Geiger and Chief Executive Officer, of the National Disability Insurance Agency (NDIS)
[2025] ARTA 1901
•24 September 2025
Geiger and Chief Executive Officer, of the National Disability Insurance Agency (NDIS) [2025] ARTA 1901 (24 September 2025)
Applicant/s: Ms Eileen Geiger
Respondent: Chief Executive Officer, of the National Disability Insurance Agency
Tribunal Number: 2024/3781
Tribunal:General Member S Smith
Place:Brisbane
Date:24 September 2025
Decision:The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act2024 (Cth) (‘ART Act’).
................[SGD].................
General Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – request for access –degenerative disc disease – severe facet joint arthropathy – complex post traumatic stress disorder - chronic pain – major depressive disorder - substantially reduced functional capacity criteria not met - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
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
Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11
Beaumont and National Disability Insurance Agency [2024] AATA 891
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Garcia Albiol and National Disability Insurance Agency [2024] AATA 496
Jourfian and NDIA [2020] AATA 1883
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v NDIA [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Re Schwass and NDIA [2019] AATARooney and National Disability Insurance Agency [2021] AATA 3523
Secondary Materials
National Disability Insurance Scheme - Operational Guidelines – Applying to the NDIS (updated 14 October 2024 applicable to NDIS requests made before 3 October 2024)
National Disability Insurance Scheme – Operational Guidelines - Assistive Technology – (updated 20 December 2023)
Statement of Reasons
INTRODUCTION
Ms Geiger is a woman aged in her 40s who lives in a metropolitan area of Queensland. Ms Geiger’s adult daughter and her teenage daughter reside in a nearby suburb. Ms Geiger works full-time.[1]
[1] Oral evidence of Ms Geiger.
On 9 March 2024 Ms Geiger applied to the National Disability Insurance Agency (‘the Agency’) to become a participant of the National Disability Insurance Scheme (‘the scheme’) in relation to impairments attributable to:[2]
[2] EB-1, T8, p. 39. T12, p. 69.
·The physical conditions ‘causing me back pain and stiffness:’[3]
oDegenerative disc disease; and
oSevere facet joint arthropathy; (‘the physical conditions’).
·The psychosocial conditions:
oComplex Post Traumatic Stress Disorder (‘CPTSD); and
oMajor Depressive Disorder (‘MDD’) (‘the psychosocial conditions’).
[3] Oral evidence of Ms Geiger.
On 9 May 2024 a delegate of the Chief Executive Officer (‘CEO’) of the Agency decided not to grant Ms Geiger access to the scheme. On 10 May 2024, Ms Geiger submitted a request for an internal review of this decision.[4] A ‘reviewer’ under section 100(6) of the National Disability Insurance Scheme Act2013 (Cth) (‘NDIS Act’) confirmed the decision.[5] Ms Geiger now seeks review of this decision.[6]
[4] T13, p. 90.
[5] Ms Geiger applied under section 103(1) of the NDIS Act. T2, p. 9. On 7 June 2024.
[6] Ms Geiger filed an application for review at the Tribunal on 9 June 2024. The Tribunal has jurisdiction under section 12 of the ART Act as it is a reviewable decision by section 99(1)(Item1) of the NDIS Act..
On 14 October 2024, the Administrative Appeals Tribunal (‘AAT’) became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ‘Transitional Act’), 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. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Ms Geiger was self-represented at the two-day hearing. The Agency was represented by Ms E Fitzgerald of Counsel instructed by Moray and Agnew Lawyers.
For the reasons set out below, the Tribunal affirms the decision under review and finds that Ms Geiger does not satisfy section 24 of the NDIS Act (the ‘disability requirements’) nor section 25 of the NDIS Act (‘the early intervention requirements’). Therefore, Ms Geiger does not meet the access criteria under section 21 of the NDIS Act and cannot have access to the Scheme.
ISSUES BEFORE THE TRIBUNAL
In order to be granted access to the Scheme an applicant must satisfy the ‘access criteria’ under section 21 of the NDIS Act which provides as follows:
When a person meets the access criteria
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
........................................................................................
There was no dispute that Ms Geiger met both the age and residence requirements, and so the Tribunal finds. The only issues in contention are whether Ms Geiger satisfies the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act.
THE LEGAL FRAMEWORK
On 3 October 2024, and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (‘the Amending Act’) made a range of ‘amendments’ to the NDIS Act.
The age and residence requirements remain unchanged in the Act. However, sections 24 and 25 of the NDIS Act have been amended by the Amending Act with effect from 3 October 2024.
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 of the NDIS Act apply to access requests that are made to the Agency by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made a request to access the Agency under the new Amending Act requirements on or after 3 October 2024.
Subitem 126(3) of Schedule 1 to the Amending Act also provides that the National Disability Insurance Scheme Rules made under section 27 of the Act as in force before 3 October 2024 continue to apply on and from 3 October 2024.
As Ms Geiger’s request for access to the scheme was made before 3 October 2024, the amendments to sections 24 and 25 of the NDIS Act will not apply to this review. The Rules in place prior to 3 October 2024 will also continue to apply to Ms Geiger’s request for access to the scheme.
The disability requirements are contained in section 24 of the NDIS Act as follows:
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 (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).
The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
The early intervention requirements contained in section 25 of the NDIS Act provide as follows:
1.A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or;
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
1A For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
2.The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
3.Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
a. as part of a universal service obligation; or
b. in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
Under section 209 of the NDIS Act the Minister for the NDIA may make rules prescribing matters that are required to carry out and give effect to the NDIS Act. Section 27 of the NDIS Act provides for the making of rules in relation to the requirements under section 24 and 25. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the ‘access rules’).[7]
[7] The access rules are made under section 22, 23, 25, 27 and 209 of the NDIS Act.
Relevant to the criteria around the disability requirements pursuant to subsection 24(1)(c) of the NDIS Act is rule 5.8 of the access rules, which states:
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 Agency has issued Operational guidelines, and I have considered the Applying to the NDIS guideline with regard to the assessment of whether an applicant meets the disability or the early intervention requirements.[8] I note that the Tribunal should take into account relevant government policy which is ‘not inconsistent with the provisions or objects of the legislation’.[9]
[8] Ourguidelines.ndis.gov.au: Operational guideline, Applying to the NDIS.
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].
The question of whether Ms Geiger satisfies the legislative requirements is a question of fact that must be determined upon consideration of the available evidence. This is the Tribunal’s ‘fact finding task’[10] and I must be positively satisfied[11] that Ms Geiger satisfies the legislative requirements. The legislative scheme is based ‘on a functional, practical assessment of what a person can and cannot do.’[12] Neither Ms Geiger nor the Agency have a formal onus of proof. However, an applicant is required to point out material to the Tribunal that demonstrates that the access criteria in subsection 21(1)(c) of the NDIS Act are met.[13]
CONTENTIONS
[10] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [42].
[11] Mulligan at [55]. Also cited in Re Schwass and NDIA [2019] AATA at [29] and Davis [at 60] –[61].
[12] Mulligan at [55]–[56]. Also National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].
[13] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68].
Ms Geiger’s contentions
Ms Geiger contends ‘all my conditions are severe and permanent’ and that she satisfies all of the criteria in section 24 and 25 of the NDIS Act because:[14]
·‘My physical impairments limit my mobility and flexibility’; and
·‘My psychosocial impairments result in emotional distress.’
[14] Oral evidence of Ms Geiger.
Ms Geiger’s physical impairments may be summarised as follows:[15]
·‘I have back stiffness, and my back pain is constantly there;’
·‘I can only drive for 30 minutes then I need a 5-minute break’; and
·‘I can’t stand and cook due to my back stiffness and pain’.
[15] Oral evidence of Ms Geiger.
Ms Geiger’s psychosocial impairments may be summarised as follows:[16]
·‘I am anxious, worried and have emotional distress’;[17]
·‘I do not deal well with stress;’
·‘I do not stay long or participate well at family events;’ and
·‘I get night terrors, I do not sleep well, so I am fatigued.’
[16] Oral evidence of Ms Geiger.
[17] A5.
Ms Geiger stated if she was a participant she seeks the following supports in the way of assistance with: [18]
·‘Domestic tasks such as shopping, carrying groceries upstairs, cooking, meal prep to suit my allergies and food intolerances, cleaning, and decluttering’;
·‘Personal care for showering, grooming, hair washing and dressing’;
·‘Community access to reduce my isolation and improve my mental health’;
·‘I need transport funding. I can’t access the community to attend medical therapy and my essential appointments’; and
·‘Allied health support for physiotherapy, podiatry, counselling, occupational therapy, and assistive technology.’
[18] Closing submissions of Ms Geiger.
The Agency’s contentions
The Agency accepts section 24(1)(a) of the NDIS Act is satisfied on the evidence and that Ms Geiger has:
·A disability attributable to a physical impairment resulting from Ms Geiger’s conditions of degenerative disc disease and severe fact joint arthropathy; and
·A disability attributable to a psychosocial impairment resulting from Ms Geiger’s conditions of CPTSD and MDD.[19]
[19] R10, p. 80.
Prior to the hearing commencing, the Agency appropriately conceded on the evidence that section 24(1)(b) of the NDIS Act is satisfied and that Ms Geiger:
·Has permanent physical impairments attributable to her physical conditions;
·Has permanent psychosocial impairments attributable to her psychosocial conditions.
The Agency does not accept there is sufficient evidence to satisfy the Tribunal that Ms Geiger meets the threshold of a substantially reduced functional capacity with respect to her permanent physical impairments, nor her permanent psychosocial impairments pursuant to any of the six life activities in subsection 24(1)(c) of the NDIS Act.
The Agency does not concede section 24(1)(d) of the NDIS Act is satisfied and contends that Ms Geiger’s impairments do not affect her capacity for social and economic participation.
The Agency contends with regard to subsection 24(1)(e) of the NDIS Act that there is insufficient evidence to establish that Ms Geiger is likely to require support under the scheme for her lifetime.
The Agency does not accept that Ms Geiger satisfies the early intervention requirements pursuant to section 25 of the NDIS Act and contend that there is insufficient evidence to establish that the provision of ‘early intervention’ support is likely to benefit Ms Geiger within the meaning of subsections 25(b) and (c) of the NDIS Act.
EVIDENCE
The Tribunal accepted and marked the following evidence:
·T-documents, totalling 510 pages; and
·Exhibit Bundle-1 (‘EB-1’), totalling 318 pages.
I have considered the filed material, closing submissions, statements of lived experience,[20] impact statements and oral evidence from the following people:
·Ms Geiger,
·Mrs T Geiger, (Ms Geiger’s mother);[21]
·Ms M Pike, Ms Geiger’s sister;[22] and
·Ms Bassett, independent occupational therapist.[23]
[20] A4, A5, A6.
[21] A3.
[22] A2.
[23] R9.
I have considered all the evidence in arriving at my decision, though I may not refer to all parts of the evidence. I summarise what I consider to be the most salient evidence below.
Evidence of and about Ms Geiger
I refer to Ms Geiger’s documents, statements of lived experience in their entirety and her written dispute of the Agency’s evidence in its entirety.[24]
[24] A1, A4, A5, A6.
Ms Geiger lives alone with her two dogs. Her adult daughter ‘moved out in July 2024’ and her 17-year-old daughter ‘moved out in July 2025 to live with friends’. Ms Geiger reported spending regular time or communicating each week with her mother and two sisters who all live ‘around a 25-minute drive from her home.’[25]
[25] Oral evidence of Ms Geiger.
Ms Geiger has worked full-time since 2013 as a care manager/social worker. Ms Geiger described her ‘typical workday’ where she:[26]
·Drives herself to work … ‘it may take more than 45 - 90 minutes in the morning depending on traffic and around 30 minutes or longer to drive home in the afternoon. I take a 5–10-minute break during the drive most days on my way to work.’
·Attends a morning ‘team intake meeting as part of a supportive team with psychiatrists, registrars and other health workers.’
·Drives out to visit two or three clients each day at their home because ‘we aim to keep people out of hospital, and we ensure we get people’s medications right…sometimes we admit people to hospital if needed or receive visits from clients at the hospital.’
·Checks her client’s Webster packs.[27] ‘I take notes and sometimes photos and upload them to the system and I cross reference that to what the doctor has prescribed. I check that changes to medication prescriptions are fixed up. If there is a problem, I talk to the psychiatrist about it and the doctor makes a plan, and I liaise with the pharmacist and talk to the client.’
·Goes ‘for little walks along the beach in between seeing clients on my break;’
·Takes a lunch break at a different time each day depending on client visit timings;
·Completes notes and follow up for clients after lunch. ‘I follow up anomalies, chase up people’s medical records and check with pathology and doctors. I discuss requirements with clients or colleagues and send and receive emails’;
·Sometimes ‘speaks with patient’s family members or nursing home staff’;
[26] Oral evidence of Ms Geiger.
[27] ‘This stores the client’s daily prescribed medication.’
Ms Geiger described working at a higher duty level,[28] around February 2025. Ms Geiger explained that she:
·Supervised other staff members;
·Was asked for advice by other staff about ‘more complex consumers;’ and
·Attended extra meetings.
[28] At a higher level HP4.
Ms Geiger described attending some courses over the last year at work and stated, ‘it was really stressful due to doing extra work duties around that time.’ Ms Geiger described the courses as follows:
·‘I attended the dialectic behaviour therapy (DBT) course where we learn techniques to reduce client distress. They are techniques to help clients.’
·‘I have forgotten some of the techniques. If I want to remember the techniques, I talk to my supervisor.’
·‘I use some strategies to help my memory. I make notes, but it causes lots of clutter. But after making notes, I can within a week or two work that in with the client.’
·‘The emerging leaders’ course was where I learnt about emotional intelligence.’
Ms Geiger explained challenges at her work include:
·‘Meeting with the clients is anxiety provoking for me, it takes a lot of mental strain to do it, and I’ve tried to apply for other jobs, and I’ve not been successful.’
·‘I use my techniques from counselling for my anxiety to get through that’.
·‘Some days where I either because of my physical health or because of my mental health that I have to cancel appointments and reschedule them.’ The last time Ms Geiger did this was in June 2025; ‘I was in hospital almost a month for my mental health. I think I sort of spiralled after all that stuff’ [the February 2025 higher duties responsibilities and three courses of study] ‘it probably led to me becoming unwell.’
·‘My relationship with my supervisor is good sometimes we chat or have a supervision meeting. Previous supervisors have micromanaged and bullied me, and I had to take time off work.’
Ms Geiger gave evidence that on the weekend she will usually:
·Attend her physiotherapist once a fortnight at 7am on a Saturday;
·Attend a ‘Weight Watchers meeting at 8:30am each Saturday’;
·Visit the hairdresser once a month;
·Sometimes on a weekend pick up and drive her grandmother to her mother’s house for lunch and then visit a sister’s home; and
·Visit her sister, Ms Pike’s home every weekend.
Ms Geiger contends that she has the following psychosocial impairments from her conditions of CPTSD and MDD:[29]
·‘I feel emotionally exhausted putting a strain on my family. They are supportive but I feel like a burden.’
·‘NDIS support would let me get independence and reduce emotional toll on me and my family. My needs are too high for my family;’
·‘I don’t socialise a lot and I don’t make a lot of friends;’
·‘I get overwhelmed so I pull the car over and stop driving at times;’
·‘I have memory loss and find my concentration is poor;’
·‘I get night terrors, so I don’t sleep well; and’
·‘I am too scared to go walking with my dogs in case they pull and I fall over.’
[29] Oral evidence of Ms Geiger.
Ms Geiger contends that she has the following physical impairments from her ‘chronic back pain condition and that at times she: [30]
[30] Oral evidence of Ms Geiger.
·‘Cannot dress, or wash myself properly’ because
o‘Showering is exhausting and painful I can only shower six out of seven days. I must use a shower chair and my long-handled washing brush and
oI only wash my hair twice a week’;
o‘I brush my teeth once a day for 6 out of 7 days due to pain and fatigue;’
o‘I have ‘problems putting on my socks. I am at the point of injuring myself when I put my socks and shoes on.’
·‘Must sit down a lot during the day;’
·Struggles walking long distances and ‘hired a wheelchair at a shopping centre and another time at a theme park’;
·Sometimes uses a four-wheeled-walker (‘4WW’); Ms Geiger stated:
o‘I recently bought a new car for my back issues, I made sure the 4WW fitted in the boot of the new car.’
o‘I’m not using the 4WW much, maybe once a month.’
o‘The last time I used it was when I went to an art exhibit, because there is not a lot of seating there.’
·Sometimes uses a ‘walking cane I bought’.
In her closing submissions, Ms Geiger also explained that due to her impairments of fatigue and back pain, daily tasks are ‘extremely difficult and she can:
·‘Not use public transport because of my back pain and anxiety so either I have to drive or be driven. Sometimes if I am in distress at work and have to go home;[31] I have to ask my family to pick me up from work’;
[31] Closing submissions of Ms Geiger.
·‘Not go to the shops, I order things online and get them delivered to my post office box. I do not go to supermarkets due to pain and fatigue; I get my groceries delivered and they usually deliver up to the front door, it is impossible for me to get the food up the stairs;’
·Not prepare food because cooking is extremely difficult due to pain and fatigue
o‘I grab a banana or yoghurt for breakfast, I need food with my morning tablets;’
o‘I have microwave soups for lunch.’
o‘I take food from the freezer to the microwave at night for dinner and sometimes I use a George Foreman grill.’
·Not clean my home due to fatigue and back pain so I cannot bend or lift.
o‘My home is messy which gives me stress and anxiety.’
o‘My daughters moved out and told me to dump their toys and things. This is taking up room on my table where I usually do arts and crafts;’
o‘My mum can’t go up the stairs to my home so she can’t help me with daily chores like she once did.’
·‘Not collect or organise my medications and my Webster pack, so my mum organises it I cannot organise them myself’;
·Pay her bills regularly from her own bank account because her sister ‘set up a regular payment for my bills for me;’
·Attend family gatherings, ‘but I often leave early due to anxiety;’
·Take her dogs to the groomers once every eight weeks and that her daughters ‘occasionally get the dogs and take them for a walk. I don’t walk them because I worry about falling down the stairs;’
Ms Geiger gave evidence that she attends her physiotherapist once a fortnight and undertakes ‘stretches and twisting exercises at home including:
·Hip raises, I lie on my back raise my hips and roll my knees side to side.
·I put a rolled-up towel or foam behind my chest and stretch my back out.
·‘My physiotherapist recommended a gym with an exercise bike that I can use. I haven’t found a gym yet and I get anxiety that stops me checking it out. I used to go to the gym and swim but after a hospital admission around 2023, I stopped going. I couldn’t get up in the morning’.
·Ms Geiger stated she uses ‘a new app called “walk fit” and ‘it records my steps. I don’t do the steps on the weekends. But I try to walk twice a day at work in between client visits. So, I get to do short walks ten times a week at work.’
Ms Geiger stated that she arranges her ‘other appointments’ on the same day when possible so that ‘she minimises taking time off work.’ Ms Geiger attends the following appointments across a month:
·‘Counsellor once every six weeks usually around 6:15pm on the computer on a Wednesday or Thursday night’.
·Psychiatrist once a month.
·‘My GP as required.[32]’
[32] Since January 2025 Ms Geiger attends her new GP.
Ms Geiger explained that she spends regular time with the following people:
·‘I talk to mum every morning; she makes sure I’m out of bed and on the way to work.’
·Her sister, Ms Pike. ‘I call her every weekend, and in the car too.’
·My other sister ‘I call in the afternoons when I am in distress on the drive home’.
·Her grandmother usually on the weekend;
·Her daughters occasionally. Ms Geiger recently had a weeknight dinner with a daughter for her ‘birthday celebration at a sushi train.’
·Saturday morning Weight Watchers meeting, the ‘people are friendly, but I don’t feel a connection;’ and
·‘Once a month I go to family lunch hosted at my mum’s place.’
Ms Geiger stated she has at times engaged with the following:
·Internet groups. ‘Sometimes I join Facebook communities and ‘I go in and ignore people and do not engage. I went into a NDIS community I tried to get support, but no one gave me any, it was just encouragement.’
·‘A women’s support group run by a lady I went to uni with. I used my rostered days off to go to that group. But I’ve not been for around 18 months.’
·‘Spending time scrolling on my phone on the internet.’
Evidence of Mrs Theresa Geiger, mother
Mrs Geiger is Ms Geiger’s mother. She is aged in her 60s, works full time in a secondary school and is the carer for her husband, and her own mother, who is aged in her 90s. Mrs Geiger prepared a written statement[33] and gave oral evidence at the hearing.
[33] A3.
I accept that Mrs Geiger was an honest and credible witness. Mrs Geiger stated, ‘I do whatever I can to help my daughter.’ Mrs Geiger’s weekly schedule includes that she:
·‘Cooks and makes up meals for her [Ms Geiger] to freeze and take home’;
·‘Checks she [Ms Geiger] is out of bed every weekday morning, takes her tablets and gets to her car;’
·Speaks on the telephone with Ms Geiger every weekday morning whilst Ms Geiger drives to work;
·Spends time with Ms Geiger on Saturday mornings on the way to and at Weight Watchers’ meetings;
·Usually hosts Sunday lunches and other family celebrations at her home.
I am satisfied that Mrs Geiger:
·Provided evidence as an informal support to Ms Geiger; and
·Despite her own work and family commitments continues to assist her daughter.
Evidence of Ms Melissa Pike, sister
Ms Pike is Ms Geiger’s sister. Ms Pike lives with her family and works five days a week in childcare, ‘unless my sister needs me.’[34] Ms Pike prepared a written statement and also gave oral evidence.[35]
[34] Oral evidence of Ms Pike.
[35] A2.
I accept that Ms Pike was an honest and credible witness. Ms Pike’s evidence may be summarised as follows. Ms Pike’s weekly schedule includes that she:
·Speaks on the phone ‘most mornings, most afternoons, and sometimes other times during the day’ with Ms Geiger;
·Sees Ms Geiger on the weekends and sometimes weekdays as Ms Geiger visits her home regularly;
·Provides dinner for Ms Geiger at her house ‘at least two to three times during the week and sometimes on a weekend as well’;
·‘Picked up [Ms Geiger] from her work, it took me about an hour’s drive to get to her work and I’ve done this about twice earlier this year. Either my husband or my daughter drive with me and one of them drives her car back.’
·Accommodates Ms Geiger ‘when she stays at our home and Ms Pike’s 11-year-old child ‘sleeps on the floor next to me.’
I am satisfied that Ms Pike:
·Provided evidence as an informal support to Ms Geiger; and
·Despite her own work and family commitments continues to assist her sister.
Written evidence of Dr Katrina Robertson, general practitioner (‘GP’), Sunnybank Hills Medical Centre
Dr Robertson was Ms Geiger’s GP from 2013 until her retirement in January 2025.[36] Dr Robertson was not available to give evidence. Ms Geiger stated she relied on Dr Robertson’s written evidence to contend that she satisfies the disability requirements.
[36] Oral evidence of Ms Geiger.
Dr Robertson provided several pieces of correspondence[37] for Ms Geiger. Relevantly on 9 May 2024 Dr Robertson recorded the following regarding Ms Geiger, that she has:
·Physical impairments from the ‘primary impairments’ of degenerative disc disease and severe facet joint arthropathy;’[38]that were ongoing for ‘11+ years;’ and
·Psychosocial impairment as ‘another impairment which is Complex PTSD, Major depressive disorder[39] that were ongoing for 29 years.’[40]
[37] T6, T12, T14, R5, and R6.
[38] T12, p. 74.
[39] T12, p. 71.
[40] T12, p. 74.
Dr Robertson also responded that ‘early intervention supports are not likely to reduce the applicant’s future support needs.’[41]
[41] T6, p. 30.
I accept Dr Robertson’s evidence that Ms Geiger lives with the physical and psychosocial conditions: degenerative disc disease, severe facet joint arthropathy, CPTSD and MDD[42] and that these are permanent conditions requiring ongoing treatment/intervention.[43] I accept that Dr Robertson’s evidence indicates that Ms Geiger’s permanent physical and psychosocial impairments include:[44]
·Pain and stiffness causing reduced mobility and flexibility which impacts [her] ability to sit for prolonged periods and reduces her ability to undertake activities of daily living…her sleep is disturbed; and
·Depressed mood which impacts her cognitive processing…and decision making.
[42] T12, and T14.
[43] R6.
[44] T12, 1T14, R6.
I note that Dr Robertson also documented that Ms Geiger lives with psychosocial impairment which includes ‘emotional dysregulation which impacts [her] ability to develop interpersonal relationships and friendships.’
Dr Robertson recommended Ms Geiger ‘requires assistance’ with the following activities:
·Laundry – hanging out washing;
·House cleaning and maintenance, rubbish removal;
·Mowing;
·Shopping;
·Making the bed;
·Learning new skills secondary to chronic pain, impaired short-term memory; and
·Impaired hygiene, toileting and bathing due to physical limitations.[45]
[45] R6.
Evidence of Dr Julio Clujio, psychiatrist,
Dr Clujio provided an ‘evidence of psychosocial disability form dated 27 March 2023.[46] Dr Clujio was not available to give evidence.
[46] T8.
I accept Dr Clujio’s evidence that Ms Geiger has permanent psychosocial impairments.
Evidence of Dr David Ward, Accredited Mental Health Social Worker,
Dr Ward provided an ‘access request - supporting evidence’ form dated 23 November 2023.[47] Dr Ward noted the following:
·Ms Geiger ‘has had impairments from CPTSD for approximately 14 years.’[48]
[47] T9.
[48] T9, p. 50.
Dr Ward responded to targeted questions on 13 October 2024.[49]
[49] R1.
Dr Ward concluded that Ms Geiger requires assistance to deal with stressful events such as contacting organisations that have not provided services [to her]’[50] and that Ms Geiger [may be] ‘unable to think rationally when confronted with stressors.’[51] Dr Ward opined that Ms Geiger’s functional capacity in relation to keeping and making friendships was impaired.[52]
[50] T9, p. 53.
[51] R2.
[52] R2, p. 27.
Dr Ward concluded that Ms Geiger is anxious and self-isolates in bed for long periods of time and does not attend to activities of daily living which then creates a feeling of powerlessness which then increases the level of avoidance in day-to-day life. This also diminishes her capacity to interact with the wider community.[53]
[53] R2.
I only give weight to this report to the extent that it is within Dr Ward’s scope of expertise as an accredited mental health social worker.
Evidence of Ms Jo Bassett, occupational therapist, Allied Health Experts
On 14 January 2025 the Agency sent a letter of instruction to Ms Bassett, requesting a functional capacity assessment of Ms Geiger with respect to her review application.[54] I accept that Ms Bassett has 20 years of occupational therapy experience in private practice with experience working with people with complex mental health issues…complex trauma and acquired psychosocial disability for example post-traumatic stress disorder.[55]
[54] EB-1, R8.
[55] R9, p. 75.
On 1 February 2025, Ms Bassett reviewed Ms Geiger and provided a report dated 10 March 2025[56] and she also provided oral evidence at the hearing.
[56] R9.
Ms Bassett conducted a functional assessment of Ms Geiger. I only give weight to this report to the extent that it is within Ms Bassett’s scope of expertise. I do not accept Ms Bassett’s evidence with respect to her interpretation of the statutory criteria.
Ms Bassett recorded that Ms Geiger reported that she ‘does not use public transport and did not report limitation in using public transport.’[57]
[57] R9, p. 16.
Prior to Ms Bassett providing oral evidence she was informed of Ms Geiger’s own evidence where Ms Geiger had outlined several changes in her circumstances over the five months that had passed since Ms Bassett’s 1 February 2025 assessment was conducted.[58] The differences were that Ms Geiger:
[58] EB-1, R9, p. 65.
·Has lived alone since July 2025 as her 17-year-old daughter[59] moved out then.
[59] EB-1, R9, p. 318.
·Attends her physiotherapist fortnightly now and not monthly as recorded in February 2025.
·Undertakes a home physiotherapy programme on her bed with stretching, hip raises, and rolling knees side to side. Ms Geiger also uses a rolled-up towel as a support device for another exercise to bring her knees to her chest.
·Dresses herself and uses a sock-aid to put her socks on.
·Walks for around 5 - 10 minutes at a time, twice per day on workdays.
·Heats up her own frozen meals for dinner.
·Showers independently six mornings a week and brushes her teeth six days a week.[60]
[60] R9, p. 67.
·Drives herself around 55km to work, visits two or three clients each day. Then liaises with: pathology, psychiatrists, other team members, obtains medical records and checks clients’ Webster packs for compliance. On some days Ms Geiger may then speak with patients, and their family members.
·Visits her sister’s home for dinner during the week and may visit on the weekend.
·Visits her mother’s home once per month on weekends for family social events.
·Attends the physiotherapist on Saturdays fortnightly around 7am.
·Attends Weight Watchers with her mother at 8:30am on Saturdays.
·At times may attend the hairdresser, and her sister’s house on the weekend.
·Used to attend a ‘women’s support group’.
·Went to sushi train on a weeknight last week for a family birthday celebration.
·Takes her dogs to be groomed every 8 weeks.
·Uses a 4WW around once a month when she is worried she won’t have access to seating.
·Previously used a wheelchair twice to attend theme parks around 2023.
CONSIDERATION
I am satisfied that Ms Geiger, Mrs Geiger and Ms Pike explained their respective lived experience in an honest manner. Ms Geiger was forthright, and sincere in giving her evidence and she clearly articulated her contentions.
I acknowledge Ms Geiger’s evidence where she stated she felt:
·‘My back and my other conditions will not improve; my health and independence will decline;
·I require in-home support, and I feel guilty asking my family for support because of the strain it puts on my loved ones. The NDIS will let me gain independence and stop the toll on myself and my family;’[61]
[61] Closing submissions of Ms Geiger. See also A4.
I accept Ms Bassett’s observations (as a registered occupational therapist) of Ms Geiger’s functional capacity in and around her home. I am satisfied that Ms Bassett’s evidence:
·Was provided as a professional, registered occupational therapist;[62]
·Provided an assessment of Ms Geiger on 1 February 2025 that then produced the 10 March 2025 report.
[62] R9.
I note that there was no evidence provided to contend there had been any deterioration in Ms Geiger’s function since 1 February 2025. In contrast, Ms Geiger described a typical day in a manner where she was able to undertake more activities than what Ms Bassett had recorded in writing. Counsel for the Agency carefully took Ms Bassett through the circumstance variations for Ms Geiger and Ms Bassett said these different circumstances did not ‘alter Ms Bassett’s opinion.’[63]
Section 24(1): the disability requirements
[63] Oral evidence of Ms Bassett.
Whether or not Ms Geiger has a disability attributable to an impairment?
An impairment is generally understood to mean ‘the loss of or damage to a physical, sensory or mental function.’[64] Mortimer CJ in National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’)[65] observed that the focus of the legislative scheme is on … ‘the impairments experienced by a person which may require supports…It is the impairment which the scheme contemplates may affect the ‘functional capacity’ of a person.’[66]
[64] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [51].
[65] National Disability Insurance Agency v Davis [2022] FCA 1002 (‘Davis’)
[66] National Disability Insurance Agency v Davis [2022] FCA 1002 at [69].
On the evidence it was uncontested and so I find that Ms Geiger meets the section 24(1)(a) of the NDIS Act disability requirement for her physical impairments attributable to degenerative disc disease and severe facet joint arthropathy and psychosocial impairments attributable to her conditions of CPTSD and MDD. These impairments impact on the quality of her life:[67]
[67] Dr Robertson’s response to targeted questions dated 9 January 2025, p. 1.
·The physical impairments are pain and stiffness causing reduced mobility and flexibility in her back and spine. [68] I accept Ms Geiger can:
[68] T6. Oral evidence of Ms Geiger.
oOnly drive for 30 minutes at a time;
oNot bend or clean due to physical pain in her back and spine; and
oExperience disruption to her sleep which leads to fatigue.
·The psychosocial impairments are anxiety, trouble controlling emotions, poor concentration, panic attacks and fatigue. I accept Ms Geiger can:
oExperience emotional distress and anxiety;
oHave poor motivation;
oExperience nightmares;
oAt times not be able to attend social events.[69]
[69] Oral evidence of Ms Geiger.
Section 24(1)(a) of the NDIS Act is satisfied with respect to Ms Geiger’s accepted physical and psychosocial impairments. These impairments referred to above at [78] will be now referred to as ‘Ms Geiger’s impairments.’
Whether or not Ms Geiger’s impairments are permanent?
The Tribunal must be satisfied that the impairment, not the medical condition, is permanent or enduring[70] and that there are no known, available, and appropriate treatments that may ‘remedy’ the impairment, which means ‘approaching a removal or cure of the impairment’.[71]
[70] Mortimer CJ explained this in Davis at [85]–[86].
[71] Davis at [136]–[139].
This is also considered alongside the access rules, in particular rule 5.4.[72] Dr Robertson[73] Dr Ward[74] and Dr Claujio[75] provided written evidence regarding the permanence and fluctuations[76] in Ms Geiger’s impairments.
[72] See also Rule 5.5, 5.6 and 5.7.
[73] R6.
[74] R2.
[75] R3, R4.
[76] Rule 5.5.
It was uncontested and so I find that Ms Geiger’s impairments are permanent pursuant to subsection 24(1)(b) of the NDIS Act.
Whether or not Ms Geiger’s impairments result in substantially reduced functional capacity?
I must consider whether Ms Geiger’s circumstances come within the ‘deeming provision’ of rule 5.8(a), (b) and (c)[77] of the access rules for substantially reduced functional capacity.
·Whether Ms Geiger 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’) or home modifications. In National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’), the court held that the term ‘effectively and completely’ in 5.8(a) refers to the activity area as a whole, and not as referring to isolated tasks within the activity area.[78]
·Whether Ms Geiger 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.[79]
·Whether Ms Geiger 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.[80]
[77] Rule 5.8 noted at paragraph [19]. Section 24(1)(c) of the NDIS Act noted at paragraph [14].
[78] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’), at [88].
[79] Rule 5.8(b).
[80] Rule 5.8(c).
The interpretation of ‘commonly used items’ was considered in Rooney and National Disability Insurance Agency 2021 AATA 3523 (‘Rooney’).[81] Here the Tribunal noted indicia of ‘commonly used item’ for the purpose of rule 5.8(a) of the access rules and included items which:[82]
(a)[are] generally accessible;
(b)can be used without the need for complex or specialised customisation or installation;
(c)[are] relatively simple to use; and
(d)[are] relatively inexpensive.
[81] Rooney v NDIA [2021] AATA 3523
[82] Rooney at [27].
If the deeming provisions are not met, I must then consider whether Ms Geiger’s functional capacity is substantially reduced across any of the relevant life activity areas.[83]
[83] Mulligan at [77].
In Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (‘Burrows’), SM French noted the
‘target group of persons…who experience substantially reduced functional capacity to perform essential tasks in one or more designated life activity areas due to one or more permanent …impairments … to which a disability is attributable.
This is a limited sub-category of the total population of persons with disability in Australia.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.[84]’
[84] Burrows at [9]-[10]. See also Mulligan at [50].
The Agency contends that Ms Geiger does not satisfy any of the six life activity areas. Ms Geiger’s evidence regarding section 24(1)(c) of the NDIS Act focussed on four life activity areas. Ms Geiger contends she has a substantially reduced functional capacity in the areas of: social interaction, mobility, self-care, and self-management.[85]
[85] Oral evidence of Ms Geiger.
I note that it is not a question of whether Ms Geiger’s impairments are ‘serious or more serious than anybody else’s. Rather I need only be satisfied that she has substantially reduced functional capacity in one of the designated life activity areas.[86]
[86] Burrows at [61]. See also Mulligan at [56].
Therefore, I turn to consider the four contested life activity areas: social interaction, mobility, self-care and self-management.
The Tribunal must be satisfied that Ms Geiger’s accepted impairments result in a substantially reduced functional capacity in one of these four contested domains with respect to what she can and cannot do.[87]
[87] Mulligan at [55]-[56].
The word ‘substantially’ within section 24(1)(c) of the NDIS Act may be considered to carry a high threshold[88] because it requires consideration in the context of ‘the need to ensure the financial sustainability of the scheme.’[89] I now consider what Ms Geiger can and cannot do in light of her accepted impairments at [78] and section 24(1)(c) of the NDIS Act.[90]
[88] Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68]-[69].
[89] Section 3(3)(b) of the NDIS Act. Mulligan at [50].
[90] Mulligan at [55].
Social interaction: s 24(1)(c)(ii) of the NDIS Act
I am not satisfied that rule 5.8(a) applies to Ms Geiger because there was limited probative evidence that Ms Geiger is unable to participate effectively or completely in social interaction, 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.
Under rule 5.8(b) I am not satisfied on the evidence that Ms Geiger usually requires assistance from another person in social interaction to participate in life activities.
I am not satisfied that rule 5.8(c) applies to Ms Geiger. I accept Ms Bassett’s report[91], and Ms Geiger’s own evidence regarding her current functional capacity and this indicates that rule 5.8(c) is not relevant in Ms Geiger’s circumstances.
[91] R9.
I am satisfied on Ms Geiger’s own evidence that she is able to independently interact with other people, albeit with fluctuating levels of impairment from:
·Back and spine pain and stiffness which leads to reduced mobility and reduced flexibility and sleep disturbance causing fatigue;
·Anxiety, emotional distress, poor motivation, fatigue due to experiencing ‘night terrors’ and at times not being able to attend social events.
I find that undertaking a task more slowly or differently to others will not necessarily mean a person cannot ‘participate effectively or completely in an activity’. I acknowledge Ms Geiger may undertake socialising tasks in a modified manner due to her:
·Anxiety where she uses her learned techniques from counselling in order to appropriately deal with her anxiety levels and
·Back pain and fatigue levels where Ms Geiger may undertake social interaction tasks in a slower manner.
The Operational guidelines refer to ‘socialising’ as:
How you make and keep friends, or interact with the community… We also look at your behaviour, and how you cope with feelings and emotions in social situations.[92]
[92] Operational guidelines, Applying to the NDIS, 14 October 2024, page 8.
The criteria in the guidelines around the assessment of function in ‘social interaction’ are ‘directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[93] The Tribunal’s task is to consider the skills of social interaction, not Ms Geiger’s opportunity to exercise the skills.[94]
[93] Madelaine [87]. Note Madelaine discussed an earlier though similar version of the guidelines.
[94] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [104]. See Burrows at [111] – [116].
I prefer and give more weight to Ms Geiger’s evidence[95] where it differed from Dr Robertson’s and Dr Ward’s evidence. Dr Robertson documented that Ms Geiger requires assistance in the area of social interaction because ‘certain settings or events [are] challenging to navigate’.[96]
[95] Oral evidence of Ms Geiger. R9, R6, R1.
[96] T12.
I note that Dr Ward’s conclusions around Ms Geiger’s social interaction are conclusions of emotional reactions made by Ms Geiger. I am not satisfied that I can make a factual finding based on the written evidence as it differed from Ms Geiger’s own oral evidence around her functional capacity. I cannot be satisfied on Dr Robertson’s or Dr Ward’s written evidence regarding Ms Geiger’s reported impairment around ‘emotional dysregulation which impacts her ability to develop interpersonal relationships and friendships.’[97] I also note there was no evidence that Ms Geiger exhibits behaviours of concern.
[97] T12, 1T14, R6.
Furthermore, I note that Dr Ward’s report of Ms Geiger ‘self-isolating for long periods’[98] was different to Ms Geiger’s own evidence of her current circumstances. Indeed there were several improvements reported by Ms Geiger herself regarding her current circumstances in that Ms Geiger reported attending more community activities over the last five months compared to what was documented in Ms Bassett’s written report.
[98] Written evidence of Dr Ward at [67].
I acknowledge Ms Geiger’s evidence that she:
·Reports having no friends; but that her family are very supportive;
·Previously used her rostered days off to attend a women’s support group and it was unclear why she has not attended this group for the past 18 months;
·Sometimes joins in with online social networking groups but she chooses how much she engages and at times she chooses not to engage at all with others in the online group;
·Feels too anxious to attend or search for an appropriate gym as recommended by her physiotherapist but over the past month she has regularly ‘walked along the beach during her work breaks twice a day.’
·At times is not socially active due to her pain and anxiety and she chooses to leave family gatherings early because she ‘does not participate well’.
However, I cannot be satisfied that Ms Geiger’s functional capacity is substantially reduced in this domain when I also consider what Ms Geiger can do. I give weight to Ms Geiger’s evidence that she is able to perform her work role. I accept Ms Geiger’s evidence which indicates that she is a valued member of her work team, and that her role requires social interaction with colleagues, clients and other stakeholders. I find that Ms Geiger is able to appropriately interact with others; albeit Ms Geiger may at times be limited in her capacity to socially interact due to her accepted impairments. Relevantly, Ms Geiger’s own evidence is that she is able to use techniques she has learnt from her counselling sessions, from her work courses, that she values working in a supportive team, that she has a good relationship with her current supervisor and that she regularly ‘catches up’ with this supervisor.[99]
[99] Oral evidence of Ms Geiger.
I acknowledge that Ms Geiger may have a reduction in her functional capacity to socially interact with people outside her family circle due to her impairments. However, I find that, on balance, the evidence from Ms Geiger is that she is able to:
·Leave her home;
·Attend and interact with her health practitioners;
·Interact with other community members outside of work hours for example her weekly Saturday morning Weight Watchers meeting and her hairdresser;
·Regularly attend her workplace and her client’s residences;
·Attend her sister’s home for dinner usually more than twice a week; and
·Attend a restaurant for a recent weeknight dinner birthday celebration.
I find on Ms Geiger’s own evidence that she has enduring healthy relationships with her family. [100] This was also corroborated by both her mother’s and sister’s evidence of spending regular time each week with Ms Geiger. My considerations include that Ms Geiger regularly attends her sister’s home for dinner during the week and she usually sees her mother on the weekend. I acknowledge the tremendous support Ms Geiger receives from her family and the apparent love and care that Ms Geiger’s mother and sister demonstrated in their oral evidence in support of Ms Geiger.
[100] Oral evidence of Mrs Geiger.
I acknowledge that Ms Geiger was admitted to a private hospital for her mental health concerns in June 2025 for almost a month. When asked about the likely reasons for this admission Ms Geiger understandably reflected that the admission may have been due to undertaking higher level work duties whilst simultaneously attending additional work courses which may have caused her extra and unnecessary stress.
There was no evidence that Ms Geiger has engaged in emotionally or behaviourally dysregulated conduct with others in the community.[101] SM French’s observations in Burrows are relevant:
…the statutory test is not whether a prospective participant has experienced a reduction in functional capacity relevant to an earlier life stage. It is the degree to which the prospective participant has the functional capacity for social interaction relative to a person who does not have the prospective participant’s impairments and having regard to the scope of s24(1)(c)(ii) and its performance threshold.[102]
…for the purposes of s 24(1)(c) a distinction must be drawn between functional capacity at a point in time, and functional capacity over time. The Applicant may have bad days in terms of her functional capacity for social interaction on a cross-sectional basis, but viewed longitudinally (over time), she retains substantial functional capacity for social interaction in my assessment.[103]
[101] Burrows at [116].
[102] Burrows at [113].
[103] Burrows at [115].
I am satisfied that Ms Geiger’s impairments impact her capacity for social interaction to a degree. However, the evidence does not lead to a conclusion that Ms Geiger’s impairments result in her having a substantially reduced functional capacity longitudinally in the area of social interaction.
The evidence is that notwithstanding Ms Geiger’s impairments noted at [78] she is able to undertake the bundle of tasks within the social interaction domain including her current circumstances of interacting with:
·Colleagues and other professional stakeholders at work;
·Clients and their respective family members at work and adapting new techniques at work to assist clients;
·Her health practitioners in the community; and
·Businesses in the community including ‘Weight Watchers’, and her hairdresser.
I acknowledge that Ms Geiger sometimes cancels and reschedules client appointments due to her impairments. However, I find on Ms Geiger’s own evidence that she is usually able to (albeit with a level of anxiety):
·Perform her work role which carries a high level of responsibility regarding ‘checking client’s Webster medication packs;’
·Engage and liaise with several different stakeholders including:
oSpecialist doctors such as psychiatrists,
oPharmacists,
oColleagues or team members,
oClients and their family members, and
oClients’ other service providers, from other organisations.
·Use her interpersonal skills to:
oPerform her full-time work role for over 11 years including when she ‘rectifies errors in clients’ Webster pack medications’;
oPreviously engage in higher duties and provide assistance to junior staff;
oInteract on day-to-day basis at work with her team members;
oInteract daily with her family members;
oInteract regularly with her physiotherapist, psychiatrist, and Mental Health counsellor.
oAttend and interact with other attendees at a weekly Weight watchers meeting.
I find that even though Ms Geiger has some reduction longitudinally in her functional capacity for social interaction, the evidence does not lead me to conclude the reduction is substantial. On the evidence, Ms Geiger’s impairments do not result in substantially reduced functional capacity to perform the bundle of tasks involved in the life activity areas specified in subsection 24(1)(c)(ii) of the NDIS Act.
I accept the Agency submissions that Ms Geiger does not satisfy the statutory criteria as Ms Geiger is able to interact with other people albeit she has a reduced frequency of attending opportunities to practice these interpersonal skills.[104] I accept Ms Geiger may not have opportunity to interact socially at times. I am not satisfied this constitutes a substantially reduced functional capacity to engage in social interaction given that Ms Geiger’s own evidence was that she continues to be active on social media and visit her family when she is able to.
[104] Nika 2021. R10 at [44].
I do not accept Dr Ward or Ms Bassett’s conclusions that there are emotional reactions impacting Ms Geiger from making and keeping friends. There is no factual basis for that finding to be reached. Ms Geiger’s interpersonal skills are used on a day-to-day basis to carry out her work role, with her colleagues and clients and on weekends with her family and other community members. There is no evidence provided that Ms Geiger has engaged in emotionally or any behaviourally dysregulated way in her interactions with neighbours, regular contacts in the community or her work colleagues. Therefore, I cannot be positively satisfied regarding the factual basis for Dr Ward’s written evidence.
In summary, I am persuaded by Ms Bassett’s evidence with respect to her functional assessments not her legal conclusions regarding the satisfaction of the statutory criteria. Ms Bassett opined that Ms Geiger requires an ‘intermittent’[105] level of assistance for her impairment in the area of ‘socialising’. I am not satisfied on the evidence that this meets the statutory criteria.
[105] R10, p. 38.
Mobility: s 24(1)(c)(iv) of the NDIS Act
I must consider whether rule 5.8(a) of the access rules deems that Ms Geiger can participate ‘effectively or completely’ in the activity of mobility on the basis that she is unaided by assistive technology, equipment (other than ‘commonly used items…) or home modifications.’
I accept Ms Geiger’s evidence that ‘once a month she may use her 4WW, but not in the last month’ and sometimes she uses a ‘walking cane’ to assist with her mobility and fatigue levels in the community.
I note that neither assistive technology nor equipment are defined in the Rules.[106] The Agency Operational guideline for assistive technology outlines that:
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 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.[107]
[106] National Disability Insurance Agency v Foster [2023] FCAFC 11at [40]
[107] Operational guideline, assistive technology, p. 2.
On this basis, I accept that assistive technology can include equipment such as Ms Geiger’s 4WW, and her ‘walking cane.’ These two items of equipment (‘the equipment’) assist Ms Geiger to do things she normally cannot do.[108] I note that Ms Geiger’s own evidence was that she ‘used the 4WW to attend an art exhibition that had limited available seating.’ Ms Geiger did not specify how often she may need to use the walking cane.
[108] Beaumont and National Disability Insurance Agency [2024] AATA 891 [116].
Based on this evidence I cannot be satisfied there is a nexus between the 4WW or ‘walking cane’ and the actual task of Ms Geiger mobilising in the community in such a way that leads me to accept that these two pieces of equipment are central to Ms Geiger’s functional activity of mobility.[109] Indeed Ms Bassett reported that she observed Ms Geiger mobilising without any equipment at her home assessment.[110] I note Ms Bassett did not recommend any assistive technology or equipment for Ms Geiger.
[109] Beaumont [121]. Also see Foster [42].
[110] R9.
I am not satisfied that Ms Geiger’s circumstances are captured by the deeming provisions in rule 5.8(a) because Ms Geiger’s own evidence is that she is able to independently mobilise without the 4WW or walking cane.
Under rule 5.8(b) I am not satisfied on the evidence that Ms Geiger usually requires assistance from another person with regard to her mobility. Ms Geiger stated she can independently mobilise; albeit she experiences some difficulties due to her back pain and stiffness.
I accept Ms Bassett’s report,[111] and Ms Geiger’s own evidence regarding her current functional capacity in the area of mobility and this indicates that rule 5.8(c) is not relevant in Ms Geiger’s circumstances.
[111] R9.
I am satisfied that the evidence does not meet the deeming provisions under rule 5.8 regarding Ms Geiger’s mobility.
I am satisfied on the evidence that Ms Geiger at times uses her 4WW, and ‘walking cane’, to assist with mobilising so she is able to undertake her mobilising tasks independently. I acknowledge she may undertake these tasks in a slower or different manner to others due to her back pain and stiffness, anxiety and fatigue. However, this does not necessarily mean Ms Geiger cannot participate effectively or completely in the activity.
The Operational guidelines describe ‘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.’[112]
[112] Our guidelines, Applying to the NDIS, 14 October 2024, page 8.
Ms Geiger can independently mobilise around her home and community without the use of any mobility devices. I find that Ms Geiger is able to:
·Independently transfer from sit to stand;
·Independently walk up and down the stairs to her home, holding the railing;
·Independently walk for exercise purposes for 5- 10-minutes during breaks between client visits and uses her ‘steps app’ to encourage exercise;
·Exercise and stretch as directed by her physiotherapist. Indeed, Ms Geiger stated she previously attended a gym and swimming pool, but not since 2023.
·Enter and exit her car and drive to and from work, although she takes breaks to rest after 30 minutes;
·Transport her dogs to the dog grooming service every eight weeks.
I acknowledge that Ms Geiger also stated that she ‘gets anxiety that stops [her] from checking out a gym’ [for an appropriate exercise bike] as recommended by her physiotherapist.[113] I do not accept that this is an example of a substantial reduction in Ms Geiger’s functional capacity in mobility as Ms Geiger’s own evidence is that she is able mobilise during her work breaks to undertake other forms of exercise.
[113] Oral evidence of Ms Geiger.
I accept Ms Bassett’s assessment and evidence that she did not observe Ms Geiger requiring assistive technology to mobilise. I note that Ms Bassett did not recommend any equipment or assistive technology for Ms Geiger.[114] Ms Bassett identified Ms Geiger is independent in mobility[115] and I accept this part of her evidence. I prefer Ms Bassett’s evidence that Ms Geiger did not report any limitations with using public transport. It was unclear on the evidence why in Ms Geiger’s closing submissions she stated she was ‘unable to use public transport’ and therefore had to request that Ms Pike leave her workplace to ’pick me up from work.’ There is no evidence before the Tribunal to indicate how Ms Geiger’s impairments result in her not being able to drive or use public transport.[116]
[114] R9.
[115] R9.
[116] Closing submissions of Ms Geiger at [44].
I accept Ms Geiger’s evidence that she experiences pain and fatigue when mobilising. I also accept that Ms Geiger experiences anxiety around walking her dogs ‘as she does not want to fall if they pull her.’ I find that this would lead to some reduction in functional capacity arising from Ms Geiger’s impairments when mobilising. However, I am not satisfied the degree of reduction is substantial having regard to all the evidence of what Ms Geiger longitudinally can and cannot do. I note that the threshold requirement to achieve functional capacity in relation to mobility has been described as ‘relatively modest’.[117]
[117] Madelaine [104].
I note that Dr Robertson’s conclusions differed from Ms Bassett’s conclusions. Ms Geiger has some reduction in her ability to mobilise due to her impairments. However, when considering the totality of what Ms Geiger can and cannot do, and the probative evidence available to me, I am satisfied that Ms Geiger is able to ‘participate effectively in the activity of mobility’ and I do not consider that Ms Geiger’s impairments result in a substantial reduction in her functional capacity in the life activity area of mobility.
Self-care: s 24(1)(c)(v) of the NDIS Act
I must consider whether rule 5.8(a) of the access rules deems that Ms Geiger can participate ‘effectively or completely’ on the basis that she is unaided by assistive technology, equipment or home modifications other than ‘commonly used items.’
I accept Ms Geiger’s evidence that she uses a shower chair, long handled brush for showering, and a sock aid to assist with her self-care.
I note that neither assistive technology nor equipment are defined in the Rules.[118] The Agency Operational guideline for assistive technology outlines that:
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 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.
[118] National Disability Insurance Agency v Foster [2023] FCAFC 11at [40]
On this basis, I accept that assistive technology can include equipment such as Ms Geiger’s shower chair, long handled brush and sock aid. These items of equipment (‘the equipment’) assist Ms Geiger to do things she normally cannot do in the area of self-care.[119] I note that Ms Geiger’s own evidence was that she ‘uses the shower chair and long handled brush and [when required to wear closed in shoes] the sock aid.’
[119] Beaumont and National Disability Insurance Agency [2024] AATA 891 [116].
As cited earlier in Rooney, the Tribunal considered the interpretation of ‘commonly used items.’ The considerations included items which are:
Generally accessible; can be used without the need for complex or specialised installation or customisation; are relatively simple to use; and are relatively inexpensive.[120]
[120] Rooney and National Disability Insurance Agency [2021] AATA 3523 (‘Rooney’) at [27].
I consider that the equipment used by Ms Geiger for her self-care are commonly used items as they can all be commercially purchased, for a relatively inexpensive amount without the need for customisation.
I am not satisfied that Ms Geiger’s circumstances are captured by the deeming provisions in rule 5.8(a) because Ms Geiger’s own evidence is that she is able to independently undertake her self-care; albeit using commonly used items.
Under rule 5.8(b) I am not satisfied on the evidence that Ms Geiger usually requires assistance from another person with self-care. Ms Geiger stated she can attend to her self-care albeit with some difficulties.
I accept Ms Geiger’s own evidence regarding her current functional capacity in the activity of self-care and this indicates that rule 5.8(c) is not relevant in Ms Geiger’s circumstances.
The Operational guidelines state self-care is ‘personal care, hygiene, grooming, eating, and drinking and health. We consider how you get dressed, shower or bathe, eat or go to the toilet’.[121]
[121] Our guidelines, Applying to the NDIS, 14 October 2024, page 8.
I concur with SM French’s observations in Burrows that ‘domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance, as examples, do not fall within any of the s 24(1)(c) activity areas.’[122]
[122] Burrows at [90]. See also [89] – [92].
I accept that Ms Geiger experiences pain and stiffness in the area of self-care.[123] Ms Geiger reported to Ms Bassett that she has difficulties in self-care and is slower and modifies her activities due to her impairments and consequently has:[124]
·Purchased and uses a shower chair;
·Purchased a ‘sock aid’ to don her socks;
·Uses a long-handled brush to wash in the shower;
·Had her hair cut shorter to make it easier to care for her hair.
[123] Oral evidence of Ms Geiger.
[124] R9, pp 19, 27.
I find that Ms Geiger is able to:[125]
·Independently shower without any assistance or home modifications;
·Independently dress herself, albeit with ‘difficulties dressing due to back pain[126];
·Brush her teeth, albeit only for six days of the week due to fatigue;
·Independently use the toilet without any assistance or adaptive equipment;
·Independently eat and drink without assistance or modifications; and
·Independently attend to her health care as she attends in person and online appointments.[127]
[125] R9, p 29.
[126] R9, p. 19.
[127] Oral evidence of Ms Geiger.
I acknowledge that Ms Geiger stated she does not prepare food in the kitchen due to her back stiffness and pain. However, she also stated she will sometimes prepare food using her ‘George Foreman grill’. I note that Ms Geiger receives assistance from her family with meals including:
·Mrs Geiger stated she cooks meals for Ms Geiger to take home and freeze; and
·Ms Pike often provides evening meals for Ms Geiger during the week at her home.
Ms Geiger contends[128] that her functional difficulties are related to domestic tasks such as cleaning, heavy laundry, shopping for food. I find that these tasks do not ‘fall within the bundle of tasks that make up the self-care activity as it operates within the legislative scheme.’[129] For completeness, I do acknowledge that Ms Geiger stated she completes grocery shopping online and the food is usually delivered up the stairs to her home.[130]
[128] Oral evidence of Ms Geiger and her closing submissions at [25].
[129] Burrows at [144].
[130] Oral evidence of Ms Geiger.
I accept that Ms Geiger may adapt tasks in the area of self-care by undertaking tasks in a way that suits her individual needs and circumstances. I note that Ms Geiger has lived alone since July 2025, I accept that some self-care tasks are difficult for Ms Geiger to complete, however she does not usually require assistance from other people to perform these tasks.
Based on the evidence I am not satisfied that Ms Geiger has a substantially reduced functional capacity in the domain of self-care.
I give more weight to Ms Geiger’s evidence around her functional capacity where it differs from the filed evidence. In Madelaine regarding self-care, it was noted it ‘imports the idea that there are significant gaps in one’s capacity to maintain personal health, safety and well-being.’[131]
[131] Madelaine at [121].
I find that the evidence indicates despite her fatigue and back pain and stiffness, Ms Geiger is able to undertake her self-care activities, attend full-time work, and care for her health by attending Weight-Watchers and her physiotherapist on Saturday mornings. The evidence indicates there are no significant gaps in Ms Geiger’s functional capacity to maintain her personal health, safety and wellbeing.
When considering the totality of what Ms Geiger can and cannot do, and the probative evidence available to me, I do not consider that Ms Geiger’s impairments result in a substantial degree of reduction in her functional capacity in the life activity area of self-care as contemplated by section 24(1)(c)(v) of the NDIS Act.
Self-management: s 24(1)(c)(vi) of the NDIS Act
I am not satisfied that rule 5.8(a) applies to Ms Geiger because there was limited probative evidence that Ms Geiger is unable to participate effectively or completely in self-management, 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.
Under rule 5.8(b) I am not satisfied on the evidence that Ms Geiger usually requires assistance from another person in self-management to participate in life activities.
I am not satisfied that rule 5.8(c) applies to Ms Geiger. I accept Ms Bassett’s report[132], and Ms Geiger’s own evidence regarding her current functional capacity and this indicates that rule 5.8(c) is not relevant in Ms Geiger’s circumstances.
[132] R9.
As noted at [133] assistive technology is not defined. On this basis, assistive technology could include equipment such as Ms Geiger’s use of ‘mobile phone apps’ to assist Ms Geiger to do things she normally cannot do in the area of self-management. I note that Ms Geiger’s own evidence was that she ‘she uses an app on her phone to help her ‘remember things’ or to ‘track her steps during her walking breaks at work.’
As cited earlier in Rooney, the Tribunal considered the interpretation of ‘commonly used items.[133]
[133] Rooney and National Disability Insurance Agency [2021] AATA 3523 (‘Rooney’) at [27].
I consider that the equipment used by Ms Geiger for her self-management could be considered commonly used items as ‘mobile phone apps’ can be commercially purchased, for a relatively inexpensive amount without the need for customisation.
I acknowledge Ms Geiger may make notes and diarise events and ask her supervisor to remember things for her at work.’ Ms Geiger also uses a Webster pack to remember to take her medication.[134] I do not consider these techniques amount to the use of assistive technology as defined in the Agency’s operational policy.
[134] Oral evidence of Ms Geiger.
I am not satisfied on the evidence that Ms Geiger usually requires assistance in the form of physical assistance, guidance, supervision or prompting to manage her affairs. I find that Rule 5.8 is not applicable in Ms Geiger’s circumstances.
The Operational guidelines describe this is ‘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.’[135]
[135] Our guidelines, Applying to the NDIS, 14 October 2024, page 9.
I concur with SM French’s observations in Burrows that ‘the bundle of tasks within the self-management activity are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem solving and financial management.’[136]
[136] Burrows at [149].
I acknowledge Ms Geiger may undertake her self-management tasks in a slower or modified manner due to her back pain and anxiety and fatigue. I am satisfied on the evidence that Ms Geiger is independently able to use a:
·‘Mobile phone app’ to set reminders to do things;
·‘New mobile phone app to track [her] steps;’ and
·Webster pack to remind her to take her medication.
On Ms Geiger’s own evidence, she is independent in the following activities in that she:[137]
·Manages her own bank account;
·Asked her sister to set up ‘automatic bill payments so she doesn’t fall into debt’;
·Uses her mobile telephone to make online purchases;
·Organises her own medical and therapy appointments;
·Takes her medication, albeit Ms Geiger reported her mother at times ‘picks up her Webster pack for her.’
[137] Oral evidence of Ms Geiger.
I accept the Agency submissions that the ‘weight of evidence is that Ms Geiger has the cognitive capacity to organise and manage her life, to plan and make decisions and take responsibility for herself’.[138]
[138] Agency closing submissions.
Ms Bassett reported that Ms Geiger can independently make personal decisions, attend appointments and manage her affairs, albeit she experiences difficulties with concentration, pain and fatigue[139] and she requires ‘an intermittent level of assistance for her impairments in the domain of self-management.’[140]
[139] R9, p. 37.
[140] R9, p. 23.
I accept that Ms Geiger often relies on notes to remember things. However, overall, Ms Geiger demonstrated a sound understanding of her impairments and the requirement to comply with her recommended treatment.[141] I find that despite her impairments Ms Geiger does not experience longitudinally a substantially reduced functional capacity in relation to her planning, decision making, or problem solving.
[141] Dr Ward noted that Ms Geiger attends and adheres to her recommended treatment.
I accept that Ms Geiger lives with permanent physical and psychosocial impairments and that those impairments reduce her functional capacity to undertake certain life activities but not to the ‘substantial’ level required in subsection 24(1)(c) of the NDIS Act.
Overall, I am satisfied that Ms Geiger’s impairments do not result in a substantially reduced functional capacity to undertake one or more of the activities in section 24(1)(c) of the NDIS Act. The disability requirements are not met. It is not necessary to address the remaining criteria pursuant to section 24(1)(d) and (e) of the NDIS Act.
Section 25 of the NDIS Act the early intervention requirement
Section 25 of the NDIS Act is set out at [16].
Ms Geiger stated she meets the early intervention requirements. However, it was unclear what evidence Ms Geiger relied on. Dr Robertson’s evidence was that ‘early intervention supports are not likely to reduce the applicant’s future support needs.’[142]
[142] T6, p. 30.
I find that Ms Geiger’s access request only challenges the internal review decision regarding satisfying the section 24 of the NDIS Act disability requirement for access to the scheme.
On the evidence I am not satisfied the early intervention requirements are met. Ms Geiger’s impairments are long-standing. There was limited evidence provided regarding any available early intervention support that may be likely to produce any of the benefits to Ms Geiger that are specified in section 25(1)(b) or(c) of the NDIS Act or Part 6 of the access rules.
Ms Geiger does not satisfy the disability requirements.[143] Therefore, as the early intervention requirements pursuant to section 25 of the NDIS Act are also not satisfied, Ms Geiger does not meet the access criteria in section 21 of the NDIS Act.
[143] Section 24 of the NDIS Act.
Dates of hearing:
21 and 22 July 2025
Applicant:
Ms Nickie Clayton
Solicitors for the Respondent:
Spark Helmore Lawyers
Counsel for the Respondent:
Mr Benjamin Wilson
DECISION
The Tribunal affirms the reviewable decision pursuant to section 105(a) of the ART Act.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for the decision herein of General Member S Smith.
….……[SGD]……….
Associate
29 August 2025
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for the decision herein of General Member S Smith.
….……[SGD]……….
Associate
24 September 2025
Date of hearing: 5 – 6 August 2025 Representative for the Applicant:
Self-represented Solicitors for the Respondent:
Counsel for the Respondent:
Moray & Agnew Lawyers
Emma Fitzgerald
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