Angelopoulos and National Disability Insurance Agency (NDIS)
[2025] ARTA 521
•7 April 2025
Angelopoulos and National Disability Insurance Agency (NDIS) [2025] ARTA 521 (7 April 2025)
Applicant/s: Angelos Angelopoulos
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/8813
Tribunal:Senior Member J Collins
Place:Brisbane
Date:7 April 2025
Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.
.............................................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – autism spectrum disorder, neuro-divergency – psychosocial impairment – physical impairment – whether applicant meets disability requirements – NDIS Act s24(1)(c) – whether impairments substantially reduce functional capacity- social interaction – communication – mobility – learning – My Aged Care – when person ceases to be a participant – NDIS Act s29(1) (b) – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth) sections 12, 101(1), 103, 105
National Disability Insurance Scheme Act 2013 (Cth) sections 21, 24, 27, 29National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATARooney and National Disability Insurance Agency [2021] AATA 3523
PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66
Madelaine v National Disability Insurance Agency [2020] AATA 4025Kilgallin v National Disability Insurance Agency [2017] AATA 186
Garcia Albiol v National Disability Insurance Agency [2024] AATA 496
Moxham v National Disability Insurance Agency [2025] ART
Secondary Materials
NDIS – Applying to the NDIS access guidelines, as of 11 March 2025.
Statement of Reasons
Mr Angelos Angelopoulos is a 66-year-old man. He seeks access to the National Disability Insurance Scheme (‘the scheme’) so that he can receive supports on the basis of his impairments due to multiple diagnoses.
Mr Angelopoulos applied to the National Disability Insurance Agency (‘the Agency’) for access to the scheme in November 2023.[1] In his NDIS Access Request form Dr Karumanchi, general practitioner, referred to Mr Angelopoulos’ primary diagnosis of post‑traumatic stress disorder (PTSD) together with diagnoses of anxiety, depression, cardiomyopathy, cervical spondylosis, a supraspinatus tear, tibial tendon tear, medial meniscus tears, osteoarthritis, olecranon fracture and possibly Asperger’s syndrome. Dr Karumanchi stated that Mr Angelopoulos’ impairments impacted his mobility, social interaction and self-management.
[1] T1A.
Mr Angelopoulos’ application for access was refused at first instance by the Agency and again upon internal review.[2] Mr Angelopoulos subsequently applied to the Administrative Appeals Tribunal (‘AAT’) for review of the Agency’s internal review decision (‘the decision under review’).[3]
[2] T2.
[3] T1, T Documents; section 103 of the NDIS Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
The Tribunal has jurisdiction to decide Mr Angelopoulos’s application under section 12 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’) and section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).
At the hearing Mr Angelopoulos was self-represented. The Agency was represented by Ms Soldi of counsel instructed by Moray and Agnew Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Mr Angelopoulos does not meet disability requirements under section 24 of the NDIS Act and therefore does not meet the access criteria under section 21 of the NDIS Act.
ISSUES
On 3 October 2024 and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.[4] These amendments will apply to this review.
[4] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.
Access to the scheme requires Mr Angelopoulos to satisfy that he meet the ‘access criteria’ under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
When a person meets the access criteria
(1) A person meets the access criteriaif:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
(2) For the purposes of paragraph (1)(c), the CEO must separately consider and decide:
(a) whether or not the prospective participantmeets the disability requirements; and
(b) whether or not the prospective participantmeets the early intervention requirements.
(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a) the CEO does not do a thing referred to in paragraph 20(1)(a) or (b) within the period applicable under section 20; or
(b) if subsection 26(2) applies--the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection.
Note: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
At the hearing Mr Angelopoulos stated that he did not rely on the early intervention requirements[5] in seeking access to the scheme.
[5] Subsection 21(1)(c)(ii) of the NDIS Act.
There was also no contention by the Agency that Mr Angelopoulos does not meet the age requirements[6] or the residence requirements.[7]
[6] Subsection 21(1)(a) of the NDIS Act.
[7] Subsection 21(1)(b) of the NDIS Act.
The issue before the Tribunal at the hearing was therefore whether Mr Angelopoulos met the disability requirements under section 24 of the NDIS Act.
Determination of this issue is made pursuant to the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth).
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
1. A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self-care;
(vi) self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
2. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
3.For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
4.Subsection (3) does not limit subsection (2).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (‘the Access Guidelines’).[8]
[8] ourguidelines.ndis.gov.au: Applying to the NDIS.
There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[10] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …[12]
[9] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[10] [1979] 24 ALR 577 at [590].
[11] [2018] FCA 1229.
[12] Ibid, at [171].
Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Angelopoulos meets the disability requirements.
Whether Mr Angelopoulos meets the disability requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[13] with a relatively high degree of precision and be positively satisfied.[14]
[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[14] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
THE AGENCY’S POSITION
The Agency accepts that subsection 24(1)(a) of the NDIS Act is met on the following bases:
·That Mr Angelopoulos has impairments which are attributable to osteoarthritis, lumbar scoliosis, spondylosis, degenerative disc disease, tendinopathy and degenerative arthritis. These impairments include chronic pain, restricted range of function and fatigue;
·That Mr Angelopoulos has impairments which are attributable to autism spectrum disorder (ASD), post-traumatic stress disorder (PTSD), anxiety, depression and persistent complex bereavement disorder (PCBD). These impairments include anxiety, instability in emotional, interpersonal and occupational functioning, ritualised patterns of behaviour, extreme difficulties with transitions, and rigid thinking patterns.[15]
[15] R3, Paragraph 8.
The Agency also accepts that these impairments affect Mr Angelopoulos’s capacity for social or economic participation pursuant to subsection 24(1)(d) of the NDIS Act.
Accordingly, the Agency’s dispute in relation to the disability requirements is confined to whether:
(a)Mr Angelopoulos has a disability that is attributable to an impairment as a consequence of his diagnosis of cardiomyopathy pursuant to subsection 24(1)(a) of the NDIS Act;
(b)Mr Angelopoulos’s impairments are permanent pursuant to subsection 24(1)(b) of the NDIS Act;
(c)Mr Angelopoulos’s impairments result in a substantially reduced functional capacity for him to undertake the activities of communication, social interaction, learning, mobility, self-care and self-management pursuant to subsection 24(1)(c) of the NDIS Act; and
(d)Mr Angelopoulos is likely as a result of his impairments to require support under the scheme for his lifetime pursuant to subsection 24(1)(e) of the NDIS Act.[16]
[16] R3, Paragraph 6.
Evidence about Mr Angelopoulos
Mr Angelopoulos describes himself as ‘neurodivergent’.
Mr Angelopoulos states that he has the following diagnoses:
(e)ASD;
(f)Cardiomyopathy;
(g)PTSD;
(h)Anxiety;
(i)Depression;
(j)PCBD;
(k)Osteoporosis;
(l)Lumbar scoliosis;
(m)Degenerative disc disease;
(n)Degenerative arthritis;
(o)Tendinopathy;
(p)Atrial fibrillation;
(q)Left supraspinatus tear;
(r)Cervical and lumbar spondylosis; and
(s)Phobic disorder.[17]
[17] T49.
Me Angelopoulos explained that these conditions collectively impact his ability to lead a regular life and create barriers in his daily functioning including social interactions. He explains that his mental health conditions have also made his daily functioning and social interactions increasingly difficult.[18]
[18] T49.
Mr Angelopoulos lives alone in rental accommodation. He has no informal supports and is on a disability support pension.
Mr Angelopoulos contends that his impairments affect his ability to communicate, interact socially and mobilise.[19]
[19] T49, oral evidence of applicant.
Mr Angelopoulos gave oral evidence at the hearing. I am satisfied that his evidence was honest and truthful. His oral evidence greatly assisted the Tribunal and can be summarised as follows:
· He is approximately halfway through completion of a Bachelor of Laws. These studies were suspended last year. He stated that, to date, he has already completed a number of subjects which include contract law, torts, human rights law, legal research and writing and alternative dispute resolution;
· He does not drive. This is because he has forgotten to renew his driver’s licence. He hopes one day to renew his driver’s licence but explained that he would first need to overcome the high level of anxiety and fear that he experiences in traffic;
· He has struggled with psychological impairments his entire life. This struggle has been exacerbated by a number of factors which have included the following:
o Overprotective parents who he states ‘over parented’ him;
o Being teased and bullied at school and in the workplace; and
o Being the subject of racism;
· His psychological impairments have affected his ability to work;
· He struggles to socialise and interact with others. He states that he must ‘dumb down’ his conversations to engage with many people. He avoids talking to others at a basic level. He dislikes small talk and ‘courtesy’ conversations. His inability to socialise has also affected his career opportunities;
· He has a number of hobbies in which he is actively engaged. These hobbies include:
o Artificial intelligence (AI) research;
o Using AI to create and build things;
o Designing and building furniture and equipment. Mr Angelopoulos explained that he had invented a sustainable energy machine and an App for town planning. He described himself as ‘always inventing things’;
· He carefully manages his own diet and values the importance of a healthy diet. He avoids processed foods and does not drink alcohol, smoke cigarettes or use recreational drugs;
· He enjoys resistance training and states that this training helps him improve his cervical and lumbar function and also his general health;
· In November 2024 he was funded under a Short Term Restorative Care Package (STRCP) for a home gym costing in the vicinity of $7,000–$8,000. The STRCP was provided through My Aged Care;
· He attends a gym with an exercise physiologist in the community on a weekly basis;
· He has recently been funded for a spin bicycle under a further STRCP. He expects this bicycle will be delivered to him in the near future;
· Other items have been funded under other STRCPs which have included shoes and orthotics, and also five Dyson air purifiers to assist with his allergies;
· He has also been approved for a Home Care Package (HCP) – level 3 through My Aged Care. Mr Angelopoulos estimates this funding to be in the vicinity of $41,000. He explains that this package ‘sounds like a lot’ but is not. He states that he has made enquiries with two registered aged care providers who have both advised him that:
o Their fee as aged care providers would consume approximately one third of the funding provided under the HCP;
o On their assessment, Mr Angelopoulos requires a level 4 HCP to meet his needs;
o A HCP – level 3 package is insufficient to manage his needs;
· Mr Angelopoulos explains that he considers he requires exercise physiology on a weekly basis and the HCP – level 3 funded by My Aged Care is insufficient for this level of support;
· He acknowledges that he has rejected the HCP – level 3 and states that My Aged Care does not recognise his neurodivergency. His opinion is that the NDIS will recognise his neurodivergency;
· If accepted as a participant in the scheme Mr Angelopoulos explains that he would like funding for exercise physiology, psychology, occupational therapy and speech therapy. In particular he refers to the benefits of support from an occupational therapist and an exercise physiologist in relation to his social issues and difficulties;
· His impairments do not impair his ability to attend to his self-care. Mr Angelopoulos explains that he able to independently shower, use the toilet, shampoo his hair, cut his fingernails, shop for groceries, and prepare and cook meals. Mr Angelopoulos also attends to his own housework, explaining that his home is somewhat cluttered and that he is currently in the process of decluttering his home;
· He has a garden service mow his lawn. Whilst he does have a lawn mower he finds this activity difficult in the context of the hot climate where he resides. He has been advised by his cardiologist to avoid exertion in extreme temperatures;
· He is able to make appointments for himself and attend at his general practitioner and other medical practitioners and communicate his concerns;
· He is able to pay his own bills, make online purchases and pay for groceries at the supermarket;
· He can use a telephone, including sending text messages;
· As a disability pensioner he manages his budget with an allowance of $250 per fortnight for food;
· He does not use any assistive technology such as a wheelchair or walking stick. He explains he would be assisted with the provision of a computer screen that could be adjusted to manage symptoms due to cervical spondylitis, and also with the provision of ergonomic equipment such as a chair to manage postural issues;
· He estimates that he walks 10–15 kilometres each day. In this regard he regularly walks a return journey of 4 kilometres to his local shop to buy groceries. He will also carry bags of groceries often weighing 6–7 kilograms on the return journey, swapping his arms at intervals;
· As a consequence of various experiences during his life, including his treatment by other people, he has become reclusive. He feels unable to participate socially. He states that at times he has felt ‘I don’t want to be part of this society’;
· He states that he is unable to interact with others although he does enjoy speaking to other people at the gym on the basis that they ‘instigate’ the conversation;
· He enjoys listening and watching documentaries at a PhD level;
· He avoids painkillers including Panadol on the basis that they cause him brain fog and dizziness. He has been advised by medical practitioners that he is very intolerant of medication and explains that he suffers many side effects from medication;
· As a result of a left shoulder injury he has been advised that there is a 38% difference in the functioning and strength of his left shoulder as compared to his right shoulder. He is right‑hand dominant. His sleep is regularly affected by left shoulder pain;
· He considers that his ability to communicate with others is ‘affected’ as a result of his psychosocial impairment. In the past he has been unable to work with others;
· He considers that he has no problem whatsoever with ‘learning’ particularly when he identifies an interest that he enjoys. He also enjoys very much sharing his ‘learning’ with other people;
· He considers that his mobility is affected by his psychosocial impairment on the basis that he is agoraphobic and that ‘this keeps me at home’. He explains that he is hypervigilant ‘all the time’;
· In relation to his ability for self-management he explains that he prefers to organise himself;
· He states that his cardiomyopathy is asymptomatic;
· He is disappointed that the report by Casey Muscat, occupational therapist, did not refer to his collection of books. He stated that he showed Ms Muscat his book collection and advised her that he reads a book ‘every week’. He also referred Ms Muscat to a book in his collection by an architect who did not retire until he was at an advanced age. In doing so he emphasised to Ms Muscat that he wished to keep working into the future and for some time. He considers that Ms Muscat should have identified this information as relevant and important for inclusion in her report;
· He explains that he wants to leave a ‘legacy’ and he considers that the NDIS is a more appropriate support system for him rather than the aged care system. Mr Angelopoulos states that his problems are due to his disability and not his age. He explains that, if anything, his cognition was improving, also that he has a very high IQ and still has a lot of value to contribute to society. He states that he can identify solutions to problems that other people cannot identify;
· He described his anxiety as ‘severe’ to the extent that it keeps him ‘at home’. He is also affected by depression. His depression makes him reclusive and causes him to withdraw from society. When he is in the community he will often sit in the corner and observe people;
· He does not wish to take medication in relation to the treatment of his anxiety or depression as it may affect his heart condition. He considers that medication is only a temporary fix and not a long term solution. Historically when he has taken medication he has been affected by brain fog. He states that he did not want to compromise his intelligence by taking medication;
· Over the years he has tried various psychological treatments including schema therapy and cognitive behavioural therapy.
SECTION 24: THE DISABILITY REQUIREMENTS
I have considered all the written evidence filed with the Tribunal, the oral evidence provided at the hearing on 26 and 27 March 2025, and the parties’ closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of this review.
Does Mr Angelopoulos have a disability which is attributable one or more intellectual, cognitive, neurological, sensory or physical impairments?; or
Does Mr Angelopoulos have one or more impairments to which a psychosocial disability is attributable? – subsection 24(1)(a) of the NDIS Act
The Agency accepts that subsection 24(1)(a) of the NDIS Act is met on the following bases:
·impairments attributable to osteoarthritis, lumbar scoliosis, spondylosis, degenerative disc disease, tendinopathy and degenerative arthritis. These impairments include chronic pain, restricted range of function and fatigue;
·impairments attributable to ASD, PTSD, anxiety, depression and PCBD. These impairments include anxiety, instability in emotional, interpersonal and occupational functioning, ritualised patterns of behaviour, extreme difficulties with transitions, and rigid thinking patterns.[20]
[20] R3, paragraph 8.
Having considered the evidence I consider the Agency’s concession to be reasonable and proper.
I am not however satisfied that Mr Angelopoulos has an impairment for the purposes of subsection 24(1)(a) of the NDIS Act in relation to the diagnosis of cardiomyopathy. This is on the basis of Mr Angelopoulos’s evidence which was that he was completely asymptomatic in respect of this condition.
Therefore, I am satisfied that Mr Angelopoulos has a disability that is attributable to a physical impairment due to osteoarthritis, lumbar scoliosis, spondylosis, degenerative disc disease, tendinopathy and degenerative arthritis.
I am also satisfied that Mr Angelopoulos has a disability that is attributable to a psychosocial impairment due to ASD, PTSD, anxiety, depression and PCBD.
Conclusion
Subsection 24(1)(a) of the NDIS Act is satisfied.
Subsection 24(1)(c): Do Mr Angelopoulos’ impairments result in a substantially reduced functional capacity for him to engage in the activities of communication, social interaction, learning, mobility, self-care or self-management?
In this review I consider as most relevant Mr Angelopoulos’ functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act.
The Tribunal’s task
The Tribunal’s task in determining whether Mr Angelopoulos’ functional capacity is substantially reduced is twofold.
The ‘first task’ is to consider whether Mr Angelopoulos’s circumstances are captured within the deeming effect of rule 5.8 of the Access Rules. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must proceed to a ‘second task’. The second task requires the Tribunal, on the evidence available, to determine whether Mr Angelopoulos’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially’ reduced.
The first task: Whether Mr Angelopoulos can rely on the deeming effect of rule 5.8 of the Access Rules to establish that he has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(Tribunal emphasis added)
Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Mr Angelopoulos can participate ‘effectively or completely’ on the basis that he is unaided by assistive technology, equipment or home modifications other than ‘commonly used items’.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’). In Rooney the Tribunal identified the indicia in respect of what are to be considered ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·relatively simple to use; and
·relatively inexpensive.
In my view, items such as an ergonomic chair or an adjustable computer screen are within the category of commonly used items.
There is no evidence before the Tribunal to suggest that Mr Angelopoulos relies on any assistive technology (AT) in respect of any of the activities referred to in subsection 24(1)(c) of the NDIS Act. Mr Angelopoulos gave detailed evidence in respect of his mobility which included confirmation that he does not require any AT such as a wheelchair or even a walking stick.
I will refer subsequently in this decision to Mr Angelopoulos’s ability to undertake the activities of communication, social interaction, learning, self-care and self-management. Likewise there was no evidence before the Tribunal to suggest that Mr Angelopoulos requires AT or home modifications to perform any of these activities. There was also no evidence that Mr Angelopoulos requires assistance (including physical assistance, guidance, supervision or prompting) in respect of any of the activities in subsection 24(1)(c) of the NDIS Act.
Conclusion
Mr Angelopoulos cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.
The second task: Does Mr Angelopoulos have a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?
The fact that Mr Angelopoulos does not satisfy the requirements of rule 5.8 does not disqualify him from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether Mr Angelopoulos has a ‘substantially reduced functional capacity’ for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held: [21]
As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
[21] Mulligan at [77].
Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held:[22]
The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
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... No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
[22] Mulligan at [55]–[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[23]
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
[23] Foster at [64]–[65].
Therefore, the Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Mr Angelopoulos can and cannot do with respect to the six activities in subsection 24(1)(c). This assessment requires consideration of the ‘bundle of tasks’ and actions that comprise any given activity being considered.[24]
[24] Ibid.
Previously in the decision of Garcia Albiol v NDIA[25] I considered the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. That decision has not been appealed and has in fact been adopted in this Tribunal.[26]
[25] [2024] AATA 496.
[26] Moxham v NDIA [2025].
In this decision, my reasoning for my determination that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’ was based on the following:
· The recommendation of the Productivity Commission which was that the scheme provide supports only to a subcategory of persons within a much larger category of persons who have a disability.[27]
· That the Productivity Commission also recommended that the scheme provide supports ‘judiciously rather than routinely’. This recommendation is logical and central to the operation of the scheme and ensures its financial sustainability.
· The scheme was never intended to provide support to ‘every person with a disability’.
· Rather, as part of one of its functions, the scheme was intended to support persons with disability to receive supports outside of the scheme through mainstream services. This would of course include persons with a disability who do not fall within the subcategory of persons for whom the scheme was intended.
· The scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant State and Territory governments.
· The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribe rules in relation to access to the scheme. By way of example, rule 5.8 of the Access Rules operates to categorise certain persons ‘into’ the category of persons with a ‘substantially’ reduced functional capacity.
· The concept of prescribing rules in relation to a category of certain persons who would be mandatorily ‘excluded’ from the category of persons with a ‘substantially’ reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision-maker with an informed approach by way of practical examples and circumstances in which access will not be granted.[28]
[27] Mulligan at [50].
[28] Garcia Albiol v NDIA [2024] AATA 496.
My view of a ‘high threshold’ for reduced functional capacity remains unchanged.
The Tribunal’s consideration of Mr Angelopoulos’s functional capacity relates specifically to his ‘daily life activities’. Relevantly, the current Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
…………….
Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
(Tribunal emphasis)
Communication
The Operational Guidelines describe communication as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
The communication threshold was considered in Madelaine v NDIA[29] to be of ‘a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something, and so on’.
[29] [2020] AATA 4025 at [79].
Mr Angelopoulos elected to attend the hearing by telephone. He was able to provide clear and detailed evidence in relation to his impairments and their impact upon him. He was also able to answer questions during the hearing which included cross-examination.
Mr Angelopoulos gave evidence that when conversations are instigated by others he is able to respond and that he in fact enjoys speaking to other people.[30]
[30] Applicant’s oral evidence.
Mr Angelopoulos is able to use a telephone and a computer to send and receive emails. He was also able to prepare and provide written submissions in relation to his application, including an ‘outline of argument’. Mr Angelopoulos prepared a lengthy written submission at the conclusion of day one. During the lunch adjournment on day two of the hearing he also prepared a further written submission.[31]
[31] Despite an earlier request for adjournment of the hearing.
Mr Angelopoulos is able to engage with a doctor and other allied health professionals and provide the necessary information required in seeking help in relation to medical or other issues.
In her report, Ms Muscat, occupational therapist, states that ‘Mr Angelopoulos is able to independently use expressive and receptive language skills’.
Conclusion
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to participate in the activity of communication is not substantially reduced.
Social interaction
The Operational Guidelines describe social interaction as follows:
Socialising – how you make and keep friends or interact with the community. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine the Tribunal held, ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[32]
[32] Madelaine at [87].
In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[33]
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.
[33] [2017] AATA 186 at [18].
Mr Angelopoulos describes in his oral evidence his challenges in relation to the ‘demography’ of where he resides. He explains that his research indicates that less than one percent of the population of towns, such as the one in which he resides, have a tertiary qualification. He describes however feeling ‘really comfortable’ in a university environment where he can engage with lecturers and academics and ‘speak on a much higher wavelength’.
I accept that in the rural location where Mr Angelopoulos currently resides the local community is not necessarily comprised of a high proportion of academics or university educated persons as compared to other locations such as Sydney, where Mr Angelopoulos has previously resided.
I accept also that Mr Angelopoulos struggles to initiate conversations with others and dislikes small talk.
Mr Angelopoulos states that, in relation to the demographic of his current community, ‘One of the things, the challenges I face, I'm not trying to boast or anything, but I am very highly intelligent and I, I really find I've got to dumb down and engage in small talk in, in order to interact with most people.’
Mr Angelopoulos dislikes small talk on topics such as the weather. Notwithstanding, if others in his community engage in small talk he states, ‘I'll still talk to them, but I but I'd rather not talk on that such basic level, you know.’
Relevantly, in his oral evidence Mr Angelopoulos also states, ‘Well, the fact that I'm isolated and I can't interact with people, that alone depresses me because as I said yesterday, if someone starts talking me, I really genuinely enjoy talking to people.’
Mr Angelopoulos states that he enjoys attending the gym very much. He gave evidence stating that he will interact with others attending the gym explaining that they come ‘from all walks of life’.
In relation to his attendance at the gym he also states:
I just find that gym atmosphere with people like minded and gold ribbon improving their health, that there's a commonality there.
So it's like that associating with a certain tribe, you know, part of the human connection.
So I, I just to connect with people.
He also gave evidence that when others initiate conversation he is happy to ‘respond’. He stated, ‘I’m quite happy to talk’.
He is also happy and willing to interact with others in relation to topics or interests which he finds interesting. An example includes his enjoyment of sharing his ‘learning’ with others.
Despite his rural location, Mr Angelopoulos is able interact online with others who share his interests and he gave examples of his interaction with university PhD professors.
In her report, Ms Muscat, occupational therapist, identifies that Mr Angelopoulos experiences severe difficulty getting along with people and participating in society. Ms Muscat states:
Mr Angelopoulos described difficulties when in social situations, often repeating he would use his local café as practice for these skills. He would visit this café and attempt to initiate conversation with another patron or staff member to practice his social skills.
Ms Muscat stated however that:
he will engage in conversation if this is initiated by others.
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to participate in the tasks comprised of the activity of social interaction is not substantially reduced to the extent that a high threshold requires. Mr Angelopoulos enjoys social activity at the gymnasium each week. He regularly engages online which other persons who have similar interests. I am also satisfied that in circumstances where Mr Angelopoulos has the ‘opportunity’ to engage with other people who share his interests, he has no difficulty whatsoever in interacting socially.
Conclusion
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to interact socially is not substantially reduced.
Learning
Mr Angelopoulos does not contend that he has a substantially reduced functional capacity in relation to the activity of learning.
The Operational Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
Mr Angelopoulos describes himself as being highly intelligent and as having a high IQ, which I do not doubt. He is part way through a law degree and reads a book each week. He gave evidence that he enjoys learning and inventing. He also enjoys sharing what he learns with others and watching educational documentaries.
He states, ‘So my comfort zone seems to be at home and just do my own research and make things, watch documentaries, learn all the time, listen to PhD scientists and experts in their fields, whether it’s exercise physiology, science, artificial intelligence, engineering, architectural, sustainable energy, environmental issues …’[34]
[34] Applicant’s oral evidence.
Ms Muscat in her report states:
Mr Angelopoulos spends the majority of his time completing extensive self-research through different mediums, i.e. YouTube, books, etc, on longevity and health techniques/theories, which is aligned with his current hyperfocus topic of longevity.
Conclusion
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to participate in the activity of learning is not substantially reduced.
Mobility
The Operational Guidelines describe 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.
In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[35]
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. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
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.
[35] Madelaine at [104]–[105].
Mr Angelopoulos contends that his mobility is affected by his psychosocial impairment. He explains that his psychosocial impairment ‘keeps him at home’ and causes him to isolate.
Mr Angelopoulos’ understanding of this activity for the purposes of the scheme and in particular subsection 24(1)(c)(iv) of the NDIS Act is misguided.
I am satisfied that Mr Angelopoulos does not have a substantially reduced functional capacity in relation to the activity of mobility. My considerations are as follows.
Mr Angelopoulos walks 10–15 kilometres each day and enjoys regular resistance training.
This level of mobility and fitness remains current. Mr Angelopoulos gave evidence on the second day of the hearing that in the afternoon following the first day of the hearing he walked a return distance of 4 kilometres to the local supermarket to buy groceries.[36]
[36] This was in the context of a request for an adjournment of the hearing of the matter due to the contention of symptoms of Ross River Fever – Exhibit 6.
Mr Angelopoulos enjoys resistance training and uses his home gym and a public gymnasium.
Mr Angelopoulos is able to mobilise around his home to attend to his self-care including showering, toileting and dressing himself.
He is able to move around a supermarket and purchase groceries.
He is able to walk to and from the local supermarket which is a return journey of approximately 4 kilometres. He can also carry bags of groceries for the return journey home that weigh in the vicinity of 6–7 kilograms.
He is able to mobilise around his kitchen and prepare his own meals.
Conclusion
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced.
Self-care
Mr Angelopoulos does not contend that he has a substantially reduced functional capacity in relation to the activity of self-care.
The Operational Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Mr Angelopoulos’s evidence is that he manages his own personal care, hygiene (including showering and toileting) and grooming independently.
His nutrition and diet are important to him. He is conscious of preparing and eating only healthy foods. He is also mindful of his physical health and engages in regular exercise for this purpose.
He manages his own health decisions including medical and allied health appointments.
Ms Muscat conducted the Lawton’s Scale Activities of Daily Living Assessment to identify Mr Angelopoulos’s current level of function. Mr Angelopoulos achieved an 8/8 rating indicating that he was ‘high functioning’ in his activities of daily living.
Conclusion
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced.
Self-management
Mr Angelopoulos does not contend that he has a substantially reduced functional capacity in relation to the activity of self-management.
The Operational Guidelines describe self-management as follows:
Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Mr Angelopoulos does not require any assistance to manage his daily activities and states that he prefers to organise himself. He is able to manage his budget, pay bills, and make online purchases.
Mr Angelopoulos is able to make and attend medical and allied health appointments both in person and remotely via video.
Conclusion
I am satisfied based on the evidence that Mr Angelopoulos’s functional capacity to participate in the activity of self-management is not substantially reduced.
Conclusion – subsection 24(1)(c) of the NDIS Act
Subsection 24(1)(c) of the NDIS Act is not satisfied.
Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criterion under subsection 24(1) of the NDIS Act. On this basis Mr Angelopoulos does not meet the disability requirements and cannot have access to the scheme.
Subsection 101(1)(b) of the ART Act – dismissal of application
The Agency also contends that, in any event, this application ought to be dismissed on the basis that it has no reasonable prospects of success within the meaning of subsection 101(1)(b) of the ART Act. Subsection 101(1) of the ART Act provides as follows:
Tribunal may dismiss application if frivolous, vexatious etc.
(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospects of success; or
(c) is otherwise an abuse of the process of the Tribunal.
The Agency refers to section 29 of the NDIS Act which sets out the circumstances when a person ceases to be a participant in the scheme. Subsection 29(1) of the NDIS Act provides as follows:
When a person ceases to be a participant
(1) A person ceases to be a participant in the National Disability Insurance Scheme when:
(a) the person dies; or
(b) the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or
(c) the person’s status as a participant is revoked under subsection 30(1) or (5), paragraph 30A(1)(c) or subsection 30A(7); or
(d) the person notifies the CEO in writing that he or she no longer wishes to be a participant.
Note: Residential Care Service and home care have the same meaning as in the Aged Care Act 1997 (Cth). (Tribunal emphasis)
The Agency submits that even if the Tribunal were to be satisfied that Mr Angelopoulos meets the disability requirements (and thereafter the access criteria), he would immediately cease to be a participant in the scheme by reason of subsection 29(1)(b) of the NDIS Act.
117. Section 45.3 of the Aged Care Act 1997 (Cth) provides:
Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.
Following an assessment by the Aged Care Assessment Team (ACAT) on 2 August 2023 Mr Angelopoulos was approved for a Home Care Package – level 3 (‘HCP – level 3’), on a permanent basis. The HCP was in effect approved by My Aged Care through the Department of Aged Care and Health (DACAH).[37] At that time Mr Angelopoulos was 65 years of age.
[37] Exhibit 3, page 353.
Having been ‘approved’ for a HCP, the DACAH wrote to Mr Angelopoulos on 9 August 2023 and advised him that he was required to thereafter and by 18 June 2024:
· Choose a home care provider that offered the services he needs; and
· Agree to receive these services and enter into a Home Care Agreement (HCA) with the chosen provider by 18 June 2024.[38]
[38] Exhibit 3, pages 368–369.
On 23 April 2024 the DACAH again wrote to Mr Angelopoulos. In this correspondence they confirmed that Mr Angelopoulos had been assigned a HCP – level 3 and that he had until 18 June 2024 to enter into a HCA.
Mr Angelopoulos subsequently requested further time to find a home care provider and enter into a HCA.
On 17 May 2024 Mr Angelopoulos was granted an extension by the DACAH until 16 July 2024 to enter into a HCP.[39]
[39] Exhibit 3, pages 36–366.
Mr Angelopoulos did not enter into a HCA by 16 July 2024. On this basis the HCP – level 3 was withdrawn by DACAH on 17 July 2024.[40]
[40] Exhibit 3, pages 372–373.
Mr Angelopoulos’s evidence is that he has declined the HCP – level 3 as it is not suitable for his needs for a variety of reasons which include that it provides insufficient funding for exercise physiology. Mr Angelopoulos’s contention is that because he has not taken up the services provided under the HCP – level 3, subsection 29(1)(b) of the NDIS Act is not enlivened.
The Agency relies on the reasoning of General Member Purcell in the recent Tribunal decision of PNCB.[41] In doing so the Agency submits that the relevant issue is the fact of the ‘approval’ of a HCP for personal care services and not whether the care services have been commenced or provided.
[41] PNCB v CEO, NDIA [2026] ARTA 66.
The Agency contends that because of the operation of subsection 29(1)(b) of the NDIS Act, there is no utility in the matter proceeding to hearing because Mr Angelopoulos has no reasonable prospects of success under subsection 101(1)(b) of the ART Act.
I accept the Agency’s contention. I also agree with the reasoning of General Member Purcell in PNCB as the correct approach.
Mr Angelopoulos’s home care ‘started being provided’ when his HCP – level 3 was approved. The fact that these personal care services have not yet been commenced or provided to Mr Angelopoulos due to his refusal to engage with the DACAH is immaterial.
Any issues that Mr Angelopoulos has in relation to the nature or amount of funding in his HCP is a matter for him to pursue through the DACAH. As stated the scheme was not intended to respond to shortfalls in other mainstream services such as My Aged Care. Insufficiencies in his HCP, as contended by Mr Angelopoulos, are not the concern or responsibility of the scheme.
I therefore accept that even on the basis Mr Angelopoulos did meet the access criteria, any grant of access to the scheme would be futile by reason of subsection 29(1)(b) of the NDIS Act.
Decision
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).
Date(s) of hearing: 26 and 27 March 2025 Date final submissions received: Mr Angelo Angelopoulos Solicitors for the Applicant: Moray and Agnew Solicitors for the Respondent: Ms Soldi
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