicholls was neither an advocate for Mr Zohiab nor the Agency. Ms Nicholls' evidence greatly assisted the Tribunal. I accept her evidence.
Ms Nicholls explained that she had not met Mr Zohiab nor seen his living space. Rather, she confined her expert opinion to reading other practitioner's assessments and this was informed by her 'over 30 years of experience as an occupational therapist.'
Ms Nicholls raised issues with the quality of material provided in Mr Zohiab's application. Ms Nicholls stated she was 'perplexed at the lack of medical specialist opinion' and elaborated that Mr Zohiab's material indicates: [58]
- 'new symptoms with no diagnoses. Occupational therapists require a medical diagnosis to confirm and understand the impairment';
- 'inconsistencies in reports provided:
  - with the mobility difficulties reported by Mr Zohiab, I would normally see a report from a specialist supported by scans, and other testing...and also a report from an incontinence nurse. There was no confirmation of these impairments.';
  - One assessment listed Mr Zohiab as having cognitive impairment then later no impairment was reported. Another assessment states Mr Zohiab requires an electric wheelchair and later reports indicates he is able to walk short distances; and that
- much of the material relied on self-report 'with minimal objective clinical assessment.'
Ms Nicholls stated that she had read Dr Alam's material, and she acknowledged the diagnoses given to Mr Zohiab. Ms Nicholls then gave evidence that occupational therapists place importance on specialist clinical evidence around diagnosis because:
- 'it is outside my scope of practice to diagnose. I rely on a medical practitioner to diagnose, treat, and at times medicate the impact of the condition on the person, so I can assess the functional impact to support the person. If a diagnosis is a degenerative neurological condition, we need plan to how to care for the person and coordinate according to their condition'.
- the diagnosis assists with using appropriate assessment tools. The Montreal Cognitive Assessment (MoCA) 'test administered by Ms Patterson is predominately used for Acquired Brain Injuries (ABI), Mr Zohiab does not have this diagnosis.'
- the diagnosis helps me to look at what a person can and cannot do and consider medical conditions and their functioning and assist the person with their goals, modify the environment, prescribe Assistive Technology (AT) or equipment and rehabilitative means. There was limited clinical evidence to understand Mr Zohiab's conditions or diagnoses or impairments in the physical domain.
When asked about inconsistencies Ms Nicholls opined that Ms Patterson 'applied another inappropriate assessment tool for Mr Zohiab' because 'the Care and Needs Scale (CANS) is usually administered for ABI on a scale designed to determine care needs with very heavy medical requirements'. In response to Mr Zohiab's question about what else the MoCA test may be used for Ms Nicholls responded, 'I have used the MoCA for many years, especially if someone's cognition was in question and we suspect undiagnosed dementia. Mr Zohiab does not have this diagnosis.'
Ms Nicholls stated that self-reporting is 'helpful, but we can't rely on it', it should also be tested by:
- looking at the diagnosis which then informs a general expectation of what one sees a person can or cannot do;
- looking at the person's insight into their practical abilities for example by asking the person to demonstrate how they get on and off a toilet;
- checking equipment to see how the person is using their AT or equipment;
- undertaking clinical testing of their environment to see if it matches what they have reported; and
- comparing it to other reports. Ms Nicholls gave the example of the physiotherapist Ms Cielo O'Neill's report around Mr Zohiab's mobility and high pain responses. Ms Nicholls quoted Ms O'Neill's report where it was stated the 'objective assessment was limited due to irritability and a limited mobility' to see what Mr Zohiab could and could not do.[59]
Ms Nicholls listed concerns with Ms Patterson's report that it focussed on:
- what Mr Zohiab self-reported that he wanted instead of what he needs according to his function to build his capacity; and
- Mr Zohiab's self-report with no evidence of a functional capacity assessment. 'There was no explanation of how Mr Zohiab transferred from sitting to standing'.
When asked about the number of hours of support worker assistance recommended for Mr Zohiab, Ms Nicholls responded:

[99]

Dr Hatzipetrou is a clinical and forensic psychologist with 'over 35 years of experience working with people with psychosocial impairments.' He provided a 'file review' dated 17 November 2024[61] and also gave oral evidence at the hearing. I am satisfied that Dr Hatzipetrou's evidence was honest and truthful and in accordance with his obligations as an expert witness.
Dr Hatzipetrou explained that 'due to insufficient information' he was unable to:
- furnish a firm opinion considering the complexity of Mr Zohiab's psychological, sensory and physical impairments whilst noting that 'physical impairment is not my area of specialisation';[62] and
- 'triangulate with available collateral' and could not assess the presence and severity of Mr Zohiab's psychological impairment and how it impacts across different areas of his function because there were no psychometric tools available to support the claims.
Dr Hatzipetrou's evidence regarding Mr Zohiab's impairments can be summarised as follows:[63]
- he accepted the different diagnoses made by other practitioners[64] and noted Mr Zohiab's mental health admission in February 2024;
- he did not delineate Mr Zohiab's physical and psychosocial impairments and noted that 'if there is a physical disability, we would need to look at the physical cause for limited mobility, this cannot be based on PTSD';
- 'I cannot answer what extent Mr Zohiab's physical limitations may be attributed to his psycho-social conditions. PTSD may contribute to him moving slower, but PTSD does not cause physical disability or physical impairment;
- 'people with depression may move more slowly. The only time we see a physical impairment with depression, which is temporary, is catatonia in severe psychotic disorders. That is not the case here;' and
- 'Mr Zohiab has well documented reporting of pain and nerve pain. Some people with pain symptoms also report depression and people avoid tasks that cause pain. It is unclear whether it is a physical injury causing pain or the depression. I do not know if there is a biological reason why Mr Zohiab reports he cannot move. I can't test how much is physical and how much is psychosocial.'
Dr Hatzipetrou was unable to express 'with a degree of confidence' how many support worker hours Mr Zohiab required because we 'don't have the data to support it with surety'. Dr Hatzipetrou did acknowledge a higher level of support hours of 'around 8 hours per day' may help Mr Zohiab to achieve his goals and 'may lessen the burden for Ms Magar'.
Dr Hatzipetrou's evidence regarding Mr Zohiab's request for SDA was based on 'over three decades of making housing or SDA recommendations, so I understand what SDA requires.' In response to Ms Patterson's report and questions from Mr Zohiab and the Agency, his evidence can be summarised as follows:
- Typically, residents of SDA receive 24-hour care due to the resident's behavioural requirements as outlined in their respective containment or restrictive practices. There is no evidence that Mr Zohiab is subject to any containment or restrictive practices;
- Without behavioural data for Mr Zohiab, without a chart recording reported behaviours of concern, the prevalence of these behaviours remains unclear. 'I can only speculate if these behaviours are related to PTSD, further exploration is required at a face-to-face assessment;'
- Without behavioural analysis, it is unclear why Mr Zohiab may be causing property damage. For example, it is unclear if it is due to psychosocial impairments of anxiety or physical impairments causing him to fall. Clinical assessments are required to assess Mr Zohiab's actual needs first before any work on problem behaviours could start. Mr Zohiab's behavioural concerns are unclear, I am not saying they don't' happen, I just don't know what drives them;'[65]
- He disagreed with the robust design SDA and the recommendations made by Ms Patterson, Dr Hatzipetrou opined:
  - Reinforced walls increase the risk of harm to the person as 'the person may be damaged by the wall';
  - Safety glass recommendations also require documentation of the severity of the behaviours of concern and analysis of what is driving the behaviours. 'For example, if the behaviour happens once a month, he would not likely need safety glass or reinforced walls;' and
  - There is insufficient evidence to 'justify a lockable kitchen for Mr Zohiab. This is an area of restrictive practices that requires more work. There is a process to examine this, and authorisations are required. Clear risk assessment evidence is required. There is no evidence of this.';
- 'Without documentation, I cannot see how Mr Zohiab's support needs can be met in SDA as opposed to him living in different accommodation with more appropriate features. The attributes of SDA may be replicated in non-SDA houses.'; and
- In response to a question from Mr Zohiab regarding the suitability of his current accommodation, Dr Hatzipetrou stated, 'you may benefit from accommodation containing accessible design features, but this is available in other homes with appropriate layouts and design features can be modified without a specific SDA build...[66] because sound proofing and blackout curtains are not unusual, they can be organised for non-SDA homes.'[67]
Dr Hatzipetrou concluded that 'diagnosis alone is not what funds services, it is the degree of impairment that funds the service.'
Dr Hatzipetrou responded to Mr Zohiab that he could 'not comment about the provision of an assistance dog by the DVA, because 'the dog provides you with comfort, not evidence-based treatment. I think psychiatric treatment would be helpful for you.'

[105]

I am satisfied that Mr Zohiab was granted access to the scheme on the basis of meeting the disability requirements pursuant to section 24 of the NDIS Act.[81]
I am satisfied that Mr Zohiab meets the disability requirements on the basis of a psychosocial impairment due to PTSD and a sensory impairment due to hearing loss.[82]
I consider that Mr Zohiab gave a forthright account regarding his submissions, circumstances, impairments, and needs. I accept Mr Zohiab's evidence that he experiences 'physical conditions' and give weight to Mr Zohiab's and Ms Magar's lived experience and their respective reporting that the requested supports are beneficial for Mr Zohiab. I accept that Mr Zohiab reports he is not able to physically perform day-to-day tasks and that he 'sleeps downstairs in the lounge.' I accept that Mr Zohiab has also been diagnosed with other conditions listed at [9]. However, he was not granted access to the scheme on the basis of physical impairments due to any of these 'physical conditions.'[83] It was unclear how any of these conditions impact on Mr Zohiab's current physical functional capacity as there was limited probative or contemporaneous evidence provided.
Mr Zohiab relied on reports from 2022 which could not be tested because the authors were unavailable to give evidence around Mr Zohiab's current support needs.[84] I prefer Dr Hatzipetrou's and Ms Nicholls' evidence.
Notwithstanding the diagnoses of physical conditions, Mr Zohiab must still satisfy the relevant criteria under section 24 and section 25 of the NDIS Act in order to meet the disability requirements or the early intervention requirements for the purposes of having a physical impairment. I note that Mr Zohiab offered no contentions around section 25 of the NDIS Act.
The only medical evidence regarding Mr Zohiab's physical impairments was from Dr Alam. Dr Alam's written evidence regarding Mr Zohiab's physical impairments was unclear and did not assist me because it was written in general terms and was vague. I cannot accept from Dr Alam's medical certificate, nor from the questionnaire documentation the specifics of what the conditions entailed nor how they arose.
I cannot accept that these listed conditions at [9] are permanent as contemplated by section 24(1)(b) of the NDIS Act. There was no clinical evidence provided to explain the conclusions that Dr Alam arrived at with respect to how the conditions impact Mr Zohiab and how the conditions contribute to his physical impairments.
I find that there was insufficient evidence to demonstrate that the physical conditions result in any physical impairment which may be characterised as having an enduring quality[85] or that rules 5.4 or 5.6 of the Access Rules are satisfied.
I accept the Agency's submissions that given the extent of disability asserted in Mr Zohiab's material, it would follow that specialist evidence would be included. However, this was not the case and the latest evidence to support Mr Zohiab's claims was from 2022. I note that over the ensuing three years to the present date there is no further medical evidence to elaborate upon the status of Mr Zohiab's physical health conditions. I am not satisfied on the evidence regarding Mr Zohiab's treatment, prognosis nor the substance of the conditions themselves. Therefore, I cannot be satisfied that Mr Zohiab has a physical impairment which is permanent pursuant to subsection 24(1)(b) of the NDIS Act.
I also do not accept Ms Patterson's statement that 'Mr Zohiab has permanent physical impairments' and that his 'functional capacity had declined' because there was insufficient clinical evidence and analysis to support these assertions.[86] I prefer the more persuasive evidence of Ms Nicholls and Dr Hatzipetrou.
I note that Mr Zohiab's accepted DVA conditions allow for treatment through mainstream services. Mr Zohiab may pursue these treatments, and the cost will be covered by the DVA.
I accept the Agency submissions where Dr Hatzipetrou discussed that Mr Zohiab's psychosocial and physical impairments 'appear blurred.'
Based on the evidence, I am not positively satisfied that Mr Zohiab has a physical impairment due to any of the conditions referred to at [9] and for the purposes of either section 24 or section 25 of the NDIS Act.
Accordingly, for the purposes of subsection 34(1)(aa) of the NDIS Act the supports included in Mr Zohiab's SOPS must be necessary to address his needs that arise only as a result of his psychosocial impairment due to PTSD and sensory impairment due to a hearing loss.
On the evidence I am not satisfied that Mr Zohiab meets either the disability or early intervention requirement for a physical impairment. This means that supports that address needs that arise due to any physical impairment are therefore not capable of being funded in his SOPS.

[110]

This level of current funding equates to 26 hours per week over a seven-day period. I acknowledge the additional funding costs incurred with weekend support.
Currently Mr Zohiab has access to 33 hours per week of support worker assistance. This is comprised of 26 hours per week of support from Mr Harvey which is funded under the scheme, together with 7 hours per week from the DVA 'attendant care' hours.
Mr Zohiab requests an increase in support worker funding under the scheme to include the following:[89]
- 8 hours per day on weekdays;
- 6 hours per day on Saturdays;
- 6 hours per day on Sundays.
In effect Mr Zohaib seeks 52 hours per week of funding under the scheme, which is an increase of 26 hours per week from the current funding in his SOPS.
Mr Zohiab explains the purpose of this increased funding to be in respect of the following;
- Assistance with mobility for bed transfers;
- Assistance with mobility for toilet transfers;
- Assistance with mobilisation generally;
- Assistance with sponge bathing on the basis he is unable to mobilise to the second level of his home where his bathroom is located; and
- Assistance with transportation for attending a variety of appointments for his physical conditions.
Based on the evidence I am satisfied that Mr Zohiab seeks the additional funding for supports that arise as a result of his physical conditions. Funding for these supports is not permitted due to a failure to satisfy section 34(1)(aa) of the NDIS Act for the purpose of an impairment due to these physical conditions.
I also cannot be positively satisfied that the additional support hours requested relate to his needs that arise as a result of his psychosocial impairments or his sensory impairments. In this regard, I am persuaded by Dr Hatzipetrou's evidence.
Furthermore, I am satisfied that Mr Zohiab's needs are adequately met within the current level of funding of 26 hours per week. In this regard I have also taken into account the additional 7 hours of weekly funding for an 'attendant carer,' the weekly 3 hours of meal preparation and the weekly 1.5 hours of cleaning services he receives from the DVA in light of subsection 34(1)(e) of the NDIS Act.
I cannot be satisfied on the evidence that an increase in up to 52 hours of support worker assistance is warranted. In this regard I aim persuaded by Dr Hatzipetrou statement that 'PTSD does not cause physical impairments, but it can impact the speed of function.'[90]
I do not accept Dr Hatzipetrou's suggestion that 8 hours per day of support worker assistance would assist Mr Zohiab and his carer as it was based on Mr Zohiab's self-reporting. I prefer Ms Nicholls' evidence that Mr Zohiab's self-reporting 'cannot be relied on as it was not clinically tested.' I note also that Dr Hatzipetrou's evidence must be considered in light of the fact that he was also unable to consider a contemporaneous Functional Capacity Assessment of Mr Zohiab.
I acknowledge the conscientious informal support that Mr Zohiab's wife provides him.
In summary, the funding of 52 hours per week of support worker assistance is not a reasonable and necessary support for the purposes of section 34(1) of the NDIS Act and cannot be included in Mr Zohiab's SOPS.
I conclude that the funding of 26 hours per week of support worker assistance with self-care activities at a 1:1 support ratio is a reasonable and necessary support pursuant to section 34(1) of the NDIS Act for the impairments for which Mr Zohiab was granted access to the scheme.
The Agency explained at the conclusion of the hearing it was unable to identify, without further consideration, with any degree of certainty the level of support worker assistance Ms Zohiab required as a consequence only of his psychosocial and sensory impairments. Subsequent to the hearing the Agency has appropriately reconsidered the evidence obtained at hearing and its position. In a submission to the Tribunal dated 11 June 2025 the Agency submits that Ms Zohiab should receive 35 hours per week of support worker assistance under the scheme.[91] This equates to an increase of 9 hours per week for support worker assistance to be included in Mr Zohiab's SOPS.
I cannot accept the Agency's submission that 35 hours of support worker assistance is a reasonable and necessary support. The nature of Mr Zohiab's physical impairments is profoundly unclear on the evidence. Mr Zohiab contends that he has a substantial need for weekly support for his physical impairments. I cannot accept these assertions without probative evidence.
The Agency's concession of 35 hours per week of support worker assistance is acknowledged. It is of course a matter for the Agency to make this concession and allowance in any future SOPS should it wish to do so. It is also open to the Agency to reconsider section 34(1)(aa) of the NDIS Act in respect of any further impairments for the purposes of section 24(1) of the NDIS Act. In this regard Mr Zohiab may consider undergoing a medical or allied health assessment to resolve this issue.

[121]

The NDIS specialist disability accommodation guidelines (SDA operational guidelines) describe mobility as as 'walking, climbing stairs, getting in and out of a bed or a chair, carrying or moving items, and getting out of the house'.
Mr Zohiab stated he is unable to:
- Transfer out of bed he said his leg and hands tingle;
- Independently stand;
- Use two hands to hold the walking frame;
- Independently walk to the toilet; and
- Walk upstairs.
Mr Zohiab stated he is able to:
- Brush his teeth;
- Dress himself with zip-up clothing and his wife helps with underpants and pants;
- Use the walking frame to mobilise to the kitchen and toilet; and
- Use his walking frame and wheelchair to mobilise in a shopping centre.
I have already accepted for the purposes of this review that Mr Zohiab's impairments are confirmed to be psychosocial and sensory impairments.[97]
There is no satisfactory evidence to persuade me that Mr Zohiab's psychosocial impairments and sensory impairments result in an extremely reduced functional capacity to undertake mobility.
There is also no satisfactory evidence to persuade me that Mr Zohiab's psychosocial impairments and sensory impairments result in an extremely reduced psychosocial functioning in undertaking mobility.
I accept that Mr Zohiab was clear in his evidence. Mr Zohiab refused to attend an in-person Independent Functional Capacity Assessment when the Agency offered to organise one. Such an independent in-person assessment would have greatly assisted the Tribunal.
I am satisfied that any reduction to the functional capacity of Mr Zohiab, extreme or otherwise, is due to his reported physical conditions and his reported physical impairments. This is because there is no other probative evidence before the Tribunal to make any other finding.
On the basis that there is no contemporaneous functional capacity assessment of Mr Zohiab, I give greater weight to the lengthy experience and compelling expert opinions of both Ms Nicholls and Dr Hatzipetrou.
Even though Ms Nicholls did not assess Mr Zohiab in person, her report and her oral evidence assisted the Tribunal with an understanding of Mr Zohiab's mobility function.
I am satisfied that Mr Zohiab does not have an extremely reduced functional capacity in relation to his mobility. I accept that the word 'extremely' carries a high threshold. My considerations include the following:
- There is limited probative evidence regarding Mr Zohiab's current physical functional capacity and what level of impact Mr Zohiab's psychosocial impairments or sensory impairments have on his mobility;
- There is insufficient consistent evidence to support Mr Zohiab's contentions that he has an 'extremely' reduced functional capacity to mobilise and what impairments lead to this extremely reduced functional capacity to mobilise. For example:
  - Mr Zohiab's evidence stated he had 'punched walls and caused damage to property', but at the hearing, Mr Zohiab reported that he could not hold the handles of his wheeled walker;
  - Dr Alam reported that Mr Zohiab could walk about 100 metres before needing to rest in 2022.[98] Ms O'Neill, physiotherapist, observed in August 2023 that Mr Zohiab could 'independently mobilise indoors and outdoors however, he has a shuffling walking pattern.'[99] Mr Zohiab reported at the hearing that it takes him 2 hours to move from his bed to access the toilet.
- Dr Hatzipetrou provided compelling evidence that 'PTSD does not lead to physical impairments;'
- Mr Zohiab gave evidence that he can mobilise. He stated that he can use a transfer board. He can mobilise using his walker and wheelchair;
- I accept that AT and equipment reduces Mr Zohiab's reliance on supports for his mobility;
- I accept the evidence that any impact on Mr Zohiab's mobility is reduced to a level well below 'extreme' with Mr Zohiab's use of appropriate AT and equipment;
- Mr Zohiab's reported mobility impairment does not meet the definition of 'extreme' on the basis that his need for person-to-person supports would not be 'very high' because he can use appropriate assistive technology and equipment;
I cannot be satisfied that Mr Zohiab has an extremely reduced functional capacity in relation to mobility. Rule 12(1)(a)(i) of the SDA Rules in relation to mobility is not satisfied.
Furthermore, if my approach as referred to in [132]-[134] is incorrect, having considered the evidence in respect of all of the physical conditions referred to in [9][100] and the consequential impairments, I remain unable to be positively satisfied that Mr Zohiab meets the 'threshold' of an extremely reduced functional capacity in relation to mobility.

[122]

The SDA operational guidelines describe self-care as 'washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication.'
There is no satisfactory evidence to persuade me that Mr Zohiab's psychosocial impairment and his sensory impairment result in an extremely reduced functional capacity to undertake self-care.
There is also no satisfactory evidence to persuade me that Mr Zohiab's psychosocial impairments and his sensory impairments result in an 'extremely' reduced psychosocial functioning in undertaking self-care.
Therefore, I am satisfied that Mr Zohiab does not have an extremely reduced functional capacity in relation to his self-care. My considerations include the following:
- I accept that Mr Zohiab requires some assistance with self-care. He stated that he requires assistance with transferring from the bed and walking to the toilet;
- Mr Zohiab is able to: apply soap to his body, brush his teeth, brush his hair, and feed himself. Mr Zohiab reported using equipment such as a shower bench for a 'sponge bath' and using a 'raised toilet seat and over toilet grab rails;'[101]
- Ms Nicholls' report and oral evidence assisted the Tribunal with an understanding of Mr Zohiab's self-care function;
- I accept Ms Patterson's evidence that Mr Zohiab requires 'appropriate accommodation' as there is limited space in his current accommodation for Mr Zohiab's AT and equipment that he uses in respect to self-care. However, for reasons detailed later, this is not a relevant consideration under the statutory criteria of 'extremely' reduced functional capacity to undertake self-care itself;
- I accept that when Mr Zohiab uses appropriate AT and equipment, he would be able to better attend to his self-care needs. I also accept that if Mr Zohiab lived in 'more appropriate accommodation' it would be easier for him to use the AT and equipment that the DVA have provided for him;
- I note that Ms Patterson's report mostly relied on:
  - Self-reporting from Mr Zohiab; [102] and
  - Limited direct observations of a clinical functional capacity assessment for Mr Zohiab due to 'increased levels of pain, decreased balance and mobility and decreased frustration tolerance.'[103]
Based on the evidence regarding self-care, I am satisfied that even though Mr Zohiab self-reports many limitations in respect of his self-care, these limitations do not meet the high threshold of an 'extremely' reduced functional capacity with self-care.
Mr Zohiab does not have an extremely reduced functional capacity in relation to self-care. Rule 12(1)(a)(ii) of the SDA Rules in relation to self-care is not satisfied.
Furthermore, if my approach as referred to in [135]-[137] is incorrect, having considered the evidence in respect of all of the physical conditions referred to in [9][104] and the consequential impairments, I remain unable to be positively satisfied that Mr Zohiab meets the 'threshold' of an extremely reduced functional capacity in relation to self-care.

[123]

The SDA operational guidelines describe self-management as 'housework, following routines, making friends and relationships and managing your behaviour'.
There is no satisfactory evidence to persuade me that Mr Zohiab's psychosocial impairment and his sensory impairment result in an extremely reduced functional capacity to undertake self-management.
There is also no satisfactory evidence to persuade me that Mr Zohiab's psychosocial impairment and his sensory impairments result in an 'extremely' reduced psychosocial functioning in undertaking self-management.
Therefore, I am satisfied that Mr Zohiab does not have an extremely reduced functional capacity to undertake self-management. My considerations include the following:
- Mr Zohiab's evidence is that he is able to use: a computer, his mobile phone, his hearing aid and his 'specialist headphones;'
- Mr Zohiab is able to follow a routine to attend appointments and he can communicate with his various treating practitioners any health concerns he may have. Mr Zohiab regularly attends his GP, psychologist, psychiatrist, physiotherapist, occupational therapist and podiatrist;
- Mr Zohiab maintains his relationship with his wife;
- I note that Mr Zohiab reported he is unable to undertake 'any housework' and that he relies on his wife for 'many activities' of self-management but that he is 'in charge of his bank account;'
- Ms Nicholls' report and oral evidence assisted the Tribunal with an understanding of Mr Zohiab's self-management function;
- The Tribunal observed across three hearing days that Mr Zohiab was able to:
  - Represent himself and cross examine witnesses called by the Agency;
  - Flexibly answer and ask questions in a logical and clear manner;
  - Conscientiously prepare questions for the witnesses and manage his application;
  - Make decisions about how to answer and ask questions; and
  - Manage and regulate his behaviour despite listening to confronting evidence that he 'disagreed with.'[105]
Mr Zohiab does not have an extremely reduced functional capacity in relation to self-management. Rule 12(1)(a)(iii) of the SDA Rules in relation to self-management is not satisfied.
Furthermore, if my approach as referred to in [132]-[134] is incorrect, having considered the evidence in respect of all of the physical conditions referred to in [9][106] and the consequential impairments, I remain unable to be positively satisfied that Mr Zohiab meets the 'threshold' of an extremely reduced functional capacity in relation to self-management.

[125]

Mr Zohiab has access to a substantial amount of assistive technology and equipment. Mr Zohiab confirmed he has received the following AT and equipment provided by DVA:[107]
- Shoprider Puma 10 Power Chair;[108]
- Assistance dog;
- Disability modified car and vehicle hand bar;
- Adjustable home care bed (with waterproof protector) with companion bed;
- Bedside urine container;
- CPAP machine;
- Bedside table for CPAP machine, bedtime medical management areas, and meal eating tray;
- Raised toilet seat, with an over toilet grab rails with integrated arm support;
- Foot stool;
- Seated shower bench, Galaxy S22 Ultra;[109]
- Extended bath sponge;
- Nonslip mat;
- Handireacher, long reach sock aid and shoehorn;
- Jar opener;
- Right ear hearing aid;
- Ergonomic back support chair;
- Indoor and outdoor podiatrist prescribed medical shoes and insoles for footwear;
- Walking frame;
- Four Wheeled walker;
- Walking crutches;
- ROHO specialised cushion;
- Sensory hearing and sight blackout assistance screen for sleep symptoms;
- Back brace; back support cushion; seat support cushion; and
- Bruxism mouth guard for grinding teeth while sleeping.
I am not satisfied that Mr Zohiab has a very high need for person-to-person supports in undertaking the activities of mobility, self-care and self-management, even with assistive technology, equipment or home modifications. My considerations include the following:
- Mr Zohiab currently receives around 5 hours of support worker assistance every day which is comprised of scheme support worker hours of around 3 - 4 hours each day and 1 hour each day of 'attendant care support' funded by the DVA;
- Mr Zohiab also relies on informal support from Ms Magar. Ms Magar elected not to provide oral evidence at the hearing. Therefore, the nature and amount of this support was unclear;
- Mr Zohiab was provided a 'Power Chair' by the DVA around June 2023.[110] Mr Zohiab reported 'problems with this item 'in small spaces.' There is some inconsistency when compared to the written evidence of the prescribing occupational therapist, Mr Timothy Rumsey. Mr Rumsey wrote that Mr Zohiab was safely able to use the Power Chair to independently mobilise indoors and outdoors and he could 'negotiate inside (tight areas) as well as outside. [The power chair] has a tilt and lift function so [he] can reach items higher up in shopping centres or chemists.'[111]
- Mr Zohiab's use of his hearing aid and specialist headphones allowed him to participate in the hearing and he did not require very high person-to-person support to attend the hearing;
- Mr Zohiab was able to self-manage, communicate and respond at his assigned time during the hearing process;
- Mr Zohiab gave evidence his assistance dog is a welcome addition to his home. I accept Dr Hatzipetrou's evidence that an assistance dog may 'reduce the severity of the impact of Mr Zohiab's psychosocial impairment from the 'comfort' it provides.
There is no probative evidence before the Tribunal that the actual person -to-person support that Mr Zohiab requires is 'very high' or within the meaning of section 12(1)(b) of the SDA Rules for the impairments for which he was granted access to the scheme.
I am satisfied that by using his AT and equipment, Mr Zohiab is able to attend to his self-care, self-management and mobility activities without a 'very high need' for person-to-person supports. I note that Mr Zohiab's power chair reduces Mr Zohiab's person-to-person support when he mobilises with 'the tilt and lift function which is required to reach upper areas at shop and chemist shelving and at times at home.'[112]
I note that even though Mr Zohiab reports that he cannot 'access stairs' I am satisfied that Mr Zohiab would be able to access buildings with multiple levels with little or no person-to-person support when these buildings have a lift as a modification. Due to this, I do not find that Mr Zohiab meets the requirement under Rule 12(1)(b) of the SDA Rules. I am persuaded by the reasoning in Keys that:

[136]

Mr Zohiab contends that he meets the requirements of Rule 13(1)(b) of the SDA Rules.
The Agency contends that Mr Zohiab does not have a very high need for person-to-person supports, either immediately available or constant or for a significant part of the day as defined by Rule 13(1)(b) of the SDA Rules.[115] The Agency referred to the following evidence:
- Mr Zohiab gave evidence he requires support with transfers using his transfer board and also some assistance from his wife with dressing;
- Mr Zohiab stated that because the bathroom is upstairs in his chosen rental property, and he cannot mobilise on stairs, he cannot access the upstairs shower;
- If Mr Zohiab resided in single-level or 'more appropriate accommodation', his reliance on both formal and informal supports would decrease;
- Ms Patterson recommends 8 hours per weekday and 6 hours per weekend day of support worker assistance for Mr Zohiab;
- Ms Nicholls' report described Ms Patterson's recommendations as 'relying on self-report with minimal objective clinical assessment' and that she did not agree with the number of assistance hours recommended for Mr Zohiab; and
- Ms Nicholls' opinion that Mr Zohiab's needs for care and assistance was made on the basis of assessments[116] which were inappropriate assessment tools for him.
I accept the Agency's closing submissions that:
- The evidence is unclear regarding how much person-to-person support that Mr Zohiab requires in the absence of a contemporaneous functional capacity assessment;
- Mr Zohiab uses a support worker for 'around four or five' hours per day;
- Mr Zohiab uses the support worker assistance not just for person-to-person support. Other assistance is provided such as cleaning, and dealing with laundry;
- The four or even five hours of support worker assistance per day does not represent a 'significant part of the day' and therefore does not represent a 'very high supports need;'
- There was no evidence provided regarding a Behaviour Support Plan nor data regarding behaviours of concern. Therefore, Dr Hatzipetrou was unable to identify or provide an opinion on Mr Zohiab's current risk profile.
I am not satisfied that the evidence establishes that Mr Zohiab requires person-to-person support either immediately available or constant for a significant part of the day. I acknowledge Mr Zohiab's and Ms Magar's statements around her considerable caring role for Mr Zohiab and the filed material.[117] I note Ms Magar elected not to give oral evidence. However, in the absence of probative contemporaneous evidence I must balance evidence-based reporting before the Tribunal against the requirements of the legislative criteria.
Mr Zohiab's person-to-person supports are confined to approximately 4 - 5 hours per day.[118] This support is used flexibly throughout the day. Within the 4 - 5 hour daily support period, Mr Zohiab receives person-to-person support in relation to his daily activities. These include self-care, grooming, meals and house cleaning and also some social, community and civic participation. There was limited probative evidence before the Tribunal to suggest that these activities could not be completed within the 4 - 5 hour daily time frame.
I cannot be satisfied on the evidence that 4 - 5 hours per day meets the level of what can be considered a 'very high need for person-to-person supports, either immediately available or constant, for a significant part of the day.' This means that Mr Zohiab is without any formal person-to-person supports for a large part of the day, for approximately 19 hours per day.
I conclude that Mr Zohiab does not have a very high need for person-to-person supports either immediately available or constant, for a significant part of the day.
Rule 13(1)(b) of the SDA Rules is not satisfied. Mr Zohiab does not have a very high support needs for the purposes of Rule 13 of the SDA Rules. [119]

[145]

I note both Dr Hatzipetrou and Ms Patterson provided evidence that Mr Zohiab's current accommodation is unsuitable for him. I acknowledge that Mr Zohiab gave evidence of difficulties in seeking a rental property in the open market. However, these two factors do not bear relevance on whether SDA is a reasonable and necessary support.
The majority of solutions recommended by Ms Patterson are not SDA. They were recommendations for the following features: more space, quiet, single-level, 3-bedroom, space for a dog, adjustable lighting. These recommendations are all things available in mainstream housing or alternatively things that may be incorporated into existing housing as also explained in Dr Hatzipetrou's evidence.
There were two of Ms Patterson's recommendations that are within the scope of SDA. The first was a 'separate lockable kitchen'. I accept Dr Hatzipetrou's evidence that there was insufficient evidence to justify a lockable kitchen. A lockable kitchen addresses behavioural issues. There was insufficient evidence that described in detail the extent of Mr Zohiab's behaviours of concern and their frequency and what the behaviours involved. I note that Ms Patterson's recommendations were not justified on the basis of probative evidence.
The second of Ms Patterson's recommendations were that Mr Zohiab required a 'robust build in order to prevent damage to property. There was limited evidence regarding the extent of property damage nor the frequency of such damage that occurs at Mr Zohiab's residence. I prefer Dr Hatzipetrou's evidence where he suggested other more cost-effective solutions regarding damage to property. Dr Hatzipetrou recommended increased space, more appropriate layout and treatment for the underlying cause of Mr Zohiab's behaviours of concern from other health practitioners
It is open to Mr Zohiab to pursue more appropriate accommodation with the features recommended by Ms Patterson.
I am satisfied that the reassessment date for Mr Zohiab's SOPS should be of 12 months duration.
I am satisfied that Mr Zohiab's plan management remains as self-managed, in keeping with his preference.[121]

Zohiab and National Disability Insurance Agency (NDIS) [2025] ARTA 984 (8 July 2025)

At a glance

Court

Decision date

Source

Judgment (183 paragraphs)

Zohiab and National Disability Insurance Agency (NDIS) [2025] ARTA 984 (8 July 2025)

Legislation Cited (13)

Cases Cited (3)