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);

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Gambrill and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 1357
Case: [2025] ARTA 1357
Decision Date: 15 August 2025

CaseChat Overview and Summary

In the case of Gambrill and Chief Executive Officer, National Disability Insurance Agency (NDIS), the Tribunal was tasked with determining whether Ms Gambrill qualified for access to the NDIS under the NDIS Act. Ms Gambrill claimed that her impairments, which included fibromyalgia, functional neurological disorder (FND), anxiety, depression, hearing loss, and benign intracranial hypertension, met the disability requirements under section 24 of the NDIS Act. Specifically, she argued that these impairments resulted in substantially reduced functional capacity in various activities as outlined in paragraph 24(1)(c) of the NDIS Act.

The central legal issues revolved around whether Ms Gambrill's impairments met the criteria for disability under the NDIS Act, particularly whether these impairments were permanent or likely to be permanent and whether they resulted in substantially reduced functional capacity in undertaking activities of daily living, social interaction, and learning. The Agency conceded that Ms Gambrill had certain impairments but contested that they did not meet all the criteria under the Act, specifically the permanence and substantial reduction in functional capacity.

The Tribunal reviewed the evidence, including medical reports and testimonies from Ms Gambrill and her friends, as well as expert opinions. It concluded that while Ms Gambrill did have the specified impairments, they did not all meet the permanence requirement, nor did they result in substantially reduced functional capacity as required by the NDIS Act. Therefore, the Tribunal affirmed the decision of the Agency that Ms Gambrill did not meet the access criteria for NDIS support.

In conclusion, the Tribunal upheld the Agency's decision, finding that Ms Gambrill did not meet the disability requirements under the NDIS Act, thereby denying her access to the NDIS.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. CONSIDERATIONThe 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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. CONSIDERATIONThe 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