Coffey and CEO, National Disability Insurance Agency (NDIS)

Coffey and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 634 (29 May 2025)
Applicant/s:  Andrew Coffey
Respondent:  CEO, National Disability Insurance Agency
Tribunal Number:                2024/2996

Tribunal:Senior Member P French
Place:Sydney
Date:29 May 2025
Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................
Senior Member P French
Catchwords
National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – becoming a participant – access request – whether applicant meets the access criteria – whether applicant meets the disability requirement – whether applicant has a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable – whether impairments are, or are likely to be, permanent – whether impairment or impairments result in substantially reduced functional capacity – disability requirements not satisfied – early intervention requirements not satisfied – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 25
Administrative Review Tribunal Act 2024 (Cth), s 12
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth); Schedule 16, item 24
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 17A, 20, 21, 22, 23, 24, 25, 99, 100, 103
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth), s 126
National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.4, 5.5, 5.6, 5.7, 5.8, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 606
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] FCAFC 39; 1979 2 ALD 634
DQKZ and CEO, National Disability Insurance Agency [2024] AATA 2276
HPSC and National Disability Insurance Agency [2021] AATA 727
Mulligan and National Disability Insurance Agency [2015] FCA 544; 233 FCR 201
Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286
Secondary Materials
National Disability Insurance Agency, Applying to the NDIS – Pre-Legislation Changes, 14 October 2024
T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva
World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3
Statement of Reasons
INTRODUCTION

This is an application by Andrew Coffey (the Applicant) under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act, the Act) for independent review of an internal review decision made under s 100(6) of that Act by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (the review delegate, the CEO, the Agency, the reviewable decision) on 4 April 2024. By that decision, the review delegate confirmed the CEO’s original decision under s 20(1)(a) of the Act made on 1 February 2024 which was that the Applicant did not meet either the disability requirements specified in s 24, or the early intervention requirements specified in s 25, and that accordingly, he did not meet the criteria for access to the NDIS specified in s 21(1)(c) of the Act. The Tribunal has jurisdiction under s 12 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) to conduct an independent review of this decision because it is designated a reviewable decision by s 99(1) (Item 1) of the NDIS Act.[1] This application was made to the Tribunal on 14 May 2024 (the application).
[1] This proceeding commenced before the Administrative Appeals Tribunal (AAT) in accordance with the power conferred by s 25 of the Administrative Appeals Tribunals Tribunal Act 1975 (Cth). The AAT was abolished and replaced by the Administrative Review Tribunal (ART) with effect from 14 October 2024. By operation of Item 24 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) any proceeding which was not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act.
For the reasons set out following, the Tribunal has determined that the decision under review is correct. While there is no doubt that the Applicant lives with permanent impairments that reduce his functional capacity to perform certain life activities, he does not experience, as he must to satisfy the disability requirement for eligibility for the National Disability Insurance Scheme (NDIS), substantially reduced functional capacity in any of the six activity areas specified in s 24(1)(c) of the NDIS Act.
Although the question of whether the Applicant meets the early intervention requirements for access to the NDIS was formally before the Tribunal, this is not a case where access to the scheme on that basis is arguable. Each of the Applicant’s permanent impairments are of long-standing and there is no evidence of any available early intervention support that is likely to produce any of the beneficial outcomes specified in s 25(1)(b) and(c) of the NDIS Act or the associated Rules.
THE DECISION UNDER REVIEW
The Applicant has asked the Tribunal to conduct an independent review of the decision of the delegate of the CEO made on 4 April 2024 on internal review which was that he does not meet the requirements for access to the NDIS. By that decision the delegate determined that the applicant met the age and residence, but not the disability and early intervention requirements, for access to the NDIS.
Specifically with respect to the disability requirement, the review delegate was satisfied that the applicant lived with impairments to which a psychosocial disability was attributable, but she was not satisfied that any of these impairments are, or are likely to be, permanent, or that they result in the Applicant experiencing substantially reduced psychosocial functional capacity in any of the life activity areas specified by s 24(1)(c), or that they affect the Applicant’s capacity for social and economic participation, or that the Applicant is likely to require lifetime support from the NDIS.
Specifically with respect to the early intervention requirements, the review delegate was not satisfied that the Applicant’s impairments were permanent, or that early intervention supports are likely to reduce future support needs arising from his disability, or, with one exception, that they would have any of the beneficial effects specified in s 25(1)(b) and (c) of the NDIS Act.[2]
[2] The delegate was satisfied that ongoing treatment would improve the Applicant’s functional capacity (the criterion found in s 25(1)(c)(iii) of the NDIS Act).
The Tribunal’s role
The Tribunal’s role in conducting this review has been to reach its own conclusion as to whether the CEO by her delegate was correct in concluding that the Applicant does not meet the disability or early intervention requirements for access to the NDIS.[3] That has involved the independent re-assessment of the evidence that was before the delegate when she made her decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[4]
[3] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589
[4] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]
THE EVIDENCE AND HEARING
I have considered the following evidence in this independent review:
(a)A Joint Tender Bundle filed on 6 December 2024. I note that this contained:
For the Applicant
(i)A Statement of Carer Experience prepared by Ms Joanne Coffey, the Applicant’s wife, undated,
(ii)Three reports prepared by Mr R Matteson, Psychologist, dated 29 May 2023, 17 October 2023 and 13 February 2024,
(iii)A report prepared by Mr A Webster, Clinical Psychologist, dated 22 July 2022,
(iv)A report prepared by Dr M Diamond, Consultant Psychiatrist, dated 9 August 2020, and
(v)A report prepared by Professor P Mitchell, Psychiatrist, dated 25 February 2024.
For the Agency
(vi)The Agency’s Statement of Facts, Issues and Contentions (SFIC) dated 9 December 2024.
(vii)A report prepared by Mr G Stretton, Occupational Therapist, dated 4 October 2024, together with the Agency’s letter of instructions to him dated 19 September 2024.
(b)Oral evidence and submissions
For the Applicant
(i)Applicant’s oral evidence, given under affirmation on 16 and 17 December 2024 and submissions given on 17 December 2024.
(ii)Ms Joanne Coffey’s oral evidence, given under affirmation on 16 December 2024.
For the Agency
(iii)Opening and closing statements made by counsel for the CEO on 16 and 17 December 2024.
(iv)Oral evidence given under affirmation by Mr G Stretton on 17 December 2025.
A note on the applicable law
On 3 October 2024, the NDIS Act was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the amending Act). Schedule 1, items 19 to 27 of that Act introduced changes to the disability and early intervention requirements. However, by operation of item 126 of the schedule those changes apply only to an access request made after 3 October 2024. The Applicant’s access request was deemed by the Agency as ready to be assessed on 30 January 2024,[5] so these changes are inapplicable in this case. Item 126 of the amending Act also provides that the NDIS Rules as they were in force prior to 3 October 2024 continue to apply to an access request made prior to that date. This independent review will therefore apply the disability and early intervention requirements as they stood prior to 3 October 2024.
[5] T- Documents, Tab T14, page 116. The Applicant appears to have initiated his access request by lodging an Access Request Form with the Agency on or about 2 February 2023, however further supporting documents appear to have been lodged up to on or about 4 December 2023.
Eligibility for access to the NDIS
The NDIS is a Commonwealth program of social assistance which has as its target group persons with disability who are Australian residents under the age of 65 who experience substantially reduced functional capacity to perform essential tasks in one or more designated life activity areas due to one or more permanent intellectual, cognitive, neurological, sensory, or physical impairments or one or more permanent impairments to which a psychosocial disability is attributable. [6] This is a limited sub-category of the total population of persons with disability in Australia.[7] The NDIS is not intended to support every person with disability in Australia.
[6] The NDIS also provides time-limited early intervention assistance to other persons with disability who experience intellectual, cognitive, neurological, sensory, or physical impairments or impairments to which a psychosocial disability is attributable, which are permanent or likely to be permanent, who will benefit from such support in specified ways. Again, this is a limited sub-category of the total population of persons with disability in Australia.
[7] Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 (Mulligan) at [50].
The task of this independent review is to determine if the Applicant is a person with disability for whom the NDIS is intended. That involves the application of the access criteria contained in the Act and the Rules, some of which specify not only a criterion but also a threshold or level which must be satisfied before the criterion can be met.[8]
[8] Mulligan at [50].
Section 21(1) of the NDIS Act provides that a prospective participant will meet the access criteria for the NDIS if the CEO is ‘satisfied’ that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[9] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing or pointing to evidence before the Tribunal that can persuade it that each of the access criteria are met.[10]
[9] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60].
[10] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].
To be eligible for access to the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either the disability requirements or the early intervention requirements.[11] The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS.[12] These requirements are specified in the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) (the Becoming a Participant Rules). The Agency has also developed operational policy to assist in its administration of the NDIS. While these guidelines are not formally binding on the Tribunal, as the Act and the Rules are, they represent government policy which should be applied unless there is a cogent reason not to do so.[13] The operational policy applicable in this case is called “Applying to the NDIS- Pre-Legislation Changes” (14 October 2024).[14]
CONSIDERATION
[11] s 21(1) of the NDIS Act.
[12] Davis at [82].
[13] Drake at [644-5].
[14] Applying to access the NDIS | NDIS
The age requirement
The age requirement for access to the NDIS is found in s 22 of the NDIS Act and Part 3 of the Becoming a Participant Rules. A prospective participant will meet the age requirement if they were aged under 65 when the Access Request was made to the CEO. The temporal focus for this eligibility criteria is the time the Access Request was made. Provided the prospective participant was under the age of 65 when the Access Request was made, it will not matter that they may be older than 65 when the Access Request is decided.
In this case, the Applicant was just under 64 years and 6 months old when his Access Request was deemed by the Agency to be ready to be assessed on 30 January 2024. That is verifiable in the material before me by reference to various health records that have been submitted into evidence. The CEO submits that the Applicant meets the age requirement for access to the NDIS. I am also satisfied that the Applicant meets this requirement.
As at the date of the hearing (16-17 December 2024) the Applicant was 66 years and 4 months old. While this does not mean that he ceases to meet the age requirement for access to the NDIS for the reason I have stated, it is potentially relevant to the issue of whether he is likely to require supports under the NDIS for his lifetime. However, that issue is not reached in this case for the reasons set out following.
The residence requirement
The residence requirement for access to the NDIS is found in s 23 of the NDIS Act and Part 4 of the Becoming a Participant Rules. Relevantly to the Applicant’s circumstances, a person will meet the residence requirement if they reside in Australia and are an Australian citizen. In this case, there is no issue that the Applicant lives in Australia and that he is an Australian citizen. That was the case when his Access Request was deemed ready to assess on 30 January 2024, and it remained the case as at the date of the hearing. I am satisfied that this criterion is met.
The disability requirement
The disability requirements for access to the NDIS are found in s 24 of the Act and Part 5 of the Becoming a Participant Rules.
Section 24 (as in force prior to 3 October 2024) provided:
24 Disability requirements
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)Self-management; and
(d)the impairment or impairments affect the person’s capacity for social and economic participation; and
(e)the person is likely to require supports under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
Rules 5.4 to 5.7 of the Becoming a Participant Rules deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent … only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated.
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care or self-management … - if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

As will be observed from s 24(1) of the Act, five criteria must be satisfied for the disability requirement to be met. These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability requirements cannot be met. Having regard to that fact, one way of conceptualising these criteria is as a series of gateways along a linear pathway. The criterion specified in s 24(1)(a) must be satisfied before the gate opens to consideration of the criteria specified in s 24(1)(b), and that criterion must be satisfied for the gate to open consideration of the criterion specified in s 24(1)(c), and so on. If a gateway to consideration of a subsequent criterion does not open, there is no utility in consideration of that or any other subsequent criteria. Concomitantly, if it is clear on the evidence that a later gateway cannot open, there is no utility in considering the earlier criteria.
The CEO’s position as at the date of the hearing
With respect to the disability requirements, as at the date of the hearing, the CEO accepted that the Applicant meets the requirements specified in s 24(1)(a), (b) and (d) in relation to impairments to which a psychosocial disability is attributable, being Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD). However, the CEO maintained her position that the Applicant did not meet the requirements of s 24(1)(c) or (e).[15]
[15] Agency’s SFIC at page 6.
With respect to the early intervention requirement, as at the date of the hearing, the CEO accepted that the Applicant met the requirements of s 25(1)(a) in relation to impairments to which a psychosocial disability is attributable, being Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD). However, the CEO maintained her position that the Applicant did not meet the requirements of s 25(1)(b), (c) or s 25(3).[16]
s 24(1)(a): Does the Applicant have a disability attributable to impairment?
[16] Ibid.
Section 24(1)(a) requires the Applicant to establish that he has a ‘disability’ that is attributable to one or more intellectual, cognitive, neurological or physical impairments or one or more impairments to which a psychosocial disability is attributable.
In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally,[17] the term “disability” has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of “disability”, and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[18]
[17] Davis at [69].
[18] Davis at [118].
The term ‘impairment’ is not defined in the NDIS Act. However, the Agency’s operational guidelines define it to mean “a loss of or damage to your body’s function”. I note that this conceptualisation of impairment for the purposes of s 24(1) was specifically approved by the Court in Davis.[19] That definition is a simple rendering of the definition of impairment used in the application of the International Classification of Functioning Disability and Health (ICF), [20] which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure”. [21]
[19] At [118] referring to [113].
[20] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)
[21] World Health Organisation (2002), Towards a Common Language for Disability, Functioning and Health, ICF, Geneva, WHO/EIP/GPE/CAS/0.1.3 (WHO (2002) at page 2.
Specifically with respect to s 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant’s disability is attributable, because the access criteria contained in ss 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant’s functional capacity and social and economic participation.[22] In this respect, as I have explained in DQKZ,[23] the ICF is extrinsic material to which the Tribunal may have regard in ascertaining with objective precision the impairment of body structure or function which is at issue for the purposes of s 24. That is because it is a standardised classification system, which has as one of its primary objectives the provision of a standard language and conceptual framework in relation to human function.[24]
[22] Mulligan at [52].
[23] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] – [149].
[24] Who (2002), page 2
The evidence in this case is that the Applicant lives with the following health conditions and (as at the date of the hearing) sought access to the NDIS on these bases:
i.Post Traumatic Stress Disorder (PTSD)[25]
ii.Personality traits consistent with borderline Cluster B Personality Disorder,[26] and
iii.Persistent/Major Depression.[27]
(Together, the Applicant’s psychosocial disability)
[25] This diagnosis appears in a report of Dr M Diamond, Consultant Psychiatrist, dated 9 August 2020 (T-Documents, Tab T3, page 71; the NDIS Evidence of psychosocial disability form completed for the Applicant by Dr D Cook, General Practitioner, dated 4 December 2023 (T-Documents, Tab T12, page 104), a report of Mr A Webster, Senior Clinical Psychologist, dated 22 July 2022 (T-Documents, Tab TIA, page 11), reports of Mr R Matheson, Principal Psychologist, dated 10 and 13 February 2024 (T-Documents, Tabs T1C and T1D, page 21-22), and in a report of Dr P Mitchell, Psychiatrist, dated 25 February 2024 (T-Documents, T1E page 23).
[26] This diagnosis appears in the NDIS Evidence of psychosocial disability form completed for the Applicant by Dr D Cook, General Practitioner, dated 4 December 2023 (T-Documents, Tab T12, page 104)
[27] The diagnosis of Persistent Depressive Disorder appears in a report of Mr A Webster, Senior Clinical Psychologist, dated 22 July 2022 (T-Documents, Tab TIA, page 11) and the diagnosis of Major Depressive Disorder appears in a report of Dr P Mitchell, Psychiatrist, dated 25 February 2024 (T-Documents, T1E page 23)
The CEO did not challenge these diagnoses. I am also satisfied based on the medical evidence before me that the Applicant lives with these conditions. If it is necessary to prefer one diagnosis of Depressive Disorder over the other, I place greater weight on Professor Mitchell’s diagnosis of Major Depressive Disorder because he is a consultant psychiatrist. In any event, I don’t understand there to be a substantial diagnostic difference between Persistent and Major Depressive Disorder, at least for the purposes of this case.
However, the issue to be determined for the purposes of s 24(1)(a) is what impairments, if any, are associated with these conditions. Not unusually in this jurisdiction, the losses or variations to body function and structure that are derivative of these conditions is not always squarely addressed by the evidence and must be distilled.
I do not understand it to be contended, and I do not find, that the Applicant experiences any anatomical loss or variation (variation of body structure) that is derivative of these health conditions. Rather, the impairments he contends for are physiological and related to his mental functions.
The medical evidence before me refers to the Applicant living with severe disturbance of mood and suicide ideation,[28] anxiety,[29] avoidant behaviour,[30] “emotional shutdown”,[31] “secretiveness”,[32] episodes of disassociation, displacement and distraction,[33] detachment and disengagement from close relationships,[34] poor memory and organisational skills,[35] procrastination,[36] lack of motivation,[37] and poor concentration, understanding and memory.[38]
[28] This appears in a report of Dr M Diamond, Consultant Psychiatrist, dated 9 August 2020 (T-Documents, Tab T3, page 71 (Diamond Report), and a report of Mr A Webster, Senior Clinical Psychologist, dated 22 July 2022 (T-Documents, Tab TIA, page 11).
[29] Diamond Report, page 71
[30] Ibid
[31] Ibid
[32] Ibid
[33] Ibid
[34] Ibid
[35] This appears in the NDIS Evidence of psychosocial disability form completed for the Applicant by Dr D Cook, General Practitioner, dated 4 December 2023 (T-Documents, Tab T12, page 104)
[36] Ibid
[37] Ibid
[38] ibid
In his oral evidence the Applicant referred to extreme self-loathing, multiple attempts at suicide, to persistent anxiety, feelings of rage, committing acts of violence on others, extreme sadness, detachment from reality, very poor sleep, forgetfulness and inability to concentrate, to constantly feeling overwhelmed, and to a history of unreliability, deceit, manipulation and distrust in his relationships with close family members and others.[39]
[39] I note that as the CEO does not challenge this evidence, I consider it unnecessary to refer to it other than in summary form due to its explicit and sensitive nature.
In her Carer Statement and oral evidence Ms Coffey referred to the Applicant as having had catatonic episodes going back to the 1970, as having constant anxiety and feeling overwhelmed, being socially isolative, and as having very poor motivation and requiring constant prompting with personal care and medication administration. She also reported the Applicant to have frequent episodes of tearfulness and rage, and as having very poor sleep, including night terrors, falling out of bed, and punching, kicking and shouting in his sleep.[40]
[40] Joint Tender Bundle, page 235
I also note in relation to impairment that the Applicant’s participation in the hearing was characterised by extreme emotional and behavioural dysregulation. He initially expressed rage at the Tribunal and the Agency’s representatives and was oppositional, provocative and uncooperative. He stormed away from his video connection and refused to participate for an extended period. He later joined the hearing and gave evidence generally in a calm manner, but often tearfully. His anger flared again several times during questioning by Counsel for the Agency.
I did not understand the CEO to contest any of this evidence of impairment, and as I have said, Counsel submits on her behalf that the Tribunal ought to be satisfied that the Applicant meets the s 24(1)(a) disability requirement.
I am also satisfied that this is so, and I make the following findings as to impairment based on the evidence before me, and in accordance with the ICF.
At the level of body function, I find that the applicant lives with:
i.Impaired global mental functions, being:
a.Consciousness functions[41], specifically state of consciousness,[42] and continuity of consciousness,[43]
[41] ICF b110 “General mental functions of the state of awareness and alertness, including the clarity and continuity of the wakeful state.”
[42] ICF b1100 “Mental functions that when altered produce states such as clouding of consciousness, stupor or coma.”
[43] ICF b1101 “Mental functions that produce sustained wakefulness, alertness and awareness and, when disrupted, may produce fugue, trance or other similar states.”
b.Global psychosocial functions,[44]
[44] ICF b122 “General mental functions as they develop over the life span, required to understand and constructively integrate the mental functions that lead to the formation of the personal skills needed to establish reciprocal social interactions, in terms of both meaning and purpose.”
c.Temperament and personality functions,[45] specifically, psychic stability,[46] openness to experience,[47] optimism,[48] confidence,[49] and trustworthiness,[50]
[45] ICF b126 “General mental functions of constitutional disposition of the individual to react in a particular way to situations, including the set of mental characteristics that makes the individual distinct from others.”
[46] ICF1263 “Mental functions that produce a personal disposition that is even-tempered, calm and composed, as contrasted to being irritable, worried, erratic and moody.”
[47] ICF b1264 “Mental functions that produce a personal disposition that is curious, imaginative, inquisitive and experience seeking, as contrasted to being stagnant, inattentive and emotionally inexpressive.”
[48] ICF b1265 “Mental functions that produce a personal disposition that is cheerful, buoyant and hopeful as contrasted to being downhearted, gloomy and despairing.”
[49] ICF b1266 “Mental functions that produce a personal disposition that is self-assured, bold and assertive, as contrasted to being timid, insecure and self-effacing.”
[50] ICF b1267 “Mental functions that produce a personal disposition that is dependable and principles, as contrasted to being deceitful and antisocial.”
d.Energy and drive functions,[51] specifically, energy level,[52] and motivation,[53] and
e.Sleep function,[54] specifically quality of sleep.[55]
ii.Impaired specific mental functions, being:
a.attention functions,[56] specifically, the function of sustaining attention,[57]
b.memory functions,[58] specifically, the function of short-term memory,[59]
c.emotional functions,[60] specifically, appropriateness of emotion,[61] regulation of emotion[62] and range of emotion,[63]
d.thought functions,[64] specifically control of thought,[65]
e.higher-level cognitive functions,[66] specifically the functions of organisation and planning,[67] insight,[68] and problem-solving.[69]
[51] ICF b130 “General mental functions of physiological and psychological mechanisms that cause the individual to move towards satisfying specific needs and general goals in a persistent manner.”
[52] ICF b1300 “Mental functions that produce vigour and stamina.”
[53] ICF b1301 “Mental functions that produce the incentive to act; the conscious or unconscious driving force for action.”
[54] ICF b1340 “General mental functions of periodic, reversible and selective physical and mental disengagement from one’s immediate environment accompanied by characteristic physiological changes.”
[55] ICFb1343 “Mental functions that produce the natural sleep leading to optimal physical rest and relaxation.”
[56] ICF b140 “Specific mental functions of focusing on an external stimulus or internal experience for the required period of time.”
[57] ICF b1400 “Mental functions that produce concentration for the period of time required”.
[58] ICF b144 “Specific mental functions of registering and storing information and retrieving it as needed.”
[59] ICF b1440 “Mental functions that produce a temporary, disruptable memory store of around 30 seconds duration from which information is lost if not consolidated into long-term memory”.
[60] ICF b152 “Specific mental functions related to the feeling and affective components of the processes of the mind.”
[61] ICF b1520 “Mental functions that produce congruence of feeling or affect with the situation, such as happiness at receiving good news.”
[62] ICF b 1521 “mental functions that control the experience and display of affect”.
[63] ICF b 1522 “mental functions that produce the spectrum of experience of arousal of affect or feelings such as love, hate, anxiousness, sorrow, joy, fear and anger”.
[64] ICF b160 “Specific mental functions related to the ideational component of the mind.”
[65] ICF b1602 “Mental functions that provide volitional control of thinking and are recognised as such by the person.”
[66] ICF b 164 “Specific mental functions especially dependent on the frontal lobes of the brain, including complex goal-directed behaviours such as decision-making, abstract thinking, planning and carrying out plans, mental flexibility, and deciding which behaviours are appropriate under what circumstances; often called executive functions.”
[67] ICF b1641 ”Mental functions of coordinating parts into a whole, of systematizing; the mental function involved in developing a method of proceeding or acting”.
[68] ICF b1644 “Mental functions of awareness and understanding of oneself and one’s behaviour.”
[69] ICF b 1646 “Mental functions of identifying, analysing, and integrating incongruent information into a solution”.
I find that the impairments set out above are attributable to the Applicant’s psychosocial disability within the meaning of s 24(1)(a).
As the s 24(1)(a) disability requirement has been met, I will go on to consider the s 24(1)(b) disability requirement with respect to these identified impairments.
s 24(1)(b): Are these impairments permanent?
As I have set out above, the review delegate was not satisfied as to the permanence of the Applicant’s impairments on the evidence before her at that time. Her assessment is encapsulated in the following extract from her reasons:
The seriousness of your conditions is not in dispute, and it is clear that you require support. I also acknowledge the considerable amount of information you have gone to the trouble of submitting. However, based on the current evidence, I am unable to determine your baseline level of functioning and therefore your eligibility for the NDIS. This is because there is insufficient treatment history provided for your psychosocial impairment. Detailed evidence of your treatment history should include a timeline of all treatments undertaken, the type and frequency of treatments (eg CBT, DBT, EMDR, ECT, Trauma Therapy etc.),[70] the duration and outcome of treatments, including a report from your treating specialist about the outcomes. To date, the evidence provided does not indicate what type of therapies you have engaged in or are currently engaged in.
[70] Cognitive Behaviour Therapy, Dialectical Behaviour Therapy, Eye Movement Desensitising and Reprocessing, Electroconvulsive Therapy
However, as also noted above, as at the date of the hearing, the CEO now accepts that the Applicant’s impairments are permanent, though it must be cautioned, not necessarily as I have identified them within the ICF classification system. In any event, I must also be satisfied as to the permanence of the Applicant’s impairments.
Having regard to s 24(1)(b) of the Act, and Rule 5.4 of the Becoming a Participant Rules, the questions that the Tribunal must pose and answer to determine if the Applicant’s impairments are, or likely to be, permanent, are:
(a)Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments? and
(b)Do any of the Applicant’s impairments require medical treatment or review before a determination can be made about whether the impairments are permanent or likely to be permanent?
It is important to maintain cognizance that s 24(1)(b) and Rule 5.4 are concerned with the Applicant’s impairments, not his health conditions per se. Nevertheless, the issue of what treatment the Applicant has obtained for his health conditions will be relevant in determining if the impairments that are derivative of those conditions are permanent.
In Davis the Court held that the correct meaning of the word “permanent” in s 24(1)(b) is “enduring” because this meaning best reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[71] In its reasoning towards that conclusion, the Court rejected a submission that the word should be understood as meaning “irreversible”, stating at [58]:
58.The concept of “irreversible” is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question – ‘reversible by what?’ That is, how far does an (sic) NDIS applicant need to go to attempt to ‘reverse’ their impairment? And what does ‘reversible’ mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean ‘cannot be improved’? Of course, many impairments covered by the NDIS – such as psychiatric impairments – can be ‘improved’ (in terms of the way an individual experiences the impairment) by therapy and medication. Are they ‘reversed’ if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.
[71] Davis at [85]

The Court in Davis also considered the meaning of the phrase “known, available and appropriate” and held at [137] to [139] that:
137.As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word “known” connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person’s particular impairment. The word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, or their personal circumstances in terms of where they live and who they live with, and who cares for them.
138.The word “available” should be understood as meaning available to a particular individual. If it were to be construed as meaning “exists in Australia”, then it would have little different work to do from the word “known”. The Macquarie Dictionary defines “available” as meaning:
adjective 1. suitable or ready for use; at hand; of use or service …
139.Assuming as I do the validity of r 5.4, and on the premise any given treatment is “known” and “appropriate” as I have explained those terms, in my opinion the adjective “available” should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.
The evidence in relation to the permanence of the Applicant’s health conditions, and his impairments to the extent that this is directly addressed, may be summarised as follows:
i.in a report written in support of the Applicant’s NDIS Access Application dated 22 July 2022, Mr A Webster, Clinical Psychologist, opines: [72]
[72] Joint Tender Bundle, page 11
It was my assessment that Mr Coffey has diagnoses of Post-Traumatic Stress Disorder and Persistent Depressive Disorder.
Mr Coffey reports ongoing challenges with his mental health since his late adolescence that he directly attributes to [an extreme traumatic event]. It is my understanding that he has accessed multiple mental health supports over his adulthood and trialled a number of medication options with only limited benefit. Given his long history of difficulties with mood and associated suicidal ideation I am of the view that it is unlikely that he will achieve full remission from these conditions. I consider it likely that he will require ongoing supports to assist him to manage his mental health
ii.in the NDIS Evidence of psychosocial disability form she completed for the Applicant on 23 November 2023, Dr Debra Cook, General Practitioner, reports under the heading “History of hospitalisation”: “multiple admissions since 1990s [to] Manly [mental health unit]”. By way of treatment summary, she reports the prescription of an anti-depressant medication since June 2022, which she reports is partially effective, consultation with a Psychiatrist (Professor Mitchell) and a psychologist (Mr Matheson) since the end of 2022, which she reports as being partially effective, noting “counselling works at the time, but dissipates quickly” and that prior to Mr Matheson, there have been “many counsellors”, and that she is “unsure” how effective counselling has been overall. In response to the specific question whether there are any known, available and appropriate evidence based clinical, medical or other treatments likely to remedy the impairments, Dr Cook answered “no” and commented: “has tried a few, but trauma so ingrained, it’ll be hard to undo.” In response to the specific question, “do you consider the applicant’s impairments, caused by their mental health condition/s permanent” Dr Cook answered “yes”.[73]
[73] Joint Tender Bundle, page 104–108.
iii.In a report dated 17 October 2023, Mr R Matheson, Principal Psychologist states:[74]
[74] Joint Tender Bundle, pages 232-233.
In the sessions we have conducted you have responded very favourably to Cognitive Behavioural Approaches (CBT) and we anticipate using this approach going forward [further elaboration of a sensitive nature is provided]
4. The likely prognosis and permanency of the impairment
The impairment is permanent because the [traumatic event] and the subsequent struggle for justice and recompense cannot be erased. However the effects of the subsequent and resulting impairments can be ameliorated with ongoing client centred therapy as described and other supports. There is a great risk however that if such supports are not available then relapse into deeper depression (with life threatening consequences) may well result.
iv.In a report dated 10 February 2024, in which the results of a recent formal assessment conducted on 9 February 2024 are set out Mr Matheson states:
Deterioration in your mental health is evidence when scores are compared with the previous assessment 29^th May 2023
…
The Kessler Psychological Distress Scale Plus was re administered. The results indicate that Anxiety remains the most significant issue for you and the Percentile ranks for the Total and Depression scores have risen appreciably. The interpretive text indicates that you are likely to have a mental health disorder of severe severity and or severe psychological distress.
The PCL-5 which measures Post Traumatic Stress Disorder was re administered. The score associated with “Negative alterations in Cognition and Mood”, remained unchanged, However, all other scores for Re Experiencing, Avoidance and Hyper Arousal increased markedly. These results indicate that you meet the DSM-5 criteria for a diagnosis of PTSD.
The World Health Organisation Disability Assessment Schedule 2.0 was re administered to measure levels of functional competence as a consequence of your mental health status. … This result indicated that your functional competence, as a result of your mental health, is significantly impaired and has deteriorated since the assessment in 2023.
v.In a report dated 13 February 2024, Mr Matheson, Principal Psychologist opines in relation to the Applicant’s impairments:
·All available and appropriate treatment options to relieve or cure your impairment have been fully explored.
·Options include: hospitalisation, Psychiatric treatment, Medications supervised by your GP, Psychological treatment and access to therapeutic communities.
·Your medications include anti-depressants and you report that they have no or very little positive effect. In this regard your treatment by medication may be considered Treatment Resistant especially considering the re-assessment that revealed your Mental Health and Functional capacities are worsening.
·Your impairment (principally PTSD) is a lifelong condition without cure. The focus of treatment is management.
·Just as cure is not possible it follows that you will be permanently impacted for the rest of your life.
vi.In a report dated 25 February 2024, Professor P Mitchell, Psychiatrist states (relevantly):
I have been seeing Andrew regularly since July 19^th 2022, with appointments usually monthly and at times fortnightly.
…
He is currently treated with Cipramil 40mg daily. I see him regularly to monitor his mental health and provide supportive psychotherapy. He is also under the care of [Mr Matheson[ who is his regular psychologist… He speaks to Mr Matheson on a regular basis.
Over the years he has had a range of psychotropic medications including Cipramil, Zoloft, Prozac, Seroquel and Lithium. He first received psychiatric care in 1996 after a suicide attempt which led to a hospital admission at Mona Vale Hospital. He has also been in Manly Hospital. He has seen a number of psychologists prior to [Mr Matheson], including in particular Andrew Webster …
I confirm that Andrew’s mental health condition is ongoing, and no other treatments would be likely to benefit him. His condition is lifelong and there is no cure for his impairment, He will be permanently impacted by his impairment.
He has received all available and appropriate treatment options that are likely to relieve or cure his impairments. He is medication treatment resistant.
Having regard to this evidence, I make the following findings:
i.The Applicant has had multiple acute admissions to mental health facilities over many years, during which his acute symptoms, including suicidal ideation, have been brought under control. These admissions have resulted in progressive diagnostic clarification and consequent variations to prescribed medication. However, they have not resulted in the remedy of the Applicant’s underlying health conditions, or of the impairment of his global and specific mental functions that are derivative of these conditions.[75]
ii.The Applicant’s health conditions have been treated over many years with various mood stabilising and anti-psychotic medications without notable remission of his baseline symptoms or functional gain in relation to his impaired global and specific mental functions. He continues to be treated with an anti-depressant medication and is adherent to that prescription with the prompting of Ms Coffey. However, that medication has low efficacy in the control of his symptoms and has not resulted in any significant functional gain. Clinically, the Applicant is considered by his treating psychologist and psychiatrist as medication treatment resistant.
iii.The Applicant has had extended periods of psychotherapy with psychologists and a physiatrist, which has included Dialectical Behaviour Therapy[76] and Cognitive Behaviour Therapy. These therapies have had some beneficial effect in the control of symptoms. This remains the clinically recommended continuing treatment for the Applicant’s health conditions and may result in some functional gains in relation to his impaired global and specific mental functions over time. However, this treatment has no realistic prospect of resolving the Applicant’s conditions or the impairments that are derivative of them.
iv.The intensity and impact of the mood and psychotic symptoms associated with the Applicant’s health conditions fluctuates over time.
v.On the evidence before me, there are no other known, available and appropriate evidence-based clinical, medical or other treatment options that have any reasonable prospect of remedying the Applicant’s health conditions or the impairments of global and specific mental function that are derivative of them.
vi.Nor is there any evidence that any further treatment or review is necessary before a determination can be made that the Applicant’s health conditions and the impaired global and specific mental functions that are derivative of those conditions are permanent.
[75] Report of Dr M Diamond, Consultant Psychiatrist, dated 9 August 2020, Joint Tender Bundle, pages 61-75
[76] Ibid page 63
Having regard to these findings I am satisfied that the Applicant’s impairments of global and specific mental function to which is psychosocial disability is attributable are permanent for the purposes of s 24(1)(b). I consider the evidence emphatic in that regard.
That being the case, I now turn to consider the requirements of s 24(1)(c).
s 24(1)(c) Do the Applicant’s impairments result in substantially reduced functional capacity in a specified life activity area?
Preliminary observations about the test to be applied
Unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is not conjunctive. That is, it is only necessary for a prospective applicant to establish that they experience substantially reduced functional capacity in one of the six designated life activity areas to satisfy this criterion. It is not necessary that they establish substantially reduced functional capacity in every, or more than one, life activity area.[77]
[77] Mulligan at [56]
Leaving aside Rule 5.8, the word “substantially” has tended to be defined in Tribunal level decisions in accordance with the relevant ordinary meaning of the word “substantial” which is “considerable”,[78] which it has been held, means that there is a “significant threshold” to be met.[79] As I have said in Burrows[80] attempts to define this concept using synonyms tend to be circular. I ventured in that case that apposite interpretative assistance is to be found in the World Health Organisation’s Disability Assessment Schedule[81] which assesses functional capacity according to the “degree of difficulty” a person experiences in doing specified activities of daily living in terms of “increased effort”, experience of “discomfort or pain”, “slowness” and “changes in the way the person does the activity” (the difficulty factors) according to a five-point scale which is “none”, “mild”, “moderate”, “severe” and “Extreme or cannot do” (the difficulty ratings). For present purposes I note that “moderate” refers to an approximate 25-50% reduced functional capacity to perform an activity and “severe” refers to an approximate greater than 50% reduced functional capacity to perform the activity.[82] In Burrows I expressed the opinion that “substantial” should be understood as connoting a degree of difficulty in performing a task that is more than “moderate”, and “reduced” should be understood as being in one of the four ways specified by the difficulty factors.[83]
[78] Macquarie Dictionary Word Search
[79] See for example, Rooney and National Disability Insurance Agency [2021] AATA 3523 at [22]; Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68]
[80] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (Burrows) at [62]
[81] T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010
[82] ICF online “Activities and Participation” description.
[83] I should be clear that I am only suggesting that the WHODAS 2.0 difficulty scale provides conceptual assistance in ascertaining the broader circumstances in which the statutory threshold of “substantially reduced function” is met. It is not my intention to suggest that it is prescriptive of that statutory language. The statutory language itself constitutes the test.
Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of “substantially reduced functional capacity”, but the Rule is not exhaustive of the circumstances in which that may be found. In my opinion, the Rule should be understood as a deeming provision that enables the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. Therefore, the statutory task is to determine, first, if the prospective participant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, it is, second, to determine in accordance with the Act if the person otherwise has substantially reduced functional capacity in any of these life activity areas.[84]
[84] Mulligan at [77].
The three deeming provisions set out in Rule 5.8, paragraphs (a) to (c), are expressed disjunctively. That is, it is only necessary for one of those circumstances to be established for a prospective participant to be deemed to have substantially reduced function in an activity area.
The Court in Foster held that the term ”effectively and completely” in paragraph (a) is to be read as referring to the activity area as a whole, and not as referring to isolated tasks within that activity area.[85] It also observed that the use of the disjunctive “or” between those words means that only one standard need be reached, not both.[86] For the reasons I explained in Burrows,[87] it appears to me that the words “effectively” and “completely” have complementary but separate work to do for the purposes of Rule 5.8(a). That is because the Rule refers to each of the six s 24(1)(c) activity areas, and the bundles of tasks that constitute each of those area. It is apposite to assess a prospective participant’s functional capacity with respect to some such tasks, such as the tasks associated with receptive and expressive language in the communication activity area, for example, in terms of “effectiveness”, being whether the prospective participant has the functional capacity to execute those tasks “so as to achieve the intended or expected result” (as the Court held that term should be understood in Foster[88]). Whereas a prospective participant’s functional capacity to execute other tasks, such as the tasks associated with getting in and out of bed or a chair in the mobility activity area, are better assessed in terms of their ability to “complete” these tasks. In either case, the objective measure is not one of “perfection”, it is the expected functional capacity of a person without the prospective participant’s impairments to be involved in a life situation. That is a normative standard, not an unreal one.[89]
[85] Foster at [88].
[86] Foster at [82].
[87] At [67] to [69].
[88] Foster at [83].
[89] See further my discussion of this issue in Burrows at [67] to [69].
Section 24(1)(c) requires that I assess with a relatively high degree of objective precision what, from a practical functional perspective, a prospective participant can and cannot do.[90] It is an objective test because it does not depend upon the prospective participant’s own assessment of what they can and cannot do, including what they could do before the onset of impairment as compared with what they can do after its onset,[91] although that may be a relevant consideration. This calls for a distinction to be made between the prospective participant’s functional capacity (that is, objectively, what they can do) and the prospective participant’s functional performance (that is, what they do, including but not limited to what they choose to do).[92]
[90] Mulligan at [55]; National Disability Insurance Agency v Foster [2023] FCAFC 11 at [64].
[91] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [109]
[92] The ICF defines functional capacity as an individual’s ability to execute a task or an action. It identifies the highest probable level of functioning a person may reach in each domain at a given moment. Functional performance describes what an individual does in his or her current environment which may be related to aspects of the physical, social and attitudinal world: ICF “Activities and Participation” tab. Functional performance may be affected by geographic factors (remoteness, terrain etc), personal factors (gender, ethnicity, sexual identity) and related social factors (such as discrimination based on a personal characteristic, perceived gender roles etc). These factors are not “choices” made by an individual in any direct sense. For a discussion of the distinction between functional capacity and functional performance see WHO (2002) at page 2
Consistent with the ICF, the assessment of a prospective participant’s functional capacity is based upon the “naked” person; that is, it seeks to determine the person’s capacity without personal assistance or the use of assistive devices.[93] That is the case, except to the extent that this principle is modified by Rule 5.8(a) to require commonly used item of equipment, such as glasses, to be discounted. In my opinion, given that Rule 5.8(a) should be taken to evince a legislative intention, the same approach should be taken in relation to the assessment of functional capacity for the purposes of s 24(1)(c) other than when Rule 5.8 is applicable.
[93] WHO (2002) at page 11.

In determining whether a prospective participant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range or bundle of tasks that fall within that activity area, rather than limit itself to consideration of a specific task that falls within that area.[94] As I have explained in Burrows,[95] it can only do so if the tasks that fall within each activity area for the purposes of s 24(1)(c) are designated and determinate rather than infinitely variate and elastic. This allows the test is to be applied normatively rather than arbitrarily. For the reasons I explained in Burrows[96] the following tasks should be understood as constituting the ‘bundle of tasks’ that make up each s 24(1)(c) activity area:
[94] Foster at [65] to [66]
[95] At [73] to [96]
[96] Ibid
Communication (or “communicating” as it is referred to in the policy)
- expressive language tasks (how you speak, write or use sign languages and gestures to express yourself and how others understand you); and
-          receptive language tasks (how well you understand people)
Social interaction (or “socialising” as it is referred to in the policy)
-          tasks associated with making and keeping friends,
-tasks associated with interacting with other people in the community (who are not friends),
-tasks associated with behavioural and emotional regulation in a social context.
Learning
-tasks associated with acquiring knowledge, skills or understanding (how you learn, how you practice and use new skills),
-          tasks associated with cognition (how you understand),
-          tasks associated with memory (how you remember things).
Mobility (or “mobility and moving around” as it is referred to in the policy)
-          tasks associated with moving around within the home,
-tasks associated with moving around within the community (how you get out and about),
-          tasks associated with getting in and out of bed, and
-          tasks associated with getting in and out of a chair.
Self-care
-          tasks associated with personal care, including personal hygiene and grooming,
-          tasks associated with eating and drinking, and
-          tasks associated with health care.
Self-management
-          cognitive tasks associated with personal organisation,
-          cognitive tasks associated with personal planning,
-          cognitive tasks associated with personal decision-making,
-          cognitive tasks associated with self-care,
-          cognitive tasks associated with problem solving, and
-          cognitive tasks associated with personal financial management.
I now turn to consider the Applicant’s case for access to the NDIS insofar as it concerns the s 24(1)(c) gateway, bearing in mind the principles I have outlined above.
Communication
The bundle of tasks within the communication activity area is limited to those associated with receptive and expressive communication.
It is not in issue that the Applicant is able to write, speak, read, hear, use a telephone, and the internet.
During his assessment, Mr Stretton observed the Applicant to understand questions and respond appropriately, and his speech to be clear and easily understood. The Applicant also reported to Mr Stretton at the time of his assessment that he was able to communicate with others orally and in writing. Mr Stretton concluded that on the day of the assessment no functional communication deficits could be observed.[97]
[97] Joint Tender Bundle, page 257
Mr Stretton did note that during his assessment the Applicant “frequently lost track of the conversation and the questions asked but was able to ask for it to be repeated or for clarification and then elaborate.” This was also a feature of the Applicant’s oral evidence at the hearing, which was rational throughout, but which was slow in mentation, tangential, with a tendency to be garrulous.
While it may be accepted that this was in part because the Applicant was recounting life experiences that were very painful to him, I note that this is a feature of his expressive oral communication that was noted by Dr Diamond, Psychiatrist, in his comprehensive review conducted in July 2020.[98] As I have already noted, Dr Diamond also opined there that the Applicant experiences episodes of disassociation and distraction,[99] and Ms Coffey referred to the Applicant as having a history of episodes of catatonia.[100] which are also obviously associated with reduced capacity for expressive communication. Additionally, in the Evidence of Psychosocial disability form she completed for the Applicant on 27 November 2023, Dr Cook, General Practitioner, opined in relation to his functional capacity for communication that he is “OK when good, rambles when flustered, unable to express self when suicidal”.[101] In Part B of that form the Applicant’s then non-government Mental Health Support Worker stated in relation to the communication activity area that the Applicant “has limited insight to his own needs and as a result often fails to communicate his own needs for support.”
[98] Joint Tender Bundle, page 65
[99] Joint Tender Bundle, page 71
[100] Joint Tender Bundle, page 235
[101] Joint Tender Bundle, page 106
Having regard to this evidence it is not open to me to find that the Applicant has no reduced functional capacity for communication relative to a person who does not have his impairments. He may have anatomical capacity for communication, but his psychosocial functional capacity for expressive communication is reduced. Having regard to the WHODAS difficulty factors it involves ‘increased effort’ and is ‘slower’ than would be typical of a person without his impairments. During periods of catatonia, by definition, the Applicant cannot communicate, but on the evidence before me those episodes are not frequent, and they are temporary. Overall, I conclude by reference to the WHODAS difficulty ratings that the Applicant typically experiences mild to moderate difficulty with expressive communication, but there are specific occasions when he cannot communicate due to the degree to which his global and specific mental functions are impaired.
This is not a case where Rule 5.8 has any application. It is not contended the Applicant is unable to effectively communicate without assistive technology or equipment, or that he usually requires assistance to do so, or that he can’t do so even with assistive technology, equipment, or assistance.
It remains to consider if the Applicant otherwise has substantially reduced functional capacity for communication. I am not satisfied that he does. The Applicant’s psychosocial function fluctuates and during episodes of catatonia he may be unable to communicate. However, in relation to psychosocial function, the question posed by s 24(1)(c) must be answered longitudinally and not cross-sectionally (on a bad day) in my opinion. Having regard to that, I conclude that the Applicant usually experiences a mild to moderate reduction in psychosocial functional capacity for expressive communication. He does not experience substantially reduced functional capacity in relation to the bundle of tasks associated with either receptive or expressive communication.
Social interaction
The bundle of tasks within the social interaction activity area is limited to the tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context.
This bundle of tasks, as identified, does not incorporate any reference to interaction with immediate family (familial interactions). In her submissions, counsel for the CEO placed some emphasis on the Applicant’s ongoing close relationships with his wife, daughter, son and a nephew with whom he has close relations. However, a prospective participant’s capacity for familial interactions is not equivalent to their capacity to maintain and keep friends or to their capacity to interact with other people in the community. In this respect, consistent with the objects of the NDIS Act,[102] this activity area addresses the prospective participant’s functional capacity for social participation beyond their immediate family.
[102] ss 3(1)c), 4(2) and 17A(3)(c) of the NDIS Act.
During his assessment Mr Stretton observed the Applicant to engage in reciprocal social conversation, and to otherwise interact with him appropriately within socially acceptable limits. He did, however, note that the Applicant displayed poor eye contact throughout the assessment.[103]
[103] Joint Tender Bundle, page 257-8.
Mr Stretton also records that at the time of his assessment, the Applicant told him that he had almost no social network and spoke of having only one friend, with whom he has monthly contact. Mr Stretton also records that the Applicant told him that he does not trust other people and avoids all other social contact. The Applicant reported to Mr Stretton previous incidents of emotional dysregulation in interactions with others at work and in social situations. He also reported that he has a social media account (Facebook) but rarely accesses or uses it.[104]
[104] Ibid.
In the Evidence of psychosocial disability form she completed for the Applicant on 27 November 2023, Dr Cook, General Practitioner, reported that the Applicant’s capacity for social interaction was “not good”, that “he has minimal friends and has lost a lot over the years”, and that he “does not cope with feelings at all’. In Part B of that form, the Applicant’s non-government Mental Health Worker at that time reported that the Applicant “totally (or near totally)” withdraws from social contact, is able to show moderate warmth to others, is “not at all” violent to others, makes and keeps friendships with “considerable difficulty”, that he has “no obvious problem” in terms of friction or avoidance in living with others in his household, and that he never (“not at all”) behaves offensively.[105] In relation to the communication and learning activity areas she states that the Applicant “becomes overwhelmed in social environments and is easily distracted and finds it difficult to engage with others in the community” and:
Andrew is socially isolated, Andrew does not participate in the community. Andrew becomes withdrawn and overwhelmed when meeting new people which contributes to his ongoing isolation. It is very difficult for Andrew interact (sic) socially and maintain friendships. Andrew has feelings and emotions he is unable to cope with due to his mental illness.
[105] Joint Tender Bundle, page 110-11.
As I have noted above with respect to “permanence”, the Applicant’s Principal Psychologist, Mr Matheson, assessed the Applicant’s function using the WHODAS 2.0 assessment method on 29 May 2023 and he conducted a reassessment on 10 February 2024 concluding that the Applicant’s function had deteriorated over that period. With respect to the WHODAS 2.0 “getting along” domain he assessed the Applicant as having a “Percentile Rank” (PR) score of 94.7 in both assessments,[106] which indicates that the Applicant experiences a “moderate” degree of difficulty in the performance of the tasks within that domain, being a greater difficultly of between 25-50% as compared with a person without the Applicant’s impairments. I note that while the WHODAS 2.0 “getting along” domain is not equivalent with the s 24(1)(c) social interaction activity area there is a high degree of correlation between the tasks assessed in both inquiries.
[106] Joint Tender Bundle, pages 21 and 232-33.
In his lengthy assessment report dated 9 August 2020 Dr Diamond, Consultant Psychiatrist, makes various observations related to social interaction from the documents provided to him, and from his own assessment of the Applicant. These observations are encapsulated in the following passage:
[The Applicant’s psychiatric conditions have affected his capacity for engaging in social and recreational activities and also interpersonal relationships from very early on in his life following [the childhood traumatic event].
…
With regard to his social and recreational activities, [the Applicant has led an impaired life where his main intent has been to remain detached, disengaged and separate from close relationships. He has done this in a manner that has been an impediment to normal social interaction and has excluded him from appropriate recreational and interpersonal relationships from early in his life. This persists to the present and will persist into the future given the entrenched nature of his dysfunction.[107]
[107] Joint Tender Bundle, page 74
In her oral evidence Ms Coffey referred to the Applicant as being socially isolated and detached from others.
In his oral evidence the Applicant told the Tribunal that he felt lonely and isolated but stated repeatedly that he did not want or enjoy social contact with others, that he didn’t like or trust other people, and did not want to join in any social activities such as a “men’s shed”, while acknowledging that this has been recommended to him in the past. He said that he did not like, trust or want social contact with men, in particular.
The Agency submits in relation to the social interaction activity area that the evidence discloses that the Applicant experiences some reduced functional capacity for social interaction, but that this is, at least in part, attributable to his preference for solitude. It submits that he has the functional capacity for social interaction as is demonstrated by his continuing contact with one friend, and his interaction with others when shopping and the like.
This is not a case where Rule 5.8 has any application. It is not contended the Applicant is unable to effectively perform the tasks within the social interaction activity area without assistive technology or equipment, or that he usually requires assistance to do so, or that he can’t do so even with assistive technology, equipment, or assistance.
It remains to consider if the Applicant otherwise has substantially reduced functional capacity for social interaction. I am not satisfied that he does.
On the evidence before me it is manifest that the Applicant experiences significant social withdrawal, detachment, and isolation. With one exception, he does not maintain friendships, and he does not make friendships. He does have superficial, incidental contact with service providers in the general community (shop staff and the like), but has no connection to social organisations or community activities, and he does not socialise more generally by attending pubs, clubs, cafes, restaurants etc. There would appear to be no issue that this life limiting behaviour is derivative of the traumatic event in childhood that has given rise to his psychosocial impairments.
However, for the purpose of the s 24(1)(c) enquiry a distinction must be drawn between the Applicant’s personality and his physiology, as both have been impacted by the childhood traumatic event. “Personality” is a person’s consistent patterns of thinking, feeling, and behaving, whereas physiology refers to bodily functions. While personality and physiology may influence each other, they are distinct. As I have explained above in relation to s 24(1)(a) the disability requirement is concerned with anatomical and physiological variations to typical or expected body structure and function. This does not include personality based behavioural variations to typical social behaviour which are not based in bodily function. Within the ICF conceptual framework this distinction resonates in the difference between ‘functional capacity’, being what a person intrinsically (or biologically) can and cannot do, and ‘functional performance’, being what a person does and does not do, including but not limited to what they choose to do and not do.
There is evidence that the Applicant’s functional capacity for social interaction is affected by his impaired global and specific mental functions, which include some personality and temperament physiological functions. Mr Stretton refers to the difficulties the Applicant experienced making eye contact, Dr Cook refers to his emotional dysregulation, and his Mental Health Worker refers to his inability to maintain attention in social interactions for example.
However, to the extent that the Applicant’s difficulties with social interaction relate to his reduced physiological function arising from his psychosocial impairments his best evidence are the assessments conduced by Mr Matheson who concluded that the level of reduced functional capacity or difficulty he experiences is moderate on the WHODAS 2.0 difficulty scale, which is a 25-50% reduction of the expected function of a person without his impairments. That is not a sufficiently reduced level of psychosocial function as to constitute a substantial reduction in functional capacity to perform the tasks that constitute the social interaction activity area in my opinion. The Applicant’s other medical evidence takes this issue no higher, and as noted, Mr Stretton did not assess the Applicant as having any significantly reduced functional capacity for social interaction.
Leaving aside the Applicant’s physiological capacity to complete the tasks that constitute the social interaction activity area, it becomes clear that the primary driver of his social isolation and loneliness are features of his personality. That is, it represents life limiting conscious choices the Applicant makes not to have or pursue contact with others outside his immediate family. This is a negative life outcome that cannot be overcome by the provision of supports in relation to reduced physiological function. To put it another way, physiological function is not the limiting factor, personality is.
For the foregoing reasons, I do not consider it open to me to find that the Applicant experiences substantially reduced functional capacity for social interaction.
Learning
The bundle of tasks within the learning activity area is limited to tasks associated with acquiring knowledge, skills or understanding and memory.
Mr Stretton reported that the Applicant was able to remain engaged for the 2-hour duration of his assessment, although he displayed obvious signs of fatigue as the assessment progressed. Mr Stretton reported that the Applicant was able to recall past events, and that he did not display any obvious impairment to his cognition or ability to learn new information on a basic level.[108] During the assessment, the Applicant reported to Mr Stretton that he struggles to remain focused on tasks due to poor short-term memory and intrusive thoughts. He reported wanting to return to work in some capacity in the future.[109]
[108] Joint Tender Bundle, page 258
[109] Ibid.
In the Evidence of psychosocial disability form she completed in relation to the Applicant on 27 November 2023, Dr Cook, General Practitioner, stated that he has “poor memory”, “poor organisational skills” and that he can’t learn new things (“can’t do”).[110] In Part B of that form, the Applicant’s then non-government Mental Health Support Worker states in relation to the learning activity area that the Applicant “finds it difficult to concentrate with written information becoming too difficult to maintain any concentration. Due to his PTSD, he has ongoing difficulties in understanding and maintaining information”.[111]
[110] Joint Tender Bundle, pages 104-8
[111] Joint Tener Bundle, pages 110-2
The Applicant’s Principal Psychologist, Mr Matheson, assessed the Applicant’s function using the WHODAS 2.0 assessment method on 29 May 2023 and he conducted a reassessment on 10 February 2024. With respect to the WHODAS 2.0 “cognition” domain he assessed the Applicant as having a “Percentile Rank” (PR) score of 90.4 in the 2023 assessment and 94.7 in the 2024 reassessment,[112] both of which indicates that the Applicant experienced a “moderate” degree of difficulty in the performance of the tasks within that WHODAS domain, being a greater difficultly of between 25-50% as compared with a person without the Applicant’s impairments. I note that while the WHODAS 2.0 “cognition” domain is not equivalent with the s 24(1)(c) learning activity area there is a high degree of correlation between the tasks assessed in both inquiries.
[112] Joint Tender Bundle, pages 21 and 232-33.

In his detailed assessment report dated 9 August 2023, Dr Diamond, Consultant Psychiatrist, sets out the Applicant’s educational history. In short summary, the Applicant’s early education in England was typical except to the extent that he was a gifted student who was offered a scholarship to attend a selective school. Upon his family migrating to Australia, he attended a public high school until year 9, where he experienced some bullying and social adjustment difficulties which were associated with less than expected academic performance in year 9. From year 10 onwards he attended a prestigious private school but in that year was the victim of the alleged traumatic event which gave rise to his psychosocial disability. He left that school later in that year and later attempted to return to the original public high school. However, his attendance was characterised by truancy and disengagement. He completed year 12 but performed poorly academically.[113]
[113] Joint Tender Bundle, pages 54-7
This is not a case where Rule 5.8 has any application. It is not contended the Applicant is unable to learn without assistive technology or equipment, or that he usually requires assistance to do so, or that he can’t do so even with assistive technology, equipment, or assistance.
It remains to consider if the Applicant otherwise has substantially reduced functional capacity for learning. I am not satisfied that he does.
On the evidence before me I am satisfied that the Applicant’s ability to perform the tasks that constitute the learning activity area is impacted by his impaired specific mental functions, being impairments to his attention, memory and higher-level cognitive functions. However, the Applicant’s best evidence of the degree to which his function is reduced in this area are the assessments Mr Matheson conducted in May 2023 and February 2024, which concluded that he experienced a moderate level of reduced function or difficulty in the performance of these tasks as compared with a person without his impairments.
Dr Cook opined in the Evidence of psychosocial disability form she completed on 23 November 2023 that the Applicant cannot learn new things. That appears as a bare statement, and in the context of the evidence overall, is uncorroborated. Dr Cook did not appear as a witness. I do not accept this unexplained evidence.
Despite his present functional deficits related to learning I am satisfied that the Applicant retains significant cognitive capacity for basic learning. That was Mr Stretton’s conclusion based on his assessment, and I accept that evidence.
The learning activity area is concerned with both the acquisition of new knowledge, skills and understanding and with the retention (memory) of existing knowledge, skills and understanding. As I understand the evidence the Applicant’s impaired short-term memory impacts on his ability to acquire new knowledge, skills and understanding, but it is not contended that it results in the loss of his acquired knowledge, skills or understanding to perform basic activities of daily living. There is evidence that his performance of these tasks may be affected by impaired energy and drive functions, and motivation in particular, but this is not a learning related functional loss.
For the foregoing reasons I do not consider it is open to me to find that the Applicant experiences substantially reduced functional capacity in relation to the tasks that make up the learning activity area.
Mobility
The bundle of tasks within the mobility activity area is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and a chair.
During his assessment, Mr Stretton did not make any clinical observations in relation to the Applicant’s mobility, because the Applicant’s functional capacity in this life activity area was not in issue. The Applicant reported to Mr Stretton that he mobilises and transfers independently and that he has a driver’s license and a motor vehicle which he uses.[114]
[114] Joint Tender Bundle, page 257
In the Evidence of psychosocial disability form she completed on behalf of the Applicant on 27 November 2023 Dr Cook, General Practitioner, reported the Applicant’s mobility as “good”.[115] In Part B of that form, a non-government Mental Health Support Worker who was engaged with the Applicant at that time reported no difficulties with the Applicant’s functional capacity for mobility and that he was able to use public transport when it was required.[116]
[115] Joint Tender Bundle, pages 104-8
[116] Joint Tender Bundle, pages 110-2
I do not understand it to be contended, and in any event, there is no evidence before me that could persuade me that the Applicant has substantially reduced functional capacity for mobility.
Self-care
The bundle of tasks within the self-care activity area are limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care.
During his assessment Mr Stretton did not make any clinical observations in relation to the Applicant’s functional capacity for self-care. He records that the Applicant reported to him that he can complete self-care independently, but sometimes does not shower for a few days at a time due to poor motivation. The Applicant reported that he did not require prompting from Ms Coffey to complete self-care tasks. With respect to eating and drinking, the Applicant reported to Mr Stretton that his appetite was “OK” at that time, but that he goes through periods of low appetite and what he described as “comfort eating”. He reported that is weight has increased to 110-115kgs from 85-95kgs. He reported managing his own medication.[117]
[117] Joint Tender Bundle, page 260
In the Evidence of psychosocial disability form she completed in relation to the Applicant on 27 November 2023 Dr Cook, General Practitioner, stated that the Applicant “often doesn’t shower” and “comfort eats or doesn’t eat” and “needs to be prompted” in relation to personal care.[118] In Part B of that form, the Applicant’s then non-government Mental Health Support Worker states that the Applicant is “poorly groomed”, that his clothes are in a poor state of cleanliness, that his neglect of his physical health problems is “extreme”, that he is “moderately” reliable with taking psychiatric medication, that he has a “slight problem” maintaining an adequate diet, and that he always cooperates with health services and workers. Elsewhere in that form she states with respect to the self-care activity area:
Andrew presents as dishevelled with poor levels of hygiene. Andrew manages meal prep with assistance from his wife who [then] works full time in Sydney.
He often forgets due to his inability to focus on a task. He is easily distracted and avoids tasks and sits for hours in the garden.[119]
[118] Joint Tender Bundle, pages 106-7
[119] Joint Tender Bundle, pages 110-12
The Applicant’s Principal Psychologist, Mr Matheson, assessed the Applicant’s function using the WHODAS 2.0 assessment method on 29 May 2023 and he conducted a reassessment on 10 February 2024. With respect to the WHODAS 2.0 “self-care” domain he assessed the Applicant as having a “Percentile Rank” (PR) score of 82.7 in the 2023 assessment and 94.7 in the 2024 reassessment,[120] which indicate that the Applicant experienced a “mild” and “moderate” degree of difficulty in the performance of the tasks within that WHODAS domain, being a greater performance difficultly or problem of between 5-24% and 25-50% respectively as compared with a person without the Applicant’s impairments. I note that while the WHODAS 2.0 “self-care” domain is not equivalent with the s 24(1)(c) social interaction activity area there is a high degree of correlation between the tasks assessed in both inquiries.
[120] Joint Tender Bundle, pages 21 and 232-33.
In her oral evidence Ms Coffey told the Tribunal that the Applicant typically requires prompting to perform his personal care tasks and to take his prescribed medication. She told the Tribunal that the Applicant can assist with laundry tasks and perform them relatively independently when she is not present, but that otherwise she is principally responsible for laundry in the home.
This is not a case where Rule 5.8 has any application. It is not contended the Applicant is unable to effectively perform the tasks associated with self-care without assistive technology or equipment, or that he usually requires assistance to do so, or that he can’t do so even with assistive technology, equipment, or assistance. I accept Ms Coffey’s evidence that the Applicant, despite his evidence to the contrary, typically requires prompting to shower, change his clothes, and to take his prescribed medication. However, even if I were to accept that this is usually the case, these are sub-tasks of personal care and healthcare that do not constitute the whole or a substantial part of the self-care activity area, taken as a whole. I therefore could not conclude that the Applicant usually requires physical assistance to perform the tasks within the self-care life activity area, considered as a whole.
It remains to consider if the Applicant otherwise has substantially reduced functional capacity for self-care. I am not satisfied that he does.
The self-care activity area includes the tasks associated with eating and drinking. In my opinion these tasks do not extend to food preparation, menu planning or shopping for provisions. Those tasks are different in character and are too remote from tasks associated with eating and drinking to fall within the activity area.
There is no issue that the Applicant can perform the physical tasks associated with eating and drinking. There is some evidence that his psychosocial function, being the impairment of his global mental functions (energy level and motivation), sometimes result in him missing some meals, but there is no evidence before me that this constitutes a substantial reduction in functional capacity to perform the tasks associated with eating and drinking. There is no evidence of incidence of malnutrition or dehydration, for example.
There is some suggestion that the Applicant’s “comfort eating” constitutes a poor health choice that may have led to weight gain, but this evidence is relatively vague. On the evidence before me I am unable to know how frequently the Applicant engages in “comfort eating”, what that means specifically, and what its specific health impacts are, other than mere weight gain. I thus don’t consider it open to me to find, with respect to this issue, that the Applicant experiences substantially reduced functional capacity for healthcare because of his comfort eating.
The evidence is sufficient to satisfy me that the Applicant does not always shower as often as is typical of a person without his psychosocial impairments. He is also reported as being dishevelled at times, which I understand to mean that his grooming can sometimes be poor. There is also reference to his clothes sometimes being unclean, which I take to mean that they have not been changed, given that Ms Coffey does or supervises regular laundry. However, I have not found in the evidence any reference to the Applicant being malodorous, unclean, or not being dressed appropriately for weather conditions, as examples, persistently, or at all.
I accept that the Applicant’s state of personal hygiene and grooming is sometimes, in part, derivative of his impairment of global mental functions (energy level and motivation). However, given the Applicant’s evidence, as reported to Mr Stretton, that he is independent with self-care it also appears to be a function of his personality; that is, as explained above, a conscious personal preference not specifically related to physiological function.
To the extent that it does constitute reduced physiological function, the Applicant’s best evidence is that of Mr Matheson’s May 2023 and February 2024 WHODAS 2.0 assessments which resulted in the conclusion that the Applicant experienced a mild and moderate degree of difficulty in the performance of these tasks relative to a person without his impairments. That is not sufficient to constitute a substantially reduced function for the purposes of s 24(1)(c) in my opinion.
For the foregoing reasons, I am not satisfied that the Applicant experiences substantially reduced functional capacity to perform the tasks that fall within the self-care life activity area.
Self-Management
The bundle of tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.
As a result of his assessment Mr Stretton concluded that the Applicant has “sufficient cognitive skills to make his own decisions and has insight into his limitations”.[121]
[121] Joint Tender Bundle, page 258
During this assessment, the Applicant reported to Mr Stretton that Ms Coffey “runs the house” and that he assists her with cooking, cleaning and laundry. He reported that he and Ms Coffey go grocery shopping together once a fortnight, and that he attends local shops to obtain incidentals and collect items in-between. He reported when Ms Coffey is away, and in the past when she was in employment, he had greater responsibility for household tasks and these tend/ed to be neglected. He reported that he is responsible for tending to the gardens and mowing the lawns.[122]
[122] Ibid
With respect to financial management, the Applicant reported to Mr Stretton that he is in receipt of a Commonwealth Aged Pension, which is paid into his bank account. He reported that he has been financially irresponsible in the past which had resulted in the loss of the family home due to accumulated debt. Because of this he and Ms Coffey have an arrangement between them that she pays all their bills and manages their finances. He reported being responsible with the management of the funds that he now has available to spend.[123]
[123] Ibid
With respect to personal organisation, the Applicant reported to Mr Stretton that he has the capacity to make and attend appointments independently and uses an electronic calendar to remind him of forthcoming events.[124]
[124] Ibid
In the Evidence of psychosocial disability form she completed in relation to the Applicant on 23 November 2023 Dr Cook, General Practitioner, states with respect to the self-management life activity area:
Wife looks after bills, he cannot manage money/finances. Poor decision maker.[125]
[125] Joint Tender Bundle, page 106
In Part B of that form the Applicant’s then non-government Mental Health Support Worker states:
Andrew has difficulties in completing daily chores and procrastinates over household cleaning and general cleanliness of his house, he is unable to make decisions and continues to lack any motivation. Andrew lacks motivation associated with his ongoing PTSD.[126]
[126] Joint Tender Bundle, page 112
In her oral evidence Ms Coffey informed the Tribunal that due to the Applicant’s substantial history of financial irresponsibility leading to the loss of marital assets and financial insecurity, by agreement between them, she now manages their joint financial affairs including the Applicant’s bank account and income support payment to ensure that they can meet their financial obligations and subsistence needs. By agreement, this involves providing the Applicant with a modest regular cash allowance from his income support payment, which he self manages. The Applicant confirmed this arrangement in his oral evidence. I am persuaded on this evidence that the Applicant usually requires physical assistance in form of guidance and prompting from Ms Coffey in relation to the cognitive tasks associated with financial management.
As I have noted above, there is also evidence, which I have accepted, that the Applicant typically requires prompting to shower, and to take prescribed medication. However, as I have stated, even if I were to accept that he usually does, this would not amount to him requiring physical assistance with tasks associated with self-care as a whole. It must follow from this that it is not open to me to find that the Applicant usually requires physical assistance with the cognitive tasks associated with self-care as a whole. Such assistance is limited to some sub-tasks within specific task areas (personal hygiene, health care).
Mr Stretton refers in his report to the Applicant informing him that Ms Coffey is responsible for domestic management within the home. The Applicant and Ms Coffey confirmed that is the case in their oral evidence. Assuming for present purposes that this arrangement is related to the Applicant’s impaired global mental function (energy level and motivation), rather than the Applicant’s personality or gender socialisation, this is not a task area that falls within the scope of s 24(1)(c)(vi). There is no reference in s 24(1)(c)(vi) to the cognitive tasks associated with domestic management.[127] Section 24(1)(c)(vi) does refer to the general task areas of ‘personal organisation’, ‘planning’ and ‘problem-solving’ but on the evidence before me I cannot see any connection between the Applicant and Ms Coffey’s domestic management arrangements and any functional deficits the Applicant may have in those task areas.
[127] For further discussion of this see Burrows at [89]
For these reasons, Rule 5.8 has no application in this case. It is not contended the Applicant is unable to effectively perform the tasks associated with self-management without assistive technology or equipment, or that he usually requires assistance to do so when the self-management activity area is considered as a whole, or that he can’t do so even with assistive technology, equipment, or assistance.
It remains to consider if the Applicant otherwise has substantially reduced functional capacity for self-management. I am not satisfied that he does.
I accept the Applicant has substantially reduced functional capacity for the cognitive tasks associated with financial management, which is derivative of his impaired global and specific mental functions, which I identity as trustworthiness and insight. However, financial management is only one task area within the self-management activity area. By itself, it is insufficient to constitute substantially reduced functional capacity for self-management when the activity area is considered as a whole.
Otherwise, the state of the evidence is insufficient to justify a conclusion that the Applicant experiences substantially reduced capacity more generally with respect to the cognitive tasks associated with personal organisation, planning, decision-making or problem-solving, or with self-care when that task area is considered as a whole.
Summary with respect to s 24(1)(c)
For the foregoing reasons, I have not found that the Applicant experiences substantially reduced functional capacity in any of the six activity areas specified in s 24(1)(c).
That finding does not mean that the Applicant does not have reduced functional capacity to perform some tasks associated with daily living. He clearly does. However, to the extent that these tasks fall within the s 24(1)(c) activity areas, his reduced function is not sufficiently acute as to constitute substantially reduced function as compared with a person who does not have his impairments.
It follows from this conclusion that the Applicant cannot meet the disability requirement for access to the NDIS, and it is unnecessary to consider the requirements of s 24(1)(d) and (e).
The internal review decision is therefore affirmed in relation to the disability requirements.
The early intervention requirement
The early intervention requirements for access to the NDIS are found in s 25 of the NDIS Act and in Part 6 of the Becoming a Participant Rules. In summary, and relevantly, a prospective participant will meet the early intervention requirements:
i.if they have one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are or are likely to be permanent or one or more identifiable impairments that are, or are likely to be permanent which are attributable to a psychosocial disability,[128] and
ii.the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability,[129] or
iii.the CEO is satisfied that provision of early intervention supports for the person likely to benefit the person by:
a.mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
b.preventing the deterioration of such functional capacity; or
c.improving such functional capacity, or
d.strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer;[130] and
ivthe CEO is satisfied any early intervention supports that would be likely to benefit the person would be NDIS supports for the person.[131]
[128] s 25(1)(a) of the NDIS Act and Rules 6.2(a) and 6.4 to 6.7 of the Becoming a Participant Rules.
[129] s 25(1)(b) of the NDIS Act and Rules 6.2(b) and 6.8 to 6.11 of the Becoming a Participant Rules.
[130] s 25(1)(c) of the NDIS Act and Rules 6.2(c) and 6.8 to 6.11 of the Becoming a Participant Rules.
[131] S 25(1)(d) of the NDIS Act

This review has proceeded on the assumption that the Applicant has requested access to the NDIS on the basis that he meets the early intervention requirements in the alternative to the disability requirement. This appears to be because the CEO’s original access decision of 1 February 2024 and the internal reviewer’s decision of 4 April 2024 both considered the Applicant’s eligibility for access to the scheme in accordance with those requirements.
However, this is not a case where it is arguable that the Applicant meets the early intervention requirements for access to the NDIS. In short summary, that is because there is no evidence before me of any form of early intervention that would have any of the effects required by ss 25(1)(b) or (c). The evidence is rather that the Applicant requires long-term psychotherapy to maintain and regain global and specific mental function. This is a continuation of the treatment he has now been receiving for some years.
The internal review decision is therefore affirmed in relation to the early intervention requirement.
DECISION
For the foregoing reasons, the decision under review is affirmed.

Date(s) of hearing: 16 & 17 December 2024

Applicant: In person (MS Teams)

Counsel for the Respondent: Ms L. Beange

Solicitors for the Respondent: Mr P. Snell, Moray & Agnew

[2025] ARTA 634

29 May 2025

Key Legal Topics

Areas of Law

Administrative Law

Social Security Law

Legal Concepts

Administrative Review

Disability Requirements

Permanent Impairment

Functional Capacity

Psychosocial Disability

Date(s) of hearing:	16 & 17 December 2024
Applicant:	In person (MS Teams)
Counsel for the Respondent:	Ms L. Beange
Solicitors for the Respondent:	Mr P. Snell, Moray & Agnew