Grac and National Disability Insurance Agency (NDIS)
[2025] ARTA 2054
•3 October 2025
Grac and National Disability Insurance Agency (NDIS) [2025] ARTA 2054 (3 October 2025)
Applicant/s: Jerry Grac
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/8443
Tribunal:Senior Member S Webb
Place:Canberra
Date:3 October 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides Mr Grac satisfies the ‘access criteria’ for the purposes of s 20(1)(a) of the National Disability Insurance Scheme Act 2013.
Statement made on 03 October 2025 at 2:52pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – application for access – access criteria – disability requirements – disability and psychosocial disability attributable to impairments – nature of impairments – no known remedial treatment – impairment likely permanent – meaning of ‘substantially reduced functional capacity’ – functional capacity substantially reduced in communication, social interaction, learning and self-management – capacity for social and economic participation affected – likely to require support under NDIS for life – decision set aside and substituted
Legislation
National Disability Insurance Scheme Act 2013, ss 3, 4, 9, 10, 17A, 20, 21, 24, 25, 29, 34
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
DQKZ and National Disability Insurance Agency [2024] AATA 2276
Foster and National Disability Insurance Agency [2025] ARTA 718
HPSC and National Disability Insurance Agency [2021] AATA 727
JLZT and National Disability Insurance Agency [2022] AATA 541
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Jones [2025] FCA 877
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35Sutherland and National Disability Insurance Agency [2024] AATA 411
Secondary Materials
World Health Organisation International Classification of Functioning Disability and Health (2011), Geneva
Applying to the NDIS’ operational guidelines (Access Guidelines)
Statement of Reasons
Jerry Grac made a request to become a participant in the National Disability Insurance Scheme (NDIS). A delegate of the CEO of the National Disability Insurance Agency (NDIA) decided to refuse the request. This decision was confirmed on internal review. Mr Grac applied for review of this decision by the Administrative Appeals Tribunal (AAT).
The application was lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and the Administrative Review Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction and power to conduct this review.
Mr Grac’s access request is to be decided under the National Disability Insurance Scheme Act 2013 (NDIS Act). In the course of the Tribunal proceedings, the ‘access criteria’ in Part 1, Chapter 3 of the NDIS Act were amended by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Act). The amendments had effect on 3 October 2024. By operation of items 125 and 126 in Part 3, Schedule 1 to the Back on Track Act, the amendments do not apply to Mr Grac unless he becomes a participant for the purposes of item 126(1)(b), whereupon the amended terms of s 24, s 25 and s 27 are applicable.
Facts
Mr Grac is 39 years old.
He has a complex psychosocial history.
On the evidence of his treating psychologist, John Lord, Mr Grac ‘has a history that includes early entry into out of home care, learning disorder, social isolation drug involvement and a family history of mental health issues’.[1] I understand he attended boarding schools for children with special needs until year 9 but he departed when threatened with expulsion. It is likely he experienced childhood trauma. At the age of 17, he was granted disability support pension. He was placed under guardianship when he was 19. He successfully challenged this, and the order was lifted. He has little history of employment. I understand he has not been formally employed since 2013. He has experienced periods of homelessness and imprisonment.
[1] Exhibit 1, 231.
Mr Grac has been reported to have ‘severe and persistent mental illness and complex needs’.[2]
[2] Exhibit 1, 39.
On 25 October 2022, Dr Cara Wong, a clinical neuropsychologist, produced a report following a neuropsychological assessment of Mr Grac. Dr Wong’s evidence was not contested and I accept it in full. Dr Wong reported:
[Mr Grac] has a complex history including schizoaffective psychosis, bipolar disorder, post-traumatic stress disorder (PTSD), attention deficit hyperactivity disorder (ADHD), learning disability, borderline intellectual functioning, and substance abuse disorder.[3]
[Mr Grac] has experienced ongoing challenges with his cognition, day-to-day functioning, mental and physical health. He reported difficulties with attention, memory and emotion regulation. Specifically, he described getting easily confused, difficulty focusing and completing tasks, and that he can forget information if he has not written it down. He has trouble controlling his emotions and can become easily aggressive and agitated. [Mr Grac] is socially isolated reporting that he has developed trust issues with others. [Mr Grac] has difficulty access supports for his mental health and feels his difficulties have become worse over time.[4]
[Mr Grac’s] overall intellectual abilities on current testing placed him in the Low-Average range… significant deficits were apparent in his ability to learn and recall lengthy verbal information that was presented only once, basic word reading skills, and the majority of areas of executive function including switching, cognitive flexibility, response inhibition, planning and organisation.
While [Mr Grac] does not have an intellectual disability, he does have significant executive function deficits indicating frontal lobe dysfunction. This profile is consistent with his complex history of chronic psychiatric disorders (including anxiety, bipolar, schizoaffective disorder, PTSD and ADHD), and substance abuse (including ice and cannabis). However, it may also reflect the impact of his multiple head traumas and seizures. Neurological review and MRI scan may assist in identifying whether there may be an organic brain injury. In addition [Mr Grac] has specific learning disabilities resulting in his low level of literacy, numeracy and educational attainment. His chronic psychosocial and learning disabilities in [sic] lead to substantially reduced functional capacity to undertake everyday activities in almost all domains.
… his chronic disabilities significantly impact on his everyday functioning (global adaptive functioning composite rated in the 3rd percentile).[5]
[Original emphasis].
[3] Exhibit 1, 42.
[4] Ibid, 43.
[5] Ibid, 47.
On 15 November 2022, Mr Grac lodged an Access Request Form.[6]
[6] Ibid, T18.
On 10 May 2023, the NDIA issued a decision to refuse Mr Grac’s access request.[7]
[7] Ibid, 61-65.
On 14 June 2023, Dr Luke Hogan, Mr Grac’s treating general practitioner, reported Mr Grac ‘has severe and permanent cognitive and mental health conditions’.[8]
[8] Ibid, 66; 52 refers.
On 23 June 2023, Dr Anthony Lembke, another treating general practitioner, recited Mr Grac’s diagnosed mental illnesses and stated:
All available treatment have been tried with [Mr Grac] and he is currently functioning at his best. No further treatment options are available.[9]
[9] Ibid, 71.
On 19 August 2023, the NDIA issued a further decision to refuse Mr Grac’s access request.[10]
[10] Ibid, 72-76.
On 21 August 2023, Mr Grac requested review of this decision.
Mr Lord reported Mr Grac completed an adaptive functioning assessment (ABAS-3) in September 2023 ‘and the results were very consistent with Dr Wong’s findings’.[11] Mr Lord reported ‘Mr Grac’s cognitive impairment is a permanent condition’.[12]
[11] Ibid, 222-223.
[12] Ibid, 234.
On 19 October 2023, an NDIA reviewer decided to confirm the 19 August 2023 decision.[13]
[13] Ibid, 7-30.
On 6 September 2024, Catherine Cummings, an occupational therapist, produced a Functional Capacity Assessment report for the NDIA. The assessment was conducted in Mr Grac’s home. Ms Cummings made the following summary recommendations[14]:
[14] Ibid, 260.
OCCUPATIONAL THERAPY RECOMMENDATIONS
See Section 7 for details of various community-based supports and services that may be available to meet the applicant’s needs
Recommendations for each domain have been considered in the context of maximising the applicant’s safety and independence. The emphasis of supports is to maximise applicant task participation in activities of daily living. Support worker assistance has only been recommended in instances where independence is not likely to be achieved due to the effects of the applicant’s medical conditions. DOMAIN
Assistance required?
Recommendations
Communication
See Section 5.1.1 for details
NO
Not applicable. Mr Grac is independent in the domain of communication and no formal support or interventions are required.
Social interaction
See Section 5.1.2 for details
YES
In order to further improve and maximise Mr Grac’s functional capacity in the domain of social interaction, I support:
· Psychotherapy to provide intervention for Mr Grac to better manage interactions with others.
Learning
See Section 5.1.3 for details
NO
Not applicable. Mr Grac is independent in the domain of learning for day-to- day responsibilities and no formal support or interventions are required.
Mobility
See Section 5.1.4 for details
NO
Not applicable. Mr Grac is independent in the domain of mobility and no formal support or interventions are required.
Self-care
See Section 5.1.5 for details
NO
Not applicable. Mr Grac is independent in the domain of self-care and no formal support or interventions are required.
Self-management
See Section 5.1.6 for details
YES
In order to further improve and maximise Mr Grac’s functional capacity in the domain of self-management, I support:
· Continued assistance with problem solving when complex circumstances arise
· Occupational therapy intervention for life skills training.
THERAPY AND TREATMENT RECOMMENDATIONS
Other medical and therapy intervention
YES
The medical evidence indicates the applicant may benefit from access to the following medical treatment and therapeutic interventions:
· psychology
· social work
· neurologist
· psychiatrist
I defer to medical opinion to confirm recommended treatment for the applicant and the impact such treatment may have on their functional capacity in the future.
On 2 April 2025, an MRI scan of Mr Grac’s head was reported to reveal “Scattered non-specific small vessel deep white matter hyperintensities … Otherwise normal study”.[15]
[15] Ibid, 236.
On 11 June 2025, Dr Hogan produced a report in which he discussed Mr Grac’s treatments:
13. He has not seen a neurologist which is very unlikely [sic] to change the diagnosis and would not change the treatment possibilities
14. I do not believe he has seen a psychiatrist recently. I believe he may have in the past but we have not been able to assess any of that infermation [sic]. I have previous referreed to Dr Ian Hayes however [sic] because [sic] of [Mr Grac’s] severe impairments as above he did not have the ability or the social support to organise and engage in the appointment.
15. I am not aware of any other treatments which would be likely to cure of [sic] substantially relieve [Mr Grac’s] impairments – I would class them as severe and permanent.[16]
[16] Ibid, 237-238.
On 14 July 2025, Dr Wong reported:
4. I do not know whether [Mr Grac] is currently compliant with his medication regime as I have not seen him since 2022. I do believe though, that his severe executive function deficits would likely impact on his ability to maintain a good routine and ability to comply with a consistent medication regime…
5. … If he were to engage in recommended treatments it would not ‘cure or substantially relieve’ his impairments. They would help to manage symptoms and hopefully improve his quality of life and social/community engagement.[17]
[17] Ibid, 239.
Evidence of Mr Grac’s previous engagement with Open Minds, ‘a community managed organisation that provide short term psychosocial, community based supports that assist people reach their recovery goals’[18], was provided by Lily Van Houdt, an Open Minds Team Leader. Ms Van Houdt reported that Mr Grac engaged with Open Minds from May 2020 to January 2021, and from March 2023 to September 2024. In the first period, Mr Grac was provided with supports:
1. Linking in with community transport (HART).
2. Attending social groups facilitated through Community Mental Health.
3. Transportation to appointments re: physical health, such as GP.[19]
[18] Exhibit 2.
[19] Ibid.
In the second period, Mr Grac re-engaged ‘due to mould/property care concerns at his residence’. He was assisted to:
1. Access Link2Home
2. Submit a transfer with NSW Homes
3. Escalate property concerns with NSW Homes via NCAT, and submit a transfer request with NSW Homes. During this period, there were noted behavioural concerns directed towards NSW Homes staff, who requested our involvement to facilitate contact.
4. In collaboration with Steve Smith (Winsome) we supported [Mr Grac] in the context of applying and preparing for an NCAT hearing.
5. General community support was also provided (e.g. shopping, medication pick up at chemist, etc).
Issues
In order for Mr Grac to be accepted as a participant in the NDIS, each of the access criteria set out in s 21 of the NDIS Act must be satisfied.
There is no dispute, correctly, he meets the age and residence criteria.
The key issue is whether the ‘disability requirements’ in s 24 or the ‘early intervention requirements’ in s 25 are met.
Disability requirements
The ‘disability requirements’ are in the following applicable terms:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
There is no dispute Mr Grac meets the threshold in s 24(1)(a).
Impairment
The basis on which this criterion is met needs to be clearly understood. The separate conceptions of ‘disability’ attributable to ‘impairment’ should not be confused or conflated with diagnosed medical conditions or psychiatric disorders. The focus of the enquiry at this stage is the impairment or impairments to which Mr Grac’s disability or the subset of ‘psychosocial disability’ is attributable.
The World Health Organisation International Classification of Functioning Disability and Health (ICF)[20] provides a useful approach to the standard classification and description of body function or body structure impairment. This has been applied in recent cases[21] and I accept the Agency’s submission it is a relevant extrinsic aid in this case. Nevertheless, some caution is required. The ICF should not be approached as anything more than an aid to assist standard classification of impairments otherwise established by relevant material of probative value. It should not be approached as a resource in which to search for impairments, or an authority setting out criteria on which impairments might be determined.
[20] (2011), Geneva.
[21] DQKZ and National Disability Insurance Agency [2024] AATA 2276, [144]–[149].
The NDIA asserts Mr Grac has cognitive impairments, particularly relating to attention, memory, emotion regulation and higher level executive function.
Considering the evidence of Dr Wong, Mr Lord, Dr Horan, Dr Lembke and Mr Grac, it is probable Mr Grac has impairment of:
(a)intellectual function, particularly in visual and special intellectual abilities, visual abstract reasoning and block construction skills;[22]
(b)attention and working memory, particularly attention span and his Working Memory Index (WAIS-IV) was in the 9th percentile;[23]
(c)speed of information processing, including his ability to quickly match symbols and digit-symbol coding;[24]
(d)memory and learning, including his ability to retain words and visual designs (Dr Wong reported his structured verbal memory was in the 1st percentile);[25]
(e)executive function, particularly visual and verbal cognitive flexibility, inhibition switching, planning and organisation (Dr Wong reported his executive function was in the extremely low range (<1st percentile));[26]
(f)basic reading skills (Dr Wong reported these were in the extremely low range consistent with a specific learning disorder);[27]
(g)adaptive function, particularly in the conceptual domain (communication, functional academics and self-direction), the social domain (respect for persons in authority, good judgment in selecting friends, refraining from doing embarrassing things, expressing emotions, difficulty waiting his turn or following rules) and the practical domain (community use, home living, health, safety and self-care) (Dr Wong reported Mr Grac’s global adaptive composite was in the low range (3rd percentile)).[28]
[22] Exhibit 1, 44.
[23] Ibid.
[24] Ibid, 45.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid, 46.
Adopting the relevant ICF classifications, I am satisfied Mr Grac has chronic psychosocial disability and learning disability attributable to impairment of intellectual function, attention function, memory function, emotion function, high level cognitive or executive function (indicating frontal lobe dysfunction) and mental functions of language in respect of reception of written language.
Permanent impairment
The next consideration is if one or more of the impairments is or is likely to be ‘permanent’.
The word ‘permanent’ is not given any special meaning. For the purposes of s 24(1)(b) of the NDIS Act, it has been taken to mean ‘enduring’[29] and, ‘while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured’[30]. The adjectival focus is squarely on the enduring quality of the impairment or impairments experienced by the person, not the cause of the impairment or the diagnosis of a related medical condition.[31]
[29] National Disability Insurance Agency v Davis [2022] FCA 1002, [85].
[30] Ibid, [136]
[31] Ibid, [86].
The National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Participant Rules) are applicable. They relevantly state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The word ‘remedy’ in s 5.4 of the Participant Rules has been taken to mean ‘something approaching a removal or cure of the impairment’.[32]
[32] Davis, [136].
The NDIA contends that Mr Grac has not engaged in all relevant treatment, including recent review by a psychiatrist and a review by a neurologist. Psychiatric review, the NDIA argues, would enable adjustment of Mr Grac’s medications and neurological review may assist in identifying any organic brain injury, as recommended by Dr Wong. In the NDIA’s submission, there are too many unknowns for the Tribunal to be positively satisfied Mr Grac’s impairments are permanent.
The evidence of Dr Wong, Dr Horan, Dr Lembke and Mr Lord points to the opposite conclusion. On their evidence there are no known evidence-based treatments which are likely to remedy Mr Grac’s impairments which they each consider are permanent.
Considering these matters, I am positively satisfied there are no known treatments which are likely to remedy Mr Grac’s impairments of intellectual function, attention function, memory function, emotion function, high level cognitive or executive function (indicating frontal lobe dysfunction) and mental functions of language in respect of reception of written language. In all likelihood Mr Grac has experienced these impairments from childhood and, on the evidence of Dr Wong, Dr Horan, Dr Lembke and Mr Lord I am positively satisfied the impairments are likely to endure and they are ‘permanent’ for the purposes of s 24(1)(b) of the NDIS Act.
Substantially reduced functional capacity
The next step is to determine if the permanent impairment or impairments result in a substantially reduced functional capacity to undertake one or more of the six activities listed in s 24(1)(c) of the NDIS Act, namely communication, social interaction, learning, mobility, self-care and self-management.
In Mulligan v National Disability Insurance Agency[33] (Mulligan), Mortimer J (as she then was) said:
No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacityin relation to one activity.[34]
The statutory concept of “substantially reduced functional capacity” requires no assessment by the decision-maker of how common the reduction in functional capacity might be, or whether the way in which the reduced functional capacity manifests itself is something that can be seen in a certain number of people.[35]
[33] [2015] FCA 544.
[34] Ibid, [56].
[35] Ibid, [75].
Each permanent impairment must be considered separately and in combination with any other permanent impairment of the person when determining if the impairment or impairments result in the person having a substantially reduced functional capacity to undertake one or more of the specified activities: communication, social interaction, learning, mobility, self-care, self-management. This is not a comparative exercise. It is a practical, functional assessment of what the person can and cannot do. The focus of the enquiry is squarely on functional capacity to undertake the activity. This cannot be answered by reference to a single task within the activity.[36]
[36] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
Section 5.8 of the Participant Rules is applicable:
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.
While the contents and the deeming effect of s 5.8 of the Rules must be applied, these do not exhaustively define the concept of a ‘substantially reduced functional capacity’ for the purposes of s 24(1)(c) of the NDIS Act.[37]
[37] Ibid, [77].
The NDIA issued ‘Applying to the NDIS’ operational guidelines (Access Guidelines) which describe the six activity domains and the applicable threshold:
Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
Learning – how you learn, understand and remember new things, and practise and use new skills.
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
- a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
- assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.[38]
[38] Exhibit 1, 141-142.
These Guidelines have the status of policy, an assessment tool which lacks legislative force.
Prior to hearing, Mr Grac made a number of concessions in respect of communication, mobility and self-management which he reconsidered during the hearing. Mr Grac was ably assisted by Steve Smith, a project manager at ‘The Winsome’ (Lismore Soup Kitchen). Mr Smith explained he and Mr Grac do not have a detailed understanding of the access criteria and the relevant thresholds, particularly the threshold of a substantially reduced functional capacity in the context of s 24(1)(c) of the Act and the related Participant Rules. Accepting this, the concessions made cannot safely be relied upon and the parties were heard on that basis.
The NDIA draws support from Madelaine and National Disability Insurance Agency[39] (Madelaine) and HPSC and National Disability Insurance Agency[40] (HPSC) for the proposition the communication referred to is ‘of a fairly basic kind’ and if Mr Grac is able to make himself understood and to understand others the substantially reduced functional capacity threshold is unlikely to be met.[41] Madelaine and HPSC are AAT decisions which turned on the particular facts in each case, and they are not binding. The operational guidelines referred to in each decision are in different terms to those in effect in this case. Additionally, the decisions are not helpful in interpreting the legislation. The interpretation and adoption of policy in those cases does not assist interpretation of the ‘substantially reduced functional capacity’ threshold and the proposition the threshold is unlikely to be met if the person can engage in communication of ‘a fairly basic kind’[42].
[39] [2020] AATA 4025, [79].
[40] [2021] AATA 727, [50].
[41] Respondent’s Statement of Facts, Issues and Contentions, 21 August 2025, [27]-[28].
[42] Madelaine, [79].
The focus of the enquiry is squarely on the person’s functional capacity to undertake communication, not the content of their communication. The Access Guidelines refer to how the person communicates as well as how well the person understands and is understood. These considerations go to the person’s functional capacity to communicate: to convey information and to be understood; to receive and to understand information imparted; to use and comprehend language whether in spoken, written or gestural form; to interact with another person and explain oneself.
In an ‘Evidence of psychosocial disability form’, Dr Hogan stated Mr Grac has difficulty in all the activity domains.[43] In response to specific questions, Dr Hogan reported Mr Grac “is unable to EFFECTIVELY communicate, interact socially, learn new skills, self care or self manage” and he requires “significant support to do so by requiring assistance from another person to perform those things”.[44] Dr Hogan’s evidence was not contested.
[43] Mulligan, [54].
[44] Ibid, [238].
Dr Lembke stated Mr Grac has extreme difficulties with social interactions, self-management, executive functions and rational exercise of emotion.[45] Dr Lembke’s evidence was not contested.
[45] Ibid, [69].
Mr Lord explained Mr Grac has reduced functional capacity to undertake everyday activities in almost all domains and he requires “social mentoring and support”.[46]
[46] Ibid, [234].
Dr Wong reported Mr Grac has “severe functional impairments”[47]. The doctor reported:
16. [Mr Grac’s] identified impairments in executive function, memory and literacy (Extremely Low range, <1st percentile), and lower levels of language skills (Low-Average range, 10th percentile) would lead to the following functional impairments:
a. Communication – difficulties with social aspects of communication (e.g. talking too much, not listening closely to others), difficulties with reading and written communication, understanding and explaining complex/abstract concepts
b. Social interaction – [Mr Grac] is very socially isolated and has difficulties making new friends, maintaining friendships, social problem-solving and overcoming social breakdowns.
c. Learning – As a result of [Mr Grac’s] ADHD, PTSD and learning disorders, has difficulties focusing attention, inhibiting irrelevant distractions, holding multiple-step instructions in mind, taking in new information, shifting attention between activities, and planning and organising his daily activities. Due to his family dynamics and learning difficulties, [Mr Grac] left school in Year 9 so has low levels of education. He has not been able to hold down any formal employment.
d. Self-care – [Mr Grac] has very poor self-care skills and does not bathe regularly, brush his teeth, exercise or eat nutritious foods.
e. Self-management – as a result of his diagnoses, [Mr Grac] has significant difficulties with self-management including time management, planning/completing everyday activities, and controlling and regulating his emotions. He requires assistance from other persons including occupational therapist and support workers to help develop and implement organisational skills, psychological support for emotion regulation, and assistance with home-living activities.[48]
[47] Ibid, [240].
[48] Ibid, 241.
Communication
Dr Wong’s categorisation of Mr Grac’s communication difficulties as ‘moderate’ is of little assistance when considering if his permanent impairments result in a substantial reduction of his functional capacity to engage in communication activities. On close examination of the evidence, Mr Grac has particular difficulties with social aspects of communication, non-verbal communication, including written communication, and understanding or explaining complex or abstract concepts. This was amply demonstrated by the assistance Mr Grac required during the hearing.
As Ms Cummings reported, Mr Grac is able to communicate. Subject to the difficulties Dr Wong identified this is correct: he can speak and explain himself, and people can understand what he says.
Ms Cummings reported Mr Grac is ‘IND’ in communication.[49] ‘IND’ is reported to mean ‘The Applicant is able to complete this task without physical assistance or assistive technology’.[50] The applicable threshold is whether there is a substantially reduced functional capacity to undertake the activity of communication, applying the thresholds in s 5.8 of the Participant Rules.
[49] Ibid, 266.
[50] Exhibit 1, 266.
Ms Cummings is an experienced occupational therapist, but on the issue of functional capacity in the context of Mr Grac’s psychosocial disability I prefer and give more weight to the neuropsychological evidence of Dr Wong, and the evidence of Mr Grac’s treating health professionals: Dr Hogan, Dr Lembke and Mr Lord.
On their evidence, I am satisfied Mr Grac usually requires assistance from another person, including guidance, supervision or prompting, to undertake or participate in more complex communication activities, including communication using non-verbal, written language and communication in social or community settings.
The assistance Mr Grac requires in a social context relates to the manner or modulation of his communication, for example not talking too much, waiting for others to finish and listening. The issue is not performance of these activities. Mr Grac is able to participate in communication of this social kind to a degree. His functional capacity to do so, however, is reduced to the extent he requires guidance and prompting in some situations.
I am satisfied Mr Grac has reduced functional capacity to regulate emotion, to understand verbal information without repetition, and to express or understand communication involving complex or abstract concepts, including social norms and interpersonal limits or cues. Repetition of verbal information is not high-level assistance of the kind referred to in the Access Guidelines. Mr Grac has more substantial difficulties with non-verbal written communication and complex or abstract communication, and communicating where he has difficulty regulating his emotions. He usually requires assistance to undertake and comprehend these kinds of communication.
Viewed through the lens of communication activities generally, Mr Grac’s reduced functional capacity means he usually requires assistance from another person to undertake or participate in more complex and non-verbal (including written) communication. Even though this is one aspect of his functional capacity to undertake communication, considering his functional capacity to undertake communication as a whole, I am satisfied it places him within the terms of s 5.8(b) of the Participant Rules.
That being so, the deeming effect of s 5.8 of the Participant Rules means Mr Grac has a substantially reduced functional capacity to undertake communication.
Mr Grac’s substantially reduced functional capacity in the domain of communication is the result of permanent cognitive impairments in respect of intellectual function, attention function, memory function, emotion function, executive function and mental functions of language in respect of reception of written language.
From this it follows, Mr Grac satisfies the threshold in s 24(1)(c)(i) of the NDIS Act.
This is not the only basis on which Mr Grac meets the threshold in s 24(1)(c) of the Act.
As will appear, I am satisfied, as a result of his permanent impairments, separately and in combination, Mr Grac has reduced functional capacity to undertake activities in all domains other than mobility, and his reduced functional capacity in respect of social isolation, learning and self-management is substantial.
Social interaction
Mr Grac has demonstrated functional capacity to access and interact with community services and to interact with people to a degree, for example in addressing housing issues. Performatively, Mr Grac is socially isolated, he lacks trust in strangers, his efforts to engage community services in solving practical problems were largely unsuccessful, he has been banned from attending a number of businesses and premises following dysregulated outbursts.
With regard to social interaction, on Dr Wong’s evidence, I am satisfied Mr Grac experiences difficulty maintaining friends, understanding appropriate social boundaries, social problem solving, dealing with authority and overcoming communication breakdowns as a result of his permanent intellectual and cognitive impairments. This is supported by evidence Mr Grac has difficulty coping and managing his emotions in social and organisational settings, resulting in his banning from businesses and premises in the past. In these activities, he requires assistance from another person to effectively participate and to manage his emotions.
There is an important distinction between Mr Grac’s functional capacity to undertake social interaction activities and his performance of such activities. As was said in Foster and National Disability Insurance Agency[51], only the former and not the latter is relevant for the purposes of s 24(1)(c)(ii). To which I would add the inquiry is squarely focused on the person’s substantially reduced functional capacity to undertake the activity of social interaction which results from a permanent impairment or impairments. Viewed through this lens, impediments to the person’s performance of the activity may well illuminate or be incidental to the person’s reduced functional capacity to undertake the activity.
[51] [2025] ARTA 718, [82].
With the exception of ‘Behaving within limits accepted by others’ and ‘Coping with feelings/emotions in a social context’, Ms Cummings reported Mr Grac is ‘IND’ in the domain of social interaction. I will not repeat what I have said about this, and the same finding of relative weight is made.
Ms Cummings explained that Mr Grac would benefit from support to acquire coping strategies and techniques to increase independence in relation to behaving within limits accepted by others and coping with emotions in a social context. On her evidence, psychotherapy intervention may assist Mr Grac to manage outbursts and interactions with others. This evidence aligns with relevant elements of Dr Wong’s assessment.
Considering these matters, I am satisfied Mr Grac’s functional capacity deficit relating to social interaction is in respect of understanding, communication, problem-solving, planning and emotion regulation attributable to his permanent intellectual and cognitive impairments. With these activities, Mr Grac requires assistance from another person.
The question whether this is a ‘substantially reduced functional capacity’ is more difficult. Once again, Dr Wong’s report that Mr Grac has moderate difficulties with social interaction does not assist. Her evidence that Mr Grac has reduced capacity to understand and interact with others at peer and authority relationship levels and he requires ‘structured intervention’ to engage in appropriate social interaction is helpful. This is consistent with relevant parts of Ms Cummings evidence to which I have referred. It supports a conclusion that the reduction is of considerable importance in Mr Grac’s functional capacity to undertake social interaction, with which he requires assistance from another person. It also supports a conclusion s 5.8(b) of the Participant Rules is met. If that is correct, and I am satisfied it is, Mr Grac has a substantially reduced functional capacity for social interaction.
As Mr Grac’s substantially reduced functional capacity to undertake the activity of social interaction results from permanent impairment of his intellectual, cognitive and language functions, s 24(1)(c)(ii) of the NDIS Act is met.
Learning
With regard to s 24(1)(c)(iii) and the domain of learning, Dr Wong’s evidence is very clear. Mr Grac has difficulty with executive function, including inhibition, switching, flexibility, planning and organisation, initiating and completing tasks, making well thought out decisions, planning and organising activities, regulating emotions and behaviour, as well as learning and recalling new information, particularly information presented verbally without repetition. On her evidence, Mr Grac has ‘specific learning disabilities’.[52]
[52] Exhibit 1, 220.
Dr Wong reported the results of tests she applied, including that Mr Grac’s impairments of executive function, memory and literacy are in the extremely low range (<1st percentile) and his language skills were in the low to average range (10th percentile).[53]
[53] Ibid, 217-219.
Ms Cummings administered a different test and reported Mr Grac scored 24/30 (where scores under 26 indicate cognitive impairment) with deficits in short term memory (3/5) and visuospatial ability (2/3).[54] In Ms Cummins’ opinion ‘Mr Grac is independent in the domain of learning for day-to-day responsibilities and no formal support or interventions are required’,[55] although the learning domain was rated as ‘MOD’, being defined to mean ‘Applicant can use a modified technique to complete task and maintain independence’[56].
[54] Ibid, 267.
[55] Ibid, 268.
[56] Ibid, 267.
It can be accepted that Mr Grac has some functional capacity to undertake learning. He was able to learn a new bus route in his area, for example. Performance of this task does not go to the question of substantially reduced functional capacity to undertake the activity of learning.
On the point of Mr Grac’s functional capacity in the context of his psychosocial and learning disability, weighing the relevant evidence, I prefer the evidence of neuropsychological evidence of Dr Wong, and the evidence of Mr Grac’s treating health practitioners, Dr Hogan, Dr Lembke and Mr Lord, to Ms Cummings evidence.
I am satisfied Mr Grac’s functional capacity to undertake learning activities is substantially reduced by his difficulty regulating emotion and controlling impulses, attention deficits, memory difficulties, organisation and planning difficulties, and communication and language difficulties. It is likely Mr Grac usually requires assistance from another person to undertake and participate in learning, as well as assistive technology, including items of common usage such as organisers, checklists, computers or watches with alarms.
Mr Grac’s substantially reduced functional capacity to undertake learning activities is the result of permanent impairment of his intellectual and cognitive functions, particularly in respect of executive function, memory and language. He meets the threshold in s 24(1)(c)(iv) of the NDIS Act.
Mobility
With regard to the mobility domain, Mr Grac gave evidence his mobility is reduced, he has difficulty walking up the hill near his house for example. This can be accepted, but the evidence does not satisfy me any reduction in his functional capacity in respect of mobility is attributable to his permanent impairments. If anything, by his own account, the reduction in mobility is the result of other health conditions, including arthritis.
Self-care
In the domain of self-care, Dr Wong reported Mr Grac has severe difficulties. This is supported by the evidence of Dr Hogan, Dr Lembke and Mr Lord.
Dr Wong discussed this domain and the domain of self-management together. This can readily be understood in the context of neuropsychological assessment the doctor undertook. It is clear enough the matters she discussed in reference to both domains apply equally to each domain. I will proceed on that basis.
On Dr Wong’s evidence, without significant support, Mr Grac is likely to experience ‘increasing dissociation between his cognitive capacity and the level of functioning necessary to successfully engage in life activities’.[57] As I comprehend her evidence, this arises from Mr Grac’s difficulties with conceptual understanding, adaptive functioning, self-direction, emotion and behaviour control, planning and decision making which stem from permanent impairment of his intellectual and cognitive functions, particularly in respect of executive function. These are indicative of a reduction in Mr Grac’s functional capacity to undertake self-care activities.
[57] Ibid, 223.
Dr Wong reported Mr Grac’s self-care skills are ‘very poor’: he does not bathe regularly, brush his teeth, exercise or eat nutritious foods,[58] and he requires ‘supports to help with activities of daily living and manage self-care/self-management tasks’[59]. This is reflected in the evidence of Dr Hogan and Dr Lembke, and it is consistent with Mr Lord’s evidence that Mr Grac’s self-care is assessed in the low range. On the evidence of Mr Lord, Mr Grac can undertake and participate in a low level of self-care without assistance but this is affected by issues of motivation, planning and organisation which lead to him requiring prompting, guidance and assistance from another person.
[58] Ibid, 241.
[59] Ibid, 240.
Ms Cummings reported Mr Grac is independent in self-care domains of toileting, bathing/showering, dressing, grooming, shopping and domestic activities.[60] She reported the meals and nutrition domain functional rating is ‘MOD’ – ‘Applicant can use a modified technique to complete task and maintain independence’ and stated:
Assessment and intervention from an OT with regards to cooking skills may be of benefit as reported in the documentation received, however, Mr Grac would have to consent to this involvement and see a need for it to be beneficial.
I opine that Mr Grac’s lack of engagement in meal preparation is due to self-management with regard to routine and structure and have therefore included intervention in section 5.1.6 below.[61]
[60] Ibid, 269-270.
[61] Ibid.
I am satisfied Mr Grac can undertake practical personal hygiene self-care, including managing self-catheterisation, bathing and grooming, although this is affected by the factors Dr Wong and Mr Lord identified. He can feed himself. He does not prepare meals or cook. He relies on pre-packaged frozen meals, foods of choice, such as iced coffee, and meals provided by support workers at The Winsome. Mr Grac has gained significant weight and his dietary choices raise questions about nutrition and secondary health effects.
Considering these matters, it is probable Mr Grac has reduced functional capacity to undertake the activity of self-care, particularly in relation to the functional deficits Dr Wong and Mr Lord identified: difficulties with conceptual understanding, adaptive functioning, self-direction, emotion and behaviour control, planning and decision making. In all likelihood, these are demonstrated in the diet and meal preparation issues Ms Cummings discussed and in deficits of motivation, planning and organisation which require prompting and guidance by another person.
There is no bright dividing line between a reduction and a substantial reduction in functional capacity. Where the person is able to undertake or participate in the activity to some extent, the thresholds set out in s 5.8(a) and (b) of the Participant Rules and in the Access Guidelines turn on the person usually requiring assistance from another person or assistive technology to effectively or completely participate in or undertake the activity.
I am not persuaded Mr Grac usually requires prompting, guidance or other assistance from another person to undertake the activity of self-care. It is probable he requires this sometimes or even a lot, but not ‘usually’. I am not satisfied Mr Grac requires assistive technology other than common usage items to effectively undertake self-care activity.
Consequently, I am not satisfied he has a substantially reduced functional capacity to undertake self-care for the purposes of s 24(1)(c)(v) of the NDIS Act.
Self-management
With regard to the domain of self-management, Dr Wong reported Mr Grac has significant difficulties with time-management, planning and completing everyday activities and controlling and regulating his emotions in relation to which he requires the assistant of another person.[62] In Dr Wong’s assessment:
These difficulties currently diminish his ability to independently function in home, social and learning environments.[63]
[62] Exhibit 1, 241.
[63] Ibid, 223.
This is consistent with Mr Lord’s evidence and Dr Hogan’s evidence Mr Grac does not have the self-management ability to organise and safely manage treatments. Dr Hogan reported:
Because of [Mr Grac’s] severe impairments listed above [including difficulties with executive function, learning, recalling new information, learning, self-care, self-management, social functioning and communication] he has been unable to engage in treatment which may be appropriate for other people who do not have those impairments. [Mr Grac] does not have the functional ability to organise or participate in those treatments of [sic] the organisational and self management skills to be able to appropriately organise and take medications safely.[64]
[64] Ibid, 237.
On Dr Wong’s evidence, it is probable Mr Grac has reduced functional capacity to undertake self-management involving conceptual understanding, adaptive functioning, self-direction, emotion and behaviour control, planning and decision making which stem from permanent impairment of his intellectual and cognitive functions, particularly in respect of executive function.
Ms Cummings reported Mr Grac’s self-management function was rated as ‘SUPP’, which is stated to mean ‘Applicant would benefit from support to acquire coping strategies and techniques to increase independence’.[65] She reported Mr Grac is able to manage his finances, medical appointments, methadone treatment and other day-to-day activities. She gave the following example:
[Mr Grac] called maintenance when there was a plumbing issue with his unit and put measures in place to stem the flow. When a plumber was not able to come out immediately Mr Grac reportedly became frustrated and required support to work out what the next step would be. Mr Grac stated he can get overwhelmed at time with circumstances that arises [sic] and will ask for help “once or twice a month”.[66]
[65] Ibid, 271.
[66] Ibid.
Ms Cummings reported:
Based on my observations, Mr Grac has the capacity for day-to-day planning, problem solving and making decision without assistance in routine circumstances. It appears that when novel or complex situations arise, he can become overwhelmed. In these circumstances he recognises the need for support and reaches out to known agencies for assistance. In my opinion, Mr Grac requires intermittent assistance in the domain of self-management in complex situations and when circumstances arise where he has to deal with government agencies or legal issues.[67]
[67] Ibid.
Considering these matters, I am satisfied Mr Grac requires assistance from another person to undertake or participate in novel or complex self-management activities involving adaptive functioning, self-direction, planning and organisation, problem-solving, decision making and emotion regulation. Ms Cummings’ evidence of the frequency and intermittency of Mr Grac’s requirement for assistance points to a functional capacity deficit which usually requires the assistance of another person. This is of considerable importance in the overall context of Mr Grac’s functional capacity to undertake the activity of self-management.
That being so, I am satisfied Mr Grac has substantially reduced functional capacity to undertake the activity of self-management.
I am also satisfied the substantially reduced functional capacity in respect of self-management is attributable to permanent impairment of Mr Grac’s intellectual function, attention function, memory function, emotion function, executive function (indicating frontal lobe dysfunction) and mental functions of language.
It follows that the threshold in s 24(1)(c)(vi) of the NDIS Act is met.
Social or economic participation
There is no dispute Mr Grac’s permanent impairments affect his capacity for social and economic participation. This is correct and s 24(1)(d) of the NDIS is met.
Lifetime support under the NDIS
The remaining criterion is set out in s 24(1)(e) of the NDIS Act. This requires determination whether Mr Grac is likely to require support under the NDIS for his lifetime.
Mr Grac asserts his impairments are permanent and he is likely to require supports under the NDIS for life. He relies on the evidence of Dr Wong, Dr Hogan, Dr Lembke and Mr Lord.
The NDIA asserts Mr Grac’s requirement for supports are likely to be met by other systems than the NDIS, particularly systems Ms Cummings discussed in her functional assessment report.
The NDIA informed me the question whether s 24(1)(e) of the NDIS Act requires consideration of alternative systems of support to the NDIS is controversial.
The Participant Rules do not address the point. The Access Guidelines provide the following relevant information:
You must be likely to need support under the NDIS for your whole life.
NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.
Even if your needs go up and down over time, or happen episodically, we may still consider it’s likely you’ll need lifetime support under the NDIS.
We consider your overall situation to answer this question.
When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
• your life circumstances
• the nature of your long-term support needs
• whether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system. If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.[68]
[68] Exhibit 1, 144.
The construction of s 24(1)(e) was discussed in National Disability Insurance Agency v Foster[69] in which it was said:
The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.[70]
[69] [2023] FCAFC 11.
[70] Ibid, [93].
The Court highlighted what Mortimer J (as she then was) said in Mulligan:
[52] Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.[71]
[Original emphasis]
[71] Foster, [46].
The matter was raised in the fourth ground of appeal which the Court addressed briefly, having found for the Applicant on other grounds. Whether or not the Court’s consideration of the issue was obiter, Foster is a Full Court decision which must be carefully considered. The Court’s conclusions on the fourth ground do not appear to have been assisted by legal argument squarely addressing the construction point.
The issue was considered in Sutherland and National Disability Insurance Agency[72] (Sutherland) without reference to what the Court concluded in Foster. The AAT decided the Access Guideline was not consistent with the legislation and said:
The Tribunal does not consider that it would be a proper interpretation of s 24(1)(e) to undertake an assessment of whether the supports required by Ms Sutherland could be provided by other service systems in order to decide whether this criterion is met. Rather, the wording of s 24(1)(e) simply requires the Tribunal to satisfy itself as to whether Ms Sutherland will require support under the NDIS for her lifetime, as per the wording of this provision. The Tribunal interprets this to mean that the Tribunal must focus on whether Ms Sutherlandwill need those supports under the NDIS for her lifetime and that this does not depend upon whether she can acquire the supports themselves elsewhere.[73]
[72] [2024] AATA 411
[73] Ibid, [119].
Sutherland is on appeal but judgment has not yet been handed down.
The parties were given opportunity to make application for the decision in Mr Grac’s case to be deferred pending judgment in Sutherland’s case. Each declined to do so. To my mind, there is no need to delay this decision.
From the principled approach to statutory construction recently discussed in Palmanova Pty Ltd v Commonwealth of Australia[74], two key points can relevantly be drawn:
(a)The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context.[75]
(b)Focus on the statutory text is not to the exclusion of extrinsic material that has the potential to assist in fixing its meaning.[76]
[74] [2025] HCA 35.
[75] Ibid, [4].
[76] Ibid, [6].
I was not taken to any relevant extrinsic materials.
Section 24 is a gateway provision within the context of the access criteria set out in s 21. Without satisfying the ‘disability requirements’ in s 24 or the ‘early intervention requirements’ in s 25, a person cannot become a participant in the NDIS.
The meaning of the language used in s 24(1)(e) is perfectly clear: the person is likely to require support under the NDIS for the person’s lifetime. The requirement for support is essentially tied to ‘the NDIS’ which, by definition in s 9(1), refers to the ‘arrangements set out in Chapters 2 and 3’.
The focus of the s 24 enquiry is squarely on impairment and the permanence and effect of impairment on the person’s functional capacity and their capacity for social or economic participation. In the context of s 24(1), the requirement for support under the NDIS is consequent to one or more permanent impairments to which the person’s disability is attributable, where the permanent impairment results in a substantially reduced functional capacity to undertake one of more of the activities specified in s 24(1)(c) and affects the person’s capacity for social or economic participation. Satisfaction of the ‘disability requirements’ requires findings to be made about these matters. Adopting what the Court in Foster cited from Mulligan, these matters are necessary at the gateway to justify supports to which the person may be entitled after assessment in Part 2, Chapter 3.
Importantly, the ‘disability requirements’ in s 24 do not require findings about the nature of supports the person might require and they do not invite or authorise speculation about such matters.
The construction contended for by the NDIA which is expressed in the Access Guidelines goes well beyond a plain reading of the statutory text, having regard to the overall context and the purposes of the legislation, as well as the statutory objectives in s 3 and the principles in s 4 and s 17A.
The NDIA’s preferred construction would require findings to be made about:
(a)the person’s long-term support needs to address the effects of permanent impairments;
(b)whether the support needs can be funded or provided under the NDIS;
(c)whether alternative systems exist under which the person’s support needs might be funded or provided during the person’s lifetime; and
(d)whether the supports are likely to be most appropriately funded or provided under the NDIS or another system during the person’s lifetime.
It is germane to consider the terms of the ‘early intervention requirements’ in s 25:
(1) A person meets the early intervention requirements if:
(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.
As can be seen, findings are required in respect of ‘early intervention supports’ and thresholds are applied in respect of the effects of such supports. In this context s 25(3) has an expressly exclusionary character where the CEO is satisfied the early intervention support is not most appropriately funded or provided through the NDIS. The exclusionary provision turns on the factual findings in respect the particular early intervention supports.
Of this, the following was said in National Disability Insurance Agency v Jones[77]:
Plainly, as a matter of logic and statutory construction, if the early intervention supports required were not identified by the Tribunal, then the various considerations referred to in s 25(3) could not be properly assessed. In particular:
- The Tribunal could not form a view as to whether those early intervention supports would be (or would not be) most appropriately funded or provided through the NDIS.
- It was not open to the Tribunal to speculate as to possible supports that Ms Jones could receive, and reach a view of the funding of those hypothetical supports under s 25(3) of the NDIS Act.
- It was not open to the Tribunal to form a view as to the manner in which unidentified early intervention supports could assist a person with a psychosocial disability to access appropriate services.[78]
[77] [2025] FCA 877.
[78] Ibid, [27].
This stands in stark contrast to the terms of s 24, where no findings in respect of supports are expressly required in respect of the effects of permanent impairments and there is no expressly exclusionary provision applied.
Just as it is not open to the Tribunal to speculate about possible supports for the purposes of s 25, it is not open to the Tribunal to speculate about possible supports Mr Grac could receive under the NDIS.
When determining the likelihood Mr Grac would require support under the NDIS for life, it is appropriate to consider his likely long-term support needs through the lens of ‘the NDIS’. Satisfaction about the likely requirement for support under the NDIS is one thing, satisfaction about the support needs being ‘best met’ under the NDIS is another.
Section 24 does not invite speculation or require evidence of the precise nature of supports required to address the effects of permanent impairment to which the person’s disability is attributable. There is no express or implied requirement for findings to be made about such matters to meet the disability requirements in s 24. It is not open to the Tribunal to reach a view about the funding of hypothetical supports under the NDIS and to speculate about whether it might be more appropriate for them to be obtained under another system or service during Mr Grac’s lifetime.
Paragraph 24(1)(e) of the NDIS Act does not invite or authorise speculation about such matters. The funding or provision of supports is to be determined once access to the NDIS is granted and the person becomes a participant. Provision is made in s 34 for the most appropriate funding or provision of supports to the participant and, where the support is not most appropriately funded under the NDIS no such funding will be approved.
In Mr Grac’s case, the evidence of Dr Wong, Dr Hogan, Dr Lembke and Mr Lord is that Mr Grac is likely to need supports to address his disability support needs for his lifetime. This is reinforced by the impairments I have found are permanent.
The question whether Mr Grac is likely to require support under the NDIS for his lifetime, narrows the enquiry. The question does not turn on particular supports Mr Grac requires to meet his disability support needs, or on consideration whether any such supports would likely meet the thresholds in Part 2, Chapter 3 of the NDIS Act applying to ‘general supports’ or ‘reasonable and necessary supports’. It requires consideration of the likelihood the person would continue to meet the requirements of a ‘participant’, including the circumstances in s 29 under which the person would cease to be a participant if access is granted.
I adhere to what I said in JLZT and National Disability Insurance Agency[79] when considering this issue:
139. The phrase likely to require support under the [Scheme] in s 24(1)(e) must be read in context and construed for the purposes of the disability requirements, in which it is an essential precondition for the grant of access to the Scheme as a participant. In this context, it is not necessary or appropriate to make an assessment of the nature or extent of assistance the person may require under the Scheme, as such matters are relevant only after the person has been found to be a participant. For the same reason, it does not involve consideration of potential supports the person may require in the future with reference to the terms of s 33 or the factors set out in s 34 of the NDIS Act.
140. The question posed by s 24(1)(e) does not turn on the kind of assistance the person requires and whether such assistance may be available outside the Scheme, rather it turns on a finding about the likely duration of the person’s requirement for support under the Scheme should they become a participant. Where the requirement is likely to be anything less than lifelong, the threshold is not met.
[79] [2022] AATA 541.
Consideration of the services Ms Cummings discussed does not lead to a negative finding under s 24(1)(e).
On her evidence, the Safe and Supported at Home (SASH) service offers low to medium level packages of short-term home care supports of up to 6 weeks duration.[80] The proposition a package might be repeated in cases of need does not change the short-term nature of the support offered. I understand Mr Grac has accessed SASH supports on two occasions for a total of 12 weeks.[81]
[80] Exhibit 1, 274.
[81] Exhibit 3.
The NSW Mental Health Community Living Programs Ms Cummings referred to include the Housing and Accommodation Support Initiative and Community Living Supports.[82] These programs offer support services which include daily living and community participation supports. Mr Grac submits that, like Open Minds,[83] the provision of supports is short-term, up to 13 weeks which might be repeated in cases of need.
[82] Exhibit 1, 275.
[83] Exhibit 2.
The Crisis Assessment and Treatment Team Ms Cummings discussed provides crisis mental health support.[84]
[84] Exhibit 1, 275-276.
The existence of these (and potentially other[85]) support systems or services does not compel a finding that Mr Grac is unlikely to require support under the NDIS for his lifetime. Even if Mr Grac was to obtain short-term supports of the kind these services offer from time to time, it does not follow that he would not require support under the NDIS to address his disability support needs as a participant.
[85] Ibid, 276-277.
It is not appropriate to speculate about such matters.
For the purposes of s 24(1)(e) of the NDIS Act, I am satisfied Mr Grac is likely to require support under the NDIS for his lifetime.
Conclusion
Mr Grac meets the ‘disability requirements’ in s 24 of the NDIS Act.
It is not necessary to proceed further to determine if he also meets the alternative ‘early intervention requirements’ in s 25.
From this it follows, the decision under review must be set aside and in substitution the Tribunal decides Mr Grac satisfies the ‘access criteria’ for the purposes of s 20(1)(a) of the NDIS Act.
Dates of hearing:
18 and 19 September 2025
Applicant’s Representative:
S Smith, Winsome Services, Lismore
Counsel for the Respondent:
Solicitors for the Respondent:
P Nolan
Moray and Agnew Lawyers
0
11
0