Gambrill and Chief Executive Officer, National Disability Insurance Agency (NDIS) - [2025] ARTA 1357

Gambrill and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 1357 (15 August 2025)
Applicant:Brianne Gambrill
Respondent: Chief Executive Officer, National Disability Insurance Agency
Tribunal Number: 2023/9539

Tribunal:General Member A Colvin
Place:Brisbane
Date:15 August 2025

Decision:The Tribunal affirms the decision under review.

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

This review is about whether Ms Brianne Gambrill should be granted access to the National Disability Insurance Scheme (NDIS). Ms Gambrill is 49 years old, lives alone, and receives a disability support pension. She seeks access to the NDIS based on impairments arising from conditions described as fibromyalgia, functional neurological disorder (FND), anxiety and depression, hearing loss and benign intracranial hypertension.
Ms Gambrill applied to the National Disability Insurance Agency (Agency) to become a participant in the NDIS in October 2018. On 8 October 2023, the Agency decided that she did not meet the criteria to become a participant of the NDIS. It confirmed that decision on internal review on 18 December 2023.
Ms Gambrill applied to the Administrative Appeals Tribunal (AAT) on 18 December 2023 seeking review of the Agency’s decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[1]
[1] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
The hearing took place by videoconference on 17 and 18 June 2025. Ms Gambrill was self-represented. Documents available to the Tribunal included:
·a Hearing Bundle (HB) comprised of 690 pages (Exhibit 1);
·twelve photographs provided by Ms Gambrill (Exhibit 2);
·a document entitled ‘Respondent’s hyperlinked list of mainstream services’ (Exhibit 3); and
·an email from Ms Gambrill dated 17 June 2025 forwarding an email dated 30 September 2024 from Mr Turner to Ms Gambrill and a letter dated 13 June 2024 (Exhibit 4).
The Agency provided a Statement of Facts Issues and Contentions (SFIC) and a list of authorities.
ISSUES
To become a participant in the NDIS, a person must meet the requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), referred to as the ‘access criteria’. A person meets the access criteria if the person meets three requirements: the age requirements,[2] the residence requirements,[3] and either, the requirements set out in section 24 (the disability requirements) or section 25 of the NDIS Act (the early intervention requirements).
[2] Section 22 of the NDIS Act
[3] Section 23 of the NDIS Act
It is not in contention that Ms Gambrill meets the age and residence requirements in section 21 of the NDIS Act. The issue in this case is whether Ms Gambrill meets the disability requirements or early intervention requirements.
THE LEGAL FRAMEWORK
The statutory provisions relevant to this review are contained in the NDIS legislation, including:
·the NDIS Act; and
·the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Amending Act). Sections 21, 24 and 25 were amended but the amendments only apply to a person who makes an access request on or after 3 October 2024.[4] Ms Gambrill’s application was made prior to that date. Accordingly, where those provisions are discussed below, it is the provisions in force prior to amendment on 3 October 2024.
[4] Items 125 and 126, Part 3 of the Amending Act
The Agency also issues operational guidelines. The Tribunal is not bound to follow operational guidelines issued by the Agency. However, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to consider in performing its review task.[5] The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (Access Guidelines).[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
[6] E3 HB, as the Access Guidelines were immediately prior to the legislative amendments on 14 October 2024
The disability requirements
The disability requirements are set out in section 24 of the NDIS Act, as follows:[7]
[7] Section 24 as in force immediately prior to 3 October 2024
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)communication;
(ii)social interaction;
(iii)learning;
(iv)mobility;
(v)self-care;
(vi)self-management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
A disability attributable to impairments
The first requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(a) that 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.
The term ‘disability’ in the NDIS Act, and section 24, is a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life while an ‘impairment’ is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function.[8] Section 24 focuses on a person’s impairments, rather than the name of a person’s disability or the diagnosis given to a person.[9] Using the concept of impairment enables an assessment of the severity and permanency of the person’s condition, and of the effects of that condition.[10]
[8] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51]
[9] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69]
[10] Mulligan at [55]
The impairments are permanent or likely to be permanent
The second requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(b) that the person’s impairments are, or are likely to be, permanent.
The Access Rules contain the following relevant provisions when determining whether an impairment is permanent or likely to be permanent:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
‘Permanent’ in the context of paragraph 24(1)(b) of the NDIS Act means ‘enduring’; this reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[11] It is the person’s impairments that must be permanent, rather than the cause of the impairments or the diagnoses that might apply to a medical condition. The focus of paragraph 24(1)(b) of the NDIS Act is on whether the impairments have an enduring quality so as to fit within the conceptual emphasis of the scheme.[12]
[11] Davis at [85]
[12] Davis at [86]
The NDIS Act expressly provides that impairments that ‘vary in intensity’ may be permanent[13] and that impairments that are ‘episodic or fluctuating’ may be taken to be permanent.[14] The Access Rules further provide that an impairment may be permanent notwithstanding that the severity of its impact on functional capacity may fluctuate or there are prospects this may improve.[15]
[13] Subsection 24(2) of the NDIS Act
[14] Subsection 24(3) of the NDIS Act
[15] Rule 5.5 Access Rules
On the relevance of treatment, the Access Rules provide that an impairment is permanent only if there are no treatments that would be likely to remedy the impairment.[16] ‘Remedy’ in this context means something more than ‘just relieve or improve’ and instead means something approaching ‘a removal or cure of the impairment’. That interpretation is consistent with interpreting ‘permanent impairment’ as meaning an impairment that is enduring; the impacts on a person might fluctuate from time to time, but the impairment is not likely to be removed or cured. [17]
[16] Rule 5.4 Access Rules
[17] Davis at [136]
In determining whether there are no treatments that would be likely to remedy an impairment, consideration is only given to treatments that are, among other things, ‘available’ and ‘appropriate’.[18]
[18] Rule 5.4 Access Rules
In this context, ‘appropriate’ connotes a treatment that has capacity to ‘remedy’ a person’s impairment and is suitable for that particular individual to undergo; ‘the capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them’.[19]
[19] Davis at [137]
‘Available’ means available to a particular individual. It should be understood as directed at what treatments an individual can, in reality, access: ‘whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access’.[20]
[20] Davis at [137] to [142]
Substantially reduced functional capacity
The third requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(c) that a person’s impairments result in substantially reduced functional capacity to undertake one or more of six activities: communication; social interaction; learning; mobility; self-care; and self-management.
The test in paragraph 24(1)(c) is an objective assessment of functional capacity. The legislative scheme is based on a ‘functional, practical assessment of what a person can and cannot do’.[21] No qualitative judgements are involved in assessing a person’s impairments; the decision-maker does not need be satisfied, for example, that a person’s impairment is ‘serious’, or more serious than another person’s impairment. [22]
[21] Mulligan at [55]
[22] Mulligan at [55] to [56]
To satisfy paragraph 24(1)(c), an applicant need only experience substantially reduced functional capacity in one of the six activities in paragraph 24(1)(c). Each activity has a different focus and each must be examined individually rather than globally.[23] Decision-makers must exercise a relatively high degree of precision in assessing what a person can or cannot do.[24]
The two paths to satisfying paragraph 24(1)(c) of the NDIS Act
[23] Mulligan at [55] and [60]
[24] Mulligan at [55]
The Access Rules contain the following provisions relevant to paragraph 24(1)(c) of the NDIS Act:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8     An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)      the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)      the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)      the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The effect of these provisions in the Access Rules is that there are two paths to satisfying paragraph 24(1)(c) of the NDIS Act. One path is to meet the terms of paragraph 24(1)(c) itself and the other path is to meet Rule 5.8 of the Access Rules.[25] Rule 5.8 is a deeming provision. It mandatorily includes some people in the category of persons with substantially reduced functional capacity if the requirements in Rule 5.8 (a),(b) or (c) are met.[26]
[25] Davis and National Disability Insurance Agency [2023] AATA 1437 at [79] (DP Donovan)
[26] Mulligan at [77]
Rule 5.8(a) deals with circumstances where a person utilises assistive technology, equipment or home modifications. Rule 5.8(b) deals with circumstances where a person utilises assistance (including physical assistance, guidance, supervision or prompting). Rule 5.8(c) deals with circumstances where a person is unable to participate in an activity even with assistive technology, equipment, home modifications or assistance.
Although rule 5.8 provides a shortened path to meeting paragraph 24(1)(c) of the NDIS Act, it sets a high threshold and is intended for clear cases.[27]
The scope of each of the six activities
[27] Foster and National Disability Insurance Agency 2025 [ARTA] 718 at [105]
In determining whether a person has substantially reduced functional capacity in an activity, the Tribunal must consider the range or bundle of tasks that fall within the relevant activity (such as self-care) rather than a specific task or action that falls within that activity (such as toileting).[28]
[28] National Disability Insurance Agency v Foster [2015] FCA 544 (Foster) at [65] to [67]
The Access Guidelines contain the following relevant provisions when assessing functional capacity:[29]
[29] Page 647
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·     Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
·     Learning – how you learn, understand and remember new things, and practise and use new skills.
·     Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
·     Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
·     Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks.
These disability-specific supports include:
·     a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
·     assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
In Burrows and CEO, National Disability Insurance Agency[30] the Tribunal regarded the scope of each of the six activities in paragraph 24(1)(c) of the NDIS Act to be as follows:
·‘social interaction’ in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with making and keeping friends, interacting with other people in the community (who are not friends), and maintaining behavioural and emotional regulation in a social context;[31]
·‘learning’ in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with acquiring knowledge, skills or understanding, and tasks associated with cognition, and memory;[32]
·‘mobility’ in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and a chair;[33]
·‘self-care’ in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care,[34] and does not include domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance;[35]‘
·communication’ in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with expressive and receptive language;[36] and
·‘self-management’ in paragraph 24(1)(c) of the NDIS Act is limited to cognitive tasks associated with personal organisation, personal planning, personal decision-making, self-care, problem solving and personal financial management.[37]
[30] [ARTA] 607 at [73] (Burrows)
[31] Burrows at [87] and [108]-[109]
[32] Burrows at [87] and [117]
[33] Burrows at [87] and [97]
[34] Burrows at [87] and [140]
[35] Burrows at [90]
[36] Burrows at [87] and [97]
[37] Burrows at [87] and [149]

It has been observed that the threshold requirements of functionality in mobility, in the Access Guidelines, are relatively modest.[38] Similarly, the functionality included in ‘communication’ is ‘fairly basic’, for example, telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, or asking for help to reach something.[39]
[38] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [104]–[105], when considering an earlier similar version of the Access Guidelines
[39] Madelaine at [79]
Regarding social interaction, ‘the criteria in the Access Guidelines for assessing functionality in ‘social interaction’ are ‘directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills’.[40]
[40] Madelaine at [87]
The early intervention requirements
The early intervention requirements are set out in section 25 of the NDIS Act. Those requirements include the requirement that the person has certain impairment/s that are or are likely to be permanent or is a child who has developmental delay (paragraph 25(1)(a)), that the provision of ‘early intervention supports’ for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to their disability (paragraph 25(1)(b)) and that the provision of early intervention supports is likely to benefit the person in other specified ways (paragraph 25 (1)(c)).
THE EVIDENCE
In addition to the documents contained in the hearing bundle, the Tribunal heard oral evidence from Ms Gambrill and Ms Kane, a long-term friend of Ms Gambrill. Mr Miszczuk, as occupational therapist, also gave oral evidence, having provided a report dated 10 September 2024 and supplementary report dated 24 January 2025.
SUBMISSIONS
Ms Gambrill contended that she had impairments arising from fibromyalgia, FND, anxiety and depression, hearing loss and benign intracranial hypertension. She further contended that those impairments were permanent and, together, resulted in substantially reduced functional capacity in communicating, socialising, learning, mobility, self-care and self-management.
The Agency accepted that Ms Gambrill had certain impairments that satisfied the requirements in paragraphs 24(1)(a) of the NDIS Act, namely neurological and cognitive impairments attributable to FND, sensory impairment attributable to hearing loss, physical impairment attributable to fibromyalgia, cognitive impairment attributable to benign intracranial hypertension, and impairment attributable to psychosocial disability arising from anxiety and depression.
The Agency also accepted that Ms Gambrill’s cognitive impairments attributable to FND were permanent for the purposes of paragraph 24(1)(b) of the NDIS Act, as was Ms Gambrill’s sensory impairment attributable to hearing loss. However, the Agency contended that Ms Gambrill’s remaining impairments did not meet the requirements in paragraph 24(1)(b) of the NDIS Act.
The Agency also contended that Ms Gambrill’s impairments did not result in substantially reduced functional capacity in any of the domains in paragraph 24(1)(c) of the NDIS Act and that the remaining requirements in paragraphs 24(1)(d) and (e) were also not met.
In relation to the early intervention requirements, Ms Gambrill asked that the Tribunal consider whether she met those requirements but acknowledged that her impairments were longstanding and that she may not meet those requirements. The Agency contended that the early intervention requirements were not met.
CONSIDERATION
The disability requirements
There are five criteria in subsection 24(1) of the NDIS Act. All of these must be satisfied for a person to meet the disability requirements.
A disability attributable to an impairment
Ms Gambrill made no specific submissions outlining her impairments for the purposes of paragraph 24(1)(a) of the NDIS Act. The Agency conceded that Ms Gambrill met the requirements of paragraph 24(1)(a) of the NDIS Act. It described Ms Gambrill’s impairments as follows, and provided detailed references to the evidence from which these were derived:[41]
(1)neurological and cognitive impairments attributable to FND, including impact on memory, speech, hearing, vision, fatigue, verbal and receptive communication and speed of processing;
(2)sensory impairment attributable to hearing loss, including reduced hearing acuity, difficulty in localising sounds, increased sensitivity to loud noises, difficulty distinguishing between similar sounds or words, increasing listening effort and fatigue, sensitivity to background noise, difficulty communicating with family and friends, and emotional wellbeing and mental health;
(3)physical impairment attributable to fibromyalgia, including pain, fatigue, impaired mobility, limited endurance for physical activities, muscle weakness, mood and sleep disturbance, cognitive and memory issues, and speed of processing impairments;
(4)cognitive impairment attributable to benign intracranial hypertension, including migraines, cognitive and memory issues, speed of processing impairments and visual disturbance; and
(5)impairment attributable to a psychosocial disability arising from anxiety and depression, including low mood, avoidant behaviour, not wanting to go out alone, difficulty leaving the house, fear of symptoms interfering with a planned outing, and decision-making and concentration issues.
[41] Agency’s SFIC, paragraph 14
I have reviewed the available documents, including reports and responses to targeted questions of Dr Schultz (consultant neurologist and neurophysiologist), Dr Katelaris (general practitioner), Dr Chessman (rheumatologist) and Bay Audio, together with Ms Gambrill’s evidence. I am satisfied that the Agency’s concessions are appropriately made and that the requirements of paragraph 24(1)(a) of the NDIS Act are met.
The impairments are permanent or likely to be permanent
Ms Gambrill contended that her impairments were permanent. On the issue of whether further treatments were available to her, she drew attention to an email dated 30 September 2024 from Mr Turner. She also contended that the Tribunal should consider the affordability of any treatments.[42]
[42] In accordance with Davis
The Agency conceded that the requirements in paragraph 24(1)(b) of the NDIS Act were met regarding neurological and cognitive impairments attributable to FND and sensory impairment attributable to hearing loss but not in relation to the remaining impairments identified for the purposes of paragraph 24(1)(a).
Ultimately, given the view that I have taken below regarding paragraph 24(1)(c) of the NDIS Act, it is not necessary for me to reach a concluded view on whether the requirement in paragraph 24(1)(b) of the NDIS Act is met for some or all of Ms Gambrill’s impairments that were identified above for the purposes of paragraph 24(1)(a) of the NDIS Act. Instead, in considering whether paragraph 24(1)(c) is met, I have proceeded on the basis that all the impairments that meet paragraph 24(1)(a) also meet paragraph 24(1)(b) of the NDIS Act, without making a finding on whether they in fact do meet paragraph 24(1)(b) of the NDIS Act.
Substantially reduced functional capacity
Communication
In her own evidence, Ms Gambrill described a range of ways that she had reduced functional capacity in expressive and receptive language. In her written statement she described the impact of hearing loss and tinnitus. She said it required her to concentrate and ask people to repeat themselves, and caused her to turn up her television, and resulted in missed phone calls. She described daily stuttering because of FND and difficulty finding words. She also described difficulty getting her thoughts together, taking longer to understand what people were saying, and experiencing resultant frustration.[43] In her response to Mr Miszczuk’s report, Ms Gambrill gave an example of talking to a call centre, becoming abusive if she felt that person was not understanding or not listening to her, and then handing the phone over to Ms Kane to speak on her behalf.[44]
[43] Pages 273-4, 279
[44] Page 297
Ms Gambrill also stated, in her written statement, that she utilised assistance from Ms Kane at times when attending appointments. There was some inconsistency between this and evidence given at the hearing by Ms Kane.
Ms Gambrill’s evidence was also that she had previously worked as an assistant in childcare and in a technical support role for Apple. She had recently completed tertiary study and had gone on to commence a master’s course though was not studying at the time of the hearing. She described communicating regularly with her work colleagues, fiancée, family and friends through a range of means including telephone, email, messaging, and in person, and utilising social media applications. She also described preparing a power-point on psychosocial disability in her current work.
In her response to Mr Miszczuk’s report, Ms Gambrill said that it was harder for her to hear in the community than at home. She also stated that she looked to Ms Kane to confirm matters or to inform Ms Gambrill about what was said, for example, after a medical appointment.[45]
[45] Page 300
Bay Audio described communication difficulties that Ms Gambrill experienced, including increased effort, and struggling to follow conversations and difficulty in noisy environments.[46] Dr Schutz also described the impact of FND on Ms Gambrill’s communication, including slow speed of expression, difficulty finding words, and mild issues with receptive communication, though reported Ms Gambrill experienced no issues with reading and writing.[47]
[46] Pages 556-7
[47] Page 559
Mr Miszczuk’s evidence was that Ms Gambrill was independent in communication, and able to complete this task without assistance or assistive technology. He reported that she participated without hearing aids, communicated clearly in English throughout the assessment and had no difficulty with verbal expressive language skills. She answered questions directly and her responses were clear and organised, and there was no suggestion of receptive communication issues.[48]
[48] Pages 501 and 512
Ms Gambrill clearly felt there had been a reduction in her functional capacity in communication compared to her previous level of functioning. However, the test in paragraph 24(1)(c) is an objective test. The assessment is not based on a prospective participant’s own assessment, and the focus is not on whether a person’s function has reduced compared to their own previous level of functioning.
Having regard to Ms Gambrill’s evidence, but also the assessment of Mr Miszczuk, and the reports of Dr Schutz and Bay Audio, I find that any issues that Ms Gambrill has with receptive and expressive communication only impact oral communication and are mild. In terms of equipment or aids, she utilises hearing aids but was able to complete a lengthy assessment with Mr Miszczuk without hearing aids. In terms of assistance, she benefits at times from support from Ms Kane in medical appointments but does not usually require assistance from others in communication.
I am not satisfied on this evidence that Rule 5.8 is met. Ms Gambrill is clearly able to routinely undertake most, if not all, of the bundle of tasks that fall within the activity of communication without equipment or assistance.
I am also not satisfied that Ms Gambrill’s impairments result in substantially reduced functional capacity in communication within the terms of paragraph 24(1)(c) itself. Even if I accept that Ms Gambrill experiences mild issues with receptive and expressive communication when communicating orally, her functional capacity in communication is clearly not ‘substantially reduced’ within the context of paragraph 24(1)(c) of the NDIS Act.
Learning
In her statement, Ms Gambrill described herself as previously picking things up very quickly but now having to go over them many times. She said she was determined to finish her studies but that Ms Kane helped her a lot with this. She also described needing extra time to do these things, or to just learn a new gadget at home.[49] In her evidence at the hearing she described recently completing tertiary education and commencing further studies, though placing that study on hold for various reasons. She also described her former employment and the employment that she had recently commenced.
[49] Page 276
Dr Schutz reported that Ms Gambrill was studying part-time due to ‘mild learning issues’ and that her learning ability was impacted by cognitive and memory issues, and speed of processing, related to FND, fibromyalgia and intracranial hypertension.[50]
[50] Page 559
Mr Miszczuk reported that he regarded Ms Gambrill as having no specific deficits in her capacity to participate in learning activities and required no formal support.[51]
[51] Pages 501, 513 and 521
Again, Ms Gambrill clearly felt that she takes longer now to acquire knowledge than she once did. However, paragraph 24(1)(c) requires an objective assessment of her functional capacity, not a comparison with her former functioning.
I find on the evidence that Ms Gambrill has worked in a range of roles in the past including technical roles and has undertaken tertiary studies. Although she has mild issues with learning, including some issues with memory and understanding, she continues to study at a tertiary level and recently recommenced employment.
Ms Gambrill made no contention that she requires aids or equipment in learning. Regarding assistance, she contended that she utilised assistance from Ms Kane in her tertiary studies. Even if that is the case, Ms Gambrill can clearly undertake most, if not all, tasks in the activity of learning without equipment or assistance. Rule 5.8 is therefore not met.
Ms Gambrill’s impairments also do not result in substantially reduced functional capacity in learning within the terms of paragraph 24(1)(c) itself. On an objective assessment of her functional capacity in the activity of learning, any deficits are very mild. For the purposes of paragraph 24(1)(c) she does not have substantially reduced functional capacity to undertake the activity of ‘learning’.
Mobility
In her written statement Ms Gambrill stated that mobility was ‘one of her worst issues’. She described difficulty with ascending more than five stairs at a time, and difficulty descending stairs due to depth perception. She described using the bus regularly, but frequently struggling to get onto the bus because her legs ‘do not want to move’. On those occasions, if the bus could not be lowered, she said she crawled onto the bus. In her oral evidence she described routinely using buses to travel to and from shopping and social outings, but occasionally having to crawl onto the bus. She described shopping multiple times each week so that she was able to manage carrying the items she had bought. She said that she did not drive but acknowledged that she had never done so.
Ms Kane gave evidence that she had often given Ms Gambrill a lift in her own car. This included previously driving Ms Gambrill to craft meetings that they were both attending and where they each had heavy craft boxes.
Dr Schutz reported that Ms Gambrill’s functional capacity in mobility was affected, noting that her strength was reduced in general, making public transport difficult ‘occasionally’. Dr Schutz also reported that Ms Gambrill relied on handrails on stairs.
Mr Miszczuk reported that he observed Ms Gambrill mobilising unaided around her home, including transferring independently from her bed and a chair, and undertaking functional tasks for approximately 25 minutes. He anticipated her capacity to mobilise in the community to be commensurate with this.
Based on this evidence I find that Ms Gambrill can independently transfer to and from her bed and chair. She is also able to mobilise in her home and the community for at least 25 minutes. She can, and regularly does, utilise public transport but occasionally struggles to ascend stairs onto buses. She does benefit from handrails on stairs but Ms Gambrill otherwise engages in all these tasks without aids, equipment or assistance. In terms of assistance from others, Ms Kane has often driven Ms Gambrill to places but I find on the evidence that those occasions often coincided with them travelling for the same purpose in circumstances where they are friends and Ms Kane has a car and licence and Ms Gambrill has never held a licence.
I am not satisfied on this evidence that Rule 5.8 is met. The evidence does not establish that Ms Gambrill requires assistive technology, equipment or home modifications or the assistance of others to complete the bundle of tasks that fall within mobility. Additionally, while Ms Gambrill has difficulty at times using stairs, including ascending stairs on buses, she can transfer from a bed and chair and can mobilise around her home and in the community for a significant period. She therefore does not have substantially reduced functional capacity to undertake the bundle of tasks that fall within the activity of ‘mobility’ for the purposes of paragraph 24(1)(c) of the NDIS Act.
Self-care
Ms Gambrill stated, in her written statement, that she could provide herself with basic self-care but that her ability each day to attend to some tasks depended on how she was feeling.[52] In her response to Mr Miszczuk’s report, she said that on a ‘bad day’ she was unable to stand in the shower, and that a shower chair would be helpful.[53]
[52] Page 278
[53] Page 300
In her oral evidence, Ms Gambrill described cooking meals for herself including using an air fryer and preparing vegetables, sometimes preparing multiple meals by spreading the tasks over two days. She also described relying on others to undertake some household cleaning and mowing. Photographic evidence was also provided, and evidence from Ms Kane, regarding Ms Gambrill’s ability to consistently attend to household tasks and personal care, and the assistance that Ms Kane provided Ms Gambrill with meal preparation.[54]
[54] Exhibit 2 and Page 295
Dr Schutz reported that Ms Gambrill had no significant issues with personal care, except on ‘bad days’ but required assistance with activities such as laundry, cooking, and cleaning because her capacity for this was limited to 30 minutes.[55]
[55] Page 560
Mr Miszczuk reported that Ms Gambrill was able to independently attend to self-care activities including showering, dressing, grooming, and eating. He considered that she required assistance with yard and lawn maintenance, and household cleaning, and would benefit from having a laundry trolly and stick vacuum. He also made recommendations regarding goal setting, structure and fatigue management.[56]
[56] Pages 516, 523, 524
I find on this evidence that, on a ‘bad day’, Ms Gambrill struggles to stand in the shower. She also does not consistently attend to some aspects of self-care. Longitudinally however she can independently attend to personal care (including hygiene and grooming), eating and drinking, and health care. She does not require assistive technology, equipment or home modifications for these tasks. She also does not require assistance from others. Mr Miszczuk made some recommendations regarding these tasks but his recommendations did not extend to assistance from others or to equipment or home modifications. I am therefore satisfied that Rule 5.8 is not met. Further, for the purposes of paragraph 24(1)(c) of the NDIS Act, Ms Gambrill does not have substantially reduced functional capacity to undertake the bundle of tasks that fall within the activity of ‘self-care’.
Social interaction
Ms Gambrill stated, in her written statement, that social interaction was a ‘major issue’ for her. She said she struggled to have social interaction even if she was invited somewhere and often had to cancel plans depending on how she was feeling. She said she went to local raffles two to three times each week and to craft meetings once or twice each week. She said her anxiety and depression affected her social interaction, particularly meeting new people. She said she needed someone to support her when meeting new people. [57]
[57] Page 276

In her oral evidence, Ms Gambrill described difficulties in regulating her emotions. She also reported to Mr Miszczuk that she manifested frustration and combativeness when, for example, a phone call did not go to plan.[58]
[58] Page 513
As to the frequency of her social interactions with others, Ms Gambrill explained that she attended craft meetings much less frequently because Ms Kane was no longer able to take her to those meetings. She described taking the bus to a local club about once each week where she saw different friends depending on the club she attended. She also described working from home for two shifts each week in a new role in peer support and maintaining regular contact with Ms Kane and other friends and extended family by phone, email and messaging, and in person. She described plans for a wedding later in the year with a large guest list, and spending time with Ms Kane organising the wedding. She also described plans for a short cruise with a group of long-term friends later in the year.
In her response to Mr Miszczuk’s report, Ms Gambrill said that she disagreed that she required no assistance in social interaction. She said that at times she needed to leave a place immediately, for emotional or physical reasons. She said when the weather changed it could be a matter of minutes from being fully functional to being in immense pain, and struggling to walk to a car, because of fibromyalgia.[59]
[59] Page 297
Dr Schutz reported that Ms Gambrill’s social interaction was quite limited because of pain and mobility, and that anxiety and depression often caused Ms Gambrill to cancel social interactions.[60]
[60] Page 559
Mr Miszczuk reported that, based on his observations, Ms Gambrill had supportive relationships with friends, based on mutual interests. He thought that Ms Gambrill had no specific deficits in interacting in a social context.[61] Mr Miszczuk did not directly observe Ms Gambrill in social interactions outside the assessment.
[61] Page 513
Based on this evidence I find that from time to time in social interactions Ms Gambrill experiences frustration and combativeness, and difficulties regulating her emotions. However, she has maintained long-term school friends and has made and maintained friends that she sees at clubs and friends that she engages with through a shared interest in craft. She interacts with friends regularly and in a range of ways, and frequently travels to local clubs on her own to see others. She has not attended craft groups in recent months but this is related to transport. She engages in social interaction without aids or equipment. I accept that she benefits from being with friends when meeting new people, but I find based on Ms Gambrill’s oral evidence (in preference to her written statement) that she does usually not require assistance from others with social interaction.
Ms Gambrill does not require assistive technology, equipment, home modifications or assistance from others for the activity of social interaction. Rule 5.8 is therefore not met.
It is also clear, given Ms Gambrill’s description of her friendships, and the breadth and depth of her social interactions, that her functional capacity in social interaction is not substantially reduced. She experiences frustration and combativeness at times, and prefers support in meeting new people, but on an objective assessment, if there is any reduction in her functional capacity for social interaction, it is mild. Ms Gambrill therefore does not have substantially reduced functional capacity for the purposes of paragraph 24(1)(c) of the NDIS Act, to undertake the bundle of tasks that fall within the activity of ‘social interaction’.
Self-management
Ms Gambrill stated, in her written statement, that she struggled daily with self-management. She said she generally needed a support person unless she was with a friend who understood her needs. She stated that before making decisions she always checked with someone because she worried about making decisions on her own. She described difficulties with planning because she struggled to remember what else she had going on and described often forgetting to pay bills and struggling to remember when shopping, what she needed.[62]
[62] Page 278
In her response to Mr Miszczuk’s report, Ms Gambrill described deferring to Ms Kane at times and gave, as an example, Ms Kane’s access and permission to speak with Centrelink on Ms Gambrill’s behalf.[63]
[63] Page 299
In her oral evidence however, Ms Gambrill described attending the bank alone to withdraw cash to pay for services. She also described plans and decisions regarding her work, marriage, wedding, living arrangements and holidays.
Ms Kane considered that Ms Gambrill required assistance managing money, describing her as impulsive with purchases and often seeking financial assistance from her fiancé or relying on food vouchers or charity.[64]
[64] Page 295
Mr Miszczuk reported that he regarded Ms Gambrill as independent in relation to self-management, noting that she organised her own medical appointments, had her own bank account and managed her own finances.[65]
[65] Pages 520 and 521
Dr Schutz reported that Ms Gambrill found self-management difficult because of general cognitive dysfunction together with anxiety and depression, and that she relied on assistance from family and friends to make big decisions.[66]
[66] Page 560
I find on this evidence that Ms Gambrill manages her own bank account and expenses. Sometimes, she experiences minor forgetfulness with shopping, paying bills, and remembering details of events that have been arranged. She also sometimes spends impulsively. She is on a disability support pension and utilises food vouchers or charity.
Ms Gambrill also plans and makes decisions herself regarding her day-to-day activities and personal plans, including her work, studies, marriage, and living arrangements. She seeks support from family and friends with big decisions, but ultimately decides these matters herself. Ms Gambrill said in her written evidence that she usually needed to be accompanied by a support person when not with a friend. However, that is not supported by medical opinion or consistent with her own oral evidence. I find instead that Ms Gambrill does not require assistance from others to undertake tasks that comprise ‘self-management’ including cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem solving and financial management. Rule 5.8 is therefore not met.
Any reduction in Ms Gambrill’s functional capacity to undertake the activity of ‘self-management’ is also clearly only very mild, and not substantial.
Having found that Ms Gambrill’s impairments do not result in substantially reduced functional capacity to undertake any of the activities in paragraph 24(1)(c) of the NDIS Act, the disability criteria are not met. It follows therefore that I am not required to consider the remaining criteria in paragraphs 24(1)(d) and 24(1)(e) of the NDIS Act.
The early intervention requirements
The evidence does not indicate that there is any early intervention support that is likely to benefit Ms Gambrill in the ways specified in subsection 25(1)(b) and (c) of the Act, and no specific contention was advanced by Ms Gambrill that this was the case. The requirements in section 25 of the NDIS Act are therefore not met.
As neither the disability requirements nor the early intervention requirements are met, Ms Gambrill does not meet the access criteria in section 21 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review.

1.

2.       I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

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Associate
15 August 2025

Dates of hearing: 17 and 18 June 2025

Applicant’s Advocate: Self-represented

Solicitor for the Respondent: Ms Thomas, Maddock’s Lawyers

Counsel for the Respondent: Ms M Campbell