Close and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 2273

Close and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2273 (28 October 2025)
Applicant:Nikki Close
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2024/6600
Tribunal:General Member A Colvin
Place:Brisbane
Date:28 October 2025

Decision:The Tribunal affirms the decision under review.

.....................SGD.................................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – adult participant – whether applicant meets disability requirements under section 24 of the NDIS Act – whether substantially reduced functional capacity in undertaking one or more of activities under paragraph 24(1)(c) of the NDIS Act
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v Foster [2015] FCA 544
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Davis and National Disability Insurance Agency [2023] AATA 1437
Burrows and National Disability Insurance Agency 2025 [ARTA] 607
Foster and National Disability Insurance Agency 2025 [ARTA] 718
Secondary Materials
NDIS – Applying to the NDIS Guidelines
Statement of Reasons
BACKGROUND

This review is about whether Ms Close should be granted access to the National Disability Insurance Scheme (NDIS). Ms Close is 41 years old and has two school-aged children. She seeks access to the NDIS based on impairments arising from major depressive disorder. Ms Close lives in her own home with her children. Her former partner also resides in the home. Ms Close does not undertake paid work and has not done so since about 2023 when she worked as a receptionist.
In April 2024 Ms Close applied to the National Disability Insurance Agency (Agency) to become a participant in the NDIS. On 17 July 2024 the Chief Executive Officer (the CEO) of the Agency decided that she did not meet the criteria to become a participant. A delegate of the CEO confirmed that decision on internal review on 14 August 2024. Ms Close applied to the Administrative Appeals Tribunal (AAT) on 27 August 2024 seeking review of that decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal).[1]
[1] 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, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT. See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
The matter was heard on the papers on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Close and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2273
Case: [2025] ARTA 2273
Decision Date: 28 October 2025

CaseChat Overview and Summary

The case involves Close, an applicant for access to the National Disability Insurance Scheme (NDIS), and the Chief Executive Officer of the NDIS, the respondent. The applicant sought to establish that she met the disability requirements under the NDIS Act to access the scheme. The dispute centred on whether Close had substantially reduced functional capacity in undertaking one or more of the activities outlined in section 24(1)(c) of the NDIS Act. The matter was ultimately reviewed by the Administrative Appeals Tribunal (AAT).

The primary legal issue the AAT needed to decide was whether Close's impairments resulted in a substantially reduced functional capacity in undertaking one or more activities under section 24(1)(c) of the NDIS Act. The AAT had to consider the evidence provided by Close’s medical professionals, including assessments by her psychologist, psychiatrist, GP, occupational therapist, and an independent occupational therapist. The AAT also needed to consider the medical reports and diagnoses, which indicated that Close had persistent depressive disorder with panic attacks, resulting in impairments in her mood, emotional function, motivation, and cognition.

The AAT concluded that although Close met the requirements of having a disability attributable to an impairment under section 24(1)(a) of the NDIS Act, she did not meet the requirement of having a substantially reduced functional capacity under section 24(1)(c). The AAT found that Close's impairments, while significant, did not result in a substantially reduced functional capacity in undertaking the activities outlined in section 24(1)(c) of the NDIS Act. The Tribunal relied on the detailed reports from the treating and independent occupational therapists, who assessed her functional capacity and concluded that, despite her impairments, she had not demonstrated a substantially reduced capacity in the relevant activities.

The AAT affirmed the decision under review, finding that Close did not meet the disability requirements for access to the NDIS. Consequently, the Tribunal upheld the decision that Close was ineligible for the scheme based on her functional capacity.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent contended that Ms Close meets paragraphs 24(1)(a) and (b) of the NDIS Act but not paragraph 24(1)(c). It contended that she did not have substantially reduced functional capacity with respect to any of the relevant activities in paragraph 24(1)(c) of the NDIS Act.THE EVIDENCE Ms Close sought access to the NDIS in July 2023. It was determined that she did not meet the access requirements and she then sought internal review, followed by review at the AAT. Ultimately, in late 2023, she withdrew that application. Ms Close then applied again in April 2024 for access to the NDIS. It is that application that is the subject of the present review. In her 2023 application, Ms Close sought access based on impairments from ‘monoarthritis and osteoarthritis’.[42] In her current application, she sought access based only on impairments from major depressive disorder.[43] Ms Close made two applications in proximity, and although she sought access based on different impairments, there is material provided during the earlier application that is relevant to the current application.[42] T8[43] T1 HB page 44 Ms Close’s psychologist, Mr Wopenka, provided a report dated 26 May 2023, described as an ‘Initial Needs Assessment’. He recorded that she had chronic rheumatoid arthritis and major depressive disorder. He described her functional capacity in a range of domains and recommended that she be provided regular psychology and access to a physiotherapist and exercise physiologist.[44][44] T5 Ms Close’s treating psychiatrist, Dr Sainani, provided a letter dated 26 September 2023 setting out Ms Close’s diagnosis (of ‘persistent depressive disorder, panic attacks’) and treatment and the ongoing impacts on her functioning.[45][45] T13 Dr Sainani provided a further letter dated 23 October 2024 setting out Ms Close’s diagnosis (again, ‘persistent depressive disorder, panic attacks’) and treatment, and the ongoing impacts on her functioning.[46][46] C1 Ms Close’s GP, Dr Stone, completed a form dated 19 August 2024 entitled ‘Evidence of psychosocial disability form’. She considered that Ms Close had treatment resistant major depressive disorder and had been diagnosed with that condition in 2005. Dr Stone provided details of Ms Close’s medications and therapy since diagnosis and Ms Close’s impairments.[47] Dr Stone completed the same form again on 24 October 2024, but this time referred to Ms Close’s diagnosis as ‘persistent depressive disorder, panic attacks’.[48] [47] T1C[48] C2 Ms Close’s occupational therapist, Mr Kabike, assessed Ms Close at home on 24 July 2023 and again on 11 January 2024, and had a telehealth appointment with Ms Close on 22 August 2024. He then provided a report dated 2 September 2024. He set out her functional capacity and recommended that Ms Close be provided with a range of supports. [49][49] T1D Ms Cummings, an independent occupational therapist, assessed Ms Close in person on 11 March 2025 and provided a report on Ms Close’s functional capacity dated 27 March 2025.

Decision

Reasons for decision

Having found that neither the disability requirements nor the early intervention requirements are met, Ms Close does not meet the access criteria in section 21 of the NDIS Act. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

A community connections plan was developed with Ms Close and finalised in April 2024. It records her living arrangements and supports at that time.[51] CONSIDERATION[51] T22The disability requirements There are five criteria in subsection 24(1) of the NDIS Act and all of those must be satisfied for a person to meet the disability requirements. A disability attributable to an impairment The Respondent conceded in its SFIC that Ms Close has psychosocial impairments attributable to major depressive disorder, meeting the requirements of paragraph 24(1)(a) of the NDIS Act. It regarded those impairments as social withdrawal, low frustration tolerance, distress and deficits in attention and memory. In October 2024, Dr Sainani said that he had been treating Ms Close since 2023 and that he had reviewed her regularly in an outpatient clinic. He considered that Ms Close had persistent depressive disorder with panic attacks. He noted she experienced mood symptoms and that her concentration and task completion were affected. Dr Stone also described Ms Close, in October 2024, as having persistent depressive disorder with panic attacks. Dr Stone said Ms Close was experiencing complete social withdrawal, low frustration tolerance, and distress in social contexts. She also said that Ms Close was struggling with memory, multi-step tasks, and keeping her ‘attention on track for decisions and problem-solving’ and had difficulties with organisation and focus.[52] [52] C2 In March 2025, Ms Cummings concluded that her analysis and interpretation of medical reports indicated that Ms Close had major depressive disorder that impacted her motivation, her ability to maintain an even demeanour around others, and her cognitive endurance, particularly regarding memory, concentration and attention. During her assessment of Ms Close, Ms Cummings administered a cognitive screen. Ms Close scored 25/30 and Ms Cummings explained that scores below 26 indicated cognitive impairment. Ms Cummings described Ms Close’s cognitive function as ‘mildly impaired’, particularly in the areas of short-term recall and fluency. Ms Cummings considered that Ms Close had made appropriate adaptations such as using external memory aids to compensate. [53] [53] Page 496 Ms Close contended that she has major depressive disorder. I am satisfied based on the documents completed by Ms Close’s GP and psychiatrist in October 2024 that Ms Close has a mental health condition. Based on her treating psychiatrist’s opinion, that condition is best described as persistent depressive disorder with panic attacks. It is not necessary however for the purposes of paragraph 24(1)(a) of the NDIS Act to determine Ms Close’s precise diagnosis. I am satisfied based on the above evidence that, arising out of her persistent depressive disorder with panic attacks, Ms Close has impairment of her mood or emotional function. This includes depressed mood, panic attacks, distress and low frustration tolerance. I am also satisfied based on the evidence above, that Ms Close has impaired motivation. She also has impaired cognition. This includes impaired memory, concentration, problem solving and organisation.