Carr and National Disability Insurance Agency (NDIS) - [2025] ARTA 1786

Carr and National Disability Insurance Agency (NDIS) [2025] ARTA 1786 (14 September 2025)
Applicant:Jason Carr
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/0415
Tribunal:General Member I Selley
Place:Adelaide
Date:14 September 2025
Decision:The Tribunal affirms the decision under review

Statement made on 14 September 2025 at 10:40pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s21 of the NDIS Act met – whether disability requirements under s 24 of the NDIS Act met – neurological, physical and cognitive impairments – whether impairments are, or likely to be permanent – whether impairment results in substantially reduced functional capacity –- whether early intervention requirements under section 25 of the NDIS Act met – whether the provision of early intervention supports is likely to benefit the person – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) - s129
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 14 October 2024, pre-legislation changes)
Administrative Review Tribunal, Guideline on persons giving expert and opinion evidence, December 2024
Administrative Review Tribunal, Common Procedures Practice Direction, April 2025
Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Beezley v Repatriation Commission [2015] FCAFC
Foster v National Disability Insurance Agency [2025] ARTA 718
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Garcia Albiol and NDIA [2024] AATA 496
G v Minister for Immigration and Border Protection [2018] FCA 1229
Statement of Reasons
INTRODUCTION

The issue for the Tribunal’s determination is whether Mr Carr should be granted access as a participant to the National Disability Insurance Scheme (NDIS) and therefore be able to access NDIS supports.
In January 2024, the National Disability Insurance Agency (the Agency) determined to refuse Mr Carr’s access to the NDIS, and he applied to the Administrative Appeals Tribunal to independently review the merits of the Agency’s decision. In October 2024, the Administrative Review Tribunal (ART) was established to replace the AAT and the AAT was abolished. Mr Carr’s AAT Application was automatically transferred to the ART[1].
[1] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Mr Carr is 51 years of age. He is single with no children. He lives with his 71-year-old mother in Sydney in a property owned by Housing NSW[2].
[2] Testimony at hearing
Mr Carr has lived with his mother at the property for 32 years[3], since a serious motorcycle accident at the age of 19 left him with an acquired brain injury (ABI) and without the use of his non-dominant left arm[4]. Mr Carr likes to work and has done so full time for many years since his accident with mainstream and disability employment services and employers[5]. Since 2019 however he has been unable to secure sustained employment and currently receives a disability support pension[6].
[3] Testimony at hearing; JTB page 44
[4] JTB, page 196
[5] Testimony at hearing
[6] Testimony at hearing
This Tribunal decision is about whether the impairment or impairments that Mr Carr lives with are of such nature and extent that he meets either the disability requirements in section 24 of the National Disability Insurance Scheme Act 2013 (the Act) or the early intervention requirements in section 25 of the Act. It is accepted he meets the age and residence requirements in sections 22 and 23 of the Act.
For the reasons set out below, the Tribunal has determined Mr Carr does not meet the disability requirements. The Tribunal has considerable compassion for Mr Carr. There is no doubt that he acquired impairments as a young man that have had, and continue to have, a significant impact on his life. There is also no doubt that he has gone on to quietly make the best of his circumstances. Nonetheless, Mr Carr’s impairments do not result in the substantial reduction in functional capacity that gaining access to the NDIS requires. The Tribunal has also determined that Mr Carr does not satisfy the alternative early intervention requirements because it is not satisfied such supports would be likely to benefit him.
For these reasons the Tribunal has determined Mr Carr does not meet the access criteria in section 21 of the Act and the decision under review is affirmed.
LEGISLATION AND POLICY
The Access Criteria
To become a participant in the NDIS, Mr Carr must meet the access criteria in section 21 of the Act. This requires him to meet both the age and residence requirements in sections 22 and 23, and then either of the disability requirements detailed in section 24 or the early intervention requirements in section 25 of the Act.
The Disability and Early Intervention Requirements
Sections 24 and 25 of the Act were amended after Mr Carr made the AAT application, however, those changes apply only to access requests made on or after 3 October 2024[7]. The Tribunal therefore applies the disability and early intervention requirements as they were immediately prior to those amendments and as quoted below.
[7] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) 2024 (the Amending Act), Item 126(1) of Part 3 of Schedule 1
In summary, a person will meet the disability requirements if they have a disability that is attributable to an impairment that is permanent, or likely to be permanent, and that results in substantially reduced functional capacity[8]. Section 24 of the Act states:
[8] NDIS Access Rules, paragraph 2.5(a)
(1)A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)     communication
(ii)    social interaction
(iii)    learning
(iv)   mobility
(v)    self care
(vi)   self management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
The early intervention requirements may provide an alternative basis for meeting the access criteria where the person’s permanent impairments do not result in substantially reduced functional capacity. The early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity[9]. Early intervention is envisaged to be particularly but not exclusively applicable to children.
[9] NDIS Access Rules, paragraph 2.5(b)
Subsections 25(1) and 25(1A) relevantly state:
(1)A person meets the early intervention requirements if:
(a)the person:
(i)     has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent;
(ii)    has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(iii)    is a child who has developmentaldelay; and
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i)mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii)preventing the deterioration of such functional capacity; or
(iii)improving such functional capacity; or
(iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
NDIS Access Rules
The Tribunal must apply the mandatory instructions for interpreting sections 24 and 25 in the NDIS (Becoming a Participant) Rules 2016 (the Access Rules). The Access Rules set out the circumstances in which, and the criteria the Tribunal must apply in assessing whether:
·impairments are or are likely to be permanent
·any permanent impairments result in substantially reduced functional capacity in undertaking one or more activities; and
·provision of early intervention supports is likely to benefit the person.
Judicial interpretation of the Access Criteria
The Tribunal must apply the relevant jurisprudence of the courts in access matters.
The courts have said that the purpose of the access criteria and section 24(1) is to impose a series of “components and thresholds” [10] to gaining access to the NDIS.
[10] Mulligan v NDIA [2015] FCA 544, at [18] (Mulligan)
Given Mr Carr must satisfy every component in section 24(1), the Tribunal’s approach is to consider whether each is in turn is satisfied before progressing to the next. If he fails to satisfy one, then he cannot meet the disability requirements, and the Tribunal must turn its attention to whether he meets the early intervention requirements. The components of section 25 are also cumulative, and each must in turn be satisfied.
The courts emphasise that the central concept in an access matter is “impairment”[11]. It is not the name of a person’s disability or their medical diagnoses or conditions[12]. Impairment involves the loss of or damage to a physical, sensory or mental function[13].
[11] National Disability Insurance Agency v Davis [2022] FCA 1003 at [69] (Davis)
[12] Davis, at [69]
[13] Mulligan, at [51]
The courts have said “permanent” means “enduring”[14]. An impairment may endure even if it fluctuates, or may fluctuate during a person‘s lifetime, in its intensity and impact[15].
[14] Davis, at [85]
[15] Davis, at [82]
The Tribunal must engage in a fact-finding exercise and examine the evidence of medical practitioners, clinicians, the applicant and their supports to determine the permanency and severity of an applicant’s impairments and the impact on their ability to undertake specified, multi-faceted life activities[16].
[16] Davis, at [82]
When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a high degree of precision, a functional, practical assessment of what the applicant can and cannot do.[17] The Tribunal must assess the degree to which they can participate in the life activity[18]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[19]. It would be incorrect to ask this question only in relation to one or a few of such tasks[20]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[21].
[17] Mulligan, at [56].
[18] Foster, at [88]
[19] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].
[20] Foster, at [64]-[66]
[21] Mulligan, at [55]-[56]
The term ‘substantially’ in this context carriers a “high threshold”[22]. Whether this high threshold is met should be considered with reference to the purposes of the NDIS, including that it was not intended to provide support to every person with disability, and ensuring the scheme is financially sustainable[23]. The NDIS has as its target group limited sub-categories of the total population of persons with disability in Australia[24].
[22] Garcia Albiol and NDIA [2024] AATA 496
[23] Foster, at [76]
[24] Foster and the NDIA [2025] ARTA 718
Regarding matters of procedure and evidence, it is for the applicant to provide the Tribunal with sufficient evidence and information to persuade the Tribunal that they meet the access criteria[25]. It is for the Agency to assist the Tribunal to make the correct or preferable decision[26].
[25] Beezley v Repatriation Commission (2015) FCAFC 165 at [68]
[26] Section 56(1), ART Act
Relevant jurisprudence concerning the Access Rules is discussed below.
NDIS Guidelines
The Tribunal must take into consideration[27], but is not bound by[28], the Agency’s current policy guidance contained in NDIS – Applying to the NDIS Guideline (the Access Guideline). The Operational Guidelines are regularly updated and those relating to access requests received by the Agency before 3 October 2024 are relevant to this matter[29]. The Agency’s Operational Guidelines on Assistive Technology are also relevant and have been taken into consideration.
[27] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.
[28] G v Minister for Immigration and Border Protection, per Mortimer J [2018] FCA 1229 at [171]
[29] Applying to the NDIS | NDIS
The Access Guideline states that a person diagnosed with “hemiplegia where there is severe or total loss of strength and movement in the affected limbs of the body” is likely to meet the disability requirements[30]. That policy position does not clearly apply in Mr Carr’s case, however. Whilst the Tribunal accepts Mr Carr has the total loss of strength and movement in his left arm, the evidence does not support his other left-side limbs being so severely affected. It follows that the Tribunal must examine Mr Carr’s claims against the disability and early intervention requirements in detail.
[30] Pages 31 - 33
THE APPLICATION AND DECISION UNDER REVIEW
In August 2023, Mr Carr made a request to the Agency to access the NDIS (the access request)[31].
[31] JTB, pages 45 - 71
On 3 November 2023, the Agency refused the access request[32]. In this first decision, the Agency appeared to accept Mr Carr had a disability attributable to an impairment and the impairment is permanent[33]. The Agency did not accept, however, that Mr Carr’s permanent impairment substantially reduces his functional capacity[34]. It also did not accept early intervention supports were likely to benefit him and reduce his future disability support needs as the supports were not capacity building[35].
[32] JTB, page 24, 72
[33] JTB, page 73
[34] page 18 of T-Docs
[35] JTB, page 74-75
Mr Carr then applied to the Agency for an internal review of that decision, on 6 November 2023[36], and on 15 January 2024, the Agency again determined not to grant him access (the internal review decision)[37]. The internal review decision is the decision that is under review by the Tribunal.
[36] page 89 of T-Docs
[37] JTB, page 24
In the internal review decision, the Agency accepted Mr Carr has a cognitive impairment attributable to an ABI and a physical impairment attributable to Left Brachial Plexus Injury[38]. It accepted those impairments are or are likely to be permanent. It did not accept however those permanent impairments collectively give rise to substantially reduced functional capacity[39]. It found there was no information available to determine early intervention is likely to reduce his future support needs[40]
[38] JTB, page 28
[39] JTB, page 28-29
[40] JTB, page 31
On 23 January 2023, Mr Carr applied to the Administrative Appeals Tribunal (AAT) for a review of the internal review decision[41]. His application had been progressing unsuccessfully through alternative dispute resolution until April 2025, when it was constituted to me for hearing and final determination. The Tribunal is satisfied the application to the AAT is valid and the ART has jurisdiction to determine it[42].
[41] Joint Tender Bundle (JTB), page 16, 21
[42] Section 25 of the Administrative Appeals Tribunal Act 1975 and section 103 NDIS Act together gave the AAT the power to review an internal review decision by the Agency about access
EVIDENCE, SUBMISSIONS AND PROCEDURE
On 30 May 2025, the Tribunal conducted a hearing by Ms Teams video conferencing. Mr Carr represented himself and appeared from his home. He did not have a support person present. The Agency was represented by Mr Greg Johnson as counsel and instructed by Maddocks Lawyers.
Mr Carr and the Agency agree as to the documents the Tribunal should consider. A Joint Tender Bundle (JTB) of documents was given to the Tribunal and admitted into evidence. It includes the documents held by the Agency at the time Mr Carr made the Tribunal Application including the internal review decision and the documents the Agency relied on in making it as well as evidence later obtained by the parties for this proceeding. The Tribunal has considered all the documents in the parties’ JTB.
The Tribunal heard evidence from Mr Carr and Mr Gary Stretton, the occupational therapist who conducted an independent functional assessment of Mr Carr at the Agency’s instruction[43]. Mr Stretton prepared a report dated 27 June 2024 following his two-hour assessment of Mr Carr in his home on 20 May 2024[44]. Mr Stretton is the expert witness who has most closely and recently assessed Mr Carr’s functional capacity and his report is prepared in accordance with the AAT Guideline for Expert Opinion and Evidence[45]. The Tribunal has also considered two documents tendered by the Agency at the commencement of the hearing that provide further explanation of the assessment tools referred to in Mr Stretton’s report and used by him.
[43] JTB, page 182
[44] JTB, page 194, 196
[45] JTB, page 196
The Tribunal observed that both Mr Carr and Mr Stretton spoke openly and honestly and without exaggeration.
Mr Carr relies on his statement of lived experience, undated, and provided to the Tribunal and Agency on 1 or 2 April 2024[46]. Mr Carr does not rely on any other lay evidence such as statements from his family.
[46] JTB, page 2
Mr Carr also relies on the access request that was completed by his GP, Dr Van Vu, in August 2023. The Tribunal notes that Dr Van Vu has been Mr Carr’s GP since 2011[47] and therefore gives weight to his opinion.
[47] JTB, page 52
Other than his access request, Mr Carr relies on only three medical records. These comprise two historical medical records created at the time on his hospitalisation in 1993. Those are his discharge report from Westmead Hospital, dated 20 May 1993[48] (discharge report) and accompanying occupational therapy report by Lesley Ryan[49] (Ryan report). Although undated, the Tribunal is satisfied these documents were created contemporaneously to support Mr Carr’s discharge from hospital following his accident.
[48] JTB, page 42
[49] JTB, page 8--81

Mr Carr provided only one additional medical record to those he had given the Agency in support of the access request, a one-page CT Spine Cervical report dated November 2023.
Mr Carr did not call any witnesses to give evidence at the hearing.
Prior to the hearing, the Agency provided a Statement of Facts Issues and Contentions (SFIC) outlining the key arguments in its case. The Agency also made detailed closing submissions. Mr Carr did not wish to make submissions about how the Tribunal should approach the evidence and apply the law in his case. The Tribunal has no expectation that he should have done so. Mr Carr is not legally qualified. The Tribunal noted his humble and unassuming attitude towards his disability.
As Mr Carr was self-represented and did not have expert witnesses, the Tribunal ensured hearing time was dedicated to his testimony. Mr Carr confirmed at the end of the hearing he had put forward all the information he wished to.
THE PARTIES’ POSITIONS
Mr Carr contends he meets the disability requirements. He does not expressly make contentions to meet the early intervention requirements and his GP, Dr Van Vu, expressly states that early intervention supports are not likely to reduce Mr Carr’s support needs[50]. The Tribunal nonetheless understands he seeks to argue he meets the disability or the early intervention requirements and considers his case accordingly.
[50] JTB, page 55
The Agency contends the issues can be distilled to whether Mr Carr meets the criteria in section 24(1)(c) and section 24(1)(e) of the Act. It contends the evidence establishes Mr Carr satisfies sections 24(1)(a) and (b). It contends there is no evidence to support the conclusion Mr Carr meets the requirements in section 25. In summary, the Agency maintains its position as stated in its access and internal decisions.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 24(1)(a): Does Mr Carr have a disability that is attributable to an impairment?
As noted above, it is necessary to define Mr Carr’s impairment with some precision.
Mr Carr claims in his access request for to have impairments arising from the left brachial plexus injury and ABI he sustained from his motorcycle accident in November 1992[51]. He claims his main disability as left arm paralysis[52] resulting in an inability to use his left arm[53]. He claims his ABI as his second disability[54].
[51] JTB, page 50
[52] JTB, page 53
[53] JTB, page 58
[54] JTB, page 53
The Agency does not dispute these clinical diagnoses and describes the resulting impairments as physical and cognitive impairments[55].
[55] JTB, pages 4-5
The Tribunal accepts based on the Westmead discharge summary that in May 1993, Mr Carr was diagnosed with severe traumatic brain injury and left brachial plexus lesion[56]. It accepts based on the access request completed by Dr Van Vu these conditions are current.
[56] JTB, page 42
The Tribunal accepts Mr Carr’s testimony that his left brachial plexus injury causes symptoms of pain in his shoulders, neck and back from the weight of his left arm. It accepts he experiences phantom pain in his left arm, shoulder and hand. It accepts that the pain comes and goes several times a day, moves around his left limb, can arise for no reason or if he has been doing something outside and his arm has been hanging unsupported for some time. The Tribunal accepts that occasionally the pain is excruciating, like his hand is holding a firework, and Mr Carr will move his arm into different positions to ease the pain. It accepts Mr Carr has not felt pain at that excruciating level for some time, however.
At the hearing, Mr Carr explained that he also experiences pain in his right shoulder and right neck which he believes is associated with the right arm being overworked. He thought this has been getting worse over time.
The Tribunal notes that the only medical evidence before it concerning the right side of Mr Carr’s body is the November 2023 cervical spine report. It notes Mr Carr’s evidence at hearing that he had not thought the pain in his right shoulder so serious he should talk to his GP about treatment.
In the absence of further medical or clinical documentation as to the nature and cause of the problem with Mr Carr’s right shoulder and without testimony from Mr Carr’s GP, the Tribunal has insufficient evidence regarding any medical concerns with Mr Carr’s right shoulder to be able to draw reliable findings from this cervical spine report or otherwise make findings of impairment concerning Mr Carr’s right upper limbs.
The Tribunal accepts the Agency’s characterisations of the impairment. It finds in addition that Mr Carr’s brachial plexus injury gives rise to a neurological impairment, as the damage to and severing of the nerves to the arm has caused the loss of Mr Carr’s ability to use and experience feeling in his left arm and the sensation of pain in his left shoulder.
The Tribunal finds Mr Carr has a neurological and physical impairment, being left arm paralysis and the loss of feeling in his left arm. It finds these impairments produce symptoms of phantom limb pain in his left arm and pain to the nearby shoulder joints and neck.
The Tribunal notes that the medical evidence before it regarding the impairments arising from Mr Carr’s ABI is very limited. It is clear that whilst Mr Carr acquired a brain injury in 1992, the extent of its impairment improved dramatically in the months that followed. Nonetheless, the Tribunal accepts based on the access request information provided by Dr Van Vu that Mr Carr’s ABI still gives rise to a cognitive and neurological impairment, whereby he is slower to learn and to process information and emotionally reactive.
At the hearing, Mr Carr also explained that in the motorcycle accident he nearly lost the use of his left leg. He said that the nerves controlling the movement and sensation in his left leg were damaged but not severed, so he can still use his left leg, but it is uncoordinated and weak and causes him to be unstable on his feet. Mr Carr spoke of going to the gym about 15 years ago to build up the strength in his left leg and how that was unsuccessful.
The Tribunal notes that the May 1993 Westmead discharge summary records Mr Carr as having “minimal active movement in his left lower limb” some weeks following the accident[57]. It records Mr Carr’s “admission was prolonged by his dependence in mobility, which was mainly due to his poor left hip and knee control. By discharge he was able to walk short distances with standby assistance and to manage stairs with assistance”[58].
[57] JTB, page 42
[58] JTB, page 43
The report of Lesley Ryan, also prepared for Mr Carr’s discharge from Westmead refers to Mr Carr’s impaired mobility. It notes his difficulty showering standing up without grab rails, his need to furniture surf and for a wheelchair for any distances beyond the house[59].
[59] JTB, pages 79-80
The Tribunal therefore accepts that in 1993, Mr Carr was experiencing significant impairment in his left lower limb from the accident.
The difficulty for the Tribunal is that although Mr Carr’s loss reduced functionality in his left leg is documented in the 1993 discharge summary, an injury of this nature is not stated as part of the “diagnosis” section of the report, which does list some seven medical conditions. Mr Carr has given the Tribunal no medical or clinical report created since his discharge from hospital in 1993, or in the last 32 years, relating to a condition or impairment affecting his left leg. His access request documentation created by Dr Van Vu does not mention impairment to Mr Carr’s left lower limbs.
Considering the evidence before as a whole, including Mr Carr’s genuineness, the Tribunal is satisfied Mr Carr also has a physical impairment of weakness in his left leg. However, as discussed below, the absence of relevant medical evidence presents greater difficulties in satisfying the requirement of permanency in relation to this impairment.
Conclusions on disability
The Tribunal is satisfied Mr Carr has a disability attributable to neurological, physical and cognitive impairments. Accordingly, Mr Carr satisfies the disability criteria in section 24(1)(a) of the Act.
The next question is whether these impairments are permanent.
Section 24(1)(b): Are Mr Carr’s impairments permanent or likely to be permanent?
Overview and preliminary considerations
Access Rules 5.4 to 5.7 set out the mandatory criteria for determining permanency of an impairment.
·5.4 An 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.
·5.5 An 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.
·5.6 An 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).
·5.7 If 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.
Rules 5.4 and 5.6 are particularly relevant in this proceeding. There is no material information before the Tribunal that Mr Carr’s impairments are fluctuating or degenerative.
The courts have said that rules 5.4 and 5.6 in practice prescribe mandatory exclusionary circumstances which, if met, require the Tribunal to conclude that the impairment is not permanent[60].
[60] Davis, at [73]-[75]
As to the adjectives in rule 5.4, Mortimer J in Davis observed:
(a)the word ‘remedy’ “should be understood to mean something approaching a removal or cure of the impairment”[61]
(b)the word ‘known’ connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment”[62]
(c)the word “appropriate” “connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo”[63]
(d)the word “available” “should be understood as directed at what treatments an individual can, in reality, access”[64].
[61] Davis, at [136]
[62] Davis, at [137]
[63] Davis, at [137]
[64] Davis, at [138]
In relation to whether an impairment is likely to be permanent, the Access Guideline reflects the jurisprudence and relevantly state:
·We need to know whether your impairments are enduring so that you require NDIS supports on an ongoing basis.
·We will focus on your impairments, and not on the cause of your impairments, or your diagnoses.
·Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, or if there are known, available and appropriate evidence-based clinical, medical or other remaining treatments options that are likely to remedy the impairment.
·Generally, we’ll consider whether your impairment is likely to be permanent if all available and appropriate treatment options are pursued.
·Your impairment will likely be permanent if your treating professional tells us there are no further treatments that could remedy it.
·Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
o    known – the treatment can be identified by an Australian medical practitioner as a suitable treatment for your impairment
o    available to you – we need to take account of whether there are genuine barriers that prevent you from accessing treatment including, but not limited to, the nature of your impairment and your ability to access treatment
o    appropriate for you and your impairment – we need to consider whether the treatment could remedy your impairment and is suitable and safe for you to undergo. Your ability to undergo treatment will be assessed according to your capabilities, your health and other personal circumstances, including your living arrangements
o    evidence-based – there’s proof the treatment is likely to be effective.
·When we look at what treatments are available to you, we think about whether the treatment is suitable for your personal situation. The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle.
·If you’re still undergoing or have recently had treatment, we may not be sure you have a permanent impairment if that treatment could remedy the impairment.
·In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you are likely to have a permanent impairment.
List B in the Access Guideline states the conditions the Agency accepts as likely to result in permanent impairment. The Tribunal notes that List B includes “paralytic syndromes not meeting the severity criteria on List A”[65].
[65] At page 37
The Tribunal notes that the focus of Rules 5.4 and 5.6 is on medical and clinical treatment. These statutory provisions require the Tribunal to consider what treatment is available and suitable and if so, the likely outcomes of Mr Carr undertaking it. These rules indicate that consideration of any treatment Mr Carr has had to date for his impairments is integral to these considerations. This is further emphasised by the references to the importance of information from treating professionals in the above extracts from the Access Guideline.
Assessment of permanency
Mr Carr told the Tribunal that he had had extensive rehabilitation treatment in the months following his motorcycle accident up to approximately 1995, including physiotherapy. He said that after that, he was told there was nothing more that could be done for him. Dr Van Vu notes Mr Carr had extensive rehabilitation for his left arm brachial plexus and brain injuries in 1992. The Tribunal notes the records from Westmead Hospital that rehabilitation extended to May 1993 before Mr Carr could be discharged. Dr Van Vu attests in the access request that the impairments arising from these injuries are lifelong[66] and no available evidence-based treatments of interventions would relieve or be likely to relieve them
[66] JTB, page 66
The Tribunal accepts on the medical evidence that Mr Carr’s cognitive and neurological impairment to learning and emotional impulsivity and his physical and neurological impairment to his left arm are permanent. The Tribunal is satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy these impairments. It is satisfied they do not require further medical treatment or review for their permanency or likely permanency to be demonstrated.
Regarding Mr Carr’s left leg weakness, the Tribunal notes it has no medical evidence more recent than 1993. Although it respects Mr Carr’s views as to the medical cause, it notes that the Westmead Hospital reports do not attribute a diagnosis to the left leg weakness as it was presenting at that time. There is no expert evidence as to any treatment Mr Carr has had to regain strength in his left leg since 1993.
Further, the very limited evidence before the Tribunal regarding the extent of difficulty Mr Carr has with his left leg is somewhat contradictory. Mr Carr told the Tribunal its impact to his gait is visible. He stated that if he wears shoes in the house his left shoe tends to catch the carpet, and he will stumble. He told the Tribunal that he had very recently fallen because of it but otherwise had not fallen and is nowhere near falling.
Mr Stretton in his report notes only that Mr Carr requires a handrail to descend stairs “due to a high-level balance impairment”[67]. The Tribunal understands this refers to a neurological impairment but whether this concerns neurological left leg weakness or other neurological issue is unclear. Mr Stretton conceded at the hearing it is plausible that Mr Carr requires the use of a handrail because he has some difficulty taking weight on his left leg. However, Mr Stretton confirmed he did not observe Mr Carr, who wore footwear during the assessment, as having an antalgic or abnormal gait, or conclude Mr Carr requires the prescription of a gait aid to walk, transfer or stand[68].
[67] JTB, page 212
[68] JTB, page 212
The Tribunal does not doubt the honesty of Mr Carr in telling the Tribunal he has never obtained full improvement in his left leg weakness. However, in the complete absence of expert evidence as to its cause and treatment, the Tribunal is not satisfied that impairment to Mr Carr’s left leg is or is likely to be permanent as required by section 24(1)(b) of the Act. It is not positively satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. Nor is the Tribunal positively satisfied Mr Carr’s left leg weakness does not require further medical treatment or review for its permanency or likely permanency to be demonstrated.
Conclusion on permanency
The Tribunal is satisfied Mr Carr’s neurological and physical impairment to his left arm as well as his cognitive and neurological impairment from his ABI are permanent.
Accordingly, Mr Carr satisfies the element of permanency in the disability and early intervention requirements, in section 24(1)(b) and section 25(1)(a)(i) of the Act respectively.
Section 24(1)(c): Does Mr Carr have substantially reduced functional capacity in a specified life activity area?
Overview and preliminary considerations
Section 24(1)(c) requires that Mr Carr’s impairments result in substantially reduced functional capacity to undertake one or more of the following life activities: communication, social interaction, learning, mobility, self-care or self-management. He need only establish he experiences substantially reduced functional capacity in one life activity area[69]. The Agency contends Mr Carr does not have substantially reduced functional capacity in any one of these areas[70].
[69] Mulligan at [56].
[70] JTB, page 73
Given the cumulative nature of section 24, the Tribunal must answer this question only with respect to the impairments it has found to be permanent or likely to be permanent, in satisfaction of section 24(1)(b).
Rule 5.8 of the Access Rules is the only rule that applies to the assessment under section 24(1)(c). The courts have determined Rule 5.8 is a “deeming provision”[71]. It deems Mr Carr to meet the requirements of section 24(1)(c) if one of the three alternative scenarios stated therein applies[72]. Rule 5.8 states:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[71] Mulligan, at [77]
[72] Mulligan, at [77]

The Tribunal must first consider in addressing each of the life activity areas whether Mr Carr’s circumstances are within those sections set out in one of the three alternative limbs of Rule 5.8. If they are, he will be deemed to have a substantially reduced functional capacity[73] and the requirements of section 24(1)(c) are met. If they are not, the Tribunal must go on to holistically assess whether Mr Carr’s functional capacity is nevertheless substantially reduced in any of the life activity areas applying the test in section 24(1)(c)[74]. The Access Guideline provides further content to the type and range of tasks and actions that comprise each life activity area.
[73] Mulligan, at [77]
[74] Mulligan, at [76]
It is helpful to reiterate the principles developed in court and Tribunal decisions about the assessment under section 24(1)(c) that are particularly relevant to Mr Carr’s case.
The Tribunal must assess Mr Carr’s functional capacity in carrying out the full range of tasks and actions that comprise each of the life activity areas[75]. Mr Carr cannot satisfy Rule 5.8 or section 24(1)(c) if there is only one, or only a few, tasks within the activity area that he forgoes altogether, or cannot complete without assistive technology or the support of another[76], or in respect of which his functional capacity is otherwise substantially reduced. As discussed below, there are some tasks for which Mr Carr does require minor equipment and in person support.
[75] Foster, at [64].
[76] Foster, at [64]
Further, that Mr Carr undertakes some tasks differently and more slowly that others because of his permanent impairments, does not necessarily mean he cannot participate effectively or completely in an activity area without assistance or that his functional capacity is otherwise substantially reduced[77].
[77] Foster, at [67]
Lastly the Tribunal’s focus must be on what Mr Carr cannot do, not on what Mr Carr does not do[78]. As the Tribunal has assessed below there are some daily tasks that fall into the latter category because they are performed by Mr Carr’s mother.
[78] Mulligan, at [55]-[56]
At the hearing, Mr Carr explained as context and background to his request for access to the NDIS his mother’s age and associated decline in health. He is preparing for a time that his mother is no longer able assist with some small tasks she currently performs for him and that he is unable to do on his own.
Mr Carr also referred to leisure activities he enjoys and explained that he rarely has a family member or close friend available to accompany him nowadays. These are activities that in some aspect require the use of both hands. He started his inquiries about NDIS access as he wanted to seek employment through a provider supporting only NDIS participants.
Although the reasons why a person seeks access to the NDIS do not form part of the legal requirements the Tribunal must consider, an understanding of Mr Carr’s motivations helps to inform the Tribunal about Mr Carr’s own views of what he can and cannot do.
Communication
The Access Guideline describes communicating 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.
Dr Van Vu does not positively identify communication as being a domain that is substantially impacted by Mr Carr’s disability[79]. Yet he goes on to say that Mr Carr requires assistance from others in this domain due to difficulty with his expressive speech, such as stuttering and slurring[80] as this will cause difficulty for Mr Carr in maintaining employment[81].
[79] JTB, page 58
[80] JTB, page 69
[81] JTB, page 69
Mr Carr does not raise any difficulties with communicating in his statement.
In his report, Mr Stretton states he observed no functional communication deficits. He observed Mr Carr’s writing, reading and communication[82]. He observed Mr Carr to understand, respond appropriately, read and interpret text and to speak clearly. He acknowledges Mr Carr’s self-report that his speech becomes slurred when he is fatigued[83].
[82] JTB, page 202
[83] JTB, page 205.
The Tribunal did not observe Mr Carr to have difficulties in understanding the questions asked of him during the hearing or in communicating his responses.
The Tribunal accepts Mr Carr has a reduction in his speaking proficiency when fatigued. However, there is no one communication task Mr Carr forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. The Tribunal considers that Mr Carr experiences minor impairment in a discreet component of the range of tasks and actions that comprise the activity of communication. For this reason, the Tribunal finds Mr Carr does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of communication or to perform tasks or actions required to undertake or participate in the activity.
The Tribunal finds Mr Carr’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Carr’s functional capacity to undertake the activity of communication is substantial. Accordingly, the Tribunal finds Mr Carr’s impairments do not result in substantially reduced functional capacity to undertake the activity of communication.
Learning
The Access Guideline describes learning as:
Learning – how you learn, understand and remember new things, and practice and use new skills.
Mr Carr makes no claim in his statement that his learning is impacted by his impairments. He said at the hearing however that it takes him a bit longer to learn some things at work, particularly computer tasks and new ICT systems. Mr Carr told the Tribunal his ABI did not affect his memory, and he considers his memory to be pretty good.
In the access request, Dr Van Vu does not positively identify learning as being a domain that is substantially impacted by Mr Carr’s disability[84]. He does not positively identify that Mr Carr needs any home modifications, AT or equipment regarding learning.
[84] JTB, page 58
As to Mr Carr’s need for support from others in learning, Dr Van Vu provides conflicting opinions[85]. The Tribunal understands however Dr Van Vu’s opinion to be that the assistance Mr Carr requires from others is being afforded the time and patience to learn the new tasks and skills required of him in the workplace[86].
[85] JTB pages 60, 61, 70
[86] JTB, page 70
Mr Carr reported to Mr Stretton that he held a position with a major bank for just under 10 years but “left due to an increase in productivity demands which he was unable to meet”[87].
[87] JTB, page 202
Mr Stretton observed Mr Carr to remain engaged and concentrated throughout the assessment, being able to recall past events and not displaying any impairment to his cognition[88]. He notes Mr Carr’s self-report that he finds it difficult to concentrate and learn when fatigued. He notes Mr Carr’s self-report of being able to learn new systems and processes in paid employment with the support of instruction, supervision and practice. The Tribunal notes Mr Carr’s oral evidence that his most recent full-time employment was in a non-disability specific, customer service role and that some of his past employment has been obtained with the help of disability employment providers and/or agents. The Tribunal notes and accepts that Mr Carr has been gainfully employed full time for much of his life following his motorcycle accident.
[88] JTB, page 206
At the commencement of the Tribunal hearing, the Tribunal observed Mr Carr to be able to follow basic instructions at a measured pace to resolve some but not all issues with his connectivity to the Teams video conferencing. It observed Mr Carr to have reached the hearing stage of these proceedings with a satisfactory albeit elementary understanding of the NDIS access requirements and the Tribunal processes he had been participating in although he was struggling to understand why he had not yet been accepted into the NDIS.
The Tribunal finds there is consistent evidence before it that Mr Carr experiences a reduction in his capacity to learn and understand ICT systems related tasks in the workplace. It accepts he is slower than others to learn new ICT processes and skills of a relatively simple nature. It finds that in an environment of complex and continuous change in ICT systems within a large mainstream organisation that Mr Carr would not be able to learn to the extent required to keep up and hold his job.
The Tribunal does not have sufficient evidence before it however to draw conclusions as to whether Mr Carr’s difficulties with ICT related activities stem from his cognitive impairment, from having only one functioning upper limb to enable the use of ICT hardware, or a combination of both. Regardless, it accepts these difficulties stem from his permanent impairments. The Tribunal surmises that Mr Carr would be behind the general population in ICT skills given the ICT evolution over the decades since he acquired his impairments.
The Tribunal also notes the evidence before it is not sufficiently detailed for the Tribunal to reach a conclusion that the additional support Mr Carr requires in this way learning is anything more than additional support from a workplace supervisor and/or colleagues in circumstances where some training and supervision would be expected for all workers.
Mr Carr did not identify other types of situations in which he had difficulty learning. For example, Mr Carr did not claim to have difficulty in learning service protocols and processes in a relatively recent role he had in supporting government elections. The Tribunal notes that Mr Carr has acquired skills in the recreational sports of fishing, target shooting and lawn bowls.
The Tribunal accepts when considering the evidence holistically that Mr Carr requires additional support in learning new ICT and information management systems in the workplace. It considers that whilst this leads to some reduction in Mr Carr’s ability to undertake the activity of learning, there is no one learning task or activity Mr Carr forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. For this reason, the Tribunal finds Mr Carr does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of learning or to perform tasks or actions required to undertake or participate in the activity of learning.
The Tribunal finds Mr Carr’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Carr’s functional capacity to undertake the activity of learning is substantial. Accordingly, the Tribunal finds Mr Carr’s impairments do not result in substantially reduced functional capacity to undertake the activity of learning.
Social interaction
The Access Guideline describes social interaction, or “socialising”, as follows:
Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine[89], the AAT expressed the opinion that the Tribunal’s assessment in this domain must be principally directed at the personal skills needed for social interaction and only marginally about opportunities to exercise those skills. In the Tribunal’s view, this is the correct approach.
[89] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine).
Mr Carr explained to the Tribunal that because of his ABI he has difficulty controlling his emotions and his reactions to other people when at work. He has a short temper and can react quickly to something he does not agree with. He can swear at people, but he does not physically lash out.
Mr Carr explained that he had been working full time with a company for some years. During a phone call with a customer, in 2019, he took offence at the customer’s words. His managers, who were aware of his disability, were listening into the call and asked him to finish up the next day because of his conduct. He said that his direct line manager who usually looks out for him was not at work on the day of this incident which led to his dismissal. Mr Stretton notes a second and earlier dismissal from the workplace and a position he held in security monitoring, due to “interpersonal conflict”[90]. Mr Carr denied that his short temper affected his relations with people outside of work.
[90] JTB, page 202
Mr Carr reports good relations with his immediate family, including his mother, brother and father. Mr Carr mentioned that he had a best mate. He sees his brother once a month and they correspond weekly with footy tips. His brother does odd jobs at the house including minor home improvements and maintenance such as fixing the shed door and laying pavers. Mr Carr drives to see his father, who lives some hours away, about six times a year. They usually catch up in a pub. Mr Carr speaks with friends and family on the phone and leaves the house for shopping, seeing friends, a haircut and to play lawn bowls[91]. Mr Carr enjoys caring for his fish and birds at home[92] and going out fishing and target shooting[93]. These two activities require someone to assist him with aspects of using the sporting equipment.
[91] JTB, page 180
[92] JTB, page 202
[93] JTB, page 202
Mr Stretton describes Mr Carr as pleasant and cooperative during the assessment[94]. Mr Stretton notes that Mr Carr describes himself as a social person[95]. He describes himself as having long-term friends with whom he keeps regular contact[96].
[94] JTB, page 198
[95] JTB, page 201
[96] JTB, page 201
Aside from the infrequent incidents at work where Mr Carr has become angry and lost his job as a result, there is otherwise significant evidence before the Tribunal that Mr Carr is effectively socially engaged and able to establish and maintain friendships, acquaintances, sustain long term relationships with family and interact with colleagues. Mr Carr has the opportunity to socially interact at home, over the phone, in the homes of his family members, the shops, pub and at the bowling green. It acknowledges Mr Carr presently is experiencing difficulties to re-enter the workplace.
The Tribunal acknowledges Mr Carr’s desire to have support with his other recreational activities of fishing and target shooting. It accepts that Mr Carr’s impairments require another person to assist him with using the sporting equipment. It notes Dr Van Vu’s opinion that some adaptations to the equipment itself may be required[97]. However, the Tribunal’s view is that these needs are only marginal to the Tribunal’s assessment of Mr Carr’s functional capacity to undertake social interaction under section 24(1)(c).
[97] JTB, page 68
The Tribunal accepts Mr Carr has a reduction in his capacity for social interaction in some work situations. However, there is no one social interaction task Mr Carr forgoes altogether or requires AT, equipment or in person supports to be able to carry out the task as a whole. It considers that he experiences impairment in only discreet components of the range of tasks or actions that comprise the activity of social interaction. For this reason, the Tribunal finds Mr Carr does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of social interaction or to perform tasks or actions required to undertake or participate in the activity.
The Tribunal finds Mr Carr’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Carr’s functional capacity to undertake the activity of social interaction is substantial. Accordingly, the Tribunal finds Mr Carr’s impairments do not result in substantially reduced functional capacity to undertake the activity of social interaction.
Mobility
The Access Guideline describes mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine, the AAT held that the threshold requirements to achieve functional capacity with respect to mobility are “relatively modest”:[98]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community…
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
[98] Madelaine, at [104]–[105].
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.
In the access request, Dr Van Vu does not positively identify mobility as being substantially impacted by Mr Carr’s disability[99]. In his supporting evidence form, however, Dr Van Vu notes under “mobility” Mr Carr’s needs for vehicle modification and adaptative gear to be able to use tools such as a whipper snipper and cooking utensils[100]. Dr Van Vu is of the opinion Mr Carr requires assistance from other people in cooking and cleaning[101]. The Tribunal considers Mr Carr’s needs in relation to driving as relevant to mobility and those concerning cooking, cleaning and home maintenance, in so far as they are relevant, under self-care.
[99] JTB, page 57
[100] JTB, page 68
[101] JTB, page 59
Mr Carr reports in his statement that he can walk one kilometre without a break and that he uses no assistive technology or equipment to help him with mobility[102]. He states he has no home modifications associated with his impairments[103].
[102] JTB, page 180
[103] JTB, page 180
Mr Stretton reports he observed Mr Carr to mobilise inside and outside the home and to complete all transfers independently[104].
[104] JTB, page 205
The consistent evidence that Mr Carr requires a vehicle adaptation in the form of a spinner knob on the car steering wheel drive is readily accepted by the Tribunal[105].
[105] JTB, page 201
The Tribunal accepts Mr Carr has a reduction in his ability to drive that requires the fitting of a spinner knob to his car. However, driving is the only mobility task for which Mr Carr requires assistive technology and equipment. There is no evidence before the Tribunal that Mr Carr requires the support of another person in the activity of mobility. For this reason, the Tribunal finds Mr Carr does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility.

The Tribunal finds Mr Carr’s circumstances are not captured by those described in rule 5.8 of the Access Rules. Nor is the Tribunal satisfied that the reduction in Mr Carr’s functional capacity to undertake the activity of mobility is substantial. Accordingly, the Tribunal finds Mr Carr’s impairments do not result in substantially reduced functional capacity to undertake the activity of mobility.
Self-care
With respect to the activity of self-care, the Access Guideline provides:
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.[106]
[106] Access Guideline, 8.
As noted above, Mr Carr’s GP positively states Mr Carr needs assistance with self-care[107] and specifically with cooking and cleaning[108] as well as shoelaces, buttons and nail care[109].
[107] JTB, page 58, 61
[108] JTB, page 61
[109] JTB, page 71
In his statement, Mr Carr states that he requires no assistance to complete his showering, toileting, eating, drinking and dressing[110]. He confirmed this at the hearing. Mr Carr told the Tribunal there are a few self-care tasks he cannot do that his mum does for him because they require bilateral upper limb use. He cannot cut his fingernails and a few of his toenails.
[110] JTB, page 181
Mr Stretton notes that Mr Carr has no capacity to perform any task that requires bilateral upper limb use[111]. He confirmed at the hearing that he applied the Australian Modified Lawton’s Activities of Daily Living assessment and found Mr Carr as below maximum functional capacity in the tasks of shopping, food preparation, housekeeping and laundry. He notes Mr Carr as scoring 24/30, or an 80 per cent level of functioning[112].
[111] JTB, page 206
[112] JTB, page 204
Regarding showering, dressing and grooming, Mr Stretton also notes Mr Carr to be independent and observed him to have the capacity to attend to his own personal care[113], by pacing himself and using adaptive techniques he learned in rehabilitation or has worked out on his own. He can do up buttons with his right hand and wears slip on shoes[114].
[113] JTB, page 208
[114] JTB, page 208
Regarding the task of eating, Mr Stretton notes that Mr Carr has for many years had rudimentary adaptive cutlery and a food preparation board which enable him to prepare food including simple chopping and spreading and to eat with one hand[115]. The Tribunal accepts the oral evidence of Mr Carr and Mr Stretton that this equipment has not been updated since Mr Carr’s rehabilitation 30 years ago and Mr Stretton’s opinion that there are newer and better alternatives available. The Tribunal accepts that despite its rudimentary functionality, Mr Carr gets by with the adaptive equipment he has. He can make himself a simple breakfast and lunch and can feed himself[116].
[115] JTB, page 198
[116] JTB, page 206-207
Mr Carr does not cook an evening meal as his mother does that. Mr Stretton identifies only that Mr Carr would not be able to cook using heavy utensils, pots and pans because he cannot stabilise them, particularly to be able to clean them[117]. Mr Carr can otherwise wash up smaller utensils and cookware[118]. He does not currently have a dishwasher. Mr Stretton’s opinion at hearing was that there is other adaptive equipment that would increase Mr Carr’s independence in cooking. Mr Carr confirmed at the hearing that his mother periodically travels or is unwell for a period of about a week and he is able to attend to all aspects of self-care in her absence. He does not do the heavier tasks such as vacuuming because his mother is very protective of him. He believes he could do it, if required. He can mow the lawn provided he paces himself and enjoys this home duty despite it causing him moments of pain and he has to pause before continuing.
[117] JTB, page 207
[118] JTB, page 207
Mr Stretton did not otherwise recommend adaptive equipment or assistive technology in the home to assist Mr Carr with his self-care. Mr Carr spoke a number of times of his desire to be independent in his daily activities and his oral evidence before the Tribunal and photos in Mr Stretton’s report[119] demonstrate his use of modified techniques particularly by leveraging his active body to undertake tasks in his day-to-day life such as opening jars between his knees[120].
[119] JTB, page 201
[120] JTB, page 206
Mr Stretton observed Mr Carr as suitably groomed and his clothes apparently laundered[121]. Mr Carr reported to Mr Stretton[122] and the Tribunal that his mother washes his clothes. Mr Carr reported that he is able to use the washing machine and the dryer but unable to hang laundry on the clothesline outside or carry a washing basket. Mr Carr clarified at hearing that he can and does hang his clothes outside on the line if he paces himself. He does not have an indoor clothes airer.
[121] JTB, page 198
[122] JTB, page 207
Regarding keeping the house hygienic, Mr Carr’s mother does all the cleaning tasks including the floors and the bathroom[123]. Mr Carr can however use a vacuum cleaner, dust, wipe surfaces and tidy up[124]. The Tribunal accepts, as Mr Stretton confirmed in his oral evidence, that Mr Carr would have difficulty cleaning the bath due and other tasks that required him to be on all fours due to the impossibility of simultaneously balancing and supporting himself. The Tribunal considers that Mr Carr has not otherwise fully explored his capacity to undertake such deeper cleaning tasks of mopping and cleaning around the bathroom, including using cleaning equipment from a standing or sitting position, because his mother has always taken care of the cleaning. The Tribunal also accepts that Mr Carr does not do these tasks for the combined reasons of safety and not being able to complete them to the high standard set by his mother.
[123] JTB, page 207
[124] JTB, page 207
Considering the above evidence and analysis, the Tribunal makes the following findings regarding Mr Carr’s functional capacity in the activity area of selfcare.
The Tribunal accepts there are a discrete range of tasks within the larger tasks of eating and maintaining hygiene that Mr Carr is unable to perform without assistive technology, equipment or assistance from other people. These are primarily the tasks of cutting fingernails, chopping and preparing food for a main meal, and cleaning heavy cooking pots.
The Tribunal finds however that there is no one task of self-care he forgoes altogether, or for which he requires AT, equipment, home modifications or in person supports to be able to carry out the task as a whole.
For these reasons, the Tribunal finds Mr Carr does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity of self-care. It follows that Mr Carr’s circumstances are not captured by those described in rule 5.8 of the Access Rules in so far as self-care is concerned.
The Tribunal accepts that Mr Carr does have reduced functional capacity across the activity area of self -care as a whole. He must modify his approach and/or perform the tasks of self-care more slowly than others because he has the use of only one arm and hand when self-care is ordinarily performed with the benefit of bilateral upper limb use. However, the evidence before the Tribunal is conclusive that that reduction is not substantial.
Accordingly, the Tribunal finds Mr Carr’s impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.
Self-management
With respect to the activity of self-management, the Access Guideline provides:
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.
In the access request, Dr Van Vu does not positively identify self-management as being a domain that is substantially impacted by Mr Carr’s disability[125]. He does not positively identify that Mr Carr needs any home modifications, AT or equipment regarding self-management[126].
[125] JTB, page 58
[126] JTB, page 62
Mr Carr says in his statement that he manages his bank account and does not require assistance in relation to his finances, budgeting or managing his bank account[127]. He decisively confirmed at the hearing he has no difficulties with planning. Mr Stretton confirms this in his report and adds that Mr Carr is able to make and attend appointments and manage medications independently[128]. Mr Carr explained in some detail the steps he is taking to obtain employment and notes the evidence above demonstrating Mr Carr’s capacity to manage his days to day tasks at home, on his own, and in cooperation with his mother and brother. He has managed his application to the Tribunal independently.
[127] JTB, page 181
[128] JTB, pages 207-208
The Tribunal concludes it has no material evidence of Mr Carr having a reduction in his capacity for self-management.
Regarding the activity of self-management, the Tribunal finds that Mr Carr’s circumstances are not captured by rule 5.8. It further finds Mr Carr’s impairment does not result in substantially reduced functional capacity to undertake the activity of self-management.
Conclusions on substantially reduced functional capacity and the disability requirements
The Tribunal is not satisfied Mr Carr’s neurological, physical and cognitive impairments results in substantially reduced functional capacity to undertake any of the activities in section 24(1)(c). Accordingly, the requirement in s 24(1)(c) is not met.
It follows that Mr Carr does not meet the disability requirements in section 24.
Does Mr Carr meet the early intervention requirements in relation to her neurological impairment?
It remains to be considered whether Mr Carr’s permanent impairments, not being found to give rise to substantially reduced functional capacity in any of the six activity areas in section 26(1)(c), would cause Mr Carr to meet the early intervention requirements.
The Tribunal has found above that Mr Carr meets the requirements of section 25(1)(a)(i) of the Act by virtue of his neurological, physical and cognitive impairments.
The next question is whether there are early intervention supports likely to reduce his future needs for supports in relation to his disability, pursuant to section 25(1)(b).
Rule 6.9 of the Access Rules sets out the mandatory considerations for the Tribunal in answering this question, being:
(a)       the likely trajectory and impact of the person's impairment over time; and
(b)       the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)       evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
Mr Carr did not make submissions to the Tribunal expressly directed to the early intervention requirements. The Agency’s position is that that purpose of section 25 of the Act is to provide supports where that may minimise the impact of a disability from its earliest appearance and may improve the person’s functioning or prevent the progression of their disability over their lifetime[129]. Mr Carr acquired his impairments in 1992.
[129] JTB, pages 9 – 10, citing the Explanatory Memorandum to the NDIS Bill 2012
The Tribunal accepts the Agency’s submissions. There is simply no medical or clinical evidence before the Tribunal that goes directly to the likely trajectory and impact of Mr Carr’s impairment over time and how early intervention would reduce Mr Carr’s needs for supports over his lifetime[130]. The limited medical evidence there is indicates that the impact of Mr Carr’s impairments have not changed over years, nor have his supports or need for them.
[130] JTB, page 78
For the above reasons, the Tribunal is not satisfied the provision of early intervention supports to Mr Carr is likely to benefit him by reducing his future needs for supports in relation to his disability. Accordingly, the requirement in section 25(1)(b) is not met and it follows from there that Mr Carr does not meet the early intervention requirements in section 25 of the Act in relation to his neurological, physical and cognitive impairments.
As the Tribunal has concluded Mr Carr does not meet the requirements for access to the NDIS, it must affirm the decision under review.
DECISION
The decision under review is affirmed.

Date(s) of hearing: 30 May 2025

Applicant: Mr J Carr

Solicitors for the Respondent:

Counsel for the Respondent:

Ms E Hourigan, Maddocks Lawyers

Mr G Johnson