Clayton and Chief Executive Officer, National Disability Insurance Agency (NDIS)

[2025] ARTA 1566

Clayton and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 1566 (29 August 2025)

Applicant/s:  Nickie Clayton

Respondent:  Chief Executive Officer, National Disability Insurance Agency

Tribunal Number:                2024/3354

Tribunal:General Member S Smith

Place:Brisbane

Date:29 August 2025

Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is affirmed.

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

General Member S Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME - reasonable and necessary supports –support worker assistance – assistance animal – physiotherapy – occupational therapy – consumables - section 34 National Disability Insurance Scheme Act 2013 (Cth) –decision affirmed

Legislation

Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) s34, s35, 24, 25
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’).

National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, (‘Supports Rules’)

Cases

Beaumont and National Disability Insurance Agency [2024] AATA 891
Beezley v Repatriation Commission (2015) FCAFC 165
Coffey and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA
FSWN and National Disability Insurance Agency [2025] ARTA 114
G v Minister for Immigration and Border Protection [2018] FCA 1229
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Madelaine and National Disability Insurance Agency [2020] AATA 4025
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Robinson and National Disability Insurance Agency [2025] ARTA 1238
Rooney and National Disability Insurance Agency [2021] AATA 3523

Williams and National Disability Insurance Agency [2021] AATA 3383

Secondary Materials

NDIS – Operational Guidelines - Reasonable and necessary supports, 22 September 2024
NDIS – Operational Guidelines – Assistive Technology, 20 December 2023
NDIS – Operational Guidelines - Assistance Animals including dog guides, 27 March 2025

Statement of Reasons

1. Ms Clayton is a woman aged over 45 years old and she resides in Queensland with two of her five children and her three dogs, one of whom, ‘R’ is her ‘support dog.’[1]

   [1] Oral evidence of Ms Clayton.

2. Ms Clayton became a participant of the National Disability Insurance Scheme (‘the scheme’) from 2 February 2017. Ms Clayton was granted access on the basis of psychosocial impairment as a consequence of Bipolar Affective Disorder (‘BPAD’).[2]

   [2] T1A.

   BACKGROUND

3. On 30 November 2023, the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (the ‘Agency’) approved a participant’s plan (the ‘plan’) for Ms Clayton. This plan included a statement of participant supports (‘SOPS’)[3] made pursuant to section 48 of the National Disability Insurance Scheme Act 2013 (the ‘NDIS Act’).

   [3] T13.

4. On 30 January 2024 Ms Clayton requested an internal review of her SOPS in order to seek further supports in relation to her claimed impairments.[4]

   [4] T8.

5. On 15 May 2024 the Agency affirmed its original decision to refuse funding for these additional supports (‘the decision under review’).[5]

   [5] T2. T1V.

6. On 28 May 2024 Ms Clayton applied to the Administrative Appeals Tribunal (‘AAT’) for a review of the decision under review.[6]

   [6] T1. Pursuant to section 103 of the NDIS Act.

7. From 14 October 2024, the AAT became the Administrative Review Tribunal (the ‘Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

8. At the time of the hearing Ms Clayton’s plan and SOPS were for the period 10 February 2025 to 9 February 2026.[7] Pursuant to section 103(2)(e) of the NDIS Act, Ms Clayton’s application is also taken to be a review of the decision to approve the SOPS in this current plan.

   [7] EB-4.

9. At the hearing Ms Clayton was not legally represented. She was assisted by her support coordinator, Ms Becky Heeschen, from Let’s Connect Support Services. The Agency was represented by Mr B Wilson of Counsel, instructed by Sparke Helmore Lawyers. Ms Clayton, and her former support coordinator, Ms Tanya Anderson gave oral evidence at the hearing.

   ISSUES IN CONTENTION

10. The Tribunal will consider two issues.

11. Firstly, Ms Clayton contends that her ‘other diagnosed conditions’ (‘other conditions’) should be recognised as meeting both the access requirements and the early intervention requirements to the scheme’[8] under section 24 and section 25 of the NDIS Act. The other conditions are:

    ·Fibromyalgia: Ms Clayton stated ‘it causes widespread pain in my muscles and soft tissues;’[9]

    ·Ehlers-Danlos Syndrome (‘EDS’); Ms Clayton stated this condition affects me the most on a day-to-day basis. It is part of a hypermobility spectrum disorder (HSD).[10] I experience joint instability and pain due to HSD;’[11] and

    ·Postural Orthostatic Tachycardia Syndrome (‘POTS’) Ms Clayton stated, ‘I often get dizzy standing up.’[12]

    [8] Oral evidence of Ms Clayton.

    [9] EB-2

    [10] Oral evidence of Ms Clayton. EB-2.

    [11] Oral evidence of Ms Clayton. EB-3, p. 4.

    [12] Oral evidence of Ms Clayton.

12. The Agency contends that Ms Clayton’s other conditions do not result in impairments that satisfy section 24 or section 25 of the NDIS Act.

    ·Regarding fibromyalgia the Agency contends that subsection 24(1)(c) of the NDIS Act is not met.

    ·Regarding EDS, HSD, and POTS the Agency contends that subsection 24(1)(a) of the NDIS Act is not met.

13. Secondly, Ms Clayton seeks funding in her SOPS for the following five supports:[13]

    [13] Oral evidence of Ms Clayton.

    ·Three core supports:

    oAdditional funding for support worker hours comprised of ‘eight hours per day in home and community at the weekday rate, to be used flexibly on Mondays to Saturdays’;

    oAdditional consumables funding for ‘continence items’ of an unspecified amount;

    oFunding for an Assistance Animal, ‘R’, at an annual cost estimated to be $3,654.82;

    ·Two capacity building supports

    oAdditional funding for ‘42 hours per year for occupational therapy comprised of 30 hours per year for assessment and report writing and 12 hours per year for one hour each month of hand therapy from an occupational therapist’; and

    oFunding for ‘weekly physiotherapy for 52 weeks per year.’

14. The Agency contends that the five requested supports above are not reasonable and necessary supports for Ms Clayton pursuant to section 34(1) of the NDIS Act and therefore cannot be included in Ms Clayton’s SOPS.

15. The Agency contends that Ms Clayton’s plan currently includes sufficient funding comprised of:[14]

    [14] EB-4.

    ·Core supports funding

    oAssistance with daily life of $49, 318.80

    oAssistance with Social, Economic and Community Participation of $28,104.96

    oConsumables - $200.04.

    ·Capacity Building supports funding

    oImproved daily living skills $4,315.80 as a stated support for Occupational Therapy and psychology.

    THE LEGAL FRAMEWORK

    National Disability Insurance Scheme Act 2013 (Cth)

16. The general principles and guiding actions taken under the NDIS Act are set out in section 4 and the objectives are stated in section 3. In particular, section 3(1)(c) and (g) state that the objectives of the NDIS Act are to support the independence and social and economic participation of people with disability and to enable people with disability to maximise independent lifestyles and full inclusion in the community. Additionally, in giving effect to these objectives, regard is to be had to the need to ensure the financial sustainability of the scheme.[15]

    [15] See section 3(3)(b) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).

17. Ms Clayton’s plan must include a SOPS, that is approved in accordance with section 33 and relevant rules made under the NDIS Act.

18. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.

19. On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the Back on Track Act) made a range of ‘amendments’ to the NDIS Act.

20. These amendments in respect of the requirements of section 34 of the NDIS Act will apply to this review.[16]

    [16] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) s 129.

21. Section 34 of the NDIS Act, as amended, now provides as follows (underlined emphasis of the amendments added by the Tribunal):

    Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

    (a)    the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

    (b)    the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)    the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)    the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)    the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f)     the support is an NDIS support for the participant.

    Note: For the purposes of paragraph (aa):

    (a)   the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

    (b)   a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

    (2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

22. Subsection 34(1) of the NDIS Act is cumulative and therefore all of the criteria must be met. Moreover, the Tribunal must be positively satisfied about each criterion and the Applicant has a ‘common sense onus to adduce sufficient evidence to satisfy the Tribunal that the criteria are met.[17] 

    [17] See Beezley v Repatriation Commission (2015) FCAFC 165 [68] (North, Tracey and Mortimer JJ). See also National Disability Insurance Agency v WRMF (2020) 276 FCR 415 [201]-[202].

23. Subsection 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement on the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Ms Clayton which arise from the impairment/s for which she meets the disability or early intervention requirements.

24. Subsection 34(1)(f) of the NDIS Act has been amended and states that the decision maker must be satisfied the support is an ‘NDIS support for the participant’.

25. Relevantly, section 10 of the NDIS Act, made pursuant to the Back on Track Act provides a definition of what constitutes an ‘NDIS support’ for the purposes of subsection 34(1)(f) of the NDIS Act (as amended).

26. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Supports Rules’) were made pursuant to the Back on Track Act to determine whether something is or is not an NDIS support as defined at section 10 of the NDIS Act. Schedule 1 to the Transitional Supports Rules identifies supports that are NDIS supports unless otherwise provided, for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Supports Rules identifies supports that are generally not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.

27. The section 10 of the NDIS Act definition of NDIS support provides as follows:

    Supports that are NDIS supports

    (1)Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

    (a)    participants or prospective participants generally; or

    (b)    a class of participants or prospective participants that includes the person.

    Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

    (a)    for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)    for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (3)National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

    (a)    the declaration of the support implements Australia’s obligations under:

    (i)the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

    (ii)any other agreement with one or more other countries;

    (b)    the declaration of the support enables the provision of sickness benefits.

    Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( that are not NDIS supports

    (4)The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

    (a)    participants or prospective participants generally; or

    (b)    a class of participants or prospective participants.

    Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (5)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

    (a)    for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

    (b)    for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

    (6)The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

    (a)    the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b)    the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c)    the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d)    the CEO is satisfied that:

    (i)the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii)the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii)the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv)any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

    Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

    Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (7)An application under paragraph (6)(c) must:

    (a)    be in the form (if any) approved by the CEO; and

    (b)    include any information, and be accompanied by any documents, required by the CEO; and

    (c)    be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

    (8)The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

    (9)A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

    (a)    sexual services; or

    (b)    alcohol; or

    (c)    drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

28. Subsection 34(2) of the NDIS Act provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) of the NDIS Act are met in respect of a requested support.

29. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will be funded or provided under the NDIS.

30. The relevant rules in respect of this review are the:

    ·National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’); and

    ·National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘Access Rules’).[18]

    [18] Made pursuant to sections 22, 23, 25, 27 and 209 of the NDIS Act regarding access to the scheme.

1. Rule 3 of the Supports Rules relates specifically to subsections 34(1)(c)–(e) of the NDIS Act and provides as follows:

   Value for money

   3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

   (a)   whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

   (b)   whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

   (c)   whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

   (d)   for supports that involve the provision of equipment or modifications:

   (i)the comparative cost of purchasing or leasing the equipment or modifications; and

   (ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

   (e)   whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

   (f)    whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

   Effective and beneficial and current good practice

   3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

   (a)   published and refereed literature and any consensus of expert opinion;

   (b)   the lived experience of the participant or their carers; or

   (c)   anything the Agency has learnt through delivery of the NDIS.

   3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek expert opinion.

   Reasonable family, carer and other support

   3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

   (a)     for a participant who is a child:

   (i) that it is normal for parents to provide substantial care and support for children; and

   (ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and

   (iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and

   (b) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;

   ………………………………………………………………………………………

   (c)   for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

2. Rule 5 of the Access Rules relates to sections 24 and 25 of the NDIS Act and provides as follows:

   When does a person meet the disability requirements?

   5.1 The Act sets out when a person meets the disability requirements. The requirements are met if:

   (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and

   (b)the person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); …

   When is an impairment permanent or likely to be permanent for the disability requirements?

   5.4An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) 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.

3. Rule 5.8 considers the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity and provides:

   When does an impairment result in substantially reduced functional capacity to undertake relevant activities

   5.8   An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care 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.

4. In McGarrigle v National Disability Insurance Agency[19](‘McGarrigle’) at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:

   The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.

   [19] McGarrigle v National Disability Insurance Agency [2017] FCA 308 [43] (‘McGarrigle’).

5. The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[20]

   Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.

   [20] Ibid [91].

6. The Full Court in National Disability Insurance Agency v WRMF[21] also considered the meaning of reasonable and necessary supports, and stated as follows:

   The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

   … Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

   Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

   [21] National Disability Insurance Agency v WRMF [2020] FCAFC 79 [149] – [151] (‘WRMF’).

   OPERATIONAL GUIDELINES

7. The Agency also issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[22] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[23] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[24] where Mortimer J held:[25]

   Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.

   [22] Minister for Home Affairs v G [2019] FCAFC 79 [18].

   [23] [1979] AATA 179 (1979); 2 ALD 634.

   [24] [2018] FCA 1229.

   [25] Ibid at [171].

8. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for Ms Clayton. The Guidelines relevant to this review are the:

   ·NDIS – Operational Guidelines – Continence supports, as at 7 April 2025;

   ·NDIS – Operational Guidelines – Assistive Technology (‘AT’) (equipment, technology and devices), as at 20 December 2023;

   ·NDIS – Operational Guidelines – ‘Principles we follow to create your plan’, as at 7 April 2025;

   ·NDIS – Operational Guidelines – ‘Reasonable and necessary supports’, as at 28 March 2025; and

   ·NDIS – Operational Guidelines – Assistance animals including dog guides, as at 27 March 2025.

   EVIDENCE

9. The following material was filed and accepted as Exhibit Bundles (EB):

   ·EB-1 - Agency produced joint tender bundle – 602 pages;

   ·EB-2 – Ms Clayton’s written statement, 17 July 2025, 5 pages;

   ·EB-3 – Ms Clayton’s ‘overarching statement’, 1 July 2025, 13 pages;

   ·EB-4 – Ms Clayton’s SOPS and current plan dated 10 February 2025 – 9 February 2026, 33 pages;

   ·EB-5 – Ms O’Donnell, occupational therapist, final version report, updated on or around February or March 2024, 30 pages.

10. I have considered all the written evidence filed with the Tribunal and provided in the exhibit bundles, the oral evidence at the hearing and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before me into account in reaching my decision.

11. I have undertaken a ‘fact intensive exercise’ in making my decision in respect of what supports should be included in Ms Clayton’s SOPS. This exercise includes the consideration of Ms Clayton’s individual circumstances, impairments, and needs.

    Evidence of and about Ms Clayton

12. In October 2022 Ms Clayton moved to live in her own property; a two-storey townhouse. Ms Clayton lives with her adult-aged daughter and her son, who attends high school.[26] Ms Clayton’s other three adult-aged children reside in another town. Ms Clayton has no other informal supports in her current hometown.

    [26] EB-4, T1T and oral evidence of Ms Clayton. 

13. Ms Clayton completed a university degree in 2016. She ceased work in 2017 after a traumatic workplace incident.[27] Ms Clayton has received the Disability Support Pension since around 2003.[28]

    [27] EB-5, p. 10.

    [28] EB-1, page 443.

14. Ms Clayton confirmed the first five listed goals below as listed in her current SOPS and stated an additional goal at dot point number six. Ms Clayton’s goals are to:[29]

    ·Make sure that her support dog, ‘R’, is fully trained, so that she passes her Public Access Test (PAT) each year;

    ·Continue to build her physical fitness so that she can be healthy and interact with her family;

    ·Be more stable mentally, so that she can be a more prominent part of her home and family;

    ·Increase her participation in community and to meet new people;

    ·Gain the nutrition she requires to maintain her health and wellbeing; and

    ·Have assessments for assistive technology aids or equipment to remain safe in her home and community.[30]

    [29] Pursuant to section 33(5)(a) of the NDIS Act. Oral evidence of Ms Clayton.

    [30] Ms Clayton stated this as a new goal at the hearing.

15. The evidence indicates that Ms Clayton has received the following diagnoses: [31] 

    ·BPAD;[32]

    ·Generalised Hypermobility Disorder (GHD) or HSD[33]; which was ‘diagnosed by my former General Practitioner (GP) who is now retired’;[34]

    ·Postural Orthostatic Tachycardia Syndrome (‘POTS’);

    ·Fibromyalgia;

    ·Chronic migraines;

    ·Complex Post Traumatic Stress Disorder (CPTSD)[35]; and

    ·Depression.

    [31] T1S Dr Louise McCormack, Rheumatologist, 17 January 2024.

    [32] T1A.

    [33] Ms Clayton referred to GHD or HSD as the ‘same condition.’

    [34] Oral evidence of Ms Clayton.

    [35] Oral evidence and closing submissions of Ms Clayton.

16. Ms Clayton contends that her ‘NDIS accepted diagnoses’ should also include the ‘other conditions’: [36]

    ·Fibromyalgia;

    ·EDS and HSD; and

    ·POTS.

    [36] Oral evidence of Ms Clayton.

17. Ms Clayton reports that she experiences the following symptoms and difficulties due to her other conditions:[37]

    [37] Oral evidence of Ms Clayton.

    ·‘Due to my fibromyalgia, I have discomfort with simple tasks, I always have body pain and fatigue;’

    ·‘I have difficulty with transfers. I sometimes hold on to the wall or furniture. I can fall or be unsteady on my feet as I get dizzy depending on the EDS flare. I have flare days every 1.5 weeks but even on good days my pain level is at 2/10’;

    ·‘My flares of pain can last up to four to five days and the time between the flares of pain is not always the same but not more than every 1.5 weeks.’

    ·‘I can eat solid food from a restricted FODMAP diet. My EDS gives me gastrointestinal issues…I have a fear of food and the way my body processes food. I drink a liquid resource supplement because I know I have digestive problems;’

    ·‘On a good day I can cook meals for my children, but a flare day may last 4 to 5 days so my fatigue stops me. Due to my EDS, I have poor coordination and I can’t use knives and make meals at times.’

    ·‘Due to my pain and fatigue from these other conditions, I can clean in short intervals like picking up the dog toys off the floor and sitting and folding clothes. Sometimes I can vacuum, sometimes I can’t. Wiping benches down is pretty easy for me if I am not on my feet for too long.’

    ·‘Due to pain, I will sit and shower myself unassisted on about five days a week. On some days I won’t shower if I have a bad day;’

    ·‘I can dress myself unassisted but with some difficulty and it is slow’;

    ·‘I am independent with toileting, but I have some physical difficulties in transferring on and off the toilet as I am unsteady on my feet. I assume it is due to my EDS. I dress myself with difficulty due to pain, I find showering challenging due to pain;

    ·‘Due to EDS flares, I am sometimes incontinent because food goes through me so quickly. I use protective products which is uncomfortable and annoying;’

    ·‘I can put laundry in the washing machine. I sit on the floor and put it in and turn it on. It is a POTS thing – linked to my EDS – my body does not respond well from sit to stand– I feel dizzy and faint and fall.’

    ·‘I do online shopping. Or on a good day I will go to the shop with the support worker or my children, but I never go to the shops alone due to pain and fatigue. I don’t go to the shops with my support dog, I do not go out much, so the dog stays at home and she regresses in her training.’

    ·‘I can drive but it depends on a flare of my EDS. I sometimes drive once or twice a week but choose not to drive most of the time because I do not want to put my life or other people’s life at risk. I rely on support workers to get me to appointments. If they are not available, I will drive because I like my independence.’

    ·‘I helped my daughter get her licence, and I taught my son how to catch public transport to school because I cannot get him there due to my pain and fatigue.’

    ·‘Due to my EDS, I require formal supports to safely access the community due to my symptoms it impacts my cognitive alertness. I need support for my appointments, and I need someone else to schedule reminders to remember appointments so I can keep my daily life engaged.’[38]

    [38] Closing submissions of Ms Clayton.

18. Ms Clayton reported that she often uses:

    ·a ‘powered wheelchair’ when she goes into the community for a longer period,

    ·a four-wheeled walker; and

    ·a shower chair due to pain and mobility issues.[39]

    [39] Oral evidence of Ms Clayton.

19. Relevantly, with regard to the supports in contention, Ms Clayton’s current SOPS provides annual funding under the scheme for the following supports:[40]

    ·Core supports – Assistance with daily life for daily activities, personal tasks, and self-care as a flexible, plan-managed support - $49, 318.80

    ·Core supports – Assistance with Social, Economic and Community Participation, as a flexible, plan managed support - $28,104.96

    ·Core supports – Consumables to assist purchasing everyday use items as a flexible, plan managed support - $200.04

    ·Capacity building supports – Improved Daily living skills for occupational therapist and psychologist as a stated, plan managed support - $4,315.80.

    ·Capacity building Support – support coordination and psychosocial recovery coaches - $5,070.96 as a stated, plan managed support.

    ·Recurring supports – recurring transport – as a stated, self-managed support – transport $1,784.00.

    [40] EB-4.

1. Ms Clayton stated she requires the following five supports:[41]

   [41] Oral evidence of Ms Clayton.

   ·Three core supports:

   oAdditional 20 hours of support worker funding each week;

   oAdditional consumables funding for ‘continence items’ of an unspecified amount;

   oFunding for an Assistance Animal (‘AA’) at an annual cost estimated to be $3654.82;

   ·Two capacity building supports

   oAdditional 25.5 hours of funding per year for ‘occupational therapy’; and

   oFunding for ‘weekly physiotherapy for 52 weeks per year’;

2. Ms Clayton contends that she requires ‘an additional 20 hours of support worker funding’ which would total 42 hours per week of support worker assistance in order to:

   ·Assist her with activities of daily living in my home such as cleaning, gardening and meal preparation and support outside of the home to attend appointments, weekly shopping and create networks in my new community.’[42]

   ·‘Live independently and with dignity and safety. It is not about luxury it is about keeping my daily life engaged because I do not meet the criteria for other community supports. I need the legitimacy of my conditions being recognised.’

   [42] EB-3, p. 9.

3. Ms Clayton last attended an occupational therapist in February 2024.[43] Ms Clayton contends that she requires ‘an additional 25.5 hours of funding per year which would total 42 hours per year of occupational therapy funding which Ms Clayton seeks to use as follows:

   ·1 hour session each month of the year for ‘hand therapy’ with a ‘specialist hand therapist occupational therapist due to my hypermobility.’

   ·30 hours per year of occupational therapy report writing for AT, and home modifications.

   [43] Oral evidence of Ms Clayton.

4. Ms Clayton contends that her dog ‘R’ is a required support because she has:[44]

   ·Been a ‘support dog since 2019;’[45]

   ·Previously passed a Public Access Test (PAT);

   ·Been assessed as a Psychiatric Assistance dog and that ‘I am at my most stable with ‘R;’ and

   ·Been able to block people from crowding me in the community.

   [44] EB-3.

   [45] EB-3.

   Written evidence of Ms Kathryn O’Donnell, occupational therapist, Other Ways Therapy

5. Ms Clayton provided Ms O’Donnell’s 5 February 2024[46] report. This report stated that Ms O’Donnell attended Ms Clayton on 12 February 2023 for an in-person assessment at a location that was not Ms Clayton’s home.

   [46] EB-1, T1T.

6. Ms Clayton assisted the Tribunal by providing a different version of Ms O’Donnell’s report at the end of the first day of the hearing. The Tribunal marked Ms O’Donnell’s filed report at EB-1 as the ‘draft version’ (the ‘draft version’). On the second day of the hearing the Tribunal marked an updated version of Ms O’Donnell’s report as (the ‘final version’).[47]

   [47] EB-5. Oral evidence of Ms Clayton.

7. Ms Clayton relied on the final version of Ms O’Donnell’s report. Ms Clayton stated that Ms O’Donnell attended Ms Clayton’s home and conducted an in-person functional capacity assessment on 9 February 2024. The final version had the date of signature as 5 February 2024.  I accept Ms Clayton’s evidence that Ms O’Donnell provided the final version to Ms Clayton some weeks later in February or March 2024 after Ms O’Donnell attended Ms Clayton’s home on 9 February 2024.[48]   

   [48] T1T, page 152. Oral evidence of Ms Clayton.

8. There were several minor changes and several substantive changes in Ms O’Donnell’s final report when compared to the draft version.

9. Ms Clayton gave evidence that the minor changes between the draft version and final version were as follows:

   ·The face-to-face review of Ms Clayton occurred at her home and there was no support worker in attendance during the review;

   ·Ms Clayton’s age was incorrectly reported in the draft version;

   ·Ms Clayton’s status of property ownership was incorrectly reported in the draft version;

   ·Ms Clayton received informal support at home from her niece only at the time of the draft version, and she no longer receives any informal support from her niece;

   ·Ms Clayton’s diagnosis of PTSD was amended to Complex PTSD throughout the final version;

   ·The final version correctly noted that Ms Clayton receives gardening and cleaning support at her home.

10. Ms Clayton gave evidence that there were several substantive changes between the draft version and final version as follows:

    ·The ‘recommendations section’ in the final report recommended hours for certain kinds of support that were not provided in the draft version;[49]

    ·The recommendations for some supports included an increase in hours to what was originally recommended in the draft version. For example, in home supports for activities of daily support Ms O’Donnell’s draft version recommended two hours daily for 14 hours per week. The final version recommended 3 hours daily or 21 hours per week.

    ·The recommendation for instrumental activities of daily living support for cleaning, laundry, transport, and medication management was increased from one hour daily to two hours daily. Therefore, the final version recommended a total of 14 hours per week.

    ·The draft version recommended 1 hour per day, in total 21 hours per week in support worker hours. The final version recommended in total 35 hours per week in support worker hours.

    ·The draft version did not recommend a specific amount of funding for hand therapy or occupational therapy. The final version specifically recommended occupational therapist funding for 52 hours per year, plus reporting and travel costs.

    ·The draft version did not recommend a specific amount of funding for physiotherapy. The final version recommended 52 hours per year of physiotherapy funding plus reporting and travel costs.

    [49] EB-5, p. 18.

11. Ms Clayton gave evidence that the draft version and the final version had the same recommendations with respect to recommendations as follows:

    ·Neither the draft version nor the final version recommended a specific amount of funding for continence items. Both the reports stated Ms Clayton ‘requires consumables for incontinence.’

    ·Neither the draft version nor the final version recommended a specific amount of funding for an assistance animal. Both the reports stated Ms Clayton ‘requires an assistance animal’.[50]

    [50] EB-1, p. 160. EB-5, p. 19.

    Written evidence of Dr Louise McCormack, Consultant Rheumatologist, Arthritis Care Rheumatology

12. Dr McCormack wrote that she first assessed Ms Clayton on 30 June 2023, and she documented on 4 December 2024[51] that Ms Clayton:

    ‘meets diagnostic criteria for generalised hypermobility disorder, fibromyalgia. Her POTS was not diagnosed by myself, but she tells me it was diagnosed in 2021…

    Nickie did not meet diagnostic criteria for hypermobile EDS. This was due to the absence of prolapse, hernias, no high arched palate or arachnodactyly, papules. No atrophic scars or striae.’

    Written evidence of Dr Leanne Barron, general practitioner, the Banyans Medical Centre and Specialist Clinics

    [51] EB-1, pp. 409-412.

13. Dr Barron completed a ‘patient health summary’ and a ‘to whom it may concern’ letter for Ms Clayton on 21 June 2024.[52] Dr Barron wrote to ‘confirm the … diagnoses for Nickie Clayton. These conditions are significantly impacting Nickie’s quality of life, as detailed in the accompanying forms.’ The listed diagnoses were: ‘major gut issues, Ehlers Danlos Syndrome, asthma, eating disorder, dissociative disorder, Bipolar affective disorder, chronic pain, PTSD, GORD, peptic ulcer, DVT, Hypercalcaemia, and migraine.’[53]

    [52] EB-1, pp. 472-473.

    [53] EB-1, pp. 472-473.

14. Dr Barron completed an ‘access request- supporting evidence form for Ms Clayton on 21 June 2024.[54] Dr Barron wrote that Ms Clayton’s EDS was her ‘primary impairment.’ In answer to ‘how long has the person had this impairment?’ Dr Barron wrote it was ‘lifelong’.’[55]

    [54] EB-1, pp. 474-481.

    [55] EB-1, p. 476.

    Oral evidence of Ms Tanya Anderson, former support coordinator

15. Ms Anderson was Ms Clayton’s support coordinator when she resided in a different town.

16. Ms Anderson’s oral evidence in respect of Ms Clayton can be summarised as follows:

    ·‘She does not get enough support;’ and

    ·‘I am now an informal friend to her.’

17. I am satisfied that Ms Anderson:

    ·Provided evidence as an informal friend to Ms Clayton;

    ·Accepts Ms Clayton’s assertions that the funding in Ms Clayton’s SOPS is insufficient; and

    ·Is no longer Ms Clayton’s support coordinator.

    CONSIDERATION

18. I am satisfied that Ms Clayton was granted access to the scheme on the basis of meeting the early intervention requirements pursuant to section 25 of the NDIS Act.[56] At that time Ms Clayton met the early intervention requirements on the basis of the diagnosis of BPAD in respect of her psychosocial impairment.[57]

    [56] T1A.

    [57] EB-1, page 397.

19. I consider that Ms Clayton provided an honest and frank account of her circumstances, impairments and needs.

20. It was uncontested that Ms Clayton has complex needs.[58] I accept Ms Clayton’s evidence that due to her other conditions she experiences physical impairments which include:

    ·Varying levels of pain and fatigue across a typical week;

    ·Times where she ‘loses her balance and feels dizzy and must sit down’;

    ·Varying levels of gastro-intestinal issues;

    ·Intermittent incontinence; and

    ·Varying levels of cognitive fluctuations from her ‘high fatigue levels’ and that she often decides to remain seated, or to lie down to ‘conserve energy’ or she sometimes decides whether ‘it is safe to drive or not to drive my car.’[59]

    [58] Closing submissions of Agency.

    [59] Oral evidence of Ms Clayton.

21. I acknowledge Ms Clayton’s ‘overarching statement’, her statement of lived experience, and the evidence of her former support coordinator and now ‘informal friend’, Ms Anderson.

22. I accept Ms Clayton’s evidence that she asserts that the requested supports would benefit her due to the ‘symptoms she experiences’ from her other conditions.

    Issue number 1: Do Ms Clayton’s other conditions satisfy the statutory criteria under section 24 and section 25 of the NDIS Act?

23. I accept that Ms Clayton has also received diagnoses for several other conditions.[60]  However, Ms Clayton was not granted access to the scheme on the basis of any of these other conditions[61] that she contends impact on her current physical functional capacity. Ms Clayton was granted access to the scheme for her psychosocial impairment.

    [60] Listed at [45].

    [61] Except for the psychosocial impairments attributable to BPAD.

24. Even though Ms Clayton has diagnoses for these other conditions, Ms Clayton must still meet the relevant criteria under section 24 or section 25 of the NDIS Act. Ms Clayton contended that she has physical impairments attributable to these other conditions. Ms Clayton asserted that she met both section 24 and section 25 of the NDIS Act for fibromyalgia and the ‘other conditions’ of EDS, HSD and POTS which I will deal with in turn.

25. In order to satisfy the access ‘threshold provisions’[62] the Tribunal is required to reach a state of satisfaction in relation to the relevant criteria with a certain degree of specificity.[63] The Tribunal must be positively satisfied on the statutory criteria and the applicant has a ‘common sense onus to adduce sufficient evidence to satisfy the Tribunal that the criteria are met.[64]

    [62] National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’) at [53].

    [63] Davis at [60]-[61].

    [64] See Beezley v Repatriation Commission (2015) FCAFC 165 [68] (North, Tracey and Mortimer JJ). See also National Disability Insurance Agency v WRMF (2020) 276 FCR 415 [201]-[202].

26. I note the Full Federal Court in National Disability Insurance Agency v Foster (‘Foster)[65] cited with approval Mortimer J’s detailed consideration of the statutory construction of impairment in Mulligan v NDIA [2015] FCA 544 (‘Mulligan’).[66] (Underlining for emphasis added by the Tribunal):

    [65] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’) at [46].

    [66] Mulligan v NDIA [2015] FCA 544 at [52] – [56].

    [52] Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports“ to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.

    [53] At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:

    Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

    [54] Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support“ (31 July 2011), stated:

    Individuals receiving individually tailored, funded supports through the NDIS:

    • should have a disability that is, or is likely to be, permanent, and

    • would meet one of the following conditions:

    • have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support

    • be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective

    In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.

    [55] Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

    [56] That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious“, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

27. Section 24 of the NDIS Act is cumulative, and all criteria must be met, it provides as follows:

    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 or economic participation; and

    (e)       the person is likely to require NDIS 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 NDIS 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 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).

28. The early intervention requirement is found in Section 25 of the NDIS Act and in Part 6 of the access rules. Section 25 of the NDIS Act is cumulative, and all criteria must be met. In summary that is whether:

    ·Ms Clayton has 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 pursuant to section 25(1)(a) of the NDIS Act;[67] and

    ·The decision maker 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 pursuant to section 25(1)(b) of the NDIS Act;[68] and

    ·The decision maker is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

    omitigating 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

    opreventing the deterioration of such functional capacity; or

    oimproving such functional capacity, or

    ostrengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer pursuant to section 25(1)(c) of the NDIS Act[69]; 

    [67] And Rules 6.2(a) and 6.4-6.7 of the access rules.

    [68] And rules 6.2(b) and 6.8-6.11 of the access rules.

    [69] And rules 6.2(c) and 6.8-6.11 of the access rules.

    Fibromyalgia

29. It was uncontested[70] and I accept that Ms Clayton:

    ·Has a disability to which a physical impairment is attributable, as a result of her diagnosed condition of fibromyalgia, pursuant to section 24(1)(a) of the NDIS Act;[71]

    ·Has physical impairments of pain and fatigue in her muscles and soft tissue arising from fibromyalgia that are permanent pursuant to section 24(1)(b)[72] of the NDIS Act based on the evidence of Dr Barron and Dr Ennis.

    [70] Agency closing submissions.

    [71] T1S.

    [72] And rule 5.4 of the access rules.

30. I turn now to consider only two of the four domains of functional capacity pursuant to section 24(1)(c) of the NDIS Act. This is because Ms Clayton only sought to rely on physical impairments from fibromyalgia that impacted her in the domains of mobility and self-care.

31. Ms Clayton stated she relied on reports that stated her physical impairments were attributable to fibromyalgia, and this caused her a ‘severely reduced functional capacity in mobility and self-care.’[73] Dr Barron, Dr Ennis and Ms O’Donnell were all unavailable to provide further evidence regarding these issues.

    [73] Oral evidence of Ms Clayton.