Brickhill and National Disability Insurance Agency (Practice and procedure)

[2025] ARTA 707

Brickhill and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 707 (11 June 2025)

Applicant/s:  Louise Brickhill

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2023/0046

Tribunal:Senior Member P French

Place:Sydney

Date:11 June 2025

Decision:The substantive review application is dismissed pursuant to s101(1)(b) of the Administrative Review Tribunal Act 2024 (Cth) on the ground that it has no reasonable prospect of success.

......................[SGD]..................................................

Senior Member P French

Catchwords

National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether independent review has no reasonable prospect of success – where prospective participant receives a Level 4 Aged Care Package – where prospective participant has indigenous status and qualified for Aged Care before the age of 65 on that basis – no reasonable prospects of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 25
Administrative Review Tribunal Act 2024 (Cth), ss 9, 12, 101
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, 20, 21, 22, 23, 24, 25, 99, 100, 103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth), s 126
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)

Cases
Allied BioServices and Minister for Health and Aged Care [2024] ARTA 50
Beezley v Repatriation Commission [2015] FCAFC 165
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521
NRNK and National Disability Insurance Agency [2024] AATA 110
McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121
PNCB and The CEO, National Disability Insurance Agency [2025] ARTA 66
Shi v Migration Agent’s Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Silverton Ltd v Harvey [1975] 1 NSWLR 659

Secondary materials
Australian Government, My Aged Care, Your Guide to Home Care Package Services, current to 30 June 2025

Australian Government, Department of Health and Aged Care, Home Care Packages Program Manual for Care Recipients, Version 1.4, January 2023

Statement of Reasons

Introduction

1. The substantive application before the Tribunal is an application by Louise Brickhill (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act, the NDIS Act) for independent review of an internal review decision made under s 100(6) of that Act by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the review delegate, the CEO, the Agency, the reviewable decision) on 16 December 2022. By that decision, the review delegate confirmed the CEO’s original decision under s 20(1)(a) of the Act made on 8 August 2022 which was that the Applicant did not meet either the disability requirements specified in s 24, or the early intervention requirements specified in s 25, and that accordingly, she did not meet the criteria for access to the NDIS specified in s 21(1)(c) of the Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to conduct an independent review of this decision because it is designated a reviewable decision by s 99(1) (Item 1) of the NDIS Act.[1] This application was made to the Tribunal on 4 January 2023 (the substantive application).

   [1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth).  The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.

2. However, the application that is before me for determination is an application made by the CEO on 12 May 2025 for an order pursuant to s 101(1)(b) of the ART Act to summarily dismiss the substantive application on the ground that it has no reasonable prospect of success (the dismissal application). That application is founded upon the undisputed fact that the Applicant is, and has been for some time, in receipt of a Commonwealth My Aged Care Level 4 Home Care Package (Home Care Package). The CEO submits that, having regard to the scope of supports available to the Applicant under her Home Care Package and the Full Court’s decision in Foster,[2] that is it impossible for her to meet the disability requirement specified in s 24(1)(e) of the NDIS Act and that this review is therefore a futility.  It is submitted that it is appropriate for the Tribunal to determine the s 24(1)(e) issue preliminary to the substantive review because of the significant public costs that are involved in a substantive review hearing in the NDIS Jurisdictional Area and bearing in mind the Tribunal’s objective which includes ensuring that applications before it are resolved as quickly and with as little formality and expense as proper consideration of the matters before it permits.[3]

   [2] National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521.

   [3] s 9(b) of the ART Act.

3. The Applicant opposes the CEO’s dismissal application, seeks its dismissal, and submits the substantive review ought to proceed. In short summary, she contends that her case deserves independent review on its merits and, specifically, that she has the right to be heard in her own cause, and to test the evidence of the independent expert the CEO relies upon to submit that she does not meet the disability requirements for access to the NDIS.  While she does not dispute that she is in support of a Home Care Package, she submits that it is inadequate and inappropriate to her needs as a person with disability under the age of 65. She submits that it was never her intention to obtain benefits under both the NDIS and My Aged Care, and that it is her intention to relinquish her Home Care Package once NDIS supports are in place.

4. This is a case where the Applicant seeks lifelong access to the NDIS on the basis that she meets the disability requirements. She does not seek time limited access on the basis that she meets the early intervention requirements. Although the early intervention requirements were referred to as not being satisfied in the internal review decision, if this case were to proceed to a substantive review, it would be the disability requirements only upon which the outcome would turn.

5. Having considered the matter I have determined that the CEO’s dismissal application must be granted. In short summary, the disability requirements specified in s 24(1) are conjunctive in form. Every one of those requirements must be satisfied before a prospective participant can be found to meet the disability requirements for access to the NDIS. The temporal focus of s 24(1)(e) is the date the application is before the Tribunal for decision.  On this date the Applicant is in receipt of a Level 4 Home Care Package, which is social assistance available to her under a general system of service delivery for older persons. 

6. Having regard to that, and the law that must be applied as this was determined in Foster,[4] the Tribunal cannot be satisfied of the s 24(1)(e) requirement which is that the Applicant is likely to require support under the NDIS for her lifetime. She already has the supports that she would seek under the NDIS under her Home Care Package which is available to her for her lifetime. That is a ‘capped’ program that may not provide the same measure of those supports as may be obtainable under the NDIS. However, the limits under which general systems of service delivery operate is not a consideration in determining if a person is likely to require support under the NDIS for their lifetime. The NDIS is not intended to supplement any gaps and limits in general systems of service delivery. 

   [4] At [92] to [98].

7. There is therefore no utility in the Tribunal considering whether the other disability requirements specified in s 24(1)(a), (b), (c) and (d) are met because even if they were, the Applicant would still not meet the disability requirements for access to the NDIS overall.

8. The Tribunal’s objective is to provide an independent mechanism for review based on the values of fairness and justice, accessibility and responsiveness to the diverse needs of its users, in addition to the procedural efficiency and economy values I have referred to above. It is also an objective of the Tribunal review mechanism that it improves the transparency and quality of government decision making.[5] An Applicant’s right to be heard in their own cause and to test the other party’s evidence are usually fundamental ways in which these values are given effect.

   [5] s 9(a), (c) and (d) of the ART Act.

9. However, ultimately the Tribunal’s function is to ascertain the facts and apply the law to give authentic effect to the legislative scheme under which its decision is to be made. Where there is a determinative fact that requires no process of enquiry because it is manifest and agreed between the parties no forensic purpose is served by traversing other factual issues, where they cannot bear on the ultimate outcome. Such a process is likely only to exacerbate the Applicant’s ultimate sense of grievance rather than assuage it.

10. As I have noted above, the substantive application has been before the Tribunal since 4 January 2023. Between March 2023 and November 2024 four Case Conferences were conducted for the purposes of alternative dispute resolution, and three others were scheduled, but did not proceed. Various summonses were issued and returned on the application of the CEO. There was a Case Management Directions Hearing in November 2024 to program the review for hearing. The substantive review hearing was later listed for 26 to 28 May 2025.

11. Part of the evidence gathering has included the CEO commissioning an independent expert Occupational Therapist to conduct a Functional Capacity Assessment of the Applicant. The report from that assessment was received on 16 December 2024. The CEO submits that it was only upon delivery of this report that it came to attention that the Applicant was in receipt of a Home Care Package. That was five months before this dismissal application was made. But in any event, if one turns to the Access Request Form the Applicant filed with the Agency on or about 21 July 2022, it apparent that this information was available to the Agency at that time. Section B of the ‘Evidence of psychosocial disability’ Form the Applicant submitted in support of her Access Request refers to her Home Care Package, and is, moreover, completed and signed by her Home Care Package, Clinical Case Manager.[6]

    [6] Joint Tender Bundle, pages 41 – 42.

12. The public cost associated with the conduct of this case before the Tribunal is therefore unfortunate given that its outcome turns on a fact that has always been known to the Agency or should have been. The Applicant is unlikely to have been any happier with the outcome had this issue been determined three years ago than she is in having it determined now.  She would however have been spared the ordeal of three years of litigation.

13. In his submissions, Counsel for the CEO (who may be taken to have only been briefed lately) urged upon the Tribunal the importance of it being disposed to exercise the discretion conferred by s 101(1)(b) in appropriate instances in proceedings in the NDIS jurisdictional area given the scale, complexity and public costs of such proceedings, and the Agency’s inability recover its costs from an unsuccessful Applicant. I accept that those submissions were sincerely made, but objectively, they do ring hollow in the circumstances I have described above.

14. Nevertheless, it should be said by reference to the Tribunal’s objective, that the Tribunal will always be assisted by a party identifying for adjudication at the earliest possible time an issue of fact or law that is likely to be determinative of the whole proceeding. When that occurs, in my opinion it should be dealt with promptly as a preliminary issue to avoid the parties and the public incurring unnecessary costs and so as to limit the impact of the proceeding on parties.

    The evidence and hearing

15. I have considered the following evidence and submissions:

    Documents

    (a)A Joint Tender Bundle filed 18 February 2025,

    (b)Australian Government, My Aged Care, Your Guide to Home Care Package Services, current to 30 June 2025 (Home Care Package Program Brochure) (Exhibit 1)

    (c)The District Nurses, Client Package Statement, dated 30 April 2025 (Exhibit 2).

    Submissions

    (d)Case outline, filed by the Agency on 23 May 2025,

    (e)Applicant’s response to Respondent’s Application for Dismissal, filed on 27 May 2025.

16. As I have already stated, the CEO’s dismissal application was filed on 12 May 2025. That application was accompanied by a submission that the substantive hearing set down for 26 to 28 May 2025 ought to be vacated pending determination of the dismissal application. The dismissal application and that request was referred to me by Registry for consideration on 19 May 2025.  At that point, the Applicant’s views in relation to the dismissal application and the CEO’s request for the substantive hearing to be vacated pending its outcome had not been obtained. I instructed Registry to seek the Applicant’s views however her representative was unable to the contacted as she was absent on leave.

17. After considering the matter, I formed the view that the CEO had an arguable case for dismissal of the substantive review application, and that the dismissal application ought to be determined as a preliminary issue. Decisive of that were the costs the parties were likely to incur in arranging for their witnesses to be available for the hearing. Orders vacating the substantive hearing, listing the dismissal application for an Interlocutory Hearing on 26 May 2025 and requiring the CEO to file an outline of her case for dismissal were issued on 22 May 2025.

18. The Interlocutory Hearing opened as listed on 26 May 2025. The Applicant’s representative had returned from leave and sought the opportunity to file submissions in response to the dismissal application, informing the Tribunal that she only required one day to do so.  Counsel for the CEO submitted that it was reasonable for the Tribunal to allow the Applicant this opportunity. I was also satisfied that fairness required that this opportunity be afforded.  The Interlocutory Hearing was therefore adjourned to 28 May 2025 and a direction was made requiring the Applicant to file and serve her submission in response by 4pm on 27 May 2025.

19. The Interlocutory Hearing of the dismissal application proceeded on 28 May 2025 principally by way of oral argument. The Applicant was represented by her Advocate but did give some direct evidence in her own cause.

    A note on the applicable law

20. On 3 October 2024 the NDIS Act was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the amending Act). Schedule 1, items 19 to 27 of that Act introduced changes to the disability requirements. However, by operation of item 126 of the schedule those changes apply only to an access request made after 3 October 2024. The Applicant’s access request was made on or about 21 July 2022, so these changes are inapplicable in this case. Item 126 of the amending Act also provides that the NDIS Rules as they were in force prior to 3 October 2024 continue to apply to an access request made prior to that date. This independent review will therefore apply the disability requirements as they stood prior to 3 October 2024.

21. The CEO asks the Tribunal to dismiss the substantive application under s 101(1)(b) of the ART Act because it has no reasonable prospects of success. Section 101(1)(b) is, in effect, the reenactment of the power that was contained in s 42B of the former AAT Act.

22. The principles that are to be applied in the exercise of the power (as they have developed in relation to s 42B and otherwise)[7] may be summarised as follows:

    -the power is a discretionary power that is only to be used in a clear case where the Tribunal is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. 

    -it is a discretion that is to be used sparingly and cautiously in relation to cases that are so untenable they cannot possibly succeed. If a legitimate purpose could be achieved by allowing the application to continue, it ought to proceed. However, if an application can serve no purpose for the Applicant, it should not continue.

    -the Tribunal will exercise the discretion to decide a determinative question of law if it is satisfied the point is clear. When it examines the evidence pursuant to an application to exercise the discretion in relation to a question of law, it does so for the purpose of determining if an arguable case for review is disclosed, not for the purpose of making findings of fact.

    -in determining if it has no prospect of success the Applicant’s case must be taken at its highest.

    -the summary dismissal Applicant (in this case the Agency) bears the practical onus of establishing that the substantive Applicant’s case is so obviously untenable that it cannot succeed.

    -the policy that lies behind the discretion is to enable the Tribunal to terminate a review at a preliminary stage when it is a futility to avoid the delay and public costs that would be associated with its continuation.

    [7] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9 per Barwick CJ; Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91, per Dixon J; Silverton Ltd v Harvey [1975] 1 NSWLR 659 at 665; Allied BioServices and Minister for Health and Aged Care [2024] ARTA 50 at [31]; PNCB and The CEO, National Disability Insurance Agency [2025] ARTA 66 at [55].

    Eligibility for access to the NDIS

23. Section 21(1) of the NDIS Act provides that a prospective participant will meet the access criteria for the NDIS if the CEO is ‘satisfied’ that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[8]

    [8] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60].

24. To be eligible for access to the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either the disability requirements or the early intervention requirements.[9] The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS.[10] These requirements are specified in the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Becoming a Participant Rules).

    [9] s 21(1) of the NDIS Act.

    [10] Davis at [82].

25. For the purposes of considering the dismissal application it is only necessary refer to the statute.

26. Section 24 (as in force prior to 3 October 2024) provided:

    24       Disability requirements

    (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 and economic participation; and

    (e)the person is likely to require supports 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 supports 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 supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

    Summary of factual circumstances

1. As I have explained above, the purpose of reviewing the relevant factual material before me in relation to the dismissal application is to determine if the Applicant has an arguable case for access to the NDIS based on the disability requirement specified in s 24(1)(e). It is not to make findings of fact in relation to that material. The relevant factual material may be summarised as follows:

   -on the date her Access Request was made to the Agency the Applicant was just under 60 years and 8 months of age,

   -at the age of about 58 the Applicant applied for and was granted a Commonwealth My Aged Care Level 3 Home Care Package.

   -More recently, the Applicant applied for and/or was assessed as requiring a Level 4 Home Care Package, which she is now in receipt of. A Level 4 Home Care Package is a “High Level Care Needs” package.

   -Home Care Packages have ‘capped’ funding amounts, which are renewable annually. A Level 4 Home Care package is currently capped at $62,013.50.

   -Commonwealth Aged Care is generally only available to otherwise eligible persons aged 65 years and older. However, the Applicant falls into one of the exceptions to this general rule. She is an Aboriginal person.

   -just prior to the Applicant applying for and being granted a Home Care Package she had a medical admission to a hospital. A social worker attached to the hospital assisted her to complete and apply for My Aged Care to enable (or at least support) her discharge from hospital.

   -the Applicant contends that a significant proportion of the funding available under package is allocated to her provider to its administration charges, leaving a significantly reduced amount which is not sufficient to meet her various needs.

   -The types of services that the Applicant can ‘purchase’ using the funds available in her Level 4 Home Care Package are described in its program brochure[11] as follows:

   [11] Exhibit 1.

   What can Home Care Package funds be used for?

   Your Home Care Package funds should be used to purchase care and services that meet your ageing-related care needs.

   Your assessed ageing-related care needs are set out in your support plan. You should discuss with your home care provider your care and service needs when developing your care plan which forms part of your Home Care Agreement:

   Personal services: assistance with personal activities such as bathing, showering, toileting, dressing and undressing, mobility and communication

   Nutrition, hydration, meal preparation and diet: assistance with preparing meals, including special diets for health, religious, cultural or other reasons, assistance with using eating utensils and assistance with feeding

   Continence management: assistance in using continence aids and appliances such as disposable pads and absorbent aids, commode chairs, bedpans and urinals, catheter and urinary drainage appliances, and enemas

   Mobility and dexterity: providing crutches, quadruped walkers, walking frames, walking sticks, mechanical devices for lifting, bed rails, slide sheets, sheepskins, tri-pillows, pressure-relieving mattresses and assistance using these aids

   Nursing, allied health and therapy services: for example, this may include speech therapy, podiatry, occupational or physiotherapy services and other clinical services

   Transport and personal assistance: assistance with shopping, visiting health practitioners and attending social activities

   Management of skin integrity: assistance with bandages, dressings and skin emollients.

   -There is a controversy between the parties as to whether disability-related home modifications can be funded under a Home Care Package. The CEO contends that this is possible, the Applicant contends that the modifications available are limited to non-structural changes. Upon instructions, Counsel for the CEO took the Tribunal to some text found on the Australian Government’s My Aged Care Website which suggested that structural home modifications can be funded under the Home Care Package. On that same site the may be found the Home Care Packages Program Manual for Care Recipients (Home Care Package Program Manual).[12] At section 5.1.9 of that Manual the following guidance is found with respect to home modifications:

   5.1.9 Large purchases

   How can package funds be used to make large purchases (i.e., the cost exceeds monthly subsidy/fees payable), such as assistive aids, equipment and accessible home modifications for care recipients?

   Large purchases, defined as those items where the cost exceeds the monthly subsidy/fees payable such as assistive aids, equipment and accessible home modifications, must be:

   • Agreed within the care recipient’s care plan

   • Be within the available budget for the package level, with any charges or additional service fees mutually agreed with the care recipient through the Home Care Agreement before purchase

   • Be related to the care recipient’s ageing related care needs, which may require an assessment from a health professional operating within their scope of practice e.g., an occupational therapist, physiotherapist or registered nurse to ensure the aid/equipment/home modification is fit for purpose

   [12] Australian Government, Department of Health and Aged Care, Home Care Packages Program Manual for Care Recipients, Version 1.4, January 2023, Home Care Packages Program Manual for Care Recipients

   Consideration

2. It will be observed that s 24(1) contains five criteria that must be satisfied for the disability requirements to be met. These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability requirements cannot be met overall. If it is manifest that one disability requirement cannot be satisfied there is no utility in considering the other requirements.

3. The CEO’s dismissal application is founded upon the contention that the Applicant cannot meet the disability requirement specified in s 24(1)(e) of the NDIS Act and that there is therefore no utility in the Tribunal considering if she meets the other disability requirements.

4. To consider the Applicant’s case for access to the NDIS at its highest I will assume, but only for the purpose of the dismissal application, that the Applicant meets the age and residence requirements, and all other of the disability requirements found in s 24(1)(a), (b), (c) and (d).

5. It is important that the parties understand this is not a finding of fact. In this respect I note that while the CEO accepts that the Applicant meets the age and residence requirements, had this application proceeded to a substantive review the disability requirements related to permanence and substantially reduced functional capacity would also have been in issue.

6. To meet the disability requirement specified in s 24(1)(e) a prospective participant must satisfy the decision-maker that she is likely to require NDIS supports for her lifetime. As already noted, if the case had proceeded to full hearing, she would have borne the practical onus of doing so to the point of reasonable certainty (or positive satisfaction as it is typically referred to). 

7. I note that the Applicant does not bear that onus in relation to the dismissal application.  Rather it is the CEO who bears the onus of establishing that the Applicant’s case that she meets the disability requirements for access to the NDIS is untenable such that it has no prospect of success.

8. The gravamen of the CEO’s case is that the Applicant has no hope of persuading the Tribunal that she is likely to require NDIS supports for her lifetime because she currently has potential access to every type of support that she is likely to require for her lifetime under her Home Care Package. 

9. In support of that submission, I was taken by Counsel for the CEO to various documents in the Joint Tender Bundle which outline the types of supports required and sought by the Applicant, including as this appears in her Access Request and associated documentation[13] her Statement of Lived Experience,[14] and in the Report of the independent medical examiner.[15] 

   [13] Joint Tender Bundle, Tabs T2 to T10 and B1.

   [14] Joint Tender Bundel, Tab A1 and A2.

   [15] Joint Tender Bundle, Tab B4..

10. I accept the CEO’s submission that there is no support identified in evidence that does not fall within the scope of supports available under a Home Care Package as these are identified in the Home Care Package Program Brochure and Home Care Packages Program Manual.

11. The Applicant’s reply to this submission is that she is unable to meet all her disability related needs under her Home Care Package because it is capped, such that she cannot afford the range, frequency and intensity of supports she requires. It is submitted that under the NDIS she would be able to establish that a greater range, intensity and frequency of supports is reasonable and necessary without facing any funding cap on the total supports that might be made available to her under a Participant Plan. The Applicant also submits that she cannot obtain funding for structural home modifications under her Home Care Package.

12. Counsel for the CEO submitted that there is no scope under the NDIS for partial or ‘top-up’ funding to be approved to overcome any shortfalls in support arising from funding limits applicable to other programs. This submission was founded upon what the Full Court of the Federal Court of Australia said in Foster about the funding limitations that are applicable to the Australian Government’s Continence Aids Payment Scheme (CAPS) at [98] (reference omitted):

    98.The passage also contemplates that Mr Foster should not “be confined” to obtaining support from the CAPS scheme only, implying that he could be funded under both schemes. To the extent that the Tribunal made such a finding, it was in error. There is no scope for a support to be partially funded under the NDIS. Once the CEO has formed a state of satisfaction about whether a support is “reasonable and necessary”, and not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body” (s 34(1)(f)), it must be fully funded.

13. In the omitted reference, the Full Court referred with approval to the Court’s decision in McGarrigle[16] at [94] which considered whether the NDIS Act permitted ‘partial’ funding of supports (the issue was whether the participant’s parents ought to ‘contribute’ to his transport costs):

    94    Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.

    [16] McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 12.

14. It is axiomatic that the Tribunal is bound to apply the principle determined in McGarrigle and approved in Foster, which is that the NDIS does not provide partial funding for supports once they are determined as reasonable and necessary. The NDIS Act requires that they be fully funded in those circumstances. 

15. It follows from this that the Applicant has no prospect of persuading the Tribunal as a matter of law that she can obtain a ‘top-up’ under the NDIS to supplement the asserted shortfalls in support available to her under her Home Care Package. She cannot persuade the Tribunal that she is likely to require NDIS supports for her lifetime on this basis.

16. The Applicant’s reply to this is to contend that she never intended to draw upon both My Aged Care and the NDIS. Rather it is her intention to relinquish her Home Care Package once she obtains access to the NDIS. 

17. The fundamental difficulty for the Applicant in relation to that contention is that the temporal focus for s 24(1)(e) is the date of the Tribunal’s decision.[17] On that date the Applicant has a Level 4 Home Care Package that potentially provides her with access to all types of supports required by her including in relation to home modifications. The Tribunal is not entitled to determine that the Applicant is likely to require support under the NDIS for her lifetime because of her expressed intention to relinquish support she already has available to her if she obtains access to the NDIS. On the date the decision on review is made, and assuming it is favourable to the Applicant, this would involve the Tribunal determining that the Applicant is entitled to simultaneous access to both a Home Care Package and the NDIS. It this respect it must be observed that the Tribunal has no power under the NDIS Act or otherwise to revoke the Applicant’s eligibility for the Australian Government’s My Aged Care program.

    [17] See generally, Shi v Migration Agent’s Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [41] – [46].

18. For the purposes of taking the Applicant’s case for access to the NDIS at its highest I will assume that she is unable to obtain the range, frequency and intensity of supports she requires for her disability related needs, or the home modifications she requires, because of the cap on the funding of that package (but not because those supports are not available under a Home Care Package). I will also assume that a significant proportion of the funding available to her under that package is consumed in provider administration fees reducing the amount available for direct supports. However, I make no findings of fact in either respect.

19. The difficulty for the Applicant is, to put it bluntly, deficiencies in the funding available for supports under a general system of support, such as the Commonwealth Aged Care system, does not make the Applicant, as a recipient of that limited support, eligible for the NDIS. The NDIS is not a panacea intended to cover gaps and limitations in other government programs. It would be contrary to the objects of the Act to interpret s 24(1)(e) as if this were the case. In this respect, in giving effect to those objects, regard must be had to the need to ensure the financial sustainability of the NDIS.[18]

    [18] s 3(3)(b) of the NDIS Act; see also General Principle 4(17).

20. As the Full Court held in Foster, s 24(1)(e) does not require or permit a comparison of the benefits available to a prospective participant under the NDIS relative to other programs.[19]  It is limited to the narrower question of whether the prospective participant is likely to require support under the NDIS for their lifetime. As I have stated above, that cannot be the case in circumstances where a prospective participant, such as the Applicant, already has potential access to the supports that they seek under a Home Care Package, even if that package does not provide sufficient funding to support simultaneous access to the range of support that fall within the scope of the Package or for the intensity or frequency of a particular support, or combination of supports, the Applicant may need or want.

    [19] Foster at [92] to [94].

21. For the foregoing reasons, it must be accepted that the Applicant’s case for access to the NDIS is untenable. [20] She is incapable of meeting the disability requirement specified in s 24(1)(e) and there is therefore no utility in the Tribunal considering the other disability requirements. The CEO’s dismissal application therefore must be granted.

    [20] I note that an equivalent conclusion was reached in NRNK and National Disability Insurance Agency [2024] AATA 110 at [144] to [146] and PNCB and The CEO, National Disability Insurance Agency [2025] ARTA 66 at [72]

22. The Applicant submitted that if her substantive application were dismissed on the basis that she was the current recipient of a Home Care Package, she intends to relinquish that Package and then make a further application for access to the NDIS. It is not appropriate for me to make any comment on that proposal other than to note again that if this case had proceeded to a substantive hearing, the s 24(1)(e) disability requirement would not have been the only disability requirement in issue.

    Conclusion

23. The substantive application must be dismissed pursuant to s 101(1)(b) of the ART Act on the ground that it has no reasonable prospect of success.