BFYK and National Disability Insurance Agency (NDIS)

[2025] ARTA 1006

BFYK and National Disability Insurance Agency (NDIS) [2025] ARTA 1006 (14 July 2025)

Applicant/s:  BFYK

Respondent:  National Disability Insurance Agency

Tribunal Number:                2024/0073

Tribunal:General Member Gooch  

Place:  Adelaide 

Date:14 July 2025  

Decision:  

The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024.

Statement made on 14 July 2025 at 9:39am 

Catchwords

National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant- access request- whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – requirements not satisfied – reviewable decision affirmed

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.

National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth);  rr 5.1, 5.4, 5.8, 6.8, 6.9

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 Schedules 1 and 2

Cases

Australian Postal Corporation v Sinnaih [2013] FCAFC 98

Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634

Foster and National Disability Insurance Agency [2025] ARTA

Garcia Albiol and National Disability Insurance Agency [2024] AATA 496

JLZT and National Disability Insurance Agency [2022] AATA 541

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Masson v Parsons (2019) 266 CLR 554

Mulligan and National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster (2023) 295 FCR 521

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Rooney and National Disability Insurance Agency [2021] AATA 3523

Timofticiuc and National Disability Insurance Agency [2021] AATA 3015

Secondary Materials

Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011

Macquarie Dictionary online

National Disability Insurance Agency, Applying to the NDIS – Pre-Legislation Changes, 14 October 2024

National Disability Insurance Agency Assistive Technology (equipment, technology and devices) 20 December 2023

Reasons for Decision

1.This is a review of a decision of a delegate of the CEO of the National Disability Insurance Agency (‘the Agency’) to reject BFYK’s request to access the National Disability Insurance Scheme. (‘the Scheme’).

2.BFYK is a 66-year-old man, living in his own home with his separated wife, adult daughter and teenage son.

3.BFYK sought access to the NDIS on the basis of impairments arising from chronic back pain, obesity, bilateral arthritis of the knees, reactive depression and anxiety. Although BFYK has other diagnosed medical conditions including sleep apnoea, hypertension and chronic gastritis he does not seek access to the Scheme on the basis of these conditions.[1]

[1] Email from BFYk’s daughter dated 26 July 2024 at page 137 of Exhibit 1

4.The Agency made the original decision on 11 September 2023 declining BFYK’s access request.

5.On 10 November 2023 BFYK requested an internal review of this decision.

6.On 18 December 2023 the original refusal was affirmed on internal review.[2]

[2] Agency’s Statement of Facts Issues and Contentions at page 8 of Exhibit 1

7.On 4 January 2024 Ms BFYK applied to the Administrative Appeals Tribunal (the AAT) for review of this decision.

8.From 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 applications 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 made by the Tribunal.

9.A hearing was held over two days on 15 and 16 May 2025 and was conducted by MS Teams video conference.

10.At the hearing BFYK did not have legal representation but was supported by his adult daughter. He was offered an interpreter but declined. The Agency was represented by Ms Battiste, of Counsel, instructed by Moray Agnew Lawyers.

11.Owing to matters which traversed BFYK’s personal and public life an oral application was made for a confidentiality order allowing for a pseudonym to be utilised in place of the applicant’s name. The Agency did not object and the Tribunal made the order pursuant to section 70 of the Administrative Review Tribunal Act 2024.

12.Documents considered were marked as follows:

a.    Respondent’s Joint Tender Bundle – Exhibit 1.

b.    Respondent’s Supplementary Bundle – Exhibit 2.

c.     Letter of Dr Mian dated 13 May 2025 – Exhibit 3.

d.    T-documents – Exhibit 4.

e. Applicant’s submissions on s24(1)(c) substantially reduced functional capacity – Exhibit 5

13.Oral submissions were given by:

a.    BFYK

b.    BFYK’s younger adult daughter;

c.     BFYK’s older adult daughter;

d.    Mr Elliot Mate, occupational therapist;

e.    Dr Mian, general practitioner.

14.For the reasons set out below, the Tribunal affirms the decision under review.

NDIS SCHEME

15.The NDIS scheme was modelled on recommendations made following a 2011 inquiry by the Productivity Commission into disability care and support in Australia.

16.In July 2013 the National Disability Insurance Scheme Act 2013 (NDIS Act) came into effect and the Scheme was progressively rolled out across Australia.

17.The objects of the NDIS Act envisage a scheme which (among other things) gave effect to Australia’s obligations under a number of international Conventions, promoted choice and control for participants, supported the independence, social and economic participation of people with disability and provided ‘reasonable and necessary’ supports for participants to assist them with that participation.[3]

[3] Section 3 NDIS Act

18.Section 4 of the NDIS Act set out the ‘general principles’ to be applied in administration of the Act. These principles reflect (among others) the rights of people with a disability to self-direction, choice, participation in social and economic life and to the maintenance of their privacy and dignity.[4]

[4] Section 4 NDIS Act

19.As both an objective and a principle (at paragraph 3(3)(b) and subsection 4(17)), it is noted that regard is to be had to the need to ensure the financial sustainability of the scheme.

20.While avowedly participant focussed the Scheme may only be accessed if all mandatory criteria is met.  

21.In October 2024 Parliament passed the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act). The Amending Act sought to clarify limits to the scheme, seeking to tighten the way NDIS funding might be utilised.

22.Transitional provisions for the Amending Act provide that amendments for access applications apply only to applications made after 3 October 2024. The NDIS Act and Access Rules in place prior to the Amending Act apply to applications, such as BFYK’s, made before this date.[5]

[5] Item 126 of Schedule 1 of the Amending Act

THE LEGISLATION RELEVANT TO THE APPLICATION

23.The statutory provisions relevant to this review are:

a.    the Administrative Review Tribunal Act 2024 (‘the ART Act’);

b.    the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as in place prior to 3 October 2024); and

c.     the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Section 27 and 209 of the NDIS Act for the purposes of section 24 and 25 of the NDIS Act.

24.The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines (‘the Access Guidelines’). 

25.The Tribunal is not bound to follow the Access Guidelines and will not do so where they are inconsistent with the NDIS Act.

26.However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[6]  Brennan J held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation and does not lead to an unjust decision in the circumstances of a particular case.  Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.

[6] (1979) 2 ALD 634

ACCESS TO THE SCHEME

27.Part 1 of Chapter 3 of the NDIS Act addresses applications for access to the Scheme. It includes a number of threshold criteria a person must meet in order to become a scheme participant.

28.With the passage of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 amendments were made to the NDIS Act, including to sections 24 and 25 of the NDIS Act which address access issues.  The amending act commenced on 3 October 2024 and included transitional provisions dealing with matters already on foot. Item 126 of Schedule 1 provided that amendments made to sections 24 and 25 of the NDIS Act only apply to applications made after 3 October 2024.

29.As BFYK’s application was made after 3 October 2024 the amendments will not apply to this application.

30.Subitem 126(3) also provides that the Access Rules as in force prior to the amendments will continue to apply to this application.

31.Once a person makes an access request to the Agency, the NDIS Act provides the CEO (or their delegate) must decide whether or not the applicant meets the access criteria.[7]

[7] Sections 18 and 20 NDIS Act.

32.Section 21 of the NDIS Act provides that a person meets the access criteria if:

·The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application);[8]

·The person meets the residence requirements set out in section 23 (eg. at the time of consideration, the person resides in Australia and is an Australian citizen);[9] and

·The person meets the ‘disability requirements’, the ‘early intervention requirements’ or both.[10]

[8] Section 22 NDIS Act

[9] Section 23 NDIS Act

[10] Sections 24 and 25 (respectively) NDIS Act

The Disability Requirements

28. Amendments to access criteria made on 3 October 2024 only apply to applications made after that date.[11]  BFYK’s access request was made prior to 3 October 2024 so the relevant wording of Section 24 is as follows:

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

(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).

33.The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.

The Early Intervention Requirements

34.Section 25 deals with access to the scheme on the basis of the ‘early intervention requirements’ as follows:

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

(a)the person:

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

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

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

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

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

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

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

(iii)improving such functional capacity; or

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

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

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

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

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

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

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

35.The Access Rules set out further matters to be considered in determining when an impairment might be permanent and in deciding the significance of any reduction in functional capacity.   I will discuss those later.

THE DECISION UNDER REVIEW

36.The decision under review is a decision by the Agency to reject BFYK’s application to become a scheme participant.

37.In their Statement of Facts, Issues and Contentions dated 31 January 2025 the Agency conceded that in their view BFYK met the age and residence criteria in sections 21(1)(a) and (b).[12]  I have considered the evidence and accept that these criteria are met.

[12] Exhibit 1 at [15]

38.In relation to the disability requirements the Agency accepted BFYK:

· met the criterion in section 24(1)(a) of the NDIS Act as he had:

a.a disability attributable to physical impairment arising from chronic back pain, obesity and bilateral arthritis of the knees; and

b.a disability attributable to psychosocial impairment arising from reactive depression and anxiety.[13]

· met the requirement for permanency of impairment set out in section 24(1)(b) of the NDIS Act with respect to his chronic back pain[14], but not with respect to obesity, arthritis of the knees, reactive depression or anxiety.  The Agency was of the view there was insufficient evidence for the Tribunal to be satisfied these latter conditions had been treated with known, available and appropriate treatment options;[15]

· did not meet the section 24(1)(c) requirement for substantially reduced functional capacity as a result of the chronic back pain impairment;[16]

·      did have impaired capacity for social and economic participation as a result of all the impairments;[17]

·      but did not require supports under the NDIS for his lifetime as any beneficial services could be provided by other government and community services.[18]

· The Agency did not accept that BFYK met the early intervention requirements set out in section 25 of the NDIS Act.[19]

[13] Exhibit 1 at [15] and [28]

[14] Exhibit 1 at [15] and [31]

[15] Exhibit 1 at [16.1], [35] and [39]

[16] Exhibit 1 at [16.2] and [50]

[17] Exhibit 1 at [15] and [88]

[18] Exhibit 1 at [16.3] and [92]

[19] Exhibit 1 at [16.3] and [99]

THE APPLICANT’S RESPONSE

39.In both written and oral submissions BFYK focussed on addressing the Agency’s contention that BFYK’s chronic back pain does not result in substantially reduced functional capacity to undertake one or more of the specified activities in section 24(1)(c) of the NDIS Act.

40.BFYK’s submissions were that:

·for BFYK mobility and self-care activities are the most relevant of the paragraph 24(1)(c) activities to be considered when addressing whether there is substantially reduced functional capacity. The applicant’s submission is that BFYK has substantially reduced functional capacity in mobility and self-care;

·the report of Elliot Mate, occupational therapist, agrees that BFYK needs assistive technology and personal assistance for mobility and self-care and therefore the deeming provisions of Rule 5.8 apply;

·the term ‘assistive technology’ should be defined with reference to the recent amendments to the NDIS Support Rules introduced by the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2023 (NDIS Support Rules). Schedules 1 and 2 of the NDIS Support Rules include lists of assistive technology and equipment which may be provided under the NDIS scheme.  These items should therefore not be excluded as ‘commonly used items’ when applying the deeming provisions in rule 5.8.  

·Insofar as the decision in Rooney and the National Disability Insurance Agency [2021] AATA 3523 (Rooney) excludes equipment available on the amended NDIS Support Rules list as ‘commonly used items’, the decision should not be followed as it predates the amendments to the NDIS Support Rules and is therefore no longer good law.

THE ISSUES BEFORE THE TRIBUNAL

41.Notwithstanding the applicant has limited their written submissions to the chronic back condition I consider the issues before the Tribunal include:

·whether impairments arising from obesity, bilateral arthritis of the knees, reactive depression and anxiety are permanent;

·whether the evidence supports a finding any permanent impairment identified results in a substantial reduction in functional capacity in any of the nominated activities set out in section 24(1)(c);

·whether BFYK is likely to require support under the NDIS for his lifetime as required by section 24(1)(e); and

·Whether the early intervention requirements are met as set out in section 25.

Does the evidence support a finding of permanent impairment arising from obesity, bilateral knee arthritis, reactive depression and anxiety?

Obesity

42.There is very little information before the Tribunal in relation to BFYK’s obesity diagnosis.  It appears to have been raised first in 2010.[20]

[20] Page 103 and 243 of Exhibit 1

43.In a letter dated 4 April 2024 Dr Mian, GP, referred to BFYK’s hypertension and sleep apnoea being contributed to by a lack of mobility and obesity.[21]

[21] Pages 85 and 93 of Exhibit 1

44.Dr Zahirovic, in a letter dated 23 June 2022 noted that BDYK had trialled CPAP to address his sleep apnoea but had been unable to tolerate it.[22]

[22] Page 99 of Exhibit 1

45.In a letter dated 31 January 2014 Dr Zimet noted BFYK had recently lost 35kg but that his back pain had remained the same.[23]

[23] Page 219 of Exhibit 1

46.Dr Wang, Neurosurgeon, in a letter dated 22 November 2018 was of the view BFYK could benefit from losing 5 to 10kg to minimise stress on his spine.  It was his opinion, however, that as symptoms of back pain were related in part to BFYK’s musculoskeletal system, neither weight loss nor surgery would have any benefit in reducing that whatsoever.[24]

[24] Page 517 of Exhibit 1

47.There is no evidence that BFYK had undertaken any treatment directed at addressing his obesity, although BFYK’s oral evidence was that he had recently managed to lose some weight by being careful with what he ate.

48.I am satisfied therefore that the condition is likely amenable to change with known, available and appropriate evidence-based treatment. I have no evidence that such treatment has been utilised.

49.As such I cannot be satisfied that any impairment (if any) arising from obesity, can be said to be permanent.

Bilateral knee arthritis

50.There is very little evidence before the Tribunal in relation to BFYK’s knee condition.

51.In a letter to Dr Mian (GP) dated 14 January 2008, Dr Zimet records a report of left knee pain unrelated to BFYK’s back pain.[25] Chronic knee pain was recorded in a letter dated 12 October 2018.[26]

[25] Page 197 of Exhibit 1

[26] Page 236 of Exhibit 1

52.A pain service questionnaire completed on 24 June 2019 rates BFYK’s right knee pain at 6.8.  No notation for the left knee is provided.  No other details are provided.[27]

[27] Page 591 of Exhibit 1

53.A letter from Dr Mian to St Vincent’s Hospital dated 23 November 2018 with accompanying MRI reports records that BFYK has ‘painful knees’ requiring assessment.  The MRI reports indicate medial meniscus tears and chondral issues bilaterally.[28]

[28] Pages 640-643 and 256 of Exhibit 1

54.An earlier report from a St Vincent Hospital rehabilitation discharge letter indicates severe degenerative changes in the left knee and mild degenerative changes in the right knee.[29]

[29] Page 1088 of Exhibit 1

55.A St Vincent Hospital orthopaedic report dated 30 May 2024 recorded that knee pains had improved post laminectomy surgery.[30]

[30] Page 506 of Exhibit 1

56.The access request completed by BFYK records that BFYK ‘needs knee replacement but [is] afraid due to trauma from rib surgery’.[31] No other records discuss this and BFYK’s evidence to the Tribunal was that he had seen a specialist a year ago who did not think surgery was required at this stage.  In oral evidence BFYK did not consider his knees a major issue at this point.

[31] T6 of Exhibit 2

57.Having regard to the evidence I am not satisfied that any impairment arising from BFYK’s bilateral knee arthritis can be said to be permanent.  The condition has not yet been subject to available, known and evidence-based treatment.

Reactive depression and anxiety

58.BFYK has had a traumatic history.  His evidence to the Tribunal was that he understands his mental pain and the reason for this pain.  He stated he does not find talking about it or medication helpful.

59.Evidence in the documents before the Tribunal suggests BFYK has attended psychological counselling in the past, particularly focussed on pain management.[32]

[32] Page 612-615 of Exhibit 1

60.A letter from Dr Zimet, Oncologist, dated 8 May 2024 noted that BFYK was probably depressed and that he ought to trial amitriptyline for pain management and potential depression.[33]  No follow up records have been provided.  At hearing BFYK stated he did not find the medication helpful and only sometimes used them.

[33] Page 245 of Exhibit 1

61.Dr Mian’s evidence at hearing was that BFYK did not wish to consult with either a psychologist or a psychiatrist. She felt that as long as the pain was present the reactive depression would be present. She had concerns that prescribing anti-depressants may lead to weight gain.

62.Having regard to the evidence available I am not satisfied that any impairment arising from depression or anxiety can be considered to be permanent.  There is insufficient evidence before the Tribunal to support a finding BFYK has engaged in all known, available and evidence-based treatment for this condition.

Are there aspects of impairment attributable to BFYK’s back condition which may not be permanent?

63.This issue arose for consideration as a result of oral evidence given by BFYK and his daughter at hearing.

64.It was BFYK’s evidence that his condition had significantly deteriorated in the 6 months since Mr Mate’s assessment.  He spoke of multiple falls, dizziness and a problem whereby he appears to lose control over his feet.  He advised the Tribunal that sometimes when he tried to move his legs they don’t appear to respond as he expects them to.  He described it as his feet not being under his control, of having no feeling, being numb.  He stated this results in him falling.

65.Dr Mian’s evidence to the Tribunal was that BFYK had not mentioned to her any issue with numbness in his feet.  She recalled that his complaints were only about referred pain in his legs and feet, not numbness.  It was her evidence that loss of sensation or swelling in feet in the circumstance of a chronic back pain would be considered an issue that needed urgent investigation.  It was her oral evidence that this had not been raised as an issue with her.

66.This does raise a concern that there is an aspect of BFYK’s current presentation which may not yet have been investigated and treated.   

67.I have considered the significant documentary evidence before the Tribunal and note the following:

·A physiotherapy assessment dated 10 April 2019 in which it is noted BFYK reported tickling, burning and swelling in his feet and two falls due to his legs ‘giving way’;[34]

[34] Page 604 of Exhibit 1

·A letter from Dr Zimet dated 22 February 2023 in which it is reported BFYK ‘continues to have low back pain radiating down into his legs with numbness in both feet’;[35]

[35] Page 87 of Exhibit 1

·Merri Health Occupational Therapy notes dated 5 March 2018 recorded BFYK had had multiple falls at that point as a result of leg pain and ‘cramping’;[36]

·Report of Ms Adele Chan, physiotherapist, dated 20 April 2024 which recorded BFYK’s long term presentation including ongoing low back pain with numbness, cramps and weakness in both legs.[37]

[36] Page 79 of Exhibit 1

[37] Page 115 of Exhibit 1

68.I consider the documentation before the Tribunal confirms that although BFYK’s description of his pain has been recorded in different ways over the years it has previously included his experience of numbness in his feet, frequent falls and swelling.  I am satisfied these are not new and untreated symptoms despite Dr Mian recording them differently.

69.I note that BFYK appears to experience back pain arising from two distinct conditions:

a.    He has a longstanding chronic pain condition arising from surgical removal of two ribs in 1998.  Pain from this condition is described as affecting his upper back.  He experiences numbness in his side around the site of his surgery.

b.    From 2013 BFYK experienced increasing pain from a degenerative spinal condition with nerve root impingement primarily located at L4/5.

70.For the first condition BFYK has attended Dr Zimet, Oncologist, for pain management and has trialled a variety of medications.  A medication regime that manages the pain has been established and Dr Zimet has written consistently that there is nothing further that can be done to manage the pain.

71.For the second condition BFYK has undertaken physiotherapy, pain medication, epidural injections and laminectomy surgery.  He attended at a pain management clinic but was hampered in his participation in psychological counselling by his language difficulties.  His physiotherapist recommended daily exercises and walking which by his own evidence BFYK does not participate in anymore.

72.Dr Zimet continues to express the view that there is little now that can be done to ameliorate the nature of BFYK’s pain experience. In my view this has resulted in an impairment with the type of enduring character envisaged by the Court in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis).[38]

[38] Davis at [76] – [87]

73.On balance I am satisfied the evidence supports a finding that BFYK has participated in all known, available and evidence-based treatments for his pain conditions and that these have been unable to remedy his condition.[39] I therefore find BFYK has an permanent physical impairment attributable to his chronic back conditions which meets the permanency requirement in section 24(1)(b) of the NDIS Act.

[39] Rule 5.4 of the Access Rules

Does BFYK’s physical impairment result in a substantially reduced functional capacity in any of the nominated activities set out in section 24(1)(c)?

74.To meet the disability requirements, section 24(1)(c) provides that functional capacity must be substantially reduced in at least one of the following six activities as a result of the applicant’s permanent impairment:

a.    Communication;

b.    Social interaction;

c.     Learning;

d.    Mobility;

e.    Self-care; or

f.   Self-management.

75.Although identified in the NDIS Act, there is no definition, either in the Act or the Rules, which clarifies the scope of each of the identified activities. However, some guidance is provided in the Access Guidelines as follows:

a.    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.

b.    Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

c.    Learning – how you learn, understand and remember new things, and practise and use new skills.

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

e.    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.

f.     Self-management (if older than 6) – 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.[40]

[40] NDIS Access Guidelines October 2024

Legal Principles

76.In order to meet the requirements of subsection 24(1)(c) of the NDIS Act, the decision maker (the CEO, a delegate or the Tribunal) must be satisfied the applicant’s relevant impairments result in substantially reduced functional capacity in at least one of the nominated activities.

77.The legislative scheme contemplates a relatively high degree of precision by decision-makers in assessing functional capacity.  The necessary assessment is said to be ‘avowedly functional and multi-faceted’ but does not involve a comparative or qualitative assessment of the ‘seriousness’ of the relevant impairment. The focus is simply on a practical assessment of what the applicant can and cannot do. [41]

[41] Mulligan and National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [55] to [56]

78.In NDIA v Foster [2023] FCAFC 11 (Foster) the Court held that it was an error for the Tribunal to equate an impairment, such as an inability to complete the single task of toileting without assistive technology, with an inability to complete the whole activity of self-care. In that matter Mr Foster was unable to urinate without the use of a catheter. This was his impairment. The Tribunal held that his inability to urinate without assistive technology meant Mr Foster could not participate in the activity of self-care as a whole. The Court disagreed, finding the Tribunal’s task was instead to assess the degree to which the person could participate in the activity as a whole, not just a particular task in that activity. [42]

[42]  Foster at [88]

79.In Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) the Court stated:

The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s24(1).[43]

[43] Mulligan at [50]

80.The Court went on to say that the person’s impairment (not medical diagnosis) was the relevant consideration, and that the statutory task remained to consider whether a person’s functional capacity is substantially reduced as a result of the impairment.

81.In Garcia Albiol and NDIA (Albiol)[44] Senior Member Collins reflected that ‘substantially reduced function’ had a high threshold in the context of the Scheme given the NDIS was not intended to provide customised supports to everyone with a disability.[45] Having regard to the enquiry on which the Scheme was based I agree with this view.

[44] [2024] AATA 496 at [68] to [69]

[45] Albiol and Section 3(3) and section 4(17) of the NDIS Act

82.Section 27 of the NDIS Act provides that the National Disability Insurance Rules may make provision for determining any matter for the purposes of sections 24 and 25. This includes ‘methods or criteria to be applied, or matters that may or may, must or must not be taken into account’ and ‘circumstances in which a matter relevant to the application of either of those sections is taken to exist or not exist’.

83.Relevantly rule 5.8 of the Access Rules sets out the circumstances in which an impairment is deemed to result in substantially reduced functional capacity to undertake a relevant activity. If an applicant’s circumstances match one of these circumstances, they are automatically deemed to have met the section 24(1)(c) criterion. [46] These circumstances include where:

(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.

[46] See Mulligan v National Disability Insurance Agency[2015] FCA 544 (Mulligan) at [67]; Rooney v National Disability Insurance Agency [2021] AATA 3523 at [17].

84.The terms ‘assistive technology’, ‘equipment’ or ‘commonly used items’ are not defined in the Access Rules or the NDIS Act. The NDIS has lists of assistive technology it may fund[47] (which provides some guidance).  The Access Guidelines observe that reliance on commonly used items will not result in a finding of substantially reduced functional capacity to participate effectively or completely in an activity.  Commonly used items, it is suggested, may include things such as glasses, walking sticks, non-slip bathmats, bathroom grab rails and dressing aids. These are not ‘disability specific’ items.

[47] NDIA Assistive Technology (equipment, technology and devices)

85.The Guidelines also discuss that a person will be considered to be unable to participate in an activity if they cannot safely complete one or more of the tasks required in an appropriate time frame.  The Agency will give consideration to whether a person’s need for assistance is consistent with normal expectations of a person of a similar age.  Undertaking a task more slowly or differently to other will not necessarily mean a person cannot participate effectively.  I do not consider these guidelines are inconsistent with the terms of the Act.

86.In Rooney and National Disability Insurance Agency (Rooney)[48] Senior Member Cameron provided helpful guidance in construing the composite term ‘commonly used items’. It was his view the term must be considered to relate to items which were commonly used by persons with the same impairment as the applicant under consideration.

[48] [[2021] AATA 3523

87.In this way, glasses are commonly used items used by persons with a vision impairment, crutches or a walking stick are commonly used items for those with a mobility issue and a back brace may be common to those with back pain.[49]

[49] Rooney [26]

88.Other indicia of ‘commonly used items’ were considered to be:

a.    the item was generally accessible;

b.    could be used without the need for complex or specialised customisation or installation;

c.     was relatively simple to use; and

d.    was relatively inexpensive.[50]

[50] Rooney [27]

89.The fact that professional input into the selection of an item was necessary was not a bar to an item being considered ‘commonly used’. For example glasses, specifically named in the Access Rules as a ‘commonly used item’, require professional input and prescription before use.[51] 

[51] Rooney [28]

The statutory interpretation issue

90.The applicant has argued in written submissions that for consistency the term ‘commonly used items’ must be read in light of the Assistive Technology Guidelines (the AT Guidelines) and the recent amendments to the NDIS Act. From the context of BFYK’s argument I take him to refer particularly to the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules).

91.BFYK argues that the where the AT Guidelines provide lists of assistive technology which the Scheme will fund (and those that it won’t) the Tribunal would be in error to exclude fundable items as ‘commonly used items’.[52]

[52] [14] of Exhibit 5

92.BFYK also argues that the Tribunal ought to have regard to the Transitional Rules in determining whether supports are ‘commonly used items’ or not.  He argues that ‘commonly’ should be seen as a synonym of the words ‘standard’ and ‘general’ in Schedule 2 of the Transitional Rules, thus limiting the term ‘commonly used items’ to only those items so described in that Schedule.

93.To do otherwise, it is argued, would be to create an unfair and inconsistent outcome.  He argues the reasoning in Rooney ought not be followed.

94.For the following reasons I reject this proposition:

a. Section 27 of the NDIS Act provides that rules may be made for determining any matter for the purposes of section 24 (the disability requirements) or 25 (the early intervention requirements).

b. The Access Rules are the relevant rules, made under section 27 and 209 of the NDIS Act, which clarify matters related to becoming a participant in the Scheme.

c. Conversely, the Transitional Rules are made under Item 138 of Schedule 1 of National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) Act 2024 and are made for the purpose of section 10 of the amended NDIS Act. They are not made with respect to the Access Rules. Their application in clarifying the scope of ‘NDIS Supports’ has relevance only to the process of determining what reasonable and necessary supports should be included in a participant’s plan.

d. To the extent that the term ‘NDIS Supports’ is included in the amended section 24 of the NDIS Act, that amendment does not apply to BFYK’s application because his application was made prior to 3 October 2024.

e.   While I accept the primary object of statutory interpretation is to construe a provision so it is consistent with the language and purpose of the whole statute in context [53] this does not necessarily extend to strained compliance between separate parts of the statutory framework.

f.    Where an Act is divided into separate parts, with clauses within each part relating to different subject matter, a finding may be comfortably made that the words in one part may not be intended to relate to words in another part.[54]  This is particularly so where the words of the text, as here, make this clear.

g.   So far as is possible, words of the statute are to be given their natural and ordinary meaning.[55] I find the reasoning in Rooney related to the composite term, ‘commonly used items’ succeeds in doing this and is sound.

[53] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 [69] – [70]

[54] Australian Postal Corporation v Sinnaih [2013] FCAFC 98

[55] Masson v Parsons (2019) 266 CLR 554 [26]

Consideration of the section 24(1)(c) criteria

95.It was BFYK’s evidence at hearing, that he was not impaired in his ability to communicate, socially interact, learn or self-manage.

96.At hearing the Tribunal observed BFYK was able to express himself clearly despite English being his second language.  He understood and was able to respond appropriately to questions. 

97.BFYK spoke of his ability to utilise his phone and computer for communication and discussed longstanding friendships and family relationships which he was able to maintain.  He recently returned from 4 months in Bali in which he was able to navigate local services which had been arranged by his brother. BFYK was able to understand new information (including about the hearing process) and described having been involved in arranging volunteers at a local booth in the recent Federal election.

98.I am satisfied that BFYK’s impairments have not resulted in a substantially reduced functional capacity in the activities of communication, social interaction, learning or self-management.

99.BFYK does contend, however, that as a result of his permanent physical impairment attributable to his back condition he does have a substantially reduced functional capacity in the activities of mobility and self-care.

100.The Agency accepts that BFYK undoubtedly has some functional difficulties as a result of his physical impairment. They argue, however, that this difficulty does not reach the threshold necessary to be considered ‘substantially reduced’ in any of the identified activities.

101.In considering the section 24(1)(c) criterion, the Tribunal’s task must be completed in two stages:

a.    Firstly the Tribunal must consider whether the applicant’s circumstances are captured by the deeming provisions in the Access Rules; and

b. Secondly, if the applicant’s circumstances are not captured by the deeming provisions the Tribunal must consider they any event have a substantially reduced functional capacity in respect of the section 24(1)(c) activities. [56]

[56] [2024] AATA 496 at [29]; Mulligan and NDIA (Mulligan) at [77]

102.The Agency relies on the report of Elliott Mate, Occupational Therapist, which reports on a functional capacity assessment undertaken by Mr Mate at BFYK’s home on 4 October 2024.[57] 

[57] From page 18 of Exhibit 1

103.In undertaking his assessment Mr Mate’s methodology included:

a.    An interview with BFYK;

b.    Observation of existing home environment and relevant barriers/adaptations; and

c.     Observation of BFYK undertaking selected activities of daily living and demonstrating his functional tolerances.[58]

[58] Addendum B page 68 of Exhibit 1

104.BFYK relies on the report of Ms Eden Dowers documenting a functional capacity assessment she undertook on 27 May 2024.[59] 

[59] From page 128 of Exhibit 1

105.In undertaking her assessment Ms Dowers’ methodology included:

a.    A 90-minute assessment based on an interview with BFYK; and

b.    Administration of a WHODAS standardised assessment.

Ms Dowers noted that her assessment was conducted from a seated position.[60] 

[60] Page 130 of Exhibit 1

106.BFYK argues I should place little weight on Mr Mate’s report as:

a.    Mr Mate has made errors in recording the outcome of his assessment, particularly in relation to the distance walked by BFYK outside and as to who prepared a hot chocolate; and

b.    that BFYK’s condition has significantly deteriorated since Mr Mate’s assessment, particularly after a bad fall which occurred when BFYK was holidaying in Bali.

107.The agency’s position is that I should give more weight to the report of Mr Mate given this was based on actual observations of BFYK undertaking various activities and not just his self-reporting of capacity (as was the case with Ms Dowling’s report).

108.I accept this submission.  To the extent of any inconsistency between the two reports the Tribunal will rely on the observations and report of Mr Mate, particularly where this is supported by other evidence. 

109.Noting BFYK’s assertion that his condition has deteriorated since that assessment I will take into consideration commentary in other medical information available.

Mobility

110.Mr Mate’s assessment in relation to the activity of mobility notes the following:[61]

[61] Page 34 -38 of Exhibit 1

a.    BFYK was observed mobilising independently throughout his home and front yard areas without the use of a walking aid.   He was noted to walk very slowly with an asymmetrical gait, often rubbing his back, indicating pain, and often using walls, doors or furniture for support.

b.    Mr Mate reports BFYK was observed mobilising for a maximum of three minutes at a time. 

c.     Mr Mate indicated that BFYK walked independently to his letter box from his lounge room (a distance estimated to be 25m) and was able to return to the loungeroom (including negotiating four steps to the front patio) after a short rest. 

d.    In oral evidence BFYK disputed this, recalling that he also required a rest half-way down the driveway, estimating the distance he was able to walk without stopping was about 10m. In his oral evidence Mr Mate did not recall this stop but was willing to concede the point.

e.  The total distance covered on a round trip, including stops, was estimated to be 50m.

f.   BFYK was observed to have difficulty in accessing lower cupboards and drawers, relying on the kitchen bench for support when doing so.

g.    BFYK was noted to perform transfers from sit to stand and bed to stand independently but with difficulty due to reduced lower limb strength.  He was noted to rely on stable surfaces (such as a grab rail, armrest or table) as support. His transfers from the lounge chair (in which BFYK spends most of his day) were noted to be very difficult due to its low height.  BFYK was noted to use an ordinary chair in the shower which was not recommended due to its lack of arms and low height.

h.    Mr Mate suggested BFYK could benefit from a number of modifications (such as a bed pole, a lift chair, a proper shower chair and a toilet surround) to increase his safety and independence.  BFYK was noted to have a high risk of falls.

i.   BFYK was noted to have a low lifting capacity due to his back condition but sufficient to manage most household items.

j.   BFYK reported to Mr Mate he last drove 4 months prior to Mr Mate’s assessment.  At hearing he stated he had not driven for some 18 months prior. Generally BFYK relies on family to drive him to appointments and reported being unable to manage public transport.  Given BFYK could manage travel as a passenger, Mr Mate was of the view he would also be able to utilise taxis or Ubers.  At hearing BFYK disputed that, noting that he requires support and assistance at his destination (due to his fear of falling) and had no confidence a taxi would provide this assistance.

k.     BFYK was noted by Mr Mate to have access to a 4 wheeled walker and walking stick to assist with his mobility but that he does not use them because he does not want to ‘appear weak’ in front of others.  He also refrained from using these aids in front of his family for similar reasons.  In Mr Mate’s view BFYK would be more likely to walk if he used his walker and felt safe.  This was likely to assist in maintaining strength and function and had been recommended by BFYK’s physiotherapist.

l.   Mr Mate noted that BFYK reported he did not engage in home exercises, gym or walking as recommended by his physiotherapist to maintain his function.   He advised he spent 90% of his day sitting on his couch. Mr Mate was of the view this was likely to lead to further deconditioning and reduction in capacity.

m.   In summary Mr Mate was confident BFYK was independent in the activity of mobility although he was of the view BFYK could benefit from some commonly available mobility aids.

111.In his oral evidence (and as noted above) BFYK did not agree with Mr Mate’s observations about his capacity.  He reported his condition had deteriorated further since Mr Mate’s assessment and that he was afraid of falling.  He reported having had many falls as he felt his feet were ‘not under his control at times’. A particularly bad fall occurred while he was in Bali, resulting in him hitting his head on a table.

112.A letter from Dr Mahardika dated 21 February 2025 confirmed this fall.

113.BFYK’s youngest daughter advised that her father never uses the 4-wheel walker and rarely uses his walking stick. She confirmed he will not use any aid in front of other people.  Instead, she observed her father uses the walls and furniture for support to mobilise in the house. BFYK’s other daughter confirmed this detail.

114.When questioned about BFYK’s falls the youngest daughter advised she was aware of one fall in the last six months and 1 other fall last year where medical attention was required.

115.This daughter was of the view her father’s ability to move around had deteriorated since before his trip to Bali, although she conceded the pressures of her job meant she had not been around very much since he had returned.

116.Dr Mian in her oral evidence advised the Tribunal she had been consulted about one fall, being the one that occurred in Bali.  She knew BFYK had said his function was worse but conceded she had not had the opportunity to observe this in person due to the nature of her contact with BFYK. She stated that she was only in a position to observe BFYK’s mobility from the door of her consulting room to the consultation chair and out again.

117.I have considered the report of Ms Dowling.  She notes the following in relation to the activity of mobility:[62]

a.    BFYK was observed moving slowly and cautiously using furniture to support his sit-stand transfers and his mobility within the home.

b.    BFYK was noted to have access to a manual wheelchair which Ms Dowling reported he uses when he engages with the community.

c.     BFYK reported recurrent falls due to lower limb weakness and/or loss of volitional control of his feet/legs.

d.    BFYK noted acute pain with mobilisation and reported he was unable to stand for longer than 5 minutes and was unable to walk more than 100 metres unassisted.

e.    BFYK was noted to restrict his overall mobility, rarely going outside and relying on his wife to drive him due to his pain or the effects of his medication.

[62] Page 131 of Exhibit 1

118.I am satisfied there is no extensive conflict between the reports of Mr Mate and Ms Dowling with respect to the activity of mobilisation.  Ms Dowling observed slow and cautious walking, with a distance of 100 metres possible with a 4wheeled walker.  Mr Mate had the opportunity to observe mobilisation over a shorter distance (a total of 50 metres including rests) without a walking aid.

119.I have considered other evidence on file and note the following:

a.    Ms Chan, physiotherapist, in her letter dated 20 April 2024, recorded BFYK found it difficult to stand for more than five minutes or to walk more than 100 metres without a walking stick or a frame.  He was noted to have difficulty in rising from a chair or his bed. BFYK was reported to have been compliant with all exercises shown him.  However, Ms Chan also stated BFYK was ‘too weak and painful to walk independently’, to perform household chores, to engage in some self-care activities or in self-management activities such as swimming or gym work’. These statements seem somewhat inconsistent with her earlier statements and I take them to reflect BFYK’s self-report. She recommended NDIS be approved so BFYK could access more physiotherapy treatment.[63]

[63] Page 115 of Exhibit 1

b.    Dr Zimet, oncologist, has been treating BFYK for a chronic pain condition since 1999.  This pain condition is attributable to surgery in 1998 to remove two ribs affected by osteoblastoma.[64]  Aside from pain this condition was not reported as leading to any functional incapacity. 

[64] Page 544 of Exhibit 1

c.     From 2013 BFYK started reporting low back pain which increased over time and was attributable to multilevel mild degenerative disease within the spine, the most significant being at L4/5.[65] Over the years since BFYK has been treated with pain medication, epidural injections and a laminectomy but his condition has continued to deteriorate.

[65] Page 221, 219 and 548 of Exhibit 1

d.     A letter from BFYK to Dr Zimet dated 19 January 2016 requested support from Dr Zimet for BFYK’s request to Centrelink to allow him to spend longer in Thailand than would usually be acceptable for receipt of payments.  In the letter BFYK reported he was in so much pain that he was ‘unable to wear clothes independently, shower on his own or go to the toilet without assistance’. He reported difficulty in moving and standing for long periods of time.[66] This seems at odds with the below.

e.    In September 2017 Dr Zimet recorded an incident in which BFYK had hurt his knee playing soccer with his son seven months before.[67]

f.   In February 2018 BFYK had a fall and was admitted to hospital where he had several corticosteroid injections.  On discharge BFYK reported he was gardening three to four hours a day.[68]

g.    A letter from Stephanie Crabbe, occupational therapist with Geriatric Rehabilitation service, dated 20 June 2018, recorded that BFYK was experiencing increased pain and falls at home.  After epidural injection BFYK was discharged with a frame to assist with mobilisation.[69]

h.    A letter from Dr Wang, Neurosurgeon, dated 30 July 2019 reports BFYK had a laminectomy in December 2018 which had not improved his leg pain.  Dr Wang was of the view this indicated the pain was not ‘neuro referred pain’.[70]

i.   In July 2019 a consultation note by Dr Gloria Seah, a pain specialist, recorded BFYK initially reported his movement was better but then recanted.  BFYK had stopped attending the pain clinic program as he did not understand the lectures. He was using YouTube for resources instead.

j.   In a letter dated 22 February 2023 Dr Zimet wrote to Dr Mian that BFYK was ‘debilitated but able to walk freely. He was not able to bend fully’.[71] This observation was repeated in correspondence dated 27 September 2023.[72]

k.     A further letter of Dr Zimet dated 8 May 2024 recorded that BFYK was anxious and teary in the consultation. He expressed fear of falling due to a sensation of his feet not touching anything. Dr Zimet felt his condition had worsened, particularly in relation to mood. He recommended referral to psychologist and trial of anti-depressants.[73]

l.   In a letter dated 17 May 2024 Dr Zimet noted that ‘ongoing pain in [BFYK’s] low back radiating into both buttocks and legs has made mobilisation difficult’. BFYK was noted to have numbness in his feet which may be secondary to his low back pain which would also impair his mobility.[74]

m.   In her oral evidence to the Tribunal Dr Mian advised that she had been told by BFYK that his condition was worse but she acknowledged she only saw him as he walked from the door of her consulting room to the chair and therefore had limited opportunity to judge.  She stated she would defer to an assessment of function by an occupational therapist.

[66] P454 – 457 of Exhibit 1

[67] Page 489 of Exhibit 1

[68] Page 487 of Exhibit 1

[69] P475-476 of Exhibit 1

[70] Page 510 of Exhibit 1

[71] Page 240 of Exhibit 1

[72] Page 241 of Exhibit 1

[73] Page 245 of Exhibit 1

[74] Page 242 of Exhibit 1

120.Having considered the totality of the evidence, on balance I have formed the view that the functional capacity assessment of Mr Mate is a reliable assessment of BFYK’s functional capacity. I am not satisfied the evidence supports a finding that BFYK’s condition has deteriorated significantly since that assessment.  I have considered the letter of BFYK dated 19 January 2016 (noted above) in the context of other evidence from a similar time period and find I am less confident in accepting BFYK’s self-reporting of his capacity without objective confirmatory evidence.

121.On the basis of Mr Mate’s report I find that BFYK can mobilise independently around his home and up to 50 metres at a time, albeit with several rests in between.  I find BFYK is independent in transferring from sit to stand and from bed to stand. I acknowledge these activities are performed with pain and some difficulty and that BFYK is fearful of falling. BFYK is able to travel as a passenger in a car and advised Mr Mate that he was able to transfer into and out of the car himself.

122.I accept Mr Mate’s recommendations that BFYK would benefit from a number of walking aids (such as a bed pole, a wheeled walking frame or single point stick and a higher lounge chair) but acknowledge Mr Mate has observed BFYK performing these mobility tasks without any aids.

123.I accept Mr Mate’s opinion that deconditioning through lack of activity is likely to further decrease BFYK’s capacity.

124.It was BFYK’s evidence to the Tribunal that he does not use walking aids in front of other people as he believes this will make him look ‘weak’.  This was confirmed by both daughters.  Although he is slow and has a modified approach I find BFYK is able to participate effectively in the whole of the activity of mobilisation without assistive technology or the assistance of another person.

125.I find that the deeming provisions in Rule 5.8 do not apply in this circumstance.

126.I now need to consider whether BFYK has a substantially reduced functional capacity for mobility apart from the deeming provision.

127.In its ordinary meaning the word ‘substantially’ suggests functional capacity must be impacted ‘considerably’[75] or to a great extent.  This reflects a Scheme that was not intended to provide supports for every person with a disability.[76] 

[75] Macquarie Dictionary online accessed July 2025

[76] Disability Care and Support – Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011, 10-21

128.As was said in National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the task before me involves a ‘functional, practical assessment of what a person can and cannot do’.  In Timofticiuc and National Disability Insurance Agency[77] this was expressed as the task of determining what activities a person is capable of doing, whether they are actually doing those activities or not.

[77] [2021] AATA 3015

129.In Madelaine and National Disability Insurance Agency Deputy President Humphries expressed the view that the threshold requirement to achieve functional capacity in relation to mobility was relatively modest. He observed a person ‘has functional capacity if they can move about their home, get in and out of a bed or chair, and mobilise in the community’.  A very small distance was seen as sufficient in that circumstance.[78]

[78] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [104] and [106]

130.On the basis of my findings set out in paragraphs 121 above I am satisfied that although impaired, BFYK does not have a substantially reduced functional capacity for the activity of mobility in the manner contemplated by the NDIS Act.

Self-Care

131.The Guidelines consider that self-care includes personal care, hygiene, grooming, eating and drinking, and health, how a person gets dressed, showers or bathes, eats or go to the toilet. Somewhere between self-care and self-management sit the other life tasks of home maintenance, laundry, cooking and cleaning.  I will consider them under this activity.

132.In Foster and National Disability Insurance Agency [2025] ARTA 718 Senior Member French considered the activities in the context of determining whether there was substantially reduced functional capacity in self-care. He considered the proper approach was to assess the ‘cluster of tasks’ that comprised the activity and to assess whether on balance this led to a finding of substantial incapacity. I find this is a useful approach in this circumstance.

Toileting

133.BFYK’s evidence to the Tribunal was that he can manage toileting independently but that it is difficult and can be painful.  He advised that he had a frame for the toilet but that his family move it and he is unable to put it back by himself. He observed that sometimes he sits on the toilet for some hours because he has difficulty getting up.

134.Mr Mate observed BFYK rising from the toilet seat by using the frame of the adjacent window.  This was not considered a safe option and a toilet frame was recommended. BFYK reported to Mr Mate that he used a hand held bidet for perineal hygiene but the twisting motion caused pain. BFYK was able to wash his hands independently.

135.Ms Dowling reported that BFYK was independent with toileting but experienced acute pain when doing so.

136.BFYK’s evidence was that he was at home alone for the whole of the day, sometimes until 10pm.  In that time he manages his toileting independently.

137.BFYK’s daughter reported that BFYK had, on occasion, urinated in his bed but was not sure if that was because he did not realise or because his movement was too slow to get to the toilet in time.  She had not discussed this with her father.  These were rare occasions. In oral evidence Mr Mate suggested a urinal bottle might be utilised for times when BFYK was unable to get to the toilet quickly.

138.In his evidence BFYK confirmed that sometimes he just loses control and urinates.  It is not clear whether this has been discussed with his doctor so I am unable to conclude this aspect has been properly investigated.

139.I find on the balance of probabilities that BFYK is generally independent with toileting and safe in doing so with a toilet frame.  I consider a toilet frame a commonly used item. It does not require any special set up or prescription and can be purchased readily from home aid retail stores. It would not be difficult for BFYK’s family to ensure the toilet frame was replaced each time it was moved to ensure his maximum independence.

Showering

140.BFYK’s evidence was that if he is provided with a shower chair he is able to shower himself but with great pain. He noted he was always afraid he would fall and break the glass shower surround. Because this task is so difficult for him he will often put off showering for a number of days. It is not culturally appropriate for him to ask for assistance from his children though he says he sometimes requires it.

141.Mr Mate observed BFYK simulating showering activities.  He noted BFYK’s reduced capacity for standing meant he needed to sit to shower. At the time of the assessment BFYK was using a standard plastic chair without arms.  This was considered unsafe. A proper shower chair was considered to be a safer option. It was noted that BFYK had difficulty in washing his lower limbs and back and that drying himself was painful and difficult because of the reaching, twisting and bending required.  Mr Mate suggested the use of a long-handled sponge and toe washer may help with washing hard to reach areas. There was no suggestion BFYK was unable to complete this task.

142.Ms Dowers recorded BFYK showered infrequently from a seated position.  She notes he was assisted in this task but did not state by whom.

143.I accept the report of Mr Mate based on his observations of BFYK simulating showing tasks.  I find BFYK has the capacity to complete this task independently, albeit with difficulty. I accept he would benefit from long handled aids and a proper shower chair with arms.  I consider these to be commonly used items.

Dressing

144.BFYK’s evidence was that he sat on the bed to dress himself.  He indicated that dressing his upper body was easy but putting on his pants, socks and shoes was difficult.  He stated that he is not able to dress himself.

145.Mr Mate recorded that BFYK was able to dress his upper body independently but needed to sit on his bed to dress his lower body.  BFYK’s reduced capacity for bending and reaching was noted to impair his ability to don/doff shoes and socks.  Mr Mate recommended a long-handed shoehorn and sock aid to assist with his independence with shoes and socks.

146.Ms Dowers recorded BFYK’s report that he had difficulty in donning and doffing socks and shoes due to restricted movement and pain.  BFYK reported that at that time his wife assisted him with these.  BFYK’s oral evidence was that his ex-wife no longer assists him.  Long-handled aids described by Mr Mate may address this deficit.

147.I find that based on Mr Mate’s observations BFYK has the functional capacity to perform the task of dressing independently with the provision of commonly used aids recommended by Mr Mate.

Grooming

148.Mr Mate observed BFYK simulating brushing his teeth independently.  BFYK could groom his hair and shave independently. He was able to trim his fingernails but was unable to reach his toenails. Mr Mate felt BFYK may benefit from a stool so as to reduce time standing while grooming

149.Ms Dowers did not address these tasks. 

150.I accept Mr Mate’s evidence, based on his observations, that BFYK can completed this task independently.

Meals and Nutrition

151.BFYK stated that he is left alone at home all day, often until 10pm.  He reported feeling aggrieved that his now ex-wife prioritised her work over caring for him.  He advised he receives little assistance from his family, including that they rarely leave him food to eat during the day. BFYK states he is often left fasting for the whole of the day, including not having any water to drink, from early morning to 10pm at night. He states he feels he cannot get his own food as he is scared of burning things or falling.  BFYK stated to Mr Mate that sometimes his family left him cans of food but that this lowered his self-esteem. In his oral evidence he spoke about having once burnt some eggs when trying to cook.

152.BFYK stated that in the four months he stayed in Bali he had staff around who would assist him with everything, including bringing him food and drink all day.

153.BFYK’s daughter confirmed that BFYK did not eat during the day.  She noted that her mum cooked for the family at night but there was usually nothing left over for BFYK to eat the next day.  They were often home very late because they were so busy. She stated BFYK only liked Persian food and would not eat muesli bars or other take away food. 

154.Mr Mate observed BFYK mobilise to the kitchen and access the fridge and the kettle.  Mr Mate’s recollection was that BFYK made him a hot chocolate but BFYK refutes this. Nevertheless, Mr Mate was of the view that having watched him access the kitchen it was within BFYK’s capacity to prepare a simple meal, such as a sandwich or warming up a meal in the microwave. Mr Mate felt that reluctance in preparing food arose not from incapacity but from BFYK limiting himself by choosing not to.  It was Mr Mate’s opinion in oral evidence that the more BFYK would attempt to do this activity the more his function would be maintained.  Mr Mate recommended the use of a perch stool to reduce the need for BFYK to stand for prolonged periods in the kitchen. This would address BFYK’s fear of falling.

155.Ms Dowers reported BFYK did not attempt meal preparation or eating and drinking during the day.  She reported BFYK’s reasons for this included pain when standing or mobilising, fear of injuring himself when cooking and loss of appetite or interest in food or drink.

156.On the balance of probabilities I find that BFYK has the functional capacity to prepare something simple to eat and drink during the day.  His fear of falling is a factor in him choosing not to, but this could be addressed with a perching stool in the kitchen.  A drink bottle might alleviate his concerns about dropping and breaking a glass of water.

157.Once he has food BFYK is independent in eating and drinking.

158.It is likely BFYK would find the process of preparing a large meal beyond his capacity. The oral evidence of both BFYK and his daughter was that this was not a task he had generally been involved in prior to his impairment.

Shopping

159.BFYK advised the Tribunal that although he likes to go to the shops on occasion he is usually unable to because of his pain and limited mobility.  His ex-wife or daughter generally do the household shopping.

160.BFYK’s evidence was that throughout their life his ex-wife had done all the shopping, cleaning, washing and cooking.  His daughter confirmed this.

161.Mr Mate accepted BFYK’s reduced capacity for standing and prolonged mobility would hamper his capacity for shopping.  He suggested BFYK could utilise online shopping services if necessary. It was the opinion of his daughter that BFYK did not have the skills to manage online shopping.   

162.Ms Dowers reported BFYK was unable to complete shopping tasks.

163.I have considered BFYK’s capacity to organise an election booth using phone and computer and his obvious intellect.  I find on the balance of probabilities that BFYK could manage shopping, if he needed to, by utilising online shopping and home delivery services if required.  I find it is a task that is (and has generally been) completed by his ex-wife.

Housecleaning

164.The general consensus is that BFYK is unable to complete these tasks because of poor balance, pain and inability to bend.  Mr Mate thought some light cleaning tasks, such as wiping down benches, might be within BFYK’s capacity but all heavier tasks are beyond him.

165.I find BFYK is unable to undertake the task of cleaning.

Laundry

166.For the same reasons the general consensus is that this task is beyond the capability of BFYK.  The requirement to lift, reach and bend would beyond BFYK’s physical capacity.

167.I find he is unable to undertake this task.

Garden and Home Maintenance

168.Mr Mate is of the view BFYK does not have the physical capacity to undertake any lawn or gardening tasks without assistance.

Are the deeming provisions met?

169.Foster is Federal Court authority for the fact an inability to perform one task (as part of the whole of an activity) without assistive technology or without personal assistance is not enough to enliven the deeming provisions.[79]  Rather the decision maker is to have regard to the whole of the activity and the entire bundle of tasks that comprise that activity.

[79]

170.I acknowledge that there are some tasks within the cluster of tasks comprising this activity that BFYK is unable to complete without assistance, and that many of the other tasks are completed with difficulty.  Nevertheless, having regard to the whole of the activity of self-care, I find BFYK does have the functional capacity to complete the majority of self-care tasks independently or with the use of commonly used items.

171.Need for assistance to complete heavier tasks, such as heavy cleaning, laundry and gardening, could be considered to be consistent with normal expectations of a person of BFYK’s age.

172.On balance I find BFYK’s functional capacity is not substantially reduced in the activity of self-care, either through engagement with the deeming provisions or otherwise.

173.Having made this finding it necessarily flows that BFYK does not meet the disability requirement set out in section 24(1)(c) of the NDIS Act.

174.Having reached this conclusion it is not necessary for me to consider the other criteria.  For completeness I will discuss them briefly.

Does BFYK’s impairment affect his capacity for social or economic participation?

175.The Agency has conceded that BFYK’s physical impairment affects his capacity for social or economic participation. Given his limited mobility and his use of strong pain medication I agree it would be very difficult for BFYK to manage employment. The disability requirement in section 24(1)(d) is met.

Is BFYK is likely to require support under the NDIS for his lifetime as required by section 24(1)(e)

176.BFYK argues the Tribunal should rely on the decision of JLZT and National Disability Insurance Agency (JLZT)[80] in which the presiding member interpreted this provision to require a consideration of simply how long the applicant would require support under the Scheme. The member specifically rejected the Agency’s submission the proper approach was to consider whether the required supports could be obtained from some other more appropriate scheme or support network.

[80] [2022] AATA 541

177.I do not accept this submission. Where an impairment has been determined to be permanent and to result in significantly impaired functional capacity so as to meet the criterion in section 24(1)(c) of the NDIS Act, it is difficult to conceive of a circumstance in which any need for ongoing support from the NDIS would cease or diminish. There is no known, available treatment which will improve the need producing impairment. This then leaves little work for section 24(1)(e) to do.

178.In Foster, the Full Court of the Federal Court held that the statutory task before the Tribunal in considering section 24(1)(e) was to determine whether a prospective participant is likely to require support under the NDIS or whether those support needs are most appropriately met by other systems.[81] It was never the intention that the Scheme would take over responsibility from all other services and supports available in the community.[82] 

[81] National Disability Insurance Agency v Foster [2023 FCAFC 11 [93]

[82] Recommendation 3.4 Disability Care and Support, Productivity Commission Inquiry Report  No. 54, 31 July 2011.

179.In this circumstance there is another system available to BFYK, being the Aged Care Home Care Packages system.  

180.BFYK argues that because his need for support arises primarily from a disability, rather than an aged-related issue, the NDIS is the appropriate scheme.  

181.I do not accept this submission.  BFYK’s chronic and degenerative low back condition, along with his deconditioning, is the primary driver of his permanent impairment.  This is an age-related impairment which will likely deteriorate over time.

182.The relevant consideration is which is the appropriate scheme to provide necessary supports to BFYK.

183.Mr Mate has identified the following support needs for BFYK:[83]

a.    Commonly available aids such as over toilet frames, shower chairs, long handled utensils and walking aids, grab rails and a falls alert;

b.    Subsidised taxi scheme enrolment;

c.     Occupational therapy intervention;

d.    Fortnightly commercial cleaning;

e.    Monthly gardening assistance; and

f.   Medical and other therapeutic interventions.

[83] Pages 22 and 23 of Exhibit 1

184.In his oral evidence to the Tribunal Mr Mate stated that based on his previous experience in working with people with similar presentations to BFYK, he expected that all of the services and supports he had recommended would be available under the aged care scheme.  I have considered the services recommended and I consider these do not involve disability specific services.  I accept Mr Mate’s evidence these needs could be met through the aged care services.

185.In oral evidence BFYK advised that he had made contact with a home assistance scheme recommended by Merri Health but that he did not find their suggestions of home modifications useful.  He maintained that he needed personal assistance, not aids.

186.BFYK also advised he had made contact with the local area co-ordinator recommended by the NDIS for assistance to get out into the community and for help with gardening. He advised they asked him to come to their offices which he felt he was unable to do.

187.He was advised to contact the Moreland City Council for help but believes he was only offered cleaning assistance by the council.  He declined this assistance as he wanted more. He wanted someone to care about him, not the material in his house.

188.BFYK also did not accept food services as he did not think they would suit his cultural needs. There is no evidence before the Tribunal to suggest that dietary requirements such as Halal foods cannot be met by community services. This is not a disability related need that suggests the NDIS would be more appropriate.

189.I have had regard to Exhibit 2 in which types of support services available through the Commonwealth Aged Care package are set out.[84]  These include:

[84] Page 5 of Exhibit 2

a.    Transport to appointments and activities;

b.    Domestic help;

c.     Personal care;

d.    Home maintenance;

e.    Minor home modifications;

f.   Aids and equipment;

g.    Meals, help with food preparation;

h.    Nursing;

i.   Allied health;

j.   Social support;

k.     Respite; and

l.   Specialised other support.

190.I note that this scheme offers an aged care assessment and is best able to take into account the particular age-related factors likely to impact on BFYK’s condition.  I am satisfied and find that the My Aged Care Commonwealth Home Support Programme is the most appropriate scheme for him to access.

191.As a result I find BFYK does not require supports under the NDIS for his lifetime. The disability requirement in section 24(1)(e) is therefore not met.

Does BFYK meet the Early Intervention Requirements?

192.Early intervention requirements are appropriate where their provision will reduce a participant’s future need for supports or will reduce the impact of or improve a person’s functional capacity.[85]

[85] Section 25 of the NDIS Act

193.Rule 6.9 of the Access Rules provides that in considering whether provision of early intervention supports is likely to benefit a person, it is necessary to consider the likely trajectory and impact of the person’s impairment over time and the likely benefits of early intervention on this.  Evidence from a range of sources is required.

194.The medical evidence provided, particularly by Dr Zimet and Dr Mian, is that BFYK’s condition is long standing and degenerative. No evidence has been provided to support a finding that assistance provided now would change the course of this condition or the impact of it on BFYK’s functional capacity. I cannot be satisfied BFYK meets the early intervention criteria in section 25(1)(b) or (c).

195.In any event, given my finding that supports required by BFYK are more appropriately funded or provided through general systems in place (the My Aged Care system) and not under the NDIS, BFYK does not meet the early intervention criterion in section 25(3).

196.I am unable to be satisfied that the early intervention requirements are met.

Conclusion:

197.As I have reached the same conclusion as the decision under review I will affirm that decision.

DECISION

The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.

Date(s) of hearing:

15 and 16 May 2025   

Date final submissions received:

16 May 2025   

Solicitors for the Applicant:

Nil  

Counsel for the Respondent

Solicitors for the Respondent

Ms Josephine Battiste

Moray Agnew Solicitors