Burrows and CEO, National Disability Insurance Agency (NDIS)

Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (26 May 2025)
Applicant/s:  Judy Burrows
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2023/5901

Tribunal:Senior Member P French
Place:Sydney
Date:26 May 2025
Decision:The Tribunal affirms the decision under review.

........................[SGD]................................................
Senior Member P French
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 a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – disability requirements not satisfied – early intervention requirements not satisfied – reviewable decision affirmed
Legislation
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB
Administrative Appeals Tribunal Act 1975 (Cth), s 25
Administrative Review Tribunal Act 2024 (Cth), ss 3, 12, 56, 105
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); rr 5.4, 5.5, 5.6, 5.7, 5.8, 7.2, 7.5
Cases
Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Beezley v Repatriation Commission [2015] FCAFC 165
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] FCAFC 39; 1979 2 ALD 634
DQKZ and National Disability Insurance Agency [2024] AATA 2276
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Mulligan and National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) 295 FCR 521
National Disability Insurance Agency v KKTB (2022) 295 FCR 379
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384
Re Ganchov and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 419; (1990) 19 ALD 541
Rooney and National Disability Insurance Agency [2021] AATA 3523
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
Willcocks and Chief Executive Officer, National Disability Insurance Agency 2024 AATA 2722
Secondary Materials
Hansard, House of Representatives, Prime Minister the Hon. J Gillard, Second Reading Speech, National Disability Insurance Scheme Bill 2012, 29 November 2012
Productivity Commission (2011) Disability Care and Support, Report no. 54, Canberra National Disability Insurance Scheme Bill 2012 (Cth)
Revised Explanatory Memorandum for the National Disability Insurance Scheme Bill 2012 (Cth)
T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3
Statement of Reasons
Introduction

This is an application by Judy Burrows (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the 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 3 August 2023. By that decision, the review delegate confirmed the CEO’s original decision under s 20(1)(a) of the Act made on 10 May 2023 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 11 August 2023 (the 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.
For the reasons set out following, the Tribunal has determined that the decision under review is correct, but not for the same reasons as those given by the review delegate. The decision is therefore affirmed.
While there is no doubt that the applicant lives with permanent impairments that reduce her functional capacity to perform certain life activities, she does not experience, as she must to satisfy the disability requirement for eligibility for the National Disability Insurance Scheme (NDIS), substantially reduced functional capacity in any of the six activity areas specified in s 24(1)(c) of the NDIS Act.
Although the question of whether the Applicant meets the early intervention requirements for access to the NDIS was formally before the Tribunal, this is not a case where access to the scheme on that basis was sought or is arguable. Each of the Applicant’s permanent impairments are long-standing and there is no evidence of any available early intervention support that is likely to produce any of the benefits to her specified in s 25(1)(c) of the NDIS Act or the associated Rules.
The decision under review
The Applicant has asked the Tribunal to conduct an independent review the decision of the delegate of the CEO made on 3 August 2023 on internal review which was that she does not meet the requirements for access to the NDIS. By that decision the delegate determined that the applicant met the age and residence, but not the disability and early intervention requirements, for access to the NDIS. Specifically with respect to the disability requirement, the delegate was satisfied that the applicant lived with a disability that is attributable to cognitive, neurological, and physical impairments, but she was not satisfied that any of these impairments are, or are likely to be, permanent. Specifically with respect to the early intervention requirements, the delegate was not satisfied that the applicant’s impairments were permanent, or that early intervention supports are likely to reduce future support needs arising from her disability, or that they would build her capacity in any of the ways specified in s 25(1)(c) of the NDIS Act.
The Tribunal’s role
The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the CEO by her delegate was correct in concluding that the Applicant does not meet the disability or early intervention requirements for access to the NDIS.[2] That has involved the independent re-assessment of the evidence that was before the delegate when she made her decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[3]
[2] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589.
[3] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46].
The evidence and hearing
I have considered the following evidence in this independent review:
(a)A Joint Tender Bundle filed on 8 April 2025. I note that this contained:
For the Applicant
(i)A Statement of Lived Experience (SoLE) filed by the Applicant, dated 16 November 2023.
(ii)The Applicant’s response to the Agency’s Statement of Facts, Issues and Contentions (SoFIC), undated.
(iii)A statement made by the Applicant dated 15 January 2025.
(iv)Two reports prepared by Associate Professor D Cordato, Neurologist, dated 22 December 2023 and 18 April 2024, the latter in response to targeted questions from the Agency.
(v)A report prepared by Dr S Holliday, General Practitioner, dated 18 April 2024, in response to targeted questions from the Agency, together with a selection of his medical records concerning the Applicant of various dates.
(vi)A report prepared by Ms J Kinnear, Physiotherapist, dated 23 December 2023.
For the Agency
(vii)The Agency’s SoFIC, dated 18 February 2025.
(viii)A report prepared by Mr E Mate, Occupational Therapist, dated 22 July 2024, together with the Agency’s letter of instructions to him dated 25 June 2024.
(ix)A supplementary report prepared by Mr E Mate, Occupational Therapist, dated 27 March 2025, together with the Agency’s letter of instructions to him dated 28 February 2025.
(b)Oral evidence and submissions
For the Applicant
(i)Opening and closing statements, and oral evidence given under affirmation by the Applicant on 15 and 17 April 2025.
(ii)Oral evidence given under affirmation by Dr Holliday on 16 April 2025.
(iii)Oral evidence given under affirmation by Ms J Kinnear on 16 April 2025.
(iv)Oral evidence given under affirmation by Associate Professor Cordato on 17 April 2025.
For the Agency
(v)Opening and closing statements made by counsel for the Agency on 15 and 17 April 2025.
(vi)Oral evidence given under affirmation by Mr E Mate on 17 April 2025.
A note on the applicable law
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 introduced changes to the disability and early intervention 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 made her access request on 14 April 2023, 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 and early intervention requirements as they stood prior to 3 October 2024.
Eligibility for access to the NDIS
The NDIS is a Commonwealth program of social assistance which has as its target group persons with disability who are Australian residents under the age of 65 who experience substantially reduced functional capacity to perform essential tasks in one or more designated life activity areas due to one or more permanent intellectual, cognitive, neurological, sensory, or physical impairments or one or more permanent impairments to which a psychosocial disability is attributable. [4] This is a limited sub-category of the total population of persons with disability in Australia.[5] In her second reading speech on the introduction of the National Disability Insurance Scheme Bill 2012 (Cth), the then Prime Minister described this target group, in short form, as those persons who live with “significant and permanent” disability.[6] In its Disability Care and Support report, which provided the foundation for the development of the NDIS, the Productivity Commission referred to this group as “Tier 3” of the total population group to be addressed by the scheme, being people with significant disability who are assessed as requiring individually tailored funded supports.[7]
[4] The NDIS also provides time-limited early intervention assistance to other persons with disability who experience intellectual, cognitive, neurological, sensory, or physical impairments or impairments to which a psychosocial disability is attributable, which are permanent or likely to be permanent, who will benefit from such support in specified ways. Again, this is a limited sub-category of the total population of persons with disability in Australia.
[5] Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 (Mulligan) at [50].
[6] Hansard, House of Representatives, Prime Minister the Hon. J Gillard, Second Reading Speech, National Disability Insurance Scheme Bill 2012, 29 November 2012 at [13877].
[7] Productivity Commission (2011) Disability Care and Support, Report no. 54, Canberra (Productivity Commission Report), pages 165 and 198.
The task of this independent review is to determine if the Applicant is a person with disability for whom the NDIS was intended. That involves the application of the access criteria contained in the Act and the Rules, some of which specify not only a criterion but also a threshold or level which must be satisfied before the criterion can be met.[8]
[8] Mulligan at [50].
Section 21(1) 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.[9] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing or pointing to material before the Tribunal that can persuade it that each of the access criteria are met.[10]
[9] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60].
[10] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].
To be eligible for access the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either a disability requirement or early intervention requirement.[11] The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS.[12] 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). The Agency has also developed operational policy to assist in its administration of the NDIS. While these guidelines are not formally binding on the Tribunal, as the Act and the Rules are, they represent government policy which should be applied unless there is a cogent reason not to do so.[13] The operational policy applicable in this case is called “Applying to the NDIS”.[14]
Consideration
[11] S 21(1) of the NDIS Act
[12] Davis at [82].
[13] Drake at [644-5].
[14] Applying to access the NDIS | NDIS.
The age requirement
The age requirement for access to the NDIS is found in s 22 of the NDIS Act and Part 3 of the Becoming a Participant Rules. A prospective participant will meet the age requirement if they were aged under 65 when the access request was made to the CEO. The temporal focus for this eligibility criteria is the time the access request was made. Provided the prospective participant was under the age of 65 when the access request was made, it will not matter that they may be older than 65 when the access request is decided.
In this case, the applicant was just under 64 years and 2 months old when she made her access request. Her age at that time was verifiable by reference to her Centrelink records, which the Agency did with her consent.[15] The CEO submits on this basis that the Applicant meets the age requirement for access to the NDIS. I am also satisfied on this basis that the Applicant meets this requirement.
[15] Joint Tender Bundle, Tab T01, page 27.
As at the date of the hearing (15-17 April 2025) the Applicant is now just under 66 years and 3 months old. While this does not mean that she ceases to meet the age requirement for access to the NDIS for the reason I have stated, it is potentially relevant to the issue of whether she is likely to require supports under the NDIS for her lifetime. However, that issue is not reached in this case for the reasons set out following.
The residence requirement
The residence requirement for access to the NDIS is found in s 23 of the NDIS Act and Part 4 of the Becoming a Participant Rules. Relevantly to the Applicant’s circumstances, a person will meet the residence requirement if they reside in Australia and are an Australian citizen. In this case, there is no issue that the Applicant lives in Australia and that she is an Australian citizen. At the time her access request was made this was verifiable by reference to her Centrelink records, which the Agency did with her consent.[16]
[16] Ibid.
Unlike the age requirement, the temporal focus of the residence requirement is the date of the Tribunal’s decision.[17] In other words, it is necessary for the Applicant to continue to reside in Australia and be an Australian citizen when the Tribunal determines the outcome of this independent review. But in this respect, there is no suggestion that the Applicant’s circumstances have changed. I am satisfied on the evidence before me that as at the date of the hearing the Applicant continues to reside in Australia and remains an Australian citizen. The CEO has not contended otherwise.
[17] Shi at [45] – [46].
The disability requirement
The disability requirement for access to the NDIS is found in s 24 of the Act and Part 5 of the Becoming a Participant Rules.
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.

Rules 5.4 to 5.7 deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent … only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated.
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care or self-management … - if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant 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.
As will be observed from s 24(1) of the Act, five criteria must be satisfied for the disability requirement to be met. These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability requirement cannot be met. Having regard to that fact, one way of conceptualising these criteria is as a series of gateways along a linear pathway. The criterion specified in s 24(1)(a) must be satisfied before the gate opens to consideration of the criteria specified in s 24(1)(b), and that criterion must be satisfied for the gate to open consideration of the criterion specified in s 24(1)(c), and so on. If a gateway to consideration of a subsequent criterion does not open, there is no utility in consideration of that or any other subsequent criteria.
s 24(1)(a): Does the Applicant have a disability?
Section 24(1)(a) requires the Applicant to establish that she has a ‘disability’ that is attributable to one or more intellectual, cognitive, neurological or physical impairments or one or more impairments to which a psychosocial disability is attributable.
In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally,[18] the term “disability” has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of ‘disability’, and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[19]
[18] Davis at [69].
[19] Davis at [118].
The term ‘impairment’ is not defined in the NDIS Act. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”. I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[20] That definition is a simple rendering of the definition of impairment[21] used in the application of the International Classification of Functioning Disability and Health (ICF), which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”. [22]
[20] At [118] referring to [113].
[21] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.
[22] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)
Specifically with respect to s 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant’s disability is attributable, because the access criteria contained in ss 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant’s functional capacity and social and economic participation.[23] In this respect, as I have explained in DQKZ,[24] (and following) the ICF is extrinsic material to which the Tribunal may have regard in ascertaining with objective precision the impairment of body structure or function which is at issue in each case for the purposes of s 24. That is because it is a standardised classification system, which has as one of its primary objectives the provision of a standard language and conceptual framework in relation to human function.[25]
[23] Mulligan at [52].
[24] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] – [149].
[25] Who (2002).
The evidence in this case is that the applicant lives with the following health conditions and sought access to the NDIS on these bases:
i.Acquired Brain Injury resulting from Stoke and encephalitis in infancy as complications from a Measles infection, and Stroke due a subarachnoid haemorrhage from a ruptured intracranial aneurysm in adulthood,
ii.Epilepsy,
iii.Osteoporosis and Osteoarthritis in the Cervical, Thoracic and Lumbar spine with vertebral compression fractures from T4 to T6,
iv.Scoliosis,
v.Migraine, and
vi.Anxiety disorder.
The CEO did not challenge the existence of these diagnoses. I am also satisfied that the Applicant lives with these conditions having regard to the documentary and oral evidence provided by Dr Holliday and Associate Professor Cordato.
However, the issue to be determined for the purposes of s 24(1)(a) is what impairments, if any, are associated with these conditions. Not unusually in this jurisdiction, the losses or variations to body function and structure that are derivative of these conditions is not always squarely addressed by the evidence and must be distilled.
Within the domain of body structure, in her statements of lived experience and oral evidence that Applicant described a variation to the structure of her brain due to neurosurgery to reduce the impact of her epilepsy and aneurysms, and variations to the structure of her vertebral column due to scoliosis, disc prolapses, osteoporosis and osteoarthritis.
Within the domain of body function, in her statements of lived experience and oral evidence the Applicant described poor short-term memory, difficulties with concentration, difficulties expressing herself and understanding others, and experiencing frustration and anger with herself about these things, which she attributed to her brain injury. She described episodic dizziness, tingling and a degree of disassociation which she attributed to Epilepsy. She also described head, neck, and upper and lower back neuropathic pain, which is exacerbated by activity.
The Applicant also reported these impairments to Mr Mate at the time of his assessment.
Dr Holliday’s documentary and oral evidence deposed to short-term memory loss which he opines is also causal of confusion and communication difficulty, flustering, disorientation and learning difficulty. Associate Professor Cordato deposed to the Applicant’s acquired brain injury and epilepsy having a significant impact on her cognitive function, including in relation to short-term memory, planning and organisation, particularly with respect to complex tasks. Both Dr Holliday and Associate Professor Cordato deposed to the applicant living with significant neuropathic pain, muscle spasms and restricted mobility in the cervical, thoracic and lumbar spinal areas due to her scoliosis, disc prolapses, osteoporosis and osteoarthritis. Ms Kinnear’s report and oral evidence deposed to chronic spinal pain and muscle spasm due to scoliosis.
The CEO did not contest any of this evidence and submits that the Tribunal ought to be satisfied that the Applicant meets the s 24(1)(a) disability requirement because of these impairments.
I am also satisfied that this is the case and I make the following findings as to impairment based in the evidence before me.
At the level of body function, I find that the applicant lives with:
i.Impaired specific mental functions,[26] being:
[26] ICF b 140-189.
a.attention functions,[27] specifically, the function of sustaining attention,[28]
b.memory functions,[29] specifically, the function of short-term memory,[30]
c.emotional functions, specifically, regulation of emotion[31] and range of emotion,[32]
d.higher-level cognitive functions,[33] specifically the functions of organisation and planning,[34] and problem-solving,[35] and
e.functions of language,[36] specifically the functions of reception of language,[37] and expression of language[38]
ii.Impaired sensory functions and pain, being:
a.sensations associated with hearing and vestibular functions,[39] and
b.sensation of pain,[40] specifically pain in the head and neck,[41] and pain in the back,[42]
[27] ICF b 140.
[28] ICF b 1400 “mental functions that produce concentration for the period of time required”.
[29] ICF b 144.
[30] ICF b 1440 “mental functions that produce a temporary, disruptable memory store of around 30 seconds duration from which information is lost if not consolidated into long-term memory”.
[31] ICF b 1521 “mental functions that control the experience and display of affect”.
[32] ICF b 1522 “mental functions that produce the spectrum of experience of arousal of affect or feelings such as love, hate, anxiousness, sorrow, joy, fear and anger”.
[33] ICF b 164.
[34] ICF b 1641 ”mental functions of coordinating parts into a whole, of systematizing; the mental function involved in developing a method of proceeding or acting”.
[35] ICF b 1646 “mental functions of identifying, analysing, and integrating incongruent information into a solution”.
[36] ICF b 167.
[37] ICF b 1670 “specific mental functions of decoding messages in spoken, written or other forms, such as sign language, to obtain their meaning”.
[38] ICF b 1671 “specific mental functions necessary to produce meaningful messages in spoken, written, signed or other forms of language”.
[39] ICF b 240 “sensations of dizziness, falling, tinnitus and vertigo”.
[40] ICF b 280 “sensation of unpleasant feeling indicating potential or actual damage to some body structure”.
[41] ICF b 28010 “sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in the neck and head”.
[42] ICF b 28013 “sensation of unpleasant feeling indicating potential or actual damage to some body structure felt in the back”.
I find that the impairments set out in paragraph 36(i) are cognitive impairments within the meaning of s 24(1)(a). I don’t understand this finding to be controversial.
There is however an issue as to how the impairments set out in paragraph 36(ii) are to be conceptualised for the purposes of s 24(1)(a). The Agency’s operational policy appears to limit the meaning of “sensory” impairment to “how you see or hear”. That would not appear to include vestibular function or pain. In closing oral submissions, if I understood her correctly, counsel for the CEO submitted that pain should not be understood as an impairment at all for the purposes of s 24(1)(a), but as a condition that is potentially “secondary” to one or more of the categories of impairment set out there.
The vestibular system is a sensory system within the inner ear. It controls balance, spatial orientation and movement coordination. It is not directly related to hearing, but in my opinion, it is nevertheless properly characterised as a sensory function for the purposes of s 24(1)(a). I base that opinion on the categorisation of vestibular function as a sensory function within the framework of the ICF.
I do not accept the CEO’s submission that pain is not to be regarded as an impairment for the purposes of s 24(1)(a). Pain constitutes a loss or variation to typical body function (typical body function does not involve persistent experience of pain). Pain is a sensory experience produced by the nervous system usually in response to damage to body structure. Within the framework of the ICF pain is categorised with other sensory functions, including sight and hearing. I adopt that categorisation here even though the Agency’s operational policy appears to limit sensory impairment to sight and hearing impairment. The alternative would be to find, at least in this case, that the Applicant’s experience of pain is a neurological impairment because it is produced by her nervous system. In either case it is an impairment for the purposes of s 24(1)(a).
At the level of body structure, I find that the applicant lives with:
i.Impaired structures of the nervous system,[43] being the structure of the brain,[44] and spinal cord and related structures,[45] specifically compression of the spinal nerves,[46]
ii.Impaired structures related to movement,[47] being:
a. to the structure of the head and neck region, specifically to the joints[48] and muscles[49] of the head and neck,
b. to the structure of the trunk,[50] specifically to the structure of the vertebral column,[51] and the muscles of the trunk.[52]
[43] ICF s 1.
[44] ICF s 110.
[45] ICF s 120.
[46] ICF s 1201.
[47] ICF s 7.
[48] ICF s 7103.
[49] ICF s 7104.
[50] ICF s 760.
[51] ICF s 7600.
[52] ICF s 7601.
I find the impairments set out at paragraph 41(i) are neurological impairments for the purposes of s 24(1)(a). I find that the impairments set out at paragraph 41(ii) are physical impairments for the purposes of s 24(1)(a). I do not understand either of these conclusions to be controversial.
s 24(1)(b): Are these impairments permanent?
As I have explained above, both the original decision-maker and the internal review delegate of the CEO decided that the Applicant did not meet the access criteria for the NDIS because her impairments, as determined, were not permanent. That was because the delegates were not satisfied on the evidence before them that the Applicant had exhausted all available treatment options in relation to those impairments.
The relevant passage from the internal review decision is set out following:
To effectively assess the functional impact of an applicant’s impairment, the NDIA must have sufficient evidence that demonstrates that the impairment has been optimally treated and stabilised. Evidence must outline that an applicant’s baseline level of functioning has been established before an accurate determination of their functional capacity can be made regarding their eligibility for the NDIS.
With regard to your cognitive impairment, I do not discount the evidence of Dr Simon Holliday who advises that you have engaged in a number of neurological procedures which, to date, have not fully relieved your impairments. However, from the information provided I am unable to determine that there are no further treatments or interventions that may be available which could improve symptoms and functional capacity.
Without specialist evidence confirming that all available treatment options have been explored, completed, and that your impairment has been optimally treated and stabilised, your cognitive impairment cannot meet this criterion.
With regards to your neurological and physical impairments, the evidence received does not include a detailed history for your impairments. Detailed evidence of your treatment history should include a timeline of treatments undertaken, types and frequency of treatments, the duration and outcome of treatments, including a report from your Treating Practitioner/Specialist about the outcomes.
The evidence does not conclude that all recommended treatment options have been explored and completed. Therefore, based on the provided evidence, the permanency of your neurological and physical impairments cannot be determined at this time.
Future applications would benefit from a thorough treatment history for your impairments indicating the outcomes of all medical treatment, surgical intervention (if applicable), specialist reviews, and specialist prognosis. The evidence would need to show that all readily available and evidence based treatments that would be likely to remedy your impairments have been completed, become unavailable, or no longer deemed medically viable by the relevant treating professionals/specialists.
Having regard to s 24(1)(b) of the Act, and Rule 5.4 of the Becoming a Participant Rules, the questions that the Tribunal must pose and answer to determine if the Applicant’s impairments are, or likely to be, permanent, are:
(a)Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments? and
(b)Do any of the Applicant’s impairments require medical treatment or review before a determination can be made about whether the impairments are permanent or likely to be permanent?
It is important to maintain cognizance that s 24(1)(b) and Rule 5.4 are concerned with the Applicant’s impairments, not her health conditions per se. Nevertheless, the issue of what treatment the Applicant has obtained for her health conditions will be relevant in determining if the impairments that are derivative of those conditions are permanent.
In Davis the Court held that the correct meaning of the word “permanent” in s 24(1)(b) is “enduring” because this meaning best reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[53] In its reasoning towards that conclusion, the Court rejected a submission that the word should be understood as meaning “irreversible”, stating at [58]:
58.The concept of “irreversible” is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question – ‘reversible by what?’ That is, how far does an (sic) NDIS applicant need to go to attempt to ‘reverse’ their impairment? And what does ‘reversible’ mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean ‘cannot be improved’? Of course, many impairments covered by the NDIS – such as psychiatric impairments – can be ‘improved’ (in terms of the way an individual experiences the impairment) by therapy and medication. Are they ‘reversed’ if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.
[53] Davis at [85].

The Court in Davis also considered the meaning of the phrase “known, available and appropriate” and held at [137] to [139] that:
137.As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, or their personal circumstances in terms of where they live and who they live with, and who cares for them.
138.The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
adjective 1. suitable or ready for use; at hand; of use or service …
139.Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
At the opening of the hearing, counsel for the CEO advised that the CEO was now satisfied on the material before the Tribunal that the Applicant’s cognitive impairments resulting from her Acquired Brain Injury are, or are likely to be, permanent. She advised that the CEO was also now satisfied that the Applicant’s neurological impairments resulting from her epilepsy are, or are likely to be, permanent. However, she advised that the CEO continued not to accept that the Applicant’s physical impairments resulting from her osteoporosis and scoliosis are, or are likely to be, permanent. In this respect the Agency submitted that while the Applicant has undertaken some treatment with respect to her physical impairments, the Tribunal could not be satisfied on the material before it that all known, appropriate and available treatments have been undertaken.
In her closing submissions, counsel for the CEO submitted that it was open to the Tribunal on the evidence as it stood at that time to find that all the Applicant’s impairments are, or are likely to be, permanent. However, she advised that she was not instructed to concede the point.
I do not understand the CEO’s unwillingness to accept the Applicant’s physical impairments are permanent. For the reasons set out following that is plainly the case, and the CEO’s failure to accept this has caused the Applicant unnecessary distress, as it carries with it the implication of some self-neglect.[54] As I have noted above, neither party to the proceeding bears any formal onus of proof. The legal principle that ‘she who asserts must prove’ is therefore not strictly apposite in this proceeding. Nevertheless, s 56(1) of the ART Act, relevantly, imposes an obligation on the CEO to use her best endeavours to assist the Tribunal to make the correct decision. Therefore, where she puts a statutory criterion to be satisfied in issue, she bears a practical onus of establishing reasonable grounds for doing so. The Tribunal is not assisted by the mere assertion that the statutory criterion is not satisfied. It needs to know why that is said to be the case, relevantly, by reference to the specific treatment or treatments the CEO contends should have been attempted by the Applicant but have not been. Without knowing what these treatments are, the Tribunal is unable to consider, as it is required to do, whether these treatments are ‘known, appropriate and available’ or if further assessment is required before an impairment could be considered permanent. The Applicant is, moreover, left in the procedurally unfair position of not knowing what, specifically, is the case she must answer.
[54] This is apparent from her Statements at pages 182 to 191, 280 to 289, and 290-291 of the Joint Tender Bundle, and from her oral evidence on this point.
I note the following evidence in relation to the permanence of the Applicant’s impairments:
i.In Part A of Section 2 of the Applicant’s Access Request Form[55] submitted to the Agency on 24 April 2023 Dr Holliday opined with respect to the Applicant’s Acquired Brain Injury (which he stated was the Applicant’s “main disability”) that this was acquired at age 3 post a Measles infection, that this condition was not currently being treated, but had been treated in the past (September 1989, July 1991, 2005 and 2007) via neurological procedures which had been unsuccessful, and which had produced further neurological damage,
[55] Joint Tender Bundle, page 34-36.
ii.In Part F of that Form[56] Dr Holliday inserted a “Patient Health Summary” which details a list of 12 then current medications the Applicant was prescribed and a history of medical events and interventions from May 1959 to April 2022. Relevantly, this refers to neurosurgery for Epilepsy in 1991 and 1994, a Craniotomy to treat an aneurysm of an Internal Carotid Artery (ICA) in March 2005, and attempted coiling to address an ICA aneurysm in November 2005. The summary also notes that the Applicant was first diagnosed with Epilepsy in 1965, with an Anxiety Disorder in 2006, Migraine in 2007, and osteoporosis in August 2007. Neuropathic pain is also reported in October 2007,
[56] Joint Tender Bundle, page 45-46.
iii.In the “Supporting Evidence” attachment to the Access Request Form, Dr Holliday adds to the above stating that the Applicant has had Epilepsy since 1965 and that this is a lifelong condition for which she has been prescribed multiple medications and has undergone a Temporal Lobectomy. He also states that the Applicant has additional impairments, which are stated as Migraine, Neuropathic pain, lumber disc prolapses and osteoporosis,
iv.Two reports dated 24 November 2006 and 13 April 2007 to Dr Holliday from Associate Professor M Stoodley of the Department of Neurosurgery at the Prince of Wales Hospital which provide information about investigations and treatment provided in relation the Applicant’s ICA aneurysms. No further treatments are recommended in those reports,
v.Two reports dated 22 December 2023 and 6 September 2024 to Dr Holliday from Associate Professor Cordato. In summary, those reports contain the following information and opinion:
a.The Applicant has been a patient of Associate Professor Cordato for a period exceeding 22 years,
b.The Applicant’s medical diagnoses consist of: “measles infection in infancy resulting in stroke and encephalitis”; “chronic epilepsy complicating her measles infection with refractory epilepsy that required 2 epilepsy surgical operations in 1989 and 1991 at Prince Henry Hospital Sydney”; “stroke due to a subarachnoid haemorrhage from a ruptured intracranial aneurysm that was clipped by Professor Stoodley at Prince of Wales Hospital Randwick in 2005”; “osteoporosis with vertebral fractures from T4-6 causing chronic pain in the spine”; “chronic scoliosis also causing chronic pain in the spine”; “chronic migraine”; and “chronic anxiety disorder”,
c.The opinion that the conditions set out above are all “permanent and life-long conditions” in relation to which the Applicant has “undertaken multiple different treatments”, that there are “no additional treatments that are likely [to] significantly improve her functional capacity” and that she has “received maximal medical therapy for her conditions”. Her current treatments “are aimed at maintaining her current level of functioning and preventing her from having further deterioration”,
d.An account of treatment undertaken and current medications, which includes historical brain surgery, current regular physiotherapy to help with spinal pain and to optimise motor function, and the current prescription of medication for her chronic plain, chronic epilepsy and chronic migraine disorder.
vi.A report dated 23 December 2023 written by Ms Kinnear. In summary, this report contains the following information and opinion:
a.The Applicant has been a patient since 2007 during which time Ms Kinnear has provided the Applicant with physiotherapy treatment for her musculoskeletal issues to the head, neck and spine,
b.The Applicant has a complex history and chronic spinal pain due to scoliosis and receives maintenance treatment of physiotherapy to assist in reducing the impact of the muscle spasm on her neurological condition,
c.The Applicant’s condition is not considered curable and maintenance treatment is the only relief she finds helpful,
d.The Applicant is very compliant with treatment and after-treatment instruction,
e.The Applicant’s condition is very easily irritated so careful attention needs to be paid to the duration and frequency of treatment,
f.The Applicant is on a fixed income so is unable to afford regular physiotherapy as is required for her condition. Gaps in treatment exacerbate her condition.
vii.A report dated 18 April 2024 to the Agency from Dr Holliday in response to targeted questions. In summary, this report contains the following information and opinion:
a.A history of referral since 2006 to physiotherapists, an orthotist, dentist, and several neurologists in relation to musculoskeletal and neuropathic pain,
b.The Applicant has diligently acted on all referrals made. Dr Holliday retains on file 35 report letters from physiotherapists and neurologists to which the Applicant has been referred since 2006,
c.The Applicant has complied with instructions and advice provided by those clinicians to whom she has been referred,
d.The Applicant’s “multi-morbidities intersect preventing more than partial and fluctuating improvements”,
e.The Applicant receives regular Botulinum toxin injections from a neurologist for muscle relaxation to inhibit pain. This provides recurring temporary relief but does not change the underlying condition,[57]
[57] In her Statement of 15 January 2025 the Applicant appears to state that this injection has now been ceased due to inefficacy; Joint Tender Bundle pay [184].
f.The Applicant has recently been prescribed a new injectable medication, Galcanezumab, which has provided additional relief for migraine and neuropathic pain,
g.The Applicant’s conditions are unlikely to improve in the near or long-term,
h.In summary, Dr Holliday opines:
Ms Burrows has had problems from scoliosis, disc prolapses and osteoarthritis of her back and neck and her osteoporosis associated with compression fractures of vertebra T4-6. I would regard these as meeting the permanency criteria. Specifically: they will not be cured; they may fluctuate in intensity; they will return; there is no need for further medical treatment or review to demonstrate their permanency; and finally, the impairment is degenerative, related to ageing and multiple injuries, all of which will not be significantly improved by medical or other treatment to my best estimation.
viii.Mr Mate’s report, dated 22 July 2024. In his assessment, Mr Mate accepted that the Applicant lives with various functional limitations which he described, in summary, as follows:
Analysis and interpretation of the medical reports indicate that due to the effects of her medical conditions, Ms Burrows experiences difficulties in undertaking tasks that involve:
·Strenuous activity requiring exertion
·Moderate, heavy or forceful manual handling, including lifting, carrying, pushing and pulling
·Repetitive or sustained use of the upper limbs above shoulder height in an outstretched or overhead manner due to increased load on the lumber spine
·Frequent bending, twisting, jarring or jolting of the lumbar spine
·Prolonged sitting, standing or walking
·Frequent traversing rough/uneven ground, inclines or steps
·Unsupported squatting or kneeling
·Cognitive endurance, particularly in relation to memory, concentration and attention
·Attending to complex or concurrent tasks.[58]
Mr Mate recommends, based on his analysis of the documentary evidence provided to him from Dr Holliday that the Applicant would benefit from ongoing physiotherapy, neurology and podiatry,[59] to reduce the intensity and severity of her symptoms.[60]
ix.The Applicant’s Statement[61] and her response to the Agency’s Statement of Facts, Issues and Contentions.[62] These documents provide a lived experience perspective on her diagnoses, medical events and her history of treatments and their life impact.
[58] Mate report, Joint Tender Bundle at page 213.
[59] Mate report, Joint Tender Bundle at page 216.
[60] Mate report, Joint Tender Bundle at page 241.
[61] Joint Tender Bundle, pages [182] to [191].
[62] Joint Tender Bundle, pages [290] to [291].
As I have noted above, I also had the benefit of hearing oral evidence from the Applicant, Dr Holliday, Associate Professor Cordato, Ms Kinnear and Mr Mate during the hearing. This oral evidence was consistent with the documentary evidence.
In summary, Dr Holliday and Associate Professor Cordato confirmed their opinion:
i. that each of the Applicant’s health conditions, and the impairments that are derivative of those conditions, are permanent,
ii.that all current treatment is directed at reducing the impact of those conditions via symptom relief rather than cure, and that symptom relief is partial and temporary only,
iii.that no improvement in these conditions is foreseeable, and
iv.that the Applicant is adherent to all prescribed medications and other interventions, and has attended to all referrals for further investigation and assessment of her conditions.
In summary, Ms Kinnear confirmed her opinion that the Applicant’s physical and neurological impairments could only be relieved with regular physiotherapy and could not be cured. She noted that the Applicant is on a limited, fixed income and is only able to obtain 5 physiotherapy sessions per year under Medicare which falls far short of what she reasonably needs to maintain function and alleviate pain.
In summary, Mr Mate’s evidence was to the effect that he was able to recommend some adaptive behavioural strategies and assistive technologies that are likely to improve the Applicant’s function in specified areas, but these strategies would not have the effect of curing or removing her impairments.
I note that counsel for the CEO did not put anything to the contrary of this evidence to any witness or to the Applicant herself.
Having regard to this evidence I make the following findings in relation to the permanency of the Applicant’s impairments:
i.the cognitive impairments set out in paragraph 36(i) above are permanent. They are derivative of a permanent brain injury for which the Applicant has received all available treatment that has potential to cure this condition. The impact of these impairments may be reduced to some extent using assistive technologies and by the adoption of adaptive behavioural strategies, but this will not reverse these impairments in the sense described by the Court in Davis,
ii.the sensory (or neurological) impairments set out in paragraph 36(ii) above are permanent. The impaired vestibular function is derivative of Epilepsy which is a permanent condition in relation to which the Applicant has received in the past, and currently receives, all recommended medical treatment. Current treatment ameliorates the impact of Epilepsy on the Applicant, but it does not cure that condition or reverse its effects in the sense described by the Court in Davis. Similarly, the Applicant’s pain is derivative of her impaired structures of the brain, spinal cord, and other body structures related to movement. The evidence is emphatic that the Applicant has been prescribed, has accepted, and has been provided with, all available medical treatment for these impairments, and that there is no further treatment that has the potential to cure or reverse those impairments. I accept that evidence. The Applicant is prescribed injectable agents and other medication and receives some physiotherapy to provide some relief from her pain symptoms, but the evidence is emphatic that this treatment only provides partial and temporary relief from pain. It does not cure or reverse the Applicant’s pain in the sense described in Davis.
iii.the neurological impairments set out in paragraph 41(i) above are permanent for the reasons I have stated in paragraph 58(ii) above.
iv.the physical impairments set out in paragraph 41(ii) above are permanent for the reasons I have also stated in paragraph 58(ii) above.
s 24(1)(c) Do the Applicant’s impairments result in substantially reduced functional capacity in a specified life activity area?
Several preliminary observations should be made in relation to the operation of s 24(1)(c) and Rule 5.8.
First, having regard to the linear structure of s 24(1), the s 24(1)(c) inquiry is limited to those permanent impairments that have been established in the ss 24(1)(a) and (b) enquiries. It is not open to me to consider if a prospective participant has substantially reduced functional capacity in a s 24(1)(c) designated life activity area except insofar as this is derivative of an impairment that has been found to be permanent. However, in this case, I have found all the impairments the Applicant contends for to be permanent.
Second, unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is not conjunctive. That is, it is only necessary for a prospective applicant to establish that they experience substantially reduced functional capacity in one of the six designated life activity areas to satisfy this criterion. It is not necessary that they establish substantially reduced functional capacity in every, or more than one, life activity area.[63] In this respect, I am not required to be satisfied that the Applicant’s impairment is serious, or more serious than anybody else’s. Rather, I need only be satisfied that she has substantially reduced functional capacity in one of the designated life activity areas.[64]
[63] Mulligan at [56].
[64] Ibid.
Third, leaving aside Rule 5.8, the word “substantially” has tended to be defined in Tribunal level decisions in accordance with the relevant ordinary meaning of the word “substantial” which is “considerable”,[65] which it has been held, means that there is a “significant threshold” to be met.[66] In my respectful opinion these attempts to define the term “substantially” using synonyms is circular. The Agency’s operational policy does not assist because it explains the concept in accordance with Rule 5.8 only.
[65] Macquarie Dictionary Word Search.
[66] See for example, Rooney and National Disability Insurance Agency [2021] AATA 3523 at [22]; Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68].
Part 7 of the Becoming a Participant Rules provides, relevantly, in Rule 7.2, that the CEO may specify in operational guidelines assessment tools that may be used for the purposes of deciding whether a person meets the disability requirements or the early intervention requirements. To date, no assessment tools have been specified pursuant to that Rule. However, for present purposes, it is notable that Rule 7.5 provides that any such tool, if it were to be specified in operational guidelines must (emphasis added) “have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Function, Disability and Health as in force from time to time”. This would appear to evince a legislative intention that the terms and concepts that concern the assessment of whether a prospective participant meets the access requirements for the NDIS should be interpreted and applied in conformity with the framework of the ICF.

The WHO has developed the “World Health Organisation Disability Assessment Schedule” (WHODAS 2.0) to provide a standardised method for measuring health and disability under the framework of the ICF.[67] That assessment tool is frequently utilised by practitioners who conduct assessments of prospective participants and participants and who appear as witnesses in this jurisdiction. For present purposes I note that WHODAS 2.0 assesses the “degree of difficulty” a person experiences in doing specified activities of daily living in terms of “increased effort”, experience of “discomfort or pain”, “slowness” and “changes in the way the person does the activity” (the difficulty factors) according to a five-point scale which is “none” (“1”), “mild”(“2”), “moderate”(“3”), “severe” (“4”) and “Extreme or cannot do” (“5”) (the difficulty ratings). For present purposes I note that “moderate” refers to an approximate 25-50% reduced functional capacity to perform and activity and “severe” refers to an approximate greater than 50% reduced functional capacity to perform the activity.[68] In my opinion this analytical framework is helpful in giving meaning to the concept of substantially reduced function. In my view, “substantial” should be understood as connoting a degree of difficulty in performing a task that is more than “moderate”, and “reduced” should be understood as being in one of the four ways specified by the difficulty factors.[69]
[67] T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010 (Measuring Health and Disability).
[68] ICF online “Activities and Participation” description.
[69] I should be clear that I am only suggesting that the WHODAS 2.0 difficulty scale provides conceptual assistance in ascertaining the broader circumstances in which the statutory threshold of “substantially reduced function” is met. It is not my intention to suggest that it is prescriptive of that statutory language. The statutory language itself constitutes the test.
Fourth, Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of “substantially reduced functional capacity”, but the Rule is not exhaustive of the circumstances in which that may be found. In my opinion, the Rule should be understood as a deeming provision that enables the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. Therefore the statutory task is to determine, first, if the prospective participant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, it is, second, to determine in accordance with the Act if the person otherwise has substantially reduced functional capacity in any of these life activity areas.[70]
[70] Mulligan at [77].
The three deeming provisions set out in Rule 5.8, paragraphs (a) to (c), are expressed disjunctively. That is, it is only necessary for one of those circumstances to be established for a prospective participant to be deemed to have substantially reduced function in an activity area.
The Court in Foster held that the term ”effectively and completely” in paragraph (a) is to be read as referring to the activity area as a whole, and not as referring to isolated tasks within that activity area.[71] It also observed that the use of the disjunctive “or” between those words means that only one standard need be reached, not both.[72] It rejected a submission that the term “completely” as an adverb to “participate” is to be given a literal meaning consistent with the terms “wholly” or “perfectly”, because it would result in an absurd outcome, being an impossible bar for anyone to achieve.[73] I am bound by those conclusions. The Court also said Foster “[i]n the overall legislative scheme, the adverb “completely” appears redundant …”. However, I do not understand this to be a concluded opinion that is binding upon me. Nevertheless, having regard to the status of the Court relative to this Tribunal, it is an inconclusive observation that I must carefully consider.
[71] Foster at [88].
[72] Foster at [82].
[73] Foster at [82].
It does not appear that the Court in Foster was taken to the descriptions of the concepts of “participation” and “activity” that operate within the framework of the ICF. The related definitions that operate for the purpose of WHODAS 2.0 (as to which see following) are:
Activity
In the International Classification of Functioning, Disability and Health (ICF) the term “activity: is used in the broadest sense to capture the execution of a task or action by an individual at any level of complexity ….
Activity limitation
Difficulties an individual may have in executing activities. An activity limitation encompasses all of the ways in which the execution of the activity may be affected: for example, doing the activity with pain or discomfort; too slowly or quickly; or at the right time or place; awkwardly or otherwise not in the manner expected. Activity limitations may range from a slight to severe deviation (in terms of quality or quantity) in doing the activity, in a manner or to the extent that is expected of people without the health condition.
Participation
A person’s involvement in a life situation. Represents the societal perspective of functioning.
Participation restrictions
Problems an individual may experience in involvement in life situations. Determined by comparing an individual’s participation to that which is expected of an individual without disability in that culture or society.[74]
[74] T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010 (Measuring Health and Disability.
Having regard to this conceptual framework, it appears to me that the words “effectively” and “completely” have complementary but separate work to do for the purposes of Rule 5.8(a). That is because the Rule refers to each of the six s 24(1)(c) activity areas, and the bundles of tasks that constitute each of those area. It is apposite to assess a prospective participant’s functional capacity with respect to some such tasks, such as the tasks associated with receptive and expressive language in the communication activity area, for example, in terms of “effectiveness”, being whether the prospective participant has the functional capacity to execute those tasks “so as to achieve the intended or expected result” (as the Court held that term should be understood in Foster[75]). Whereas a prospective participant’s functional capacity to execute other tasks, such as the tasks associated with getting in and out of bed or a chair in the mobility activity area, are better assessed in terms of their ability to “complete” these tasks. In either case, the objective measure is not one of “perfection”, it is the expected functional capacity of a person without the prospective participant’s impairments to be involved in a life situation. That is a normative standard, not an unreal one.
[75] Foster at [83].
Fifth, s 24(1)(c) requires that I assess with a relatively high degree of objective precision what, from a practical functional perspective, a prospective participant can and cannot do.[76] It is an objective test because it does not depend upon the prospective participant’s own assessment of what they can and cannot do, including what they could do before the onset of impairment as compared with what they can do after its onset,[77] although that may be a relevant consideration. This calls for a distinction to be made between the prospective participant’s functional capacity (that is, objectively, what they can do) and the prospective participant’s functional performance (that is, what they do, including but not limited to what they choose to do).[78]
[76] Mulligan at [55]; National Disability Insurance Agency v Foster [2023] FCAFC 11 at [64].
[77] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [109].
[78] The ICF defines functional capacity as an individual’s ability to execute a task or an action. It identifies the highest probable level of functioning a person may reach in each domain at a given moment. Functional performance describes what an individual does in his or her current environment which may be related to aspects of the physical, social and attitudinal world: ICF “Activities and Participation” tab. Functional performance may be affected by geographic factors (remoteness, terrain etc), personal factors (gender, ethnicity, sexual identity) and related social factors (such as discrimination based on a personal characteristic, perceived gender roles etc). These factors are not “choices” made by an individual in any direct sense. For a discussion of the distinction between functional capacity and functional performance see World Health Organisation, (2002), Towards a Common Language for Disability Functioning and Health, ICF Geneva (WHO/EIP/GPE/CAS/0.1.3) at page 2.
Sixth, consistent with the ICF, the assessment of a prospective participant’s functional capacity is based upon the “naked” person; that is, it seeks to determine the person’s capacity without personal assistance or the use of assistive devices.[79] That is the case, except to the extent that this principle is modified by Rule 5.8(a) to require commonly used item of equipment, such as glasses, to be discounted. In my opinion, given that Rule 5.8(a) should be taken to evince a legislative intention, the same approach should be taken in relation to the assessment of functional capacity for the purposes of s 24(1)(c) other than when Rule 5.8 is applicable.
[79] WHO (2002) at page 11.
It is to be noted for the purposes of Rule 5.8 and otherwise that the relevant Agency operational policy defines the term “assistive technology” in accordance with the World Health Organisation’s ICF definition as follows:
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you to do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food,
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
·Mean you need less help from others
·Help you do things more safely or easily
·Help you to keep doing the things you need to do
·Allow you to do tasks independently
·Are personalised for you.
Seventh, in determining whether a prospective participant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range or bundle of tasks that fall within that activity area, rather than limit itself to consideration of a specific task that falls within that area.[80]
[80] Foster at [65] to [66].
However, this necessarily begs a question as to what is the bundle (or scope) of tasks that falls within each life activity area specified in section 24(1)(c). The answer to that question is not without a degree of complexity or controversy in my opinion. However, it appears to me that this is an important question for the Tribunal to resolve, otherwise how can it assess if substantially reduced functional capacity to perform a specific task or tasks is sufficient to constitute substantially reduced functional capacity to perform the activity as a whole, having regard to the suite of tasks that makes up that activity. Unfortunately, this question has not been the subject of explicit examination either at the appellate or Tribunal levels to date.
In my opinion, the answer to this question requires a process of statutory construction.
The relevant principles of statutory construction are well settled. The starting point in construing a statutory provision is its text, considered in light of its context and purpose.[81] Determination of the purpose of a statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and where appropriate by reference to extrinsic materials.[82]
[81] Alcan (NT Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47].
[82] Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [25].
These principles find partial expression in the Acts Interpretation Act 1901 (Cth) (Interpretation Act). Section 15AA of that Act provides that, in interpreting a provision of an Act, ‘the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. Section 15AB(1) permits material that does not form part of a statute to be considered in interpreting a provision of that statute if the material is capable of assisting in ascertaining the meaning of the provision.
Applying these principles, it is to be recognised that s 24(1)(c) is a component of a statutory test, the overall purpose of which is to determine if a prospective participant meets the requirements for access to the NDIS. In this regard, it is an express object of the NDIS Act to “facilitate the development of a nationally consistent approach to access to …supports for people with disability”.[83] In my opinion, fulfilment of this purpose requires that the test operate normatively rather than arbitrarily. It can only do so if the tasks that fall within each activity area for the purposes of s 24(1)(c) are designated and determinate rather than infinitely variate and elastic.
[83] s 3(f).
What is meant by the terms: “communication”, “social interaction”, “learning”, “mobility”, “self-care”, and “self-management” is not defined in the Act or Rules. These are ordinary English words, but this is not a case where a literal approach to ascertaining their meaning is appropriate in my opinion. That is because, in the context of the statute, they have a determinate meaning which is necessary for the application of the test of which they are part. This is not to say that these words have a meaning in the statute that is inconsistent with their ordinary meaning, merely that they have a determinate meaning.[84]
[84] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78].
The Agency’s operational policy does give content to these terms by describing each life activity area as follows:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Socialising – how you make and keep friends, or interact with the community, … We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Learning – how you learn, understand and remember new things, and practice and use new skills.
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.
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.
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.
The Court noted in Mulligan by reference to the Revised Explanatory Memorandum for the National Disability Insurance Scheme Bill 2012 (Cth) (the Explanatory Memoranda) that the NDIS Act was preceded by a National Inquiry into Disability Care and Support conducted by the Productivity Commission (Productivity Commission Report).[85] The Court also noted in that case, again by reference to the Explanatory Memoranda, that the purpose of what became s 24, was in part to implement recommendation 3.2 of the Productivity Commission Report, which concerned the target group for the NDIS, or more specifically, how a person is to be assessed to determine if they fall within the target group.[86] The relevant point is that the Productivity Commission recommended that the assessment process be functionally based and focused on ascertaining those persons who have significantly reduced functioning in self-care, communication, mobility or self-management.
[85] Mulligan at [12]; Revised Explanatory Memorandum, National Disability Insurance Scheme Bill 2012, House of Representatives; Productivity Commission (2011) Disability Care and Support, Report no,54, Canberra.
[86] Mulligan at [54]; Productivity Commission Report at pages 174 and 198-99.
It is clear from Chapter 7 of the Productivity Commission Report, which concerned the proposed development of NDIS assessment tools that the Commission’s approach was substantially based on the ICF. At page 309 in that Chapter specific reference is made to the nine “activities and participation domains” that are incorporated into the ICF, which the Commission noted are:
Communication – communicating by language, signs and symbols, carrying on conversations, and using communication devices and techniques.
Mobility – walking, running or climbing, changing location or body position, carrying, moving, or manipulating objects, and using various forms of transportation.
Self-care – attending to one’s hygiene, dressing, eating and looking after one’s health.
Domestic life – carrying out everyday tasks such as acquiring necessities (like a place to live and goods and services, preparing meals, caring for household objects and assisting others.
Interpersonal interactions and relationships – relating with strangers, formal and informal social relationships, family and intimate relationships
Learning and applying knowledge – learning, applying the knowledge that is learned, thinking, solving problems, and making decisions.
Community, social and civic life – engaging in community, civil and recreational activities
General tasks and demands - carrying out single or multiple tasks, organising routines and handling stress
Major life areas – carrying out responsibilities at home, work or school and conducting economic transactions.
Having identified the ICF domains, the Productivity Commission drew the following implication for the development of a NDIS assessment tool:[87]
The ICF is a comprehensive and robust framework not an assessment tool itself. The WHO (which developed the ICF) noted that:
The ICF is impractical for assessing ad measuring disability in daily practice; therefore, WHO developed the WHO Disability Assessment Schedule (WHODAS 2.0) to address this need (Ustun et al, 2010, p.3)
The implication is that rather than replicate all elements of the ICF framework, any assessment tool would incorporate the best mix of indicators or relevant domains of need. The preferred assessment tool(s) would still be consistent with the overarching ICF framework.
[87] Productivity Commission Report, page 311.
I have already referred to the WHODAS 2.0 assessment tool above. Relevantly to the present discussion it is structured around six activity and participation domains, five of which are concerned with functional capacity in a specified activity, and the other with functional performance relative to participation in society. These domains are described as follows (in summary, as excerpted):[88]
[88] Measuring Health and Disability page 48 – 54.
Domain 1: Cognition
Domain 1 of WHODAS 2.0 asks questions about communication and thinking activities. Specific areas that are assessed include concentrating, remembering, problem solving, learning and communicating
In the past 30 days, how much difficulty did you have in:
-    Concentrating on doing something for ten minutes?
-    Remembering to do important things?
-    Analysing and finding solutions to problems in day-to-day life?
-    Learning a new task, for example, learning how to get to a new place?
-    Generally understanding what people say?
-    Starting and maintaining a conversation?
Domain 2: Mobility
Activities discussed in Domain 2 of WHODAS 2.0 include standing, moving around inside the home, getting out of the home and walking a long distance.
In the past 30 days, how much difficulty did you have in
-    Standing for long periods such as 30 minutes?
-    Standing up from sitting down?
-    Moving around inside your home?
-    Getting out of your home?
-    Walking a long distance such as a kilometre [or equivalent]?
Domain 3: Self-care
Domain 3 asks about bathing, dressing, eating and staying alone.
In the past 30 days, how much difficulty did you have in
-    Washing your whole body?
-    Getting dressed? (gathering clothing from storage areas, securing buttons, tying knots etc)
-    Eating? (feeding oneself (cutting food, and getting food or drink from a plate or glass to the mount), swallowing both food and drink, mental or emotional factors that may contribute to difficulty in eating, such as anorexia, bulimia, or depression). This item does not refer to meal preparation. If the respondent uses non-oral feeding (e.g. tube feedings), this question refers to any difficulties experienced in self-administering the non-oral feedings; for example ,setting up and cleaning a feeding pump)
-    Staying by yourself for a few days?
Domain 4: Getting along
Domain 4 assesses getting along with other people, and difficulties that might be encountered with this due to a health condition. In this context, “people” may be those with whom the respondent is intimate or knows well (e.g. spouse or partner, family members or close friends), or those whom the respondent does not know at all (e.g. strangers).
In the past 30 days, how much difficulty did you have in
-    Dealing with people you do not know? (interactions with strangers in any situation, such as shop-keepers, service personnel; people from whom one is asking directions)
-    Maintaining a friendship? (includes staying in touch, interacting with friends in customary ways, initiating activities with friends, participating in activities when invited)
-    Getting along with people who are close to you?
-    Making new friends? (includes seeking opportunities to meet new people, following up on invitations to get together; social and communication actions to make contact and to develop a friendship).
-    Sexual activities (refers to sexual intercourse, hugging, kissing, fondling and other intimate or sexual acts)
Domain 5: Life activities
This domain includes questions about difficulty in day-to-day activities. These activities are those that people do on most days; they include household, work and school activities.
In the past 30 days, how much difficulty did you have in
-    Taking care of your household responsibilities?(difficulties encountered in maintaining the household and in caring for family members or other people they are close to, including physical needs, emotional needs, financial needs, psychological needs – household responsibilities include managing finances, car and home repairs, caring for the outside area of the home; picking up children from school, helping with homework, disciplining children, upkeep and maintenance of belongings (for those who do not have a stable dwelling place)
-    Doing most important household tasks well?
-    Getting all the household work done that you needed to?
-    Getting your household work done as quickly as needed?
-    Your day-to-day work/school?
-    Doing your most important work/school tasks well?
-    Getting all the work done that you need to do?
-    Getting your work done as quickly as needed?
Domain 6: Participation
Domain 6 represents a shift from the line of questioning using in the first five domains. In this domain, respondents are asked to consider how other people and the world around them make it difficult for them to take part in society. Here, they are reporting not on their activity limitations but rather on the restrictions they experience from people, laws and other features of the world in which they find themselves
…

It is not contended that the Applicant requires assistive technology, equipment, or home modifications to move around within her home or the community or to get in and out of bed or a chair. Mr Mate does recommend that she obtain and use a personal falls alert to obtain prompt assistance in the event of a fall. That is an assistive technology that would enable the Applicant to mobilise within her home with greater safety, but she is able to do so effectively, from a functional point of view, without it. In his 2023 report Associate Professor Cordato recommended that there be an occupational therapist assessment of the Applicant’s home to determine if any safety-related modifications were required. Mr Mate’s assessment was subsequent to that and he did not make any home medication recommendations. Nor is it contended that the Applicant usually requires physical assistance to move around within her home or the community or to get in and out of bed or a chair, or that she is unable to do so at all even with assistive technology or physical assistance. Rule 5.8 therefore has no application in this case.
The remaining issue is to determine if the Applicant has substantially reduced functional capacity for mobility, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that this is the case.
The evidence does establish that the Applicant’s ability to mobilise within the community is limited by her inability to drive (the Applicant cannot obtain a driver’s license because she is considered by Ausroads, or considers herself, unfit to drive due to seizures and Epilepsy[117]), and the limited public transport options that are available in her township. While those factors limit the Applicant’s functional performance, they do not relate to her functional capacity. They represent external environment factors impacting on function (a road rule and suboptimal public transport in a rural town). There is no issue that the Applicant has the functional capacity to ride as a passenger in a motor vehicle and any form of public transport.
[117] Summary of changes | Austroads.
Dr Holliday expresses the opinion that the Applicant requires someone to support her to access the community to ensure her safety, particularly she is tired. However, that is not borne out on the evidence, considered as a whole. Rather, the evidence satisfies me that the Applicant has benefited from her daughter-in-law being able to take her to appointments at times because of the inconvenience of public transport and not because it was unsafe for the Applicant to do otherwise. The Applicant’s evidence is that she travels on the local public bus, and her local club’s courtesy bus, without any personal safety risk greater than that experienced by a person without her impairments. The evidence also establishes that the Applicant generally attends her medical and allied health appointments independently.
The Applicant’s evidence, and that of Mr Mate, is that the Applicant is also able to walk independently in her neighbourhood. In her own evidence the Applicant states that she aims to do so for at least 30 minutes a day and that her routine usually involves her taking her pet dog for a walk in a nearby park, once in the morning and once in the afternoon. The Applicant also gave evidence of regularly walking in a nearby park with a friend. I accept the Applicant’s evidence is that she is unable walk extended distances in her neighbourhood without stopping to rest and without experiencing discomfort and pain. She gave evidence that the degree of pain and discomfort she experiences in doing so depends in part, on whether she has recently had physiotherapy. Having regard to this evidence, and the WHODAS difficulty factors, I conclude that the Applicant experiences mild to moderate difficulty walking in her neighbourhood in terms of pain and discomfort and slowness (depending on the day) but she does not experience substantially reduced function in doing so. I am satisfied that cross-sectionally on most days, and longitudinally, she has at least 50% functional capacity to perform this task.
Mr Mate’s evidence, which I do not understand to be in dispute, is that the Applicant is able to get out of bed and a chair independently using a modified technique, which is to use her arms as well as her legs to support that movement. Having regard to the Applicant’s and Mr Mate’s evidence, and the WHODAS difficulty factors, this involves some changes in the way these tasks are performed, some increased effort, some additional time to perform these tasks, and it also involves a degree of discomfort, but objectively those difficulty factors are of a relatively mild form when compared to a person who does not have the Applicant’s impairments.
Similarly, the Applicant’s and Mr Mate’s evidence is to the effect that other than when she is performing strenuous household tasks such as those associated with heavy laundry and domestic cleaning, and some other tasks that require bending over, the Applicant can move around her home and yard without difficulty. Mr Mate observed her doing so without the using any assistive device for a period of approximately 15 minutes, which included her descending and ascending a small flight of stairs and walking on various surfaces, including grass, floorboards, carpet, tiles and concrete. Mr Mate also observed the Applicant to be able to reach up to higher cupboards and down to lower cupboards independently. He noted that the Applicant reported that reaching causes discomfort and pain and that to minimise this she stores household items at waist level. I do not understand the Applicant to argue with Mr Mate’s observations. Having regard to this evidence and the WHODAS difficulty factors I conclude that the Applicant experiences mild difficulty in performing these tasks, referable to changes in the way she does these tasks and the experience of pain and discomfort, but she does not experience substantially reduced functional capacity to do so.
The Applicant’s primary concerns in relation to mobility within her home relate to her performance of domestic tasks, being heavy laundry and domestic cleaning. Those are important tasks of daily living in relation to which it may be accepted that the Applicant has reduced functional capacity in terms of increased effort, slowness and experience of discomfort and pain. However, for the reasons I have set out above those tasks are not incorporated into any of the s 24(1)(c) activity areas and do not form part of the s 24(1) statutory test.
Self-care
For the reasons I have set out above the bundle of tasks within the self-care activity area are limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care.
The evidence in relation to the Applicant’s functional capacity for self-care may be summarised as follows:
i.In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday expressed the opinion that the Applicant is “[a]ble to tend to [her] own personal care”.[118]
[118] Joint Tender Bundle page 40.
ii. In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation to self-care (showering) “during episodes of vertigo and pain (neuropathic)”, also stating “at times she has collapsed or can be very unsteady”, and “housework affects her neck causing headaches and vertigo”.[119]
[119] Joint Tender Bundle 64 – 65.
iii.In her Statement of Lived Experience dated 16 November 2023 the Applicant states the following with respect to the self-care activity area:
I do have a railing in the shower which helps me do showers. I really rely on this kind of assistive technology to complete my morning personal care tasks. I normally take a long time to get ready in the morning because of consistent pain.
iv.As has been set out above in relation to permanence, the evidence in relation to health care is that the Applicant diligently attends to her personal health care including by accepting all prescribed treatment and regularly attending General Practitioner, Specialist, and allied health care appointments (as these are available to her).
v.Mr Mate assessed the Applicant as being either independent or as using a modified technique to complete tasks within the self-care activity area. In this respect, he opined:[120]
[120] Mate Report, page 235 -240 of the Joint Tender Bundle.
[Toileting] was not observed. Ms Burrows reported she experiences some bladder incontinence and uses incontinence aids. She reported she is able to manage these and all other aspects of toileting independently.
[Feminine hygiene] was not observed. However there were no reported difficulties with this task.
[Washing hands] Ms Burrows is able to perform this task independently.
Ms Burrows was observed to simulate showering tasks. She holds the horizontal grab rails in her shower recess to support showering. She reported that she had difficulty washing her back as the twisting and reaching aggravated her pain.
In my opinion, the use of long-handled washing aids in the shower will promote … safety and independence with this task.
Ms Burrows reported she is fully independent with upper body dressing. She stands to dress and is able to use buttons and zippers.
Ms Burrows is able to dress her lower body, including donning/doffing shoes and socks, independently with modified techniques, typically sitting on her bed to dress her lower body. She was observed to don/doff shoes and socks and reported she typically wears slip-on shoes to make donning/doffing shoes easier.
[Fasten bra] Ms Burrows reported she is fully independent with this task.
Ms Burrows was observed performing grooming tasks, including brushing her teeth. She is able to independently manage these tasks.
[Brush/style hair/apply makeup] This task was not observed. Ms Burrows confirmed she is able to independently manage these tasks.
Ms Burrows reported she is able to independently cut her finger and toenails. She sits on a chair when cutting her toenails.
Ms Burrows is able to perform meal preparation tasks independently. She was observed accessing cupboards, her fridge, freezer and preparing a cup of tea. She reported she typically makes ‘basic, simple’ meals such as meat and vegetables and has recently purchased an air fryer, which she placed on her benchtop for easy access. She stated she experiences symptoms of pain when bending and twisting to access her saucepans, particularly the heavy ones. I recommend she keep her heavier of more frequently used pans on her stove to reduce the need to bend and access them.
Ms Burrows is able to plan grocery lists and perform shopping tasks when in a store and is able to carry partially filled grocery bags to reduce the need for heavy lifting/carrying. However, she has difficulties with shopping due to her mobility restrictions. She relies upon assistance from another person, typically her son, daughter-in-law or a friend when accessing the community. Due to Ms Burrow’s inexperience and lack of confidence in using and learning technology, she does not feel confident using click-and collect and online shopping.
The difficulties Ms Burrows experiences in grocery shopping are grounded in her mobility restrictions…
Ms Burrows was observed to simulate [domestic] cleaning tasks, including gathering her vacuum cleaner from the cupboard she stores it in, dragging it into the hallway and then plugging it in.
Ms Burrows was observed to have difficulty with this task, and her vacuum cleaner was observed to be large, bulky and heavy. It took her 5-10 minutes to set up the vacuum cleaner, by which point she appeared fatigued. She reported that vacuuming is the most fatiguing task she performs, and she typically vacuums one day per fortnight and cleans the bathroom on the same day. After performing these tasks, she experiences high levels of pain and fatigue.
I recommend that Ms Burrows upgrade her vacuum cleaner to a light weight, cordless stick vacuum cleaner or instead use a long-handled microfibre broom with a swivel head to reduce bending, twisting, lifting and dragging a heavy vacuum as she navigates from room to room. I expect that with the use of pacing techniques and a stick vacuum, Ms Burrows will be independent with vacuuming tasks.
Ms Burrows’ physical incapacities impair her ability to perform heavy bathroom scrubbing tasks due to the required bending, twisting, and vigorous movements.
Ms Burrows was observed to simulate laundry tasks and was observed carrying a peg basket from her laundry down her rear stairs to her clothesline, where she demonstrated reaching the clothesline to put clothes on the line. Ms Burrows reported experiencing symptoms of pain during overhead reaching when hanging her laundry. I recommend Ms Burrows use a portable clothesline … to reduce the need for overhead lifting and carrying. I recommend Ms Burrows store this upstairs, in her rumpus room, which is located close to the laundry and inside of her home, to reduce the need for her to mobilise down her stairs while carrying her washing basket, which presents a falls hazard.
Ms Burrows reported she is able to independently change her bed linen with difficulty stating that the lifting of the mattress to strip and replace the linen, carrying the linen when they are wet after having been washed and them hanging them on the line causes symptoms of pain through her back and shoulders. In my opinion, navigating steps while carrying the linen presents a falls risk.
As discussed above, I recommend Ms Burrows use a portable clothesline to be stored in the rumpus rook … to reduce the need for overhead lifting and carrying during laundry tasks.
Ms Burrows is able to independently manage kitchen cleaning tasks and dishwashing. She has purchased fatigue mats, which she stands on when completing meal preparation and dishwashing tasks to reduce pain and discomfort.
Ms Burrows pays for a lawn service to maintain her lawns. Her physical incapacities, including her reduced capacity for bending, pushing, pulling and twisting, impair her ability to independently maintain her lawns.
It is not contended that the Applicant is unable, generally, to undertake personal care, eat and drink or attend to her health care, without assistive technology, equipment or home modifications. She does have handrail installed in her shower recess to aid with mobility and safety when showering, but that assistive technology relates to only one personal care task. She does not require assistive technology more generally in the self-care activity area. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to perform the designated self-care tasks. Nor is it contended that the Applicant is unable perform the designated selfcare task, even with such support. Rule 5.8 therefore has no application in this case.
The remaining issue is to determine if the Applicant has substantially reduced functional capacity for self-care, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that she does. I conclude on the relevant evidence that the Applicant is substantially independent in the self-care life activity area.
The real functional difficulties experienced by the Applicant that appear in the evidence related to the self-care activity area are tasks associated with domestic cleaning, heavy laundry, lawn and garden maintenance, shopping for food, and kitchen storage. But none of these tasks falls within the bundle of tasks that make up the self-care activity area as it operates within the legislative scheme for the reasons I have stated above.
There may be an exception to this where a prospective participant’s inability to perform these tasks results in squalor or malnutrition, for example. In such circumstances these tasks may be considered as related to ‘health care’ in the self-care activity area. But there is no suggestion of squalor or malnutrition in this case, so it is inappropriate for me to express any concluded view on this. With respect to ‘shopping for food’, while the tasks of eating and drinking presuppose the existence of food and drink, I consider tasks associated with shopping to be materially different and I cannot see how they can be assimilated into the self-are activity area under that guise. Similarly, storage and retrieval of cooking equipment appears to me to be too remote from the tasks of eating and drinking to fall within the self-care activity area.
What this leaves is the Applicant’s use of a handrail in her shower recess for showering to aid mobility and safety and her self-report that it takes extended time for her to complete her personal care each day due to restricted movement, discomfort and pain.
On the state of the evidence and having regard to the WHODAS difficulty factors I am satisfied that showering requires increased effort, involves a degree of discomfort and pain, and requires changes in the way the activity is performed as compared with a person without the Applicant’s impairments. I am also satisfied that the Applicant’s personal care routine is slower and is associated with a degree of discomfort and pain as compared with a person who does not have the Applicant’s impairments. However, these reductions in functional capacity are mild, not substantial, on the evidence before me. They also constitute discrete tasks, and even if the Applicant did experience substantially reduced functional capacity to perform them, this could not amount to substantially reduced capacity for self-care when that activity area is considered as a whole.
For completeness, I should note that I have not overlooked Associate Professor Cordato’s evidence that the Applicant is at risk of falls in the shower due to vertigo and pain. However, this opinion appears as a bare statement. There is no corroborating evidence of this occurring. The Applicant reported to Mr Mate during his assessment that she last experienced a fall 3-4 years ago resulting in a sprained ankle. The state of the evidence does not reveal if that event occurred in a shower. Based on that event and the Applicant’s physical impairments Mr Mate assessed the Applicant as being a medium fall risk generally (no specific comment is made about showering) and recommended that she obtain a personal falls alarm. The state of the evidence therefore does not lead any different conclusion with respect to showering than that I have stated above.
Self-Management
For the reasons I have set out above the bundle of tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.
The evidence in relation to the Applicant’s functional capacity for self-management may be summarised as follows:
i.In Part E of the Access Request Form he completed for the Applicant on 20 April 2023 Dr Holliday states that the Applicant: “uses a diary to maintain appointments and can pay bills at the post office or bank but [is] unable to use internet banking”.[121] He also states that the Applicant ”[c]an manage household bills and accounts by using a diary and paying in person” but is “unable to use internet banking or remember passwords”.[122]
[121] Joint Tender Bundle page 40.
[122] Joint Tender Bundle page 44.
ii.In the Access Request Supporting Evidence Form he completed on 23 June 2023 Dr Holliday opines that the Applicant does require assistance from other persons in relation self-management because:
Judy’s daughter in law has set up a budget for her and assists her to follow this budget by providing physical assistance to attend the post office or bank to pay bills, but even with coaching and support Judy is unable to use internet banking. Judy’s daughter in law has been providing this support, however she is returning to full time work and can no longer provide this support.
iiiIn her Statement of 15 January 2025 the Applicant says the following about her ability to complete financial management tasks:
… My bills get taken straight out of my account. My Disability Pension goes into my bank account and out of that each fortnight comes my rent.
As already set out above, the Applicant also refers in her Statements to being unable to use the internet for banking, and to being unable to remember her pin number for banking unless it is written down. She reports that this has meant that there have been times when she has been unable to obtain funds.
iv.Mr Mate assessed the Applicant as being independent in all tasks within the self-management activity area. In this respect, he opined:[123]
Ms Burrows is independent in regards to all self-management activities. Examples of her independence in this domain include:
·She organises all of her own medical and therapy appointments
·She has her own bank account and she manages her own finances
·She is able to budget and manage her money
·She manages her own mobile phone bill
Based on my observations during this assessment, Ms Burrows has the capacity to plan, problem-solve, and make decisions without assistance. In my opinion, Ms Burrows does not have any requirements for assistance in the domain of self-management.
[123] Mate Report, page 240 of the Joint Tender Bundle.

It is not contended that the Applicant is unable to make personal plans, make decisions, problem-solve or manage her self-care and financial affairs without disability related assistive technology, equipment or home modifications. As already noted, the Applicant does use some adaptive techniques, such as making notes and diarising events, to manage memory problems, but these strategies do not amount to the use of assistive technology as defined in the Agency’s operational policy. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to do so. There is some evidence that the Applicant is assisted by her daughter-in-law with some aspects of banking, but this is not equivalent to the Applicant usually requiring assistance with self-management, or even with financial management, generally. Nor is it contended that the Applicant is unable to perform these tasks, even with such supports. Rule 5.8 therefore has no application in this case.
The remaining issue is to determine if the Applicant has substantially reduced functional capacity for self-management, otherwise than in the circumstances prescribed by Rule 5.8. I am not satisfied that she does.
I accept the Applicant’s evidence that she has trouble remembering her banking pin number. Her evidence is that she has it written on a note that she carries with her. There is a degree of vulnerability associated with this. I also accept the Applicant’s evidence that she requires physical assistance in the form of guidance with more complex banking tasks, which on the evidence I understand to be setting up direct debit arrangements for regular payments and other internet payments. Dr Holliday refers to the Applicant requiring assistance with budgeting. If he means more by that than the Applicant being assisted with direct debits, there is no other evidence which supports that contention, and I do not find that is the case. There is no evidence of the Applicant ever having been in financial difficulty or stress, or of her being unable to meet her subsistence needs, due to an inability to effectively manage her finances.
Having regard to the state of the evidence, and the WHODAS difficulty factors, I am satisfied that with respect to some cognitive tasks related to financial management the Applicant has changed the way she performs these tasks by obtaining physical assistance from someone else. However, that constitutes no more than a mild degree of difficulty in terms of financial management when that task area is considered as a whole. It does not constitute substantially reduced functional capacity for financial management.
I have already noted the Applicant’s diligence in attending to her own health care. I accept her evidence that she has some difficulty remembering appointments and relies on memory aids and prompting in some instances to manage this. However, overall, the evidence is that the Applicant has a very good understanding of her health conditions and treatment regime and is fully adherent with treatment. There is no evidence of systematic or repeated failure to attend to health care due to memory or other cognitive impairments. The highest the evidence rises in this regard is to a risk that appointments might be missed without memory aids and prompts. People without the Applicant’s impairments are also likely to rely upon memory aids (appointment cards, diary entries) and prompts (confirmation texts and calls from health practitioners and others for example) to attend to their health care needs. Having regard to that I do not consider that the Applicant has reduced functional capacity in relation to the cognitive tasks associated with health care as compared with a person who does not have her impairments. In any event, the Applicant does not experience substantially reduced function in relation to the cognitive tasks associated with health care.
Despite the cognitive impairments I have found, the evidence does not lead to the conclusion that the Applicant otherwise experiences reduced functional capacity in relation to planning, decision-making or problem solving. Nothing concrete of this nature emerges from the evidence.
Summary with respect to s 24(1)(c)
For the foregoing reasons, I have not found that the Applicant experiences substantially reduced functional capacity in any of the six activity areas specified in s 24(1)(c).
That finding does not mean that the Applicant does not have reduced functional capacity to perform some tasks associated with daily living. She clearly does. However, to the extent that these tasks fall within the s 24(1)(c) activity areas, her reduced function is not sufficiently acute as to constitute substantially reduced function as compared with a person who does not have her impairments. Other activities of daily living in which the Applicant does experience reduced function do not fall within the s 24(1)(c) activity areas for the reasons I have explained.
It follows from this conclusion that the Applicant cannot meet the disability requirement for access to the NDIS, and it is unnecessary to consider the requirements of s 24(1)(d) and (e).
The early intervention requirement
The early intervention requirement for access to the NDIS is found in s 25 of the NDIS Act and in Part 6 of the Becoming a Participant Rules. In summary, and relevantly, a prospective participant will meet the early intervention requirement:
i.if they have one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are or are likely to be permanent or one or more identifiable impairments that are, or are likely to be permanent which are attributable to a psychosocial disability,[124] and
ii.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,[125] or
iii.the CEO is satisfied that provision of early intervention supports for the person likely to benefit the person by:
a.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
b.preventing the deterioration of such functional capacity; or
c.improving such functional capacity,[126] and
[124] s 25(1)(a) of the NDIS Act and Rules 6.2(a) and 6.4 to 6.7 of the Becoming a Participant Rules.
[125] s 25(1)(b) of the NDIS Act and Rules 6.2(b) and 6.8 to 6.11 of the Becoming a Participant Rules.
[126] S 25(1)(c) of the NDIS Act and Rules 6.2© and 6.8 to 6.11 of the Becoming a Participant Rules.
This review has proceeded on the assumption that the Applicant has requested access to the NDIS on the basis that she meets the early intervention requirement in the alternative to the disability requirement. This appears to be because the CEO’s original access decision of 10 May 2023 and the internal reviewer’s decision of 3 August 2023 both considered the Applicant’s eligibility for access to the scheme in accordance with that requirement.
However, if the Applicant’s access request is properly considered, she never sought access to the NDIS on this basis. In Part C of the NDIS Application Form, which deals with early intervention matters, the Applicant’s treating professional states frankly that early intervention supports will not reduce the Applicant’s future support needs.[127] The applicant’s Application for independent review, in terms, only challenges the reviewer’s decision concerning her satisfaction of the disability requirement.
[127] Joint Tender Bundle, Tab T01, page 37.
Although the Agency’s SoFIC and opening statement formally addressed the early intervention requirement, no part of the evidence, documentary or oral, was indicative that the Applicant’s access to the scheme on this basis was sought or was arguable. The Applicant did not contend for access on this basis at the hearing.
Having considered the whole of the evidence I am not satisfied that there is any form early intervention support that is likely to benefit the Applicant in any of the ways specified in s 25(b) or (c) or by Part 6 of the Becoming a Participant Rules. The internal review decision should therefore be affirmed in this respect.
Conclusion
For the foregoing reasons, the decision under review is affirmed.

Dates of hearing: 15, 16 and 17 April 2025

Applicant:
Self-represented

Counsel for the Respondent:
Ms Amy Douglas-Baker

Solicitors for the Respondent:
Mr B O’Brien, Moray and Agnew Lawyers

[2025] ARTA 607

26 May 2025

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Disability Requirement

Early Intervention Requirement

Reviewable Decision

Substantially Reduced Functional Capacity

Dates of hearing:	15, 16 and 17 April 2025
Applicant:	Self-represented
Counsel for the Respondent:	Ms Amy Douglas-Baker
Solicitors for the Respondent:	Mr B O’Brien, Moray and Agnew Lawyers