Foster and National Disability Insurance Agency (NDIS)
[2025] ARTA 718
•6 June 2025
Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 (6 June 2025)
Applicant:Michael Foster
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2019/8347
Tribunal:Senior Member P French
Place:Sydney
Date:6 June 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 – 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, 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 5.1, 5.4, 5.5, 5.6, 5.7, 5.8, 7.2, 7.5Cases
Beezley v Repatriation Commission [2015] FCAFC 165
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Coffey and CEO, National Disability Insurance Agency [2025] ARTA 634
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] FCAFC 39; 1979 2 ALD 634
DQKZ and National Disability Insurance Agency [2024] AATA 2276
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
HPSC and National Disability Insurance Agency [2021] AATA 727
Klewer and National Disability Insurance Agency [2025] ARTA 155
Lampard and National Disability Insurance Agency [2024] AATA 3150
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan and National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) 295 FCR 521
National Disability Insurance Agency v KKTB (2022) 295 FCR 379
Re Ganchov and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 419; (1990) 19 ALD 541
Rooney and National Disability Insurance Agency [2021] AATA 3523Shi 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
Productivity Commission (2011) Disability Care and Support, Report no. 54, Canberra National Disability Insurance Scheme Bill 2012 (Cth)
T B Ustun, N Kostanjsek, S Chatterji nd J Rehm (eds) Measuring Health and Disability, Manual for WHO Disability Assessment Schedule (WHODAS 2.0), World Health Organisation, 2010
World Health Organisation, (2011), International Classification of Functioning, Disability and Health, GenevaWorld 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 application for review comes before the Administrative Review Tribunal (ART) by way of the Federal Court of Australia’s remittal of a decision of the former Administrative Appeals Tribunal (AAT) to that Tribunal for re-determination according to law.[1]
[1] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster).
It is an application by Michael Foster (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 24 November 2019. By that decision, the review delegate confirmed the CEO’s original decision under s 20(1)(a) of the Act made on 14 August 2019 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.[2] This application was made to the Tribunal on 11 December 2019 (the application).
[2] 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, having regard to the law as it was clarified on Appeal, I have determined that the decision under review is correct. To meet the disability requirements for access to the NDIS the Applicant must satisfy each integer of the disability requirements specified in s 24(1). While there is no doubt that he lives with quality of life limiting permanent neurological impairments that result in substantially reduced functional capacity to undertake the tasks and actions involved in toileting, the toileting task cluster is only one of seven task clusters in the self-care activity area. Having regard to this, it is not open to me to find that the Applicant experiences substantially reduced functional capacity for self-care overall.
The Applicant has also sought to contend that his impairments result in substantially reduced functional capacity for social interaction, but this is not the case. His case fails to recognise the distinction between functional capacity and functional performance. While there is no doubt that the Applicant’s impairments affect his capacity for social and economic participation (the s 24(1)(d) disability requirement), they do not result in substantially reduced functional capacity to undertake any of the tasks and actions within the social interaction activity area.
In summary, the Applicant does not meet the disability requirement specified in s 24(1)(c), as he must if he is to meet the disability requirements for access to the NDIS overall. Any reasonable person would be moved by the Applicant’s circumstances, but he is not a person with impairments for whom the NDIS is intended.
Procedural history
By a decision and reasons published on 17 December 2021 the former AAT set aside the reviewable decision and in substitution for that decision decided that the Applicant met the criteria for access to the NDIS.[3] A delegate of the CEO then facilitated the development of a Participant Plan for the Applicant in accordance with Part 2 of Chapter 3 of the NDIS Act.
[3] Foster v National Disability Insurance Agency [2021] AATA 4738.
However, on 14 January 2022 the CEO lodged an Appeal to the Federal Court of Australia from the AAT’s decision. That Appeal was heard by a Bench of the Full Court on 26 August 2022. Judgement in the Appeal was published on 17 February 2023, and as noted above, the Court set-aside the AAT’s decision, and the case was remitted to the AAT to re-determine according to law.
Upon remittal, the President constituted the case to a former Deputy President of the AAT to hear and redetermine. The Deputy President conducted a series of Case Management Directions Hearings during 2023 and 2024 at which a timetable was set and amended for the filing of evidence and prehearing submissions in preparation for the rehearing of the case. It is unnecessary for present purposes to traverse those directions in any detail, other than to note that they permitted the parties to file and exchange evidence that was originally before the Tribunal at first instance as well as any further relevant evidence.
Upon the establishment of the ART the Deputy President became unavailable to hear the case, and the President reconstituted it to the Tribunal as presently constituted to hear and determine.
The hearing took place over 3 days from 22 to 24 January 2025. On the last day of the hearing the parties sought the opportunity to file and exchange submissions in relation to the key issues of fact and law that are determinative of the outcome of the review. They sought this opportunity partially in response to some questions I had raised with them about the relevance, if any, of the classification and conceptual framework of the International Classification of Functioning, Disability and Health (ICF)[4] to the issues to be determined. As there was potential for the closing submissions to raise issues where I may have benefited from further oral argument I advised that upon closure of the post-hearing submission period I would review the parties’ submissions and determine if there ought to be a further short oral hearing to address any issues arising from them, or if it was possible to reserve my decision without further hearing from the parties.
[4] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF).
The submission period closed on 4 April 2025. I have considered the parties’ closing submissions and I am satisfied that I can proceed to my decision without hearing further from them.
Evidence and submissions
I have considered the following evidence and submissions:
(i)Joint Hearing Bundle, including,
a.the Applicant’s Statement of Facts, Issues and Contentions, dated 8 November 2024, and
b.the Agency’s Statement of Facts, Issues and Contentions, dated 10 December 2024.
(ii)Separately identified from the Joint Hearing Bundle or additionally to that Bundle:
a.The T-Documents filed by the CEO as required by ss 23 and 25 of the ART Act[5] (Exhibit R1),
[5] ss 37(1) and 38AA of the AAT Act.
b.Reports of Dr P Wolanki, Consultant Urologist, dated 1 May 2020 and 27 July 2023 (Exhibits A1 and A2),
c.Report of Dr G Andrews, General Practitioner, dated 26 August 2024 (Exhibit A3),
d.Reports of Dr S Karunakaran dated 1 December 2023 and 16 January 2024 (Exhibits R3 and R4),
e.Report of Associate Professor S Karunakaran, Consultant Psychiatrist, dated 16 January 2024 (Exhibit A4),
f.Plan review report by Ms D Dent, Registered Nurse, dated 3 March 2022 (Exhibit A5),
g.Plan review report by Ms D Dent, Registered Nurse, dated 24 October 2023,
h.Ms D Dent, Registered Nurse, Reply to Targeted questions, dated 31 May 2024,
i.A copy of the Applicant’s representative’s questions to Ms Dent, Registered Nurse, and Ms Dent’s responses to those questions (Exhibits A8 and A9),
j.Statement of Mr Foster, dated 2 June 2020 (Exhibit A10),
k.Statement of Mr Foster dated 16 February 20221 (Exhibit A11),
l.Statement of Mr Foster dated 18 October 2023 (Exhibit A12),
m.Statement of Mr Foster dated 13 January 2025 (Exhibit A13),
n.MOCA, Lawton IADL Scale and WHODAS 2.0 (Exhibit R3),
o.Letter of instruction from Applicant’s representatives to Dr Biggold, Neurologist, dated 1 May 2020 (Exhibit A14),
p.Report of Dr Biggold, Neurologist, dated 22 May 2020 (Exhibit A15),
q.Report of Dr Biggold, Neurologist, dated 23 September 2023 (Exhibit A16),
r.Briefing letter to Ms C Muscat, Occupational Therapist, dated 28 August 2024 (Exhibit R4),
s.Report of Ms Casey Muscat, Occupational Therapist, dated 8 October 2024 (Exhibit R5).
(iii)Oral evidence given at the hearing by:
a.Dr P Wolanski, Consultant Urologist, on 22 January 2023,
b.Dr Gavin Andrews, General Practitioner, on 22 January 2023
c.Mr Foster, Applicant, on 23 January 2023
d.Ms D Dent, Registered Nurse, on 23 January 2025
e.Ms C Muscat, Occupational Therapist, on 24 January 2025.
(iv)Applicant’s closing submissions, filed 7 March 2025,
(v)Agency’s closing submissions, filed 28 March 2025, and
(vi)Applicant’s closing submissions in reply, filed 4 April 2025
The decision under review
The Applicant has asked the Tribunal to conduct an independent review the decision of the delegate of the CEO made on 14 November 2019 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, and relevantly, at that time the review delegate was satisfied that the applicant lived with a permanent physical impairment that was derivative of Spinal Encephalomyelitis and Peripheral Neuropathy, a permanent neurological impairment that was derivative of a Neurogenic Overactive Bladder, and permanent impairments that are attributable to a psychosocial disability, and that these impairments affected his capacity for participation (s 24(1)(a),(b) and (d)). However, she was not satisfied that these impairments resulted in substantially reduced functional capacity in any of the life activity areas specified in s 24(1)(c) or that the Applicant was likely to require NDIS support for his lifetime (s 24(1)(e)).
Specifically with respect to the early intervention requirements, in short summary, while the review delegate was satisfied that the Applicant’s impairments were, or were likely to be, permanent, due to the long-standing nature of these impairments, she was not satisfied that there was any form of early intervention support that was likely to reduce his future need for support (s 25(1)(b)), or benefit him in any of the four ways specified in s 25(1)(c). Nor was she satisfied that early intervention supports were most appropriately funded though the NDIS.[6]
[6] Joint Hearing Bundle pages 44-5.
A note on the applicable law
On 3 October 2024 the NDIS Act was amended by the measures contained in the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (the amending Act). Schedule 1, items 19 to 27 introduced changes to the disability and early intervention requirements. However, by operation of item 126 of the schedule those changes apply only to an access request made after 3 October 2024. The Applicant’s access request was made to the Agency on 27 March 2019,[7] 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 requirements as they stood prior to 3 October 2024.
[7] T- Documents, Tab T12.
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.[8] This is a limited sub-category of the total population of persons with disability in Australia. The NDIS is not intended to support every person with disability in Australia.[9]
[8] 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.
[9] Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 (Mulligan) at [50].
To be eligible for access the NDIS, a prospective participant must satisfy an age requirement, a residence requirement, and either a disability requirement or early intervention requirement.[10] The broad purpose of these access criteria is to impose some restrictions on who can access funding for supports available under the NDIS.[11] 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 policy is 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.[12] The operational policy applicable in this case is called “Applying to the NDIS- pre legislative amendments”.[13]
[10] S 21(1) of the NDIS Act.
[11] Davis at [82].
[12] Drake at [644-5].
[13] Applying to access the NDIS | NDIS
The Tribunal’s role
The task of this independent review is to determine if the Applicant is a person with disability for whom the NDIS was intended. That involves the application of the access criteria contained in the Act and the Rules, some of which specify not only a criterion but also a threshold or level which must be satisfied before the criterion can be met.[14]
[14] Mulligan at [50].
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.[15] 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.[16] In addition to ascertaining the relevant facts as they stood at the time of the review, the Tribunal has been required to apply the law as this was clarified by the Full Court in this case in its disposition of the Appeal.
[15] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589.
[16] Shi v Migration Agent’s Registration Authority (2008) 235 CLR 286 at [45] – [46]..
Section 21(1) provides that a prospective participant will meet the access criteria for the NDIS if the CEO is ‘satisfied’ that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[17] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the access criteria are met.[18]
[17] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60]
[18] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].
The Applicant’s case for access to the NDIS as at the date of the hearing
At the outset, Counsel for the Applicant informed the Tribunal that the Applicant no longer puts his case on the basis that he meets the early intervention requirements for access to the NDIS in the alternative to him meeting the disability requirements. To the extent that it is necessary for me to make any finding in relation to this issue, I am also satisfied on the evidence before me that the Applicant’s permanent impairments are of long-standing and that there is no early intervention treatment available that is likely to reduce his future need for support or benefit him in any of the four ways specified in s 25(1)(c). I will therefore not further consider the Applicant’s Access Request under s 25 of the NDIS Act.
At the outset of the hearing, Counsel for the Applicant also informed the Tribunal with respect to the disability requirements found in s 24(1)(c), that the Applicant would not contend that his impairments resulted in substantially reduced functional capacity for communication, learning, or self-management. At the close of submissions, Counsel for the Applicant also submitted that having regard to the state of the evidence at that time, the Applicant no longer contended that his impairments resulted in substantially reduced functional capacity for mobility. That is, it was contended that the Applicant’s impairments resulted in substantially reduced functional capacity for social interaction and self-care only.
These concessions were properly made. On the evidence before me I do not consider it arguable that the Applicant’s impairments result in substantially reduced functional capacity for communication, learning, mobility or self-management. The evidence is clear that the Applicant has substantial functional capacity in relation to the tasks and actions associated with expressive and receptive language, the tasks associated with acquiring knowledge, skills or understanding, and with memory, those associated with moving around within the home and the community, and getting in and out of a bed and chair, and with the cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.[19] I make those findings and will not further consider the Applicant’s Access Request in relation to s 24(1)(c)(i), (iii), (iv) and (vi).
[19] See for example, the independent Functional Capacity Assessment Report completed by Ms C Muscat, Occupational Therapist, dated 8 October 2024; Joint Tender Bundle, Tab C37, page 690.
The scope of the dispute to be determined by the Tribunal
There is no issue between the parties that the Applicant meets the age and residence requirements for access to the NDIS. I am also satisfied on the evidence before me that this is the case.
Nor does the CEO put in issue the s 24(1)(d) disability requirement. She accepts that the Applicant’s permanent impairments affect his capacity for social and economic participation. For reasons I discuss following I am also satisfied that this is the case.
The parties are also in broad agreement as to the requirements of s 24(1)(a) and (b) (the impairment and permanence requirements). However, it will be necessary for me to briefly address those criteria and make specific findings as to impairment.
The controversy between the parties has two aspects. First, with respect to the disability requirements of s 24(1)(c), whether the Applicant’s permanent impairments result in substantially reduced functional capacity to perform the tasks and actions that make up the social interaction and self-care life activity areas. This aspect of the controversy turns in particular on whether the Applicant’s circumstances bring him within the scope of Rule 5.8 such that he is deemed by operation of that Rule to have substantially reduced functional capacity one or both of those life activity areas. Second, whether the Applicant meets the disability requirement specified in s 24(1)(e), which is that he is likely to require NDIS supports under the NDIS for his lifetime. I note that consideration of the s 24(1)(e) disability requirement will only be reached if each of the disability requirements of specified in s 21(1)(a) – (d) are met.
Access to the NDIS - the Applicable law
The disability requirement for access to the NDIS is found in s 24 of the Act and Part 5 of the Becoming a Participant Rules.
Section 24 (as in force prior to 3 October 2024) provided:
24 Disability requirements
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)Self-management; and
(d)the impairment or impairments affect the person’s capacity for social and economic participation; and
(e)the person is likely to require supports under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
Rules 5.4 to 5.7 deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An impairment is, or is likely to be, permanent … only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated.
5.7If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care or self-management … - if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participant in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
As will be observed from s 24(1) of the Act, five criteria must be satisfied for the disability requirement to be met. These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability 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. Additionally, if it is manifest that a later disability requirement cannot be met, there is no utility in considering the earlier disability requirements along the pathway.
s 24(1)(a): Does the Applicant have a disability attributable to impairment?
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,[20] 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.[21]
[20] Davis at [69].
[21] 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.[22] That definition is a simple rendering of the definition of impairment[23] used in the application of the ICF, which is “a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure” which occurs in the context of a health condition, being a diagnosis of a disease, disorder or other health condition. [24]
[22] At [118] referring to [113].
[23] 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.
[24] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)
Specifically with respect to s 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant’s disability is attributable, because the access criteria contained in ss 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant’s functional capacity and social and economic participation.[25]
[25] Mulligan at [52].
In this respect, as I have explained in DQKZ,[26] the ICF is extrinsic material to which the Tribunal may have regard in ascertaining with objective precision the impairment of body structure or function which is at issue in each case for the purposes of s 24. That is because it is a standardised classification system, which has as one of its primary objectives the provision of a standard language and conceptual framework in relation to human function.[27]
[26] DQKZ and National Disability Insurance Agency [2024] AATA 2276 at [144] – [149].
[27] Who (2002).
The Applicant lives with Spinal Encephalomyelitis, which is an inflammatory condition of the spinal cord which causes damage to the myelin sheath (the sleeve that wraps around nerve axons). This is the Applicant’s health condition for the purposes of the ICF.
The Applicant submits that the impairments that result from his health condition are a neurogenic overactive bladder with poor contractability and an upper motor neuron bowel dysfunction, which result in him being incontinent of urine and faeces. It is submitted that these impairments are both neurological and physical impairments for the purposes of s 24(1)(a).[28]
[28] Applicant’s closing submissions filed 4 April 2025 at [28] to [31].
The CEO broadly agrees with the Applicant’s description of his impairments, but submits that for the purposes of s 24(1)(a), and having regard to the ICF, they ought to be more precisely identified as:[29]
(a)An impairment of genitourinary function, being the urinary function of urinary continence,[30] and
(b)An impairment of digestive function, being, the defecation function of faecal continence.[31]
[29] Closing submissions filed 28 March 2025 at [14].
[30] ICF b 6202 defined as “functions of control over urination.”
[31] ICF b 5251 defined as “functions involved in the voluntary control over the elimination function.”
I accept that submission, and I also find that these are neurological impairments for the purposes of s 24(1)(a) because they result from a disease or disorder of the spinal cord.
I note that the medical evidence that supports these findings is found in the reports of the Applicant’s Consultant Urologist, Dr P Wolanki, dated 1 May 2020 and 27 July 2023,[32] and Neurologist, Dr M Boggild, dated 25 September 2023.[33]
[32] Joint Hearing Bundle, Tabs C6, page 147 and C19, page 233.
[33] Joint Hearing Bundle, Tab C22, page 242.
I also note that the Applicant’s impairment of faecal continence function has developed as an exacerbation of his health condition since this case was originally determined by the Tribunal. That impairment was therefore not before the Full Court on Appeal.
As I have found that the Applicant has a disability that is attributable to two neurological impairments, the gate opens to consider if these impairments are permanent.
s 24(1)(b): Are these impairments permanent?
The Applicant submits, and the CEO accepts, that the impairments I have identified above are permanent.
I also accept that this is the case. Having regard to the requirements of Rule 5.4 I am satisfied that there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy these impairments. Having regard to Rule 5.6 I am satisfied that this conclusion can be reached confidently without any further medical treatment or review. I note that the evidence of the permanence of these impairments is found in the reports of Dr Wolanski, Consultant Urologist, and Dr Boggild, Neurologist.[34]
[34] Ibid.
The gate therefore opens to consideration of the question of whether these impairments result in substantially reduced functional capacity to perform the bundles of tasks and actions that make up the s 24(1)(c) life activity areas.
s 24(1)(c) - Do the Applicant’s impairments result in substantially reduced functional capacity in a specified life activity area?
For the reasons I have set out above, consideration of this disability requirement is limited to determining whether the Applicant’s impairments result in substantially reduced functional capacity to perform the bundles of tasks and actions that make up the social interaction or the self-care life activity areas. I note in this respect that unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is disjunctive. That is, it is only necessary for the Applicant to establish that he experiences substantially reduced functional capacity in one life activity area satisfy this disability requirement. [35]
[35] Mulligan at [56].
It is important to observe in the circumstances of this case, having regard to the linear structure of s 24(1), that the s 24(1)(c) enquiry is limited to those permanent impairments that have been established in the ss 24(1)(a) and (b) enquiries. It is not open to me to consider if the Applicant has substantially reduced functional capacity for social interaction or self-care except insofar as this is derivative of an impairment that has been found to be permanent.
Rule 5.8 specifies three circumstances in which a prospective participant will be deemed to satisfy the requirement of “substantially reduced functional capacity”. The purpose of the Rule, in my opinion, is to enable the s 24(1)(c) enquiry to be truncated in clear cases that fall within that Rule. However, the Rule is not exhaustive of the circumstances in which substantially reduced functional capacity resulting from an impairment may be found.[36] The statutory task therefore 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.
[36] 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. As will be seen following, the Applicant contends that his circumstances fall within the scope of paragraph (a) of Rule 5.8.
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.[37] It also observed that the use of the disjunctive “or” between those words means that only one standard need be reached, not both.[38] It rejected a submission that the term “completely” as an adverb to “participate” is to be given a literal meaning consistent with the terms “wholly” or “perfectly”, because it would result in an absurd outcome, being an impossible bar for anyone to achieve.[39] I am bound by those conclusions. The Court also said Foster “[i]n the overall legislative scheme, the adverb “completely” appears redundant …”.[40] However, I do not understand this to be a concluded opinion that is binding upon me.
[37] Foster at [88].
[38] Foster at [82].
[39] Ibid.
[40] Foster at [83]
For reasons I explained in Burrows[41] 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 and actions that constitute each of those areas. It is apposite to assess a prospective participant’s functional capacity with respect to some such tasks and actions, such as the tasks and actions 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 and actions “so as to achieve the intended or expected result” (as the Court held that term should be understood in Foster[42]). Whereas a prospective participant’s functional capacity to execute other tasks and actions, such as the tasks and actions 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, as I have also sought to explain in Burrows[43] 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.
[41] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (Burrows) at [67] to [69].
[42] Foster at [83].
[43] Burrows at [69].
Third, leaving aside Rule 5.8, the words “substantially reduced” have tended to be defined in Tribunal level decisions in accordance with the relevant ordinary meaning of the word “substantial” which is “considerable”,[44] which it has been held, means that there is a “significant threshold” to be met.[45] In my respectful opinion these attempts to define the term “substantially” using synonyms is circular. The Agency’s operational policy does not assist because it explains the concept in accordance with Rule 5.8 only.
[44] Macquarie Dictionary Word Search.
[45] 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].
In Burrows[46] I have sought to bring some social scientific objectivity to the task of ascertaining the meaning of the term, or more specifically, the threshold at which it is enlivened, by reference to the calculus used in the ICF and its designated assessment tool, the World Health Organisation Disability Assessment Schedule (WHODAS 2.0) to assess and describe the degree of difficulty a person may experience in executing tasks of daily living due to impairment.[47]
[46] Burrows at [64].
[47] As I stated in Burrows the reference in Rule 7.5 of the Becoming a Participant Rules to the ICF as providing the mandatory overall framework within which the CEO may develop NDIS assessment tools in accordance with Rule 7.2 appears to evince a legislative intention that the terms and concepts that concern the assessment of whether a prospective participant meets the access requirements for the NDIS should be interpreted and applied in conformity with the framework of the ICF.
WHODAS 2.0 assesses the “degree of difficulty” a person experiences in doing specified activities of daily living in terms of “increased effort”, experience of “discomfort or pain”, “slowness” and “changes in the way the person does the activity” (the difficulty factors) according to a five-point scale which is “none”, “mild”, “moderate”, “severe”, and “extreme or cannot do” (the difficulty ratings). A “mild” degree of difficulty or reduced functional capacity to perform a task is a degree of difficulty up to 25% greater than that of a person who does not have the assessed person’s impairments, “moderate” is a degree of difficulty up to 50% greater, and “severe” is a degree of difficulty greater than 50% than that of a person who does not have the assessed person’s impairments.[48] In my opinion this analytical framework is helpful in giving meaning to the concept of substantially reduced function by providing an objective measure of the threshold at which it is enlivened. In my view, “substantial” should be understood as connoting a degree of difficulty, or reduced functional capacity, in performing a task or action that is greater than “moderate”, and “reduced” should be understood as being in one of the four ways specified by the difficulty factors.[49]
[48] ICF online “Activities and Participation” description.
[49] 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.
I should be clear that it is not my intention to suggest that the WHODAS 2.0 difficulty ratings are a proxy for the statutory concept; merely that they are an aid that assist in bringing some social-scientific objectivity to ascertaining when the statutory threshold is enlivened.
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.[50] 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,[51] 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).[52]
[50] Mulligan at [55]; Foster at [64].
[51] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [109].
[52] The ICF defines functional capacity as an individual’s ability to execute a task or an action. It identifies the highest probable level of functioning a person may reach in each domain at a given moment. Functional performance describes what an individual does in his or her current environment which may be related to aspects of the physical, social and attitudinal world: ICF “Activities and Participation” tab. Functional performance may be affected by geographic factors (remoteness, terrain etc), personal factors (gender, ethnicity, sexual identity) and related social factors (such as discrimination based on a personal characteristic, perceived gender roles etc). These factors are not “choices” made by an individual in any direct sense. For a discussion of the distinction between functional capacity and functional performance see World Health Organisation, (2002), Towards a Common Language for Disability Functioning and Health, ICF Geneva (WHO/EIP/GPE/CAS/0.1.3) at page 2
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 intrinsic capacity without personal assistance or the use of assistive devices.[53] That is the case, except to the extent that this principle is modified by Rule 5.8(a) to require commonly used items 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.
[53] WHO (2002) at page 11.
It is to be noted for the purposes of Rule 5.8 and otherwise that the relevant Agency operational policy defines the term “assistive technology” in accordance with the World Health Organisation’s ICF definition as follows:
Assistive technology is equipment or devices that help you do things you can’t do because of your disability. Assistive technology may also help you to do something more easily or safely. Assistive technology will reduce your need for other supports over time.
This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.
Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food,
Assistive technology is only the equipment you need because it helps you do things that you normally can’t do because of your disability. It includes items that:
·Mean you need less help from others
·Help you do things more safely or easily
·Help you to keep doing the things you need to do
·Allow you to do tasks independently
·Are personalised for you.
As I have already stated above, 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 and actions that fall within that activity area, rather than limit itself to consideration of a specific task that falls within that area. I note that this principle was established by the Full Court in the Appeal in this case.[54]
[54] Foster at [65] to [66].
However, as I have discussed in detail in Burrows[55] it is a necessary implication of this principle that the tasks that come within the scope of each activity area must be regarded as designated and determinate rather than infinitely variate and elastic. That is necessary so that the s 24(1)(c) ‘test’ can be applied normatively rather than arbitrarily between prospective participants, which is one of the objectives of the legislative scheme.[56]
[55] Burrows at [73] to [95].
[56] s 3(1)(f) of the NDIS Act.
For reasons I have explained in Burrows[57] the bundle of tasks that constitute the social interaction and self-care life activity areas should be designated as follows:
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.
Self-care
- tasks associated with personal care, including personal hygiene and grooming,
- tasks associated with eating and drinking, and
- tasks associated with health care.
[57] Burrows at [87].
Functional impact of the Applicant’s impairments
I do not understand the functional impact of the Applicant’s impairments to be in dispute. In this respect, as I understand the evidence:
(a)With respect to the Applicant’s urinary continence, in his “naked” state, he is incontinent of urine. To manage his urinary incontinence, every eight to 12 months, the Applicant has a Botulinum Toxin (botox) injection into his bladder muscles to prevent their spasm, which results in the retention of urine. To manage his urine retention the Applicant self-catheterises six to eight times per day to void his bladder. He uses, or at least he prefers to use, Coloplast SpeediCath Flex catheters for this purpose. The Applicant also routinely wears incontinence pads to capture urine leakage.
(b)With respect to the Applicant’s faecal continence, in his “naked” state, he is incontinent of faeces. To manage his incontinence, he self-administers Imodium and Gastro-Stop medication which reduce muscle contractions in the gastrointestinal tract, resulting in a reduction in involuntary defecation and in the retention of faeces. To manage faecal retention the Applicant uses a Peristeen Plus device, which is a trans-anal irrigation system, to evacuate stool. The Applicant also uses continence pads to capture faecal leakage.
Is a catheter and Peristeen Plus device assistive technology or equipment?
The Full Court determined in this case on Appeal that a catheter is an item of equipment that falls within the meaning the term “Assistive Technology” in the Agency’s Assistive Technology Operational Guidelines.[58] There is no material difference between a urinary and faecal continence device. I am therefore also satisfied that a Peristeen Plus device falls within the Agency’s definition of assistive technology for the purposes of Rule 5.8 and otherwise. I understand this to be common ground between the parties.
[58] Foster at [41]-[42]; I note that the Agency’s Assistive Technology (equipment, technology and devices) guideline has been revised since the Full Court’s decision in Foster. The current version for the purposes of this review is dated 25 March 2025. However, there is no change to the definition of assistive technology that would alter these conclusions.
Social interaction
For the reasons I have set out above the bundle of tasks within the social interaction activity area is limited to tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context.
The Applicant contends that he is unable to participate effectively or completely in the activity of social interaction because of his urinary and faecal incontinence. He contends that his ability to do so is improved by his use of a catheter and Peristeen Plus device but he remains unable to participate completely even with the use of these devices. It is contended that this is because:
i.assistive technology cannot be used easily other than in a home environment. This places time constraints on participation in social activities and limits the type of social activities that he can engage in.
ii.the timing of a bowel evacuation following use of the Peristeen Plus device is not predictable. It may occur relatively quickly or take extended time to occur. For this reason, it is difficult to plan social activities with any certainty and it is sometimes necessary to withdraw from planned activities at short notice to await a bowel movement.
iii.assistive technology does not fully manage his incontinence, and nor do continence pads prevent all leakage and odour.
iv.the Applicant has experienced urinary and faecal incontinence in social situations despite his efforts to manage these conditions with medication, assistive technology and continence pads. This has caused him embarrassment and distress.
v.the risk of embarrassment due to incontinence and odour leads the Applicant to prefer to avoid social situations and remain in close vicinity to the toilet in his home.
vi.the risk of embarrassment due to his continence management and incontinence severely inhibits the Applicant from seeking and experiencing intimate contact with others.
vii.all these factors inhibit the Applicant from making and keeping friends. He experiences anxiety, depression and loneliness as a result.
I do not understand there to be any substantive challenge to these propositions. Rather, the CEO contends that the social interaction activity area is concerned with the skills a prospective participant requires for social interaction and not with restrictions on the person’s opportunities for participation. This point is elaborated in the CEO’s closing submissions as follows (footnotes omitted):
42.The Respondent’s Operational Guidelines define socialising as “… how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations”.
43.Assistance in identifying the scope of social interaction can be seen in chapter 7 of the ICF, which deals with “interpersonal interactions and relationships”. This chapter draws attention to the skills required to be able to socially interact, such as interacting, maintaining and managing interaction with other people … in a contextually and socially appropriate manner, engaging in temporary contacts and links with strangers for specific purposes, entering into casual relationships, creating and maintaining kinship relationships, and creating and maintaining close or romantic relationships between individuals, such as husband and wife, lovers or sexual partners.
43.1The Applicant’s incontinence impairments do not result in any reduced capacity to undertake the skills required to socially interact. That is in accord with the evidence that the Applicant gave at hearing. He stated that the week prior to the hearing, he was having lunch with a friend at a café in a shopping centre. He also said that he recently went for a drive with a person he was just getting to know, and had known him “for a day or so”. He also said that he recently went to the theatre and he always tries to get a seat near the end so he can get up and go if he wants to.
44.The Applicant’s claimed impediments are solely directed to where, when and how often he socially interacts because of his unpredictable continence issues. The Respondent submits that the restricted opportunities that the Applicant has to be able to socially interact is a concept that falls outside of consideration of assessing one’s functional capacity to undertake the activity of social interaction, for two reasons.
45.First, the express wording of s 24(1)(c) requires a consideration of whether the person’s impairment results in a reduced functional capacity to undertake the activity of social interaction. A person’s capacity describes an individual’s ability to execute a task or an action. The assessment looks at what the person ‘can and cannot do’. Here the Applicant’s ability to execute the tasks required to socially interact is not impacted. His claim is solely premised on his limited opportunities to utilise those skills, because of his incontinence issues.
46.Second, the NDIS is modelled on the recommendations of the Productivity Commission, in its report to the Government on 31 July 2011., titled Disability Care and Support, Report No 54 (Productivity Commission Report). This material can be used to provide context in interpreting the legislation. As to the NDIS Assessment criteria, when looking at ‘what is being assessed’ under the NDIS, the Commission referred to the ICF, which lists nine ‘activities and participation’ domains. Relevantly, the ICF distinguishes between ‘interpersonal interactions and relationships’, which directs attention to ‘relating to strangers, formal and informal social relationships, family and intimate relationships’, and ‘community, social and civic life’, which directs attention to ‘engaging in community, civil and recreational activities’.
47.After reviewing the existing state and territory definitions of disability, the Commission ultimately recommended the requirement for a ‘significantly reduced functioning in self-care, communication, mobility, or self-management’. When the NDIS Act was enacted, ‘social interaction’ was included to that proposed list as one of the activities. The explanatory memorandum makes clear that section 24 implemented the recommendations of the Productivity Commission.
48.The Respondent thus submits that the intent of choosing the phrase ‘social interaction’ and not including the ‘community, social and civic life’ activity within section 24 was to limit consideration to the person’s ability to socially interact, as opposed to the person’s ability to access the community to socially interact. An expansion of the scope to include the latter has the potential to capture a broader cohort of people with disabilities that the NDIS was not intended to capture.
…
50.The Respondent submits that, having regard to the above, the proper construction is that the assessment is directed at the personal skills needed for social interaction, and not at the opportunities to exercise those skills, such as location or frequency. In those circumstances, the Respondent submits that the Applicant’s functional capacity to undertake the activity of social interaction is not reduced.
70.Counsel for the CEO drew attention to two conflicting decisions of the former AAT that bear upon these submissions. Both are decisions of non-judicial Deputy Presidents of the former AAT.
71.In Madelaine[59] Deputy President Humphries expressed the opinion that s 24(1)(c)(ii) is principally concerned with assessing the prospective participant’s personal skills needed for social interaction and is only marginally about opportunities to exercise those skills, such as location and frequency. In this respect he opined at [87] to [89]:
87.The Tribunal is not persuaded that Ms Madelaine’s impairments offer anything other than a slight impingement on her capacity for social interaction. The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills. In this context, Ms Madelaine strikes the Tribunal as a gregarious conversationalist with a keen sense of humour. On such a foundation social interaction should prove to be no problem for her. Even allowing for the interference caused by pain, the Tribunal can see no reason why she should not be able to observe social boundaries on behaviour and cope with her feelings and emotions when engaging with others. There was nothing to suggest her friends do not continue to enjoy interacting with her or eschew opportunities to do so. Difficulties associated with being able to stick to planned social outings do not take away from the fact that they do nonetheless sometimes occur. When they are cancelled, this is not because of any inadequacy in her social interaction skills but rather to do with issues such as mobility.
88.Her reasons for not engaging in social interaction with members of the local sewing group and book club are unconvincing. For example, Ms Madelaine was asked why she couldn’t attend the sewing group on days when she felt well enough to drive. She said this is because she would feel very uncomfortable...there are lots of things I can’t do in that setting, despite being able to sit there and be social. The specific example she offered of this was that tremors in her hand would mean the teacup would clatter as she picked it up, disturbing other attendees. She added that, if she had a support person there, they could take the cup from her hand to avoid this problem. Given her evidence that she had actually founded this group, one might have expected a greater level of tolerance and understanding by its members of such small social indiscretions.
89.In any case, if – which I do not accept – self-consciousness or social awkwardness prevents Ms Madelaine from attending these organisations, then it is difficult to see how this supposed reduced functional capacity has resulted from her impairments. The same lacuna in logic is exhibited in the suggestion that being unable to go fishing or to walk her dogs demonstrates that she has a reduced functional capacity for social interaction
[59] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine).
In Lampard,[60] Deputy President Melick took a contrary view. He opined that the reluctance of the Applicant in that case to engage in social activities because of the risk of embarrassment was an issue that went to her functional capacity for social interaction for the purposes of s 24(1)(c). In this respect he opined at [161]:[61]
161.However, I find that the Applicant’s impairment of IBS results in the Applicant having substantially reduced functional capacity in the area of social integration because it causes her to be reluctant to leave her house and engage in social activities. I accept her evidence to the effect that she does not leave the house for the embarrassment of her bowel issues, and the impact of her having to change her bedding and clothing due to her bowel incontinence.
[60] Lampard and National Disability Insurance Agency [2024] AATA 3150.
[61] The Tribunal’s decision in Lampard is at the time of writing subject to a pending Appeal to the Federal Court under s 44 of the former AAT Act.
I note that, ordinarily, I would be obliged to defer to the opinion of a Deputy President on an issue that is before me for determination.[62] However, where two Deputy Presidents have expressed contrary opinions, I am unable to defer to both.
[62] Re Ganchov and Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees [1990] AATA 419; (1990) 19 ALD 541 at [41].
In her closing submissions in reply, Counsel for the Applicant submitted (footnotes omitted):
22.The Applicant is unable to participate effectively or completely in the activity of social interaction. Even with the use of the catheters and Peristeen device, his ability to participate socially is improved, meaning that he has social opportunities available to him, however he is not able to completely engage socially due to his impairments. This is because of the nature of his impairments and how this affects his ability to uphold social norms as he is at risk of faecal incontinence frequently.
23.The respondent incorrectly states that the Applicant’s claimed impediments are solely directed to where, when and how often he socially interacts because of his unpredictable incontinence issues. The Applicant’s impairments also significantly affect his ability to socially interact. To say that the Applicant’s ability to socially interact is only affected insofar as duration and scheduling of events ignores the onerous ways the Applicant’s ability to socially interact are affected by his impairments. The evidence at the hearing from multiple witnesses, including the Respondent’s own expert witness, Ms Muscat, was clear that the Applicant’s impairments impact his ability to socially interact, as distinct from any impact on opportunities to socially interact, to maintain relationships, engage in the community, how he copes at social events and how he communicates and converses with others.
24.That Mr Foster is a man who does his best to maintain some community connections despite his disability should not distract from the fact his capacity to perform the activity of social interaction is substantially reduced. It would be at odds with the guiding principles of the Act, which promote participation in the community, if it was held against an applicant that he or she is still able to meet friends for a coffee or go to the theatre on occasion.
25.The Respondent refers to the decision of Madelaine … in submitting that the assessment of one’s ability to engage effectively or completely in this task is directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills. In this regard, the Applicant contends that both social skills and opportunities to engage in social interaction are significantly reduced for Mr Foster due to his impairments. …
26.In supporting its submission that the Applicant’s ability to socially interact is not substantially reduced, the Respondent refers to the Applicant’s oral evidence at the hearing that he recently had lunch with a friend in a café, that he went for a drive with a person he was getting to know, and that he recently attended a theatre. What the Respondent fails to add is that the Applicant’s evidence at the hearing was that each of these social attempts were unsuccessful due to his impairments (i.e. he soiled himself). This was explained by the Applicant in the following evidence at the hearing:
(a) “so just last week, I was in Townsville, and I was having lunch with somebody. And we were at a café, and I needed to go to the bathroom. But the bathroom was quite some way away, so I just didn’t make it, but I couldn’t walk really fast to try to get there in time … I soiled myself, and so then I obviously needed to go back to where I was staying. So I made a phone call to the person I was having lunch with and explained my situation. And I left him with my meal and the bill.”
(b)“On Saturday, I was at the theatre and had an unexpected bowel movement”
(c) “I recently went for a drive with a person I’m … was just getting to know, and I had a bowel movement while we were driving. And it was only half an hour or so, the drive. But then I had to drive home and drop him off with the stench of having soiled myself”.
27.These are examples of the ways that the Applicant’s impairments affect his ability to go out in public and socialise. When this evidence from the Applicant is considered in combination with the evidence of Dr Wolanski, Casey Muscat and Dr Andrews that the Applicant’s social skills are affected by his anxiety and fear of an incontinence episode, the Tribunal is urged to accept that the Applicant’s functional capacity to engage in social interaction is substantially reduced by his impairments both due to opportunity but also ability. These negative experiences also increase the Applicant’s risk for further social withdrawal and isolation particularly if he ceases being able to fund the assistive technology he uses to maintain some control over his incontinence.
Any reasonable person would be moved by the Applicant’s circumstances. But the task of this Tribunal is to determine, dispassionately, if he is a person for whom the NDIS is intended. That involves the authentic application of the disability requirements.
There is a difficulty for the Applicant in attempting to rely on depression and anxiety connected with his incontinence as evidence of a reduction in functional capacity for social interaction. That is because, as I have explained above, the s 24(1)(c) inquiry is limited to those impairments that have been found to be permanent impairments in the s 24(1)(a) and (b) enquiries. The Applicant did not contend with respect to those disability requirements for any permanent impairment to his global mental function, for example, to his global psychosocial functions,[63] his temperament and personality functions,[64] such as psychic stability,[65] openness to experience,[66] optimism,[67] confidence,[68] or his energy and drive functions,[69] such as motivation.[70] Without permanent impairments of this character having been established, it is not open to me to consider their functional impact for the purposes of s 24(1)(c).
[63] 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.”
[64] 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.”
[65] ICF1263 “Mental functions that produce a personal disposition that is even-tempered, calm and composed, as contrasted to being irritable, worried, erratic and moody.”
[66] 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.”
[67] ICF b1265 “Mental functions that produce a personal disposition that is cheerful, buoyant and hopeful as contrasted to being downhearted, gloomy and despairing.”
[68] 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.”
[69] 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.”
[70] ICF b1301 “Mental functions that produce the incentive to act; the conscious or unconscious driving force for action.”
The contest between the parties as it appears from their submissions tends to conflate the s 24(1)(c) and (d) disability requirements, which are conceptually distinct. The s 24(1)(d) disability requirement is concerned with the “affect” of the Applicant’s permanent impairments, as found in relation to the s 24(1)(a) and (b) enquiries, on the prospective participant’s capacity for social and economic participation. The relevant threshold is whether those impairments “affect” (that is, ‘have an effect on or make a difference to’[71]) the prospective participant’s capacity for social and economic participation. That is a relatively low threshold, and it is not in contest between the parties that the s 24(1)(d) disability requirement is met in this case. I am also satisfied that this is so.
[71] Oxford Languages.
With respect to his economic participation, it is not controversial that the Applicant was compelled to surrender his position as a teacher because it was impossible for him to sufficiently manage his incontinence in a school and classroom setting. Nor do I understand it to be controversial that the extra cost of living associated with purchase of incontinence management devices and pads has had an adverse economic impact on the Applicant. In any event, for my part, I accept that it has.
With respect to his social participation, I do not understand there to be any real challenge to the Applicant’s evidence that his incontinence, at the behavioural level, has affected his social participation. Just as some examples, he gave evidence that he has been compelled to give up sailing as a sport as he is unable to manage his incontinence on the water, he is reluctant to go to the theatre and when he does so he modifies his attendance so as to be able to leave early and alone if necessary due to an incontinence event, and he is reluctant to meet new people because of the risk of embarrassment due to an incontinence event.
The Applicant’s incontinence impairments undoubtedly affect his capacity for social and economic participation. They have a serious quality of life limiting impact. But this goes to the s 24(1)(d) disability requirement. If that requirement were to be reached in this review, as I have said, I would have found it to be met.
The s 24(1)(c) disability requirement is distinct from and does not overlap with the s 24(1)(d) disability requirement. It is concerned with the prospective participant’s “functional capacity to undertake” one or more of the activities specified in the section, which must be substantially reduced for the requirement to be met. As noted above, in Mulligan the Court conceptualised the Tribunal’s task as determining what the prospective participant ‘can and cannot do’, and not ‘what they choose to do’.[72]
[72] Mulligan at [55]; see also Foster at [64].
Within the conceptual framework of the ICF this invokes the essential distinction that must be drawn between a person’s functional capacity to carry out a task or action in a life domain in their intrinsic (or “naked”) state and their functional performance of the task, which may be impacted by personality, personal characteristics, and various extrinsic factors in the legal, social and built environment (see footnote 52). Functional performance is relevant to the s 24(1)(d) enquiry. It is not relevant to the s 24(1)(c) enquiry.
In my respectful opinion it is reductive and potentially misleading to frame the difference between functional capacity and functional performance in terms of a person’s “skills” or general “ability” to execute a task and the “opportunities” they avail themselves of performing the task. The term “skill” may import an unhelpful connotation of “expertise” or “prowess” into the assessment of “capacity” which should instead be limited to the determining if the person in their intrinsic state can carry out a task or action in a life activity area to achieve its intended or expected result or to complete that task or action. Functional performance may result from voluntary choices the person makes, but is it also affected by factors over which a person may have no control. To illustrate this using simple examples, a person may have the capacity to perform expressive and receptive language but be unable to perform those tasks and actions to shop for food because they live in poverty, or because the building in which the shop is located is physically or geographically inaccessible to them.
In closing submissions, Counsel for the CEO submits that the tasks and actions that fall within the social interaction activity areas may be ascertained by reference to Chapter 7 of the ICF (Interpersonal interactions and Relationships). I agree. However, in my opinion it would be incorrect to consider the entirety of that Chapter as coming within the scope of the social interaction activity area. The legislative scheme itself determines the scope of the activity areas. I have set out above the short description of the tasks and actions that come within the scope of the social interaction activity. They do not encompass tasks and actions related to familial interactions or to intimate relationships with others (d760 and d770 of the ICF). I rely on my reasoning in Burrows[73] and Coffey[74] in this respect.
[73] Burrows at [109].
[74] Coffey and CEO, National Disability Insurance Agency [2025] ARTA 634 at [70].
In my opinion they do include the tasks and actions that fall within the ICF Chapter 7 ‘basic interpersonal interactions’ (d710),[75] ‘complex interpersonal interactions’ (d720),[76] and other ‘particular interpersonal relationships’ (d730 to 750)[77] clusters.
[75] ICF d710 “Interaction with people in a contextually and socially appropriate manner, such as by showing consideration and esteem when appropriate, or responding to the feelings of others.” Inclusions: showing respect, warmth, appreciation and tolerance in relationships; responding to criticism and social cues in relationships; and using appropriate physical contact in relationships.
[76] ICF d 720 “Interacting and managing interactions with other people, in a contextually and socially appropriate manner, such as by regulating emotions and impulses, controlling verbal and physical aggression, acting independently in social interactions, and acting in accordance with social rules and conventions, when for example playing, studying or working with others. Inclusions: forming and terminating relationship; regulating behaviours within interactions: interacting according to social rules; and maintaining social space.
[77] ICF d 730 Relating to strangers – “engaging in temporary contacts and links with strangers for specific purposes, when asking for directions or other information, or making a purchase”: d740 Formal relationships – “creating and maintaining specific relationships in formal settings, such as with teachers, employers, professionals or service providers: d750 Informal social relationships – “Entering into relationships with others, such as casual relationships with people living in the same community or residence, or with co-workers, students, playmates, people with similar backgrounds or professions. Inclusions: informal relationships with friends, neighbours, acquaintances, co-inhabitants and peers.”
With these observations as background, I now turn to the question of whether the Applicant’s functional capacity for social interaction falls within the scope of Rule 5.8. It is not argued that paragraph (b) of the Rule is engaged, and I find that it is not. The Applicant does not usually require assistance from other people to perform the tasks or actions associated with social interaction.
The Applicant contends that his circumstances do come within the scope of paragraph (a) of Rule 5.8. It is contended that he cannot participate in social interaction effectively or completely without the use of incontinence management assistive equipment. However, it is also submitted that he remains unable to do so effectively and completely even with this assistive equipment, although his capacity to do so is improved with its use. There is a logical problem with this submission. If the Applicant is unable to participate in social interaction effectively or completely even with assistive equipment, he cannot come within paragraph (a) of Rule 5.8. The relevant paragraph is (c).
However, for the reasons I have outlined above the Applicant’s contention that he meets the requirements of s 24(1)(c) in respect of the social interaction life activity area is untenable with respect to the application of Rule 5.8 and otherwise. That is because:
i.to the extent that he contends his global mental functions are impaired in connection with his incontinence impairments, the existence and permanence of those conditions has not been established by the s 24(1)(a) and (b) enquiries and cannot be considered in relation to the s 24(1)(c) disability requirement. Any reduction in the mental functional capacity related to motivation, psychic stability (mood), and optimism contended for by the Applicant are not before me for the purposes of s 24(1)(c).
ii.the concerns the Applicant expresses in relation to the impact of his incontinence impairments relate to his functional performance of the tasks and actions that make up the social interaction life activity area, not his intrinsic functional capacity to complete those tasks and actions effectively and completely. This is not to diminish the significance of this impact. It is real and life-limiting. The Applicant’s incontinence impairments undoubtedly affect his capacity for social and economic participation. But this goes to the s 24(1)(d) disability requirement, not the s 24(1)(c) disability requirement.
iii.the scope of the social interaction activity area is limited to those tasks and actions associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural regulation in a social context. That short description of these tasks and actions may be elaborated by reference to the clusters of tasks and actions specified in the d710, d720, and d730-d750 activity clusters in Chapter 7 of the ICF. But in this respect, it is not arguable that the Applicant is unable to effectively and completely carry out the tasks and actions of:
-showing respect, warmth, appreciation and tolerance in relationships; responding to criticism and social cues in relationships; and using appropriate physical contact in relationships.
-forming and terminating relationships; regulating behaviours within interactions; interacting according to social rules; and maintaining social space.
-engaging in temporary contacts and links with strangers for specific purposes, when asking for directions or other information or making a purchase.
-creating and maintaining specific relationships in formal settings, such as with teachers, employers, professionals or service providers.
-Entering relationships with others, such as casual relationships with people living in the same community or residence, or with co-workers, students, playmates, people with similar backgrounds or professions.
Before turning to consider the parties submissions it is appropriate to set out in full what the Full Court said in relation to Ground Two of the Appeal in this case, which is at [69] to [77] of the Judgement:
69.Ground Two is concerned with the second question of construction; namely, whether the words “assistive technology, equipment” in r 5.8(a) are directed at the “impairment” or to “activity”. The NDIA contends that the Tribunal erred by concluding that the words “assistive technology, equipment” in r 5.8(a) included Mr Foster’s use of a catheter, the primary purpose of which is to replace his lost functional capacity to urinate. The NDIA contends that, for the purposes of r 5.8(a), “assistive technology, equipment” is limited to equipment that serves the primary purpose of assisting him in one of the relevant activities of daily living as prescribed in s 24(1)(c).
70.The Tribunal concluded, at [83]
Taking all of the above into consideration, and having regard to the guidance with respect to the application of rule 5.8(a) of the NDIS Access Rules of Mortimer in Mulligan, the Tribunal considers that the outcome or effect on the Applicant without the equipment (catheters) is that he is unable to participate effectively or completely in the activity (self-care) or perform tasks or actions (toileting) required to undertake or participate effectively or completely in the activity, and hence the deeming effect of rule 5.8(a) of the NDIS Rules operates.
71.In the preceding paragraph, The Tribunal had placed emphasis on Mortimer J’s observation in Mulligan, at [56] that, “[c]ritically, the scheme makes detailed provision for [a functional practical assessment of that a person can and cannot do], and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity” (Tribunal’s emphasis). The activities to which Mortimer J refers are those in s 24(1)(c) - communication, social interaction, learning, mobility, self-care, and self-management.
72.The Guidelines draw attention to the need to consider a person’s “specific needs arising from the prospective participant’s impairment and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment”. The Guidelines provide further that, “Such items would generally be specially designed to assist in increasing the functional capacity and participation … and be formally prescribed by a medical practitioner …”
73.There is no dispute that Mr Foster’s catheters are prescribed by a medical practitioner in direct response to his needs arising from his impairment. The NDIA submitted that, in this case, the equipment serves the primary purpose of addressing Mr Foster’s impairment, and not that of the consequences of his daily living and social and economic participation.
74.On a plain reading of r 5.8, the NDIA’s submission must be accepted. The rule provides:
An impairment results in substantially reduced functional capacity of a person to undertake one or more relevant activities … if its result [that is the result of the impairment] is that
(a) a person is unable to participate effectively or completely in the activity, or perform tasks or actions required to participate effectively or completely the activity, without assistive technology or equipment.
75.The Tribunal directed its attention to the fact that Mr Foster needs assistive technology or equipment to urinate, rather than to whether he needs the equipment to perform tasks or actions required to undertake or participate effectively or completely in the activity. This error flows from that discussed in relation to Ground One, being the equating of the single take of toileting with the activity of self-care.
76.The Tribunal ought to have directed itself to the question of whether Mr Foster required assistive technology to undertake or participate effectively or completely in the activity of self-care. When considering that question, the Tribunal was required to be satisfied that Mr Foster met the disability requirements having regard to the objects and principles, including when giving effect to the objects, the provision of services by other agencies and the need for interaction between mainstream services and the provision of supports under the NDIS (s 3(d)) – in this case by CAPS, and the need to ensure the financial sustainability of the NDIS (ss 3(b) and 4(7)).
77.As has already been explained, in relation to Ground One, Mr Foster is able to participate in the activity of self-care. As such, the overall effect of his impairment on his ability to participate in the relevant activities is what the Tribunal was required to consider for the purposes of r 5.8. Mr Foster’s inability to urinate is his impairment; the assistive technology required is directed at remedying that impairment. The assistive technology is not required to assist him with the elements of self-care such as taking himself to the toilet when he is required to empty his bladder and bowels.
78.Ground Two is upheld.
It is axiomatic that I am bound in this review by the decision of the Full Court on a question of law, including in relation to any opinion of the Court on a question of law which is obiter dictum and not the ratio decidendi.[79] The implication of this requires close study of the passage of the Full Court’s decision set out above.
[79] Klewer and National Disability Insurance Agency [2025] ARTA 155 at [36] – [37].
It is not controversial that the ratio of the Full Court’s decision in relation Ground Two is that the Tribunal erred in law in its construction and application of r 5.8 by equating the tasks and actions associated with toileting with the whole of the self-care activity area, which led to the erroneous conclusion that the Applicant’s inability to urinate without a catheter attracted the deeming effect of Rule 5.8(a).
There is a question as to whether the Full Court intended to say more than that at [69] to [74] of its Judgement where it discusses and then accepts the CEO’s submission that the words “assistive technology, equipment” in Rule 5.8(1) are directed at the “activity” not the prospective participant’s “impairment”. On one reading of that passage a catheter would not fall within the definition of “assistive technology” for the purposes of the Rule because it is impairment not activity related. However, upon close study, I don’t consider that the Full Court intended to say more in that passage than in its ratio for decision in relation to Ground 2. That is because it accepted:
-the Applicant’s impairment (being a loss of body function) was an inability to urinate (in his intrinsic state): at [73] (words in italics are mine),
-the catheter provides the Applicant with the functional capacity to urinate: at [69], [75] and [77],
-the definition of “assistive technology” in the Agency’s Assistive Technology Operational Guideline was “clearly broad enough to include catheters”: at [41] – [42] and [73],
-the ability to urinate was one task or action in the toileting bundle of tasks within the self-care activity area, but it was not the only such task: at [77].
I therefore understand this passage of the Full Court’s opinion to be that the Tribunal was in error in reducing the toileting subtask area to the single task of urination. That is consistent with the Full Court’s ratio in relation to Appeal Ground 2. To read the Court’s decision otherwise would lead to an absurd result in my respectful opinion – being that the bodily function of urination is not a task or action within the toileting sub-task area of the self-care activity area.
I note that the Full Court also refers in the passage quoted above to the consequences of the Applicant’s impairment for his ‘daily living and social and economic participation’ (at [73]) and to the interaction between mainstream services and the NDIS in relation to the provision of medical aids and appliances such as catheters (at [76]). There the Full Court must be taken to be referring to the disability requirements more generally, and to the requirements specified in s 24(1)(d) and (e) specifically. Those are not matters that arise for consideration under the s 24(1)(c) disability requirement.
In this respect Rule 5.8 is made for the purposes of determining when a prospective participant has substantially reduced functional capacity to undertake a relevant activity within the premises of s 24(1)(c): see Rule 5.1(c). It is not relevant to the disability requirements specified in s 24(1)(d) or (e). That must be taken to be the case despite the use of the word “participate” in reference to the life activity areas in paragraph (a) of the Rule. In context, that word must be understood as referring to the prospective participant’s functional capacity to undertake the bundle of tasks within the activity (that being the term and concept used in the statute under which the Rule is made), rather than to social and economic participation more generally.
To determine if a prospective participant has substantially reduced functional capacity for self-care by operation of Rule 5.8 or otherwise the Tribunal must pose and answer the following questions:
i.What are the prospective applicant’s permanent impairments (as found in the s 24(1)(a) and (b) enquiries)?
ii.What is the bundle of tasks and actions that falls within the scope of the life activity area?
iii.In the prospective participant’s intrinsic state, do the impairments result in a reduction in their functional capacity to undertake any of these tasks and actions?
iv.If the answer to (iii) is “yes” go to Rule 5.8 and ask:
a.is the prospective participant only able to undertake any of these tasks and actions (in the sense of completing them, or in a way that achieves their intended result) with assistive technology, equipment or home modifications? or
b.is the prospective participant only able to undertake these tasks and actions with assistance? or
c.is the prospective participant unable to undertake these tasks and actions even with assistive technology, equipment, home modifications or assistance from another person?
v.If the answers to any one or more of the parts of question (iv) is “yes”, what is the extent to which this is the case considering each of the tasks and actions that falls within the life activity area?
If the result of the chain of enquiry at this stage is that the prospective participant is unable to undertake any of the tasks and actions that come within the scope of the life activity area without assistive technology, equipment, home modifications or assistance, or even with these supports, the circumstances specified by Rule 5.8 will be found and by operation of the Rule the prospective participant will be deemed to have substantially reduced functional capacity to undertake the life activity area for the purposes of s 24(1)(c). That is obviously a high threshold to be met. However, in my opinion that is consistent with the purpose of the Rule, which is to truncate the evaluative process required by s 24(1)(c) only in the clearest of cases, bearing in mind the limited target group for the NDIS, which is persons with permanent and significant impairments. In this respect Rule 5.8 should be understood as providing a narrow passage to meeting the requirements of s 24(1)(c) in clear cases. It is not a wide net intended to capture cases that require closer evaluation.
If the result of the chain of enquiry at this stage is that the prospective participant in their intrinsic state does not have the functional capacity to undertake some tasks and actions with the activity area at all, or only with assistive technology, equipment, home modifications or other assistance, but does have the functional capacity to carry out other tasks and actions within the activity area, then the circumstances specified by Rule 5.8 cannot be found. It is then necessary to continue the enquiry in accordance with the Act and ask the question:
vi.Do the prospective participant’s impairments otherwise than in the circumstances specified in the Rule result in them having substantially reduced functional capacity to carry out the tasks and actions within the scope of the activity area?
The answer to question (vi) is ascertained from an evaluative process that considers:
a.The prospective participant’s impairments, and
b.The scope of the tasks and actions that fall within the activity area, and
c.The number of tasks and actions within the activity area in relation to which the prospective participant in their intrinsic state experiences reduced functional capacity, and
d.The degree of reduction in functional capacity the prospective participant experiences with respect to each task or action. The WHODAS 2.0 difficulty factors and ratings are a helpful aid with respect to this issue, but are not determinative of the ultimate result, and
e.The overall impact of the prospective participant’s reduced functional capacity in relation to those tasks and actions in the life activity area taken as a whole.
Unlike the Rule 5.8 enquiry it is not necessary under the Act for a prospective participant to establish that they cannot undertake any of the tasks and actions that come within the scope of the activity area either at all, or only with the use of assistive technology, equipment, home modifications or assistance. It is open to the decision-maker to determine that the prospective participant’s impairments result in substantially reduced functional capacity to undertake the life activity area in circumstances that fall short of all the tasks and actions that make up the activity area. Nevertheless, it remains necessary for the decision maker to be satisfied that the degree and impact of the prospective participant’s reduction in functional capacity to undertake or carry out the tasks and actions within the activity area is substantial.
I now turn to apply this chain of analysis to the Applicant’s circumstances in this case.
The Applicant’s impairments are his urinary and faecal incontinence.
The bundle of tasks and actions that come within the scope of the self-care activity area are set out at paragraph 91 above. These tasks and actions include toileting, which involves the tasks and actions of planning and carrying out the elimination of human waste (relevantly urination and defecation) and cleaning oneself afterward.
The evidence is clear that the Applicant in his intrinsic state does not have the functional capacity to undertake the tasks and actions involved in the planning and carrying out of urination and defecation, he is incontinent of both.
The evidence establishes to my satisfaction that the Applicant obtains substantial, but not complete, functional capacity with respect to urination with the use of catheters, which is assistive equipment. However, he still experiences residual urinary incontinence even with the use of that equipment. I am thus satisfied that for the purposes of Rule 5.8, with respect to this sub-task of toileting task area (the elimination of urine), he is unable to perform that task even with assistive equipment.
The evidence also establishes to my satisfaction that the Applicant obtains some, but not complete, functional capacity with respect to defecation with the use of the Peristeen Plus device, which is assistive equipment. However, he still experiences substantial faecal incontinence even with the use of that equipment. I am thus satisfied that for the purposes of Rule 5.8, with respect to this sub-task of toileting task area (the elimination of faeces), he is unable to perform that task even with assistive equipment.
The Applicant does not require assistive technology or equipment or assistance to clean himself after urination or defecation, being the remaining sub-task of the toileting task area. Nor does he require assistive technology or equipment or assistance to undertake or carry out any of the tasks and actions in the other task areas of the self-care activity area, being caring for body parts, dressing, eating, drinking or looking after his health.
Counsel for the Applicant contends that the Applicant’s urinary and faecal incontinence carry with them a risk of exposure to disease, which engages the ‘looking after your health’ task area of the self-care activity. It is submitted that this risk would increase if the Applicant was obliged to use a basic form of catheter rather than the more expensive Colorplast SpeediCath Flex catheter which has become unaffordable for him.
I accept that catheters and the Peristeen Plus device are ‘supports’ that would potentially be available to the Applicant under a NDIS Participant Plan (but that issue is not before me for decision).
However, the relevant question the Tribunal must ask itself in relation to the looking after your health task area is whether the Applicant’s impairments reduce his functional capacity to avoid harms to his health. It may be accepted that the Applicant’s use of a catheter carries with it the risk of urinary tract infection and skin irritation, but there is no evidence that he has reduced functional capacity to avoid those harms. It is apparent that he is aware of these risks and the treatment required should these conditions develop. There is no evidence of reduced functional capacity these risks in the form of self-neglect. One of the ways in which the Applicant seeks to avoid these health risks is to use a superior type of catheter which is more costly than a standard catheter. I accept the Applicant’s evidence that this decision carries with it a financial impost that he may be unable to sustain. However, if this is so, that is not a matter related to the Applicant’s functional capacity to care for his health, it is an extrinsic factor related to his relative wealth.
With respect to the Applicant’s episodes of spontaneous faecal incontinence, the relevant question the Tribunal must ask is the same. Does the Applicant have the functional capacity to avoid the health risks that may arise from these episodes? The answer to that question on the evidence before me must also be “yes”. It is apparent that the Applicant is aware of these risks, and he can change his clothing, bedding, and clean his body and the environment in which the episode occurred. There is no evidence of self-neglect in the form of prolonged exposure to faecal matter.
To reach these conclusions is not to minimise the difficulties the Applicant experiences because of his impairments. As I have already said, any reasonable person would be moved by the challenges he faces. It is only to draw a distinction, as I must, between the features of the Applicant’s health condition and his functional capacity to avoid the risks to his health that arise from those features. To be trite, access to the NDIS cannot remedy the Applicant’s impairments, it can only provide supports to improve his functional capacity despite those impairments. There is no way in which the Applicant’s case persuades me that there is any form of support that could be provided to him that would improve his functional capacity to avoid urinary tract infections, skin irritations, or disease related to exposure to faecal matter (as distinct from his economic capacity to purchase a superior form of catheter).
For these reasons, I cannot be satisfied that the Applicant’s circumstances come within either Rule 5.8(a) or (c). While I am satisfied that the Applicant is unable to plan and carry out the tasks and actions involved in the elimination of urine and faeces even with assistive equipment, those are only sub-tasks of the toileting task area of self-care. The Applicant can undertake the tasks and actions involved in each other task area of the self-care activity area. Rule 5.8 is not enlivened in these circumstances.
I now turn to consider whether the Applicant has substantially reduced functional capacity for self-care in accordance with the Act.
I accept on the evidence before me, and having regard to the WHODAS 2.0 difficulty scale, that the degree of difficulty the Applicant experiences in relation to the function of urinary and faecal continence in his intrinsic state is “severe” to ‘’extreme or cannot do’. He has some functional capacity to plan toileting as is obvious from his use of assistive equipment, but his planned use of this equipment is associated with each of the WHODAS difficulty factors. For the Applicant, planning for toileting involves increased effort, involves discomfort, is slower, and involves changes to the way this task is performed as compared with a person who does not have the Applicant’s impairments. I am satisfied on the evidence that the degree of difficulty the Applicant experiences in planning toileting is at least 50% greater than a person without his impairments. The Applicant also has some functional capacity to clean himself after urination and defecation. However, this task involves increased effort, is slower and involves changes to the way this task is done as compared with a person without the Applicant’s impairments (he must clean or dispose of his assistive equipment and clean waste from his body after spontaneous incontinence episodes, for example. I am satisfied on the evidence that the degree of difficulty the Applicant experiences in cleaning himself after eliminating waste is at least 50% greater than a person without his impairments. For the purposes of s 24(1)(c) this constitutes a substantial reduction in functional capacity with respect to the tasks and actions involved in the toileting task area of self-care.
However, toileting is only one of seven clusters of tasks that fall within the self-care activity area. The Applicant does not experience reduced functional capacity to undertake the tasks and actions in any other self-care cluster. That includes the health care cluster, for the reasons I have given above.
It must follow from this analysis that the Applicant cannot be found to have substantially reduced functional capacity for self-care.
Summary with respect to the s 24(1)(c) disability requirement
For the foregoing reasons, the Applicant has not established that he has substantially reduced functional capacity to carry out the tasks and actions within any of the s 24(1)(c) life activity areas. This integer of the disability requirements is therefore not met, as it must be, if the disability requirements for access to the NDIS are to be satisfied. It is therefore unnecessary to formally consider the disability requirement specified by s 24(1)(d), or the disability requirement specified in s 24(1)(e).
Conclusion
The Applicant’s impairments result in substantially reduced functional capacity in one task cluster of the self-care activity area only. He has substantial functional capacity in all other self-care task clusters and in all task cluster in each of the other five life activity areas specified in s 24(1)(c). He is therefore not a person for who the NDIS is intended.
For this reason, the decision under review is affirmed.
Dates of hearing: 22, 23 and 24 January 2025 Date final submission
received:4 April 2025 Counsel for the Applicant: Ms Rachel Hew
Solicitor for the Applicant: Legal Aid Queensland
Counsel for the Respondent: Mr Phillip Nolan
Solicitors for the Respondent: Ms T Hawcridge, Maddocks Lawyers
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