Makwana and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 2285
•30 October 2025
Makwana and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 2285 (30 October 2025)
Applicant/s: Depak Makwana
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/4176
Tribunal:Senior Member J Collins
Place:Brisbane
Date:30 October 2025
Decision:Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.
.................[SGD].................
Senior Member J Collins
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access –post traumatic stress disorder – depression – anxiety – chronic cirrhosis- peripheral neuropathy- whether applicant meets disability requirements - NDIS Act s24(1)(c) – whether impairments substantially reduce functional capacity- communication- social interaction - mobility – learning – self-care – self-management- NDIS Act s25 – whether applicant meets early intervention requirements - decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024(Cth) sections 105
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth) sections 21,22, 23, 24, 27, 29
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATARooney and National Disability Insurance Agency [2021] AATA 3523
PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66
Madelaine v National Disability Insurance Agency [2020] AATA 4025
Kilgallin v National Disability Insurance Agency [2017] AATA 186
Garcia Albiol v National Disability Insurance Agency [2024] AATA 496
Moxham v National Disability Insurance Agency [2025] ART290Secondary Materials
NDIS – Applying to the NDIS access guidelines, as of 11 March 2025.
Statement of Reasons
1.Mr Depak Makwana is a 62-year-old man. He seeks access to the National Disability Insurance Scheme (‘the scheme’) so that he can receive supports on the basis of impairments due to multiple conditions.
2.Mr Makwana’s application for access was refused at first instance by the National Disability Insurance Agency (‘the Agency’) and again upon internal review.[1]
[1] T8, T9.
3.Mr Makwana subsequently applied to the Administrative Appeals Tribunal (‘AAT’) on 22 June 2024 for review of the Agency’s internal review decision (‘the decision under review’).[2]
[2] T1; section 103 of the NDIS Act.
4.On 14 October 2024, the 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 (‘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 therefore made by the Tribunal.
5.At the hearing Mr Makwana was self-represented. The Agency was represented by Mr Gregory Johnson of Counsel, instructed by Sparke Helmore Lawyers.
6.For the reasons set out below, the Tribunal affirms the decision under review and finds that Mr Makwana does not meet the disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth) (‘NDIS Act’) or the early intervention requirements under section 25 of the NDIS Act. Mr Makwana therefore does not meet the access criteria under section 21 of the NDIS Act and cannot be granted access to the scheme.
ISSUES
7.Access to the scheme requires Mr Makwana to satisfy that he meets the ‘access criteria’ under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
When a person meets the access criteria
(1) A person meets the access criteriaif:
(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).
…………………………………………………………………………………………..
8.There was no contention by the Agency that Mr Makwana did not meet the age requirements[3] or the residence requirements.[4]
[3] Subsection 21(1)(a) of the NDIS Act, A3 at [15].
[4] Subsection 21(1)(b) of the NDIS Act, A3 at [15].
9.The issue before the Tribunal was therefore whether Mr Makwana meets the disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
10.The disability requirements are contained in section 24 of the NDIS Act and provide 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 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).
11.The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
12.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 developmentaldelay; 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.
(d)the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
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13.Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
14.Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (‘the Access Rules’).
15.The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The relevant guidelines in this review are the NDIS – Applying to the NDIS Guidelines (‘the Access Guidelines’).[5]
[5] National Disability Insurance Agency, Applying to the NDIS (Web page, 16 July 2025) <
16.There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[6] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[7] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[8] where Mortimer J held:
[6] G v Minister for Home Affairs [2019] FCAFC 79 at [18].
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].
[8] G v Minister for Immigration and Border Protection [2018] FCA 1229.
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it.[9]
[9] Ibid, at [171].
17.Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Makwana meets the disability requirements or the early intervention requirements.
18.Whether Mr Makwana meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[10] with a relatively high degree of precision and be positively satisfied.[11]
[10] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].
[11] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].
MS MAKWANA’S POSITION
19.Ms Makwana contends that he meets both the ‘disability requirements’ and the ‘early intervention requirements’.[12]
[12] Applicant’s opening submission
20.Mr Makwana relies on the following diagnoses:
· Post traumatic stress disorder (‘PTSD’);
· Depression;
· Anxiety;
· Chronic cirrhosis;
· Peripheral neuropathy.
21.Mr Makwana contends as follows:
· That he has permanent impairments as a result of these conditions for the purposes of subsection 24(1)(b) of the NDIS Act:
· The he has a substantially reduced functional capacity in respect of each of the activities in subsection 24(1)(c ) of the NDIS Act;
· That he is likely to require supports under the scheme for his lifetime.
THE DISABILITY REQUIREMENTS
22.For the purposes of section 24(1)(a) of the NDIS Act the Agency accepts that Mr Makwana has:
·A psychosocial impairment due to PTSD, depression and anxiety;
·A physical impairment due to cirrhosis of the liver;
·A neurological impairment due to peripheral neuropathy.
23.The Agency also accepts that these impairments affect Mr Makwana’s capacity for social and economic participation for the purposes of section 24(1)(d) of the NDIS Act
24.The Agency contentions are however that:
· none of these impairments are permanent for the purposes of section 24(1)(b) of the NDIS Act;
· Mr Makwana does not have a substantially reduced functional capacity in relation to his communication, social interaction, learning, mobility, self-care and self-management for the purposes of section 24(1)(c) of the NDIS Act.
· Mr Makwana is likely to require supports under the scheme for his lifetime for the purposes of section 24(1)(e) of the NDIS Act.
THE EVIDENCE
25.I have considered all the written evidence filed with the Tribunal, the oral evidence provided at the hearing on 15 and 16 October 2025, and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.
Evidence about Ms Makwana
26.Ms Makwana lives in rental accommodation which he shares with his former wife. This accommodation is accessed using three steps to the front door. It is primarily a single level accommodation with the exception of a laundry which is located on a lower level that is accessible using a stairway at the rear of the property.
27.Mr Makwana receives a disability support pension.
28.Mr Makwana also receives a Commonwealth My Aged Care Home Package - Level 4 (MACP- 4). Mr Makwana has received support through Aged Care for the last three years approximately.
29.Currently he receives help with “Nurse-next-door” a service which is funded through his MACP-4.
30.Mr Makwana uses his funding through his MACP- 4 to receive support with his laundry, cleaning his house, dishes and shopping for groceries. This support is usually received on three days of each week, for several hours on each occasion.
31.Through his MACP- 4 he is also funded for the following:
·Meals to the extent of a 70% contribution towards the costs of a ‘Light n’ Easy’ meal package, which are delivered to his home;
·Physiotherapy, generally every week for one hour;
·Exercise therapy once a week for two hours;
·Podiatry each month.
32.Mr Makana advised the Tribunal that he is currently in the process of seeking funding from My Aged Care for a ‘lift chair’, a bed which is easier to access and a machine to monitor his oxygen saturation levels.
33.Mr Makwana has also utilised the services of My Aged Care for transportation.
34.Mr Makwana is satisfied with many aspects of the support he receives through his MACP, such as his therapies. He is however disappointed with certain aspects of this service which includes cleaning, as an example he provided.
35.Mr Makwana considers that the funding of supports under the scheme will provide him with a ‘better quality’ of support. He referred to the scheme as providing support persons who were ‘better trained’ and who would be more ‘competent’ to assist and support him.
36.Mr Makwana provided examples to the Tribunal of unsuitable transportation services and cleaning services proved through his MACP - 4.
37.Mr Makwana has a history of significant alcohol use, with consumption at the level of one bottle of brandy every two days. In the past two months he has, to his credit, been abstinent of alcohol. Historically he has achieved abstinence for a period of time, however relapsed.
Evidence of Associate Professor Chanaka Wijeratne
38.Associate Professor Wijetratne is a specialist psychiatrist (‘Dr Wijiteratne’). He assessed Mr Makwana and provided two reports to the Tribunal.[13]
[13] JTB9, JTB 17.
39.Dr Witjeratne noted the following:
· Consumption of a 700ml bottle of brandy every two days since 2022;
· A score of 18/30 on the Montreal Cognitive Assessment (‘MCA’), with a score of 18/30 as a normal score;
· Mr Makwana has no difficulties with speech or ability to attend to conversation;
· Mr Makwana had a mild neurocognitive disorder which impacts his ability to process and recall information, judgment and decision making;
· Mr Makwana reported impaired energy and motivation.
40.Dr Wijiteratne provided the following opinion:
Mr Makwana experiences the following diagnoses/problems
(i) Alcohol use disorder
(ii) Post-traumatic Stress Disorder
(iii) Persistent Depressive Disorder
(iv) Mild Neurocognitive Disorder (also known as Mild Cognitive Impairment).
I would emphasise again that the four diagnoses do not occur in isolation and that there is considerable overlap between them. For instance alcohol is a risk factor for the persistence and exacerbation of the other three disorders.I remain of the opinion that the priorities in his medical and psychiatric care are
(i) to achieve abstinence from alcohol given its effect on his mood and cognition. He requires referral to a specialist drug and alcohol service, including consideration of inpatient medical detoxification. Specific treatments that are likely to be beneficial include the prescription of anti-craving medication, such as naltrexone and acamprosate, addiction specific counselling and referral to Alcoholics Anonymous.
(ii) to monitor his mood and risk assessment, in particular the risk of self-harm. This requires referral to a psychiatrist for regular care. There should be exploration of the reasons for possible non-adherence with medication and strategies to enhance adherence should be formulated. There is a good evidence base for the use of a SSRI antidepressant for the management of PTSD and depression, although monitoring of liver function tests is required.
(iii) management of PTSD with trauma-focused therapy.
The evidence base indicates that in people with comorbid PTSD and a substance use disorder, trauma focused PTSD treatment concurrent to management of the substance use disorder was most effective (see below).(iv) management of chronic liver disease by his GP and a hepatologist.
41.Dr Wijeratne also provided oral evidence at the hearing and identified a number of contributors to Mr Makwana’s score of 18 on the MCA. These contributors included alcohol, depressive disorder and PTSD. His opinion was that Mr Makwana’s PTSD was his primary ‘psychological disorder’ and that his PTSD was complicated by depression and alcohol use disorder. Dr Wijeratne explained that Mr Makwana had received a ‘hotchpot’ of different psychological treatment and interventions with Ms Lavelle, Ms Jane Bayuti and Ms Diane Golvers. Dr Witerjatne identified that none of these providers were clinical psychologists. Further that there was no indication that the variety of treatment provided to date for Mr Makwana’s PTSD was in fact evidence based.
42.Dr Wijeratne explained that Mr Makwana required treatment as a first priority of his alcohol use disorder. This treatment needs to be coordinated by a specialist drug and alcohol service. He stated that often depression is driven by ongoing alcohol use and that ‘if Mr Makwana is fully detoxified from alcohol, it, it may well be that there is a significant improvement in his mood and also some improvement with his PTSD symptoms.’ Dr Wijeratne opined that despite Mr Makwana’s recent abstinence from alcohol for the past two months, attendance at a drug and alcohol service was required. This was in the context of a history of relapse following a previous period of relapse. Dr Wijeratne also stated that to date Mr Makwana had not received an adequate dose of appropriately titrated anti-depressant medication for an acceptable therapeutic period.
Subsection 24(1)(c): Do Mr Makwana’s impairments result in a ‘substantially reduced functional capacity’ for him to engage in the activities of communication, social interaction, learning, mobility, self-care and self-management?
The relevant issue in this review relates to Mr Makwana’s functional capacity and whether it is substantially reduced to the ‘threshold’ required for access to the scheme.
The Tribunals task is therefore to consider whether Mr Makwana’s functional capacity to undertake communication, social interaction, learning, mobility, self-care and self-management is ‘substantially reduced’. This task is twofold.
The ‘first task’ is to consider whether Mr Makwana’s circumstances are captured within the deeming effect of rule 5.8 of the Access Rules. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must still proceed to a ‘second task’. This second task requires the Tribunal, on the evidence available, to determine whether Mr Makwana’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially reduced’.
Can Mr Makwana rely on the deeming effect of rule 5.8 of the Access Rules to establish that he has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
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.
(Tribunal emphasis added)
Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Mr Makwana can participate ‘effectively or completely’ on the basis that he is unaided by assistive technology, equipment or home modifications other than ‘commonly used items’.
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency (‘Rooney’).[14] In Rooney the Tribunal identified the indicia in respect of what are to be considered ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
·generally accessible;
·can be used without the need for complex or specialised customisation or installation;
·relatively simple to use; and
·relatively inexpensive.
[14] Rooney and National Disability Insurance Agency [2021] AATA 3523.
Mr Makwana explains that he has three walking sticks but only uses them sometimes when inside his home. He does however use a walking stick when accessing the outside of the front of his home, especially when it is raining.
When inside his home he will often use the walls and furniture to assist him with balance.
He accesses his letterbox from his from door which is down three steps. To do so, he uses the outer wall of his house and a walking stick. This is because there is no handrail.
Access to Mr Makwana’s laundry is via the back stairs of his home. He explained that he is unable to manage these stairs and stated, ‘It’s very hazardous going downstairs of the house from the back’. Instead, Mr Makwana’s support workers assist him with his laundry.
Mr Makwana explained that he would like to relocate to another property which is more manageable in terms of access to the laundry when the lease for his current property ends.
Mr Makwana uses a shower chair to bath and is assisted by a monkey bar to assist him to get in and out of his bed.
Mr Mateusz Miszczuk, occupational therapist conducted a functional capacity assessment of Mr Makwana in his home in March 2025 and provided a report to the Tribunal.[15] In his report Mr Miszczuk recommended a four wheeled walker to assist Mr Makwana with his mobility. Mr Miszczuk also stated, ‘Based on the applicant’s demonstrated functional capacity during this assessment, there is no present requirement for major home modifications.’
[15] JTB10
In his addendum report Mr Miszczuk, recommended that ‘Mr Makwana’s safety with mobility and transfers would benefit from an over toilet aid/toilet surround and grab rails at the front access.’[16]
[16] JTB18
I am satisfied that Mr Makwana cannot rely upon the deeming operation of Rule 5.8 of the NDIS Rules. This is on the basis that he does not currently rely on any assistive technology, complex building modifications or equipment to undertake tasks that form the relevant activities under subsection 24(1)(c) of the NDIS Act. My considerations are as follows:
Mr Makwana uses a walking stick and a shower chair which are both commonly used items;
A four wheeled walker, over toilet aid and grab rails in the toilet and at the front access of his home, as recommended by Mr Miszczuk, are also commonly used items;
Mr Makwana uses the door handle of his toilet door to assist with transfers. He also uses furniture and walls to assist with balance. These measures are not uncommon or extraordinary measures.
The items of assistive technology used by Mr Makwana or recommended for him by Mr Miszczuk all fall within a category of ‘commonly used items’ for the purposes of Rule 5.8(a) of the NDIS Rules.
There is no evidence that Mr Makwana requires assistance (including physical assistance, guidance, supervision or prompting) from others to undertake tasks that form the relevant activities under subsection 24(1)(c) of the NDIS Act. There is also no evidence that home modifications are required to assist Mr Makwana.
Conclusion
Mr Makwana cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.
The second task: Does Mr Makwana have a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?
The fact that Mr Makwana does not satisfy the requirements of rule 5.8 does not disqualify him from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether Mr Makwana has a ‘substantially reduced functional capacity’ for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held:[17]
As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
[17] Mulligan at [77].
In respect of the operation of subsection 24(1)(c) of the NDIS Act itself, in Mulligan Mortimer J also held:[18]
Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
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... 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. (Tribunal emphasis)
[18] Ibid, at [55]–[56].
In Foster the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[19]
In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.(Tribunal emphasis)
[19] Foster at [64]–[65].
Further, that undertaking a task differently or more slowly to others will not necessarily mean a person cannot participate effectively or complete in an activity.[20]
[20] Foster at [67].
In Madelaine[21] the Tribunal referred to the following Operational Guideline for guidance in relation to fluctuations in a prospective participant’s functional capacity,
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
[21] Madelaine v NDIS at [55]
Those Operational Guidelines have been superseded. The current Access guidelines however provide as follows:
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
Therefore in determining Mr Makwana’s functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act the following is relevant to the Tribunal’s consideration:
The severity of Mr Makwana’s impairment having regard not only to the evidence of Mr Makwana but also the medical and clinical evidence; and
Mr Makwana’s overall ability to perform the ‘activities’ in subsection 24(1) (c ) of the NDIS Act over time and taking into account fluctuations in his ability. This involves a practical assessment of what he can do and cannot do. Consideration of Mr Makwana’s ability ‘over time’ requires taking into account his abilities on the good days, on the bad days and on the days in between.
The following however is not relevant to the Tribunal’s consideration in determining Mr Makwana’s functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act:
The fact that Mr Makwana is no longer able to perform the activities in subsection 24(1)(c ) of the NDIS Act as often, as freely or as easily as he did prior to the onset of his conditions; and
How much better Mr Makwana’s life would be if he were to receive supports under the scheme.
The Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Mr Makwana can and cannot do with respect to his communication, social interaction, learning, mobility, self-care and self-management for the purposes of subsection 24(1)(c). This assessment requires consideration of the ‘bundle of tasks’ and actions that comprise any given activity being considered.[22]
[22] Ibid.
Previously in the decision of Garcia Albiol v NDIA[23] I considered the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. That decision has not been appealed and has in fact been adopted in this Tribunal.[24]
[23] Garcia Albiol v NDIA [2024] AATA 496.
[24] Moxham v CEO,NDIA [2025] ARTA 290; Foster v NDIA [2025] ARTA 718; TZQP v CEO,NDIA [2025] ARTA 839; Coffey v CEO,NDIA [2025] ARTA 634; Burrows v CEO,NDIA [2025] ARTA 607; BFYK v NDIA [2025] ARTA 1006; KNNW v NDIA [2025] ARTA 1033; Foster v NDIA [2025] ARTA 718
My view of a ‘high threshold’ for reduced functional capacity remains unchanged.
The Tribunal’s consideration of Mr Makwana’s functional capacity relates specifically to his ‘daily life activities’. Relevantly, the Access Guidelines state as follows:
You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent. And this substantially impacts your ability to do daily life activities.
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Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
Communication
The Operational Guidelines describe communication as follows:
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.
In Madelaine v National Disability Insurance Agency (‘Madelaine’) the Tribunal considered ‘communication functionally’ in respect of an earlier (and not dissimilar) version of the Agency’s Operational Guidelines.[25] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on’. (Tribunal emphasis)
[25] Madelaine v National Disability Insurance Agency [2020] AATA 4025 at [79].
Ms Courtney Lavelle, social worker provided a report to the Tribunal wherein she stated:
‘His communication is affected by cognitive impairments and psychological distress. While he can engage in conversations, he frequently loses his train of thought, struggles to articulate his needs, and derails discussions by bringing up past traumatic experiences unrelated to the topic. His memory issues cause difficulties in understanding and recalling instructions. He requires prompting and redirection during conversations and assistance from support workers to communicate effectively with professionals and medical providers.’[26]
[26] JTB3
Mr Miszczuk occupational therapist conducted a functional capacity assessment of Mr Makwana in his home and opined that Mr Makwana is independent in the domain of communication.[27]
[27] JTB10
At the hearing Mr Makwana gave oral evidence over a considerable period of time. He spoke clearly and was also able to express his views, thoughts and support needs.
Mr Makwana gave oral evidence that he is able to use a mobile phone to speak. He is also able to use various Apps including the ‘13CABS’ App to communicate with a taxi service.
Mr Makwana also explained that he would like to ‘write a book’ about his life and his experiences. He stated that he would like support from a ghost writer to do this.
Mr Makwana’s evidence is that he is able to talk to his general practitioner in person and over the phone. At times he will make a list of issues of concern in case he forgets any of the issues he wishes to discuss. I do not find this extraordinary and consider this practice to be common practice for a large number of members of the community, with or without a disability.
He is able to speak on the phone to other persons. Currently he is liaising with Harvey Norman regarding the purchase of a lift chair. He has also been liaising with the service provider ‘Nurse-next-door’ in relation to the purchase of a high lift bed.
Mr Makwana is able to engage in communication with his support workers and provide them with instructions in relation to cleaning tasks. He is also able to write grocery shopping lists for his support workers. He is able to complain about the service that he receives from My Aged Care.
Ms Makwana is able to write notes to his former-wife when this is required.
I am satisfied that Mr Makwana is able to engage in oral and written communication. He is also able to use technology such as a ‘phone App’ to undertake communication with a taxi service. He is able to communicate instructions to his support workers. He is able to attend medical and allied health appointments and explain his concerns.
Conclusion
I am satisfied based on the evidence that Mr Makwana’s functional capacity to communicate, is not substantially reduced.
Social interaction
The Operational Guidelines describe social interaction as follows:
Socialising – 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.
In Madelaine the Tribunal held, ‘The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.’[28]
[28] Madelaine at [87].
In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[29]
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.
[29] Kilgallin and NDIA [2017] AATA 186 at [18].
Mr Makwana is divorced but remains living with his former-wife. They do not speak and exchange ‘notes’ when they need to communicate. He states that he has no family or friends and that ‘socially I’m closed from people’. Mr Makwana states that he no longer goes out with his support workers due to a deterioration in his health.
Mr Makwana has three cats which he described as ’adorable babies’. He enjoys watching his cats run and play inside his home stating ‘So it’s like a Mickey Mouse live show, literally’.
Mr Makwana explained that he grows ‘cat grass’ indoors for his cats to eat. He has also purchased toys for his cats to play with. He is able to feed his cats and fill their water bowl. Mr Makwana states ‘I'm like here with my babies……… they keep me busy, to watch them talk to them.
Ms Lavelle states in her report ‘ Depak avoids social interaction due to paranoia, anxiety, and PTSD symptoms.’
Mr Miszczuk’s opinion is that Mr Makwana is socially isolated and withdrawn. He rarely leaves his home and avoids interacting with people in the community.[30] Mr Miszczuk noted however that Mr Makwana had no difficulty interacting with his support person who was present during his assessment of Mr Makwana.
[30] JTB10.
In respect of Mr Makwana’s ability to undertake the domain of social interaction, Mr Miszczuk stated in his report
‘The applicant has physical, cognitive and psychosocial impairments, that are
compounded by his self-medication with alcohol. Medical opinion recommended
abstinence, pharmacotherapy, psychiatry, psychology (with expertise in PTSD), and
case management.
Considering the applicant has community supports that assist with community
access, and that in the absence of such support, he is able to access the community
for medical appointments and incidental shopping, additional supports are not
recommended. In my opinion, prior to implementing supports aimed at enhancing
social interaction, treatment of the underlying contributors to the applicant’s
functional decline should be addressed. Were the applicant to participant (participate) in
treatment, consideration for experienced mental health support worker to support
him in identifying and accessing meaningful community-based social activities may be appropriate.’[31]. (Tribunal emphasis)[31] JTB10
As stated in Madelaine the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions.
I am not positively satisfied that Mr Makwana’s ability to undertake social interaction is substantially reduced. My considerations are:
·He has the personal skills to engage within his home with his support workers;
·He enjoys a meaningful relationship with his cats who provide him with substantial companionship;
·The evidence indicates that his avoidance of accessing the community and social interaction is likely linked to his untreated alcohol use disorder, depressive symptoms and PTSD.
·In the context of appropriate treatment as recommended by Dr Wijeratne it remains possible that Mr Makwana’s ability to interact with others will improve. With such an improvement there is the likelihood of an inclination, motivation and willingness to access the community for social interaction. I therefore cannot be positively satisfied Mr Makwana’s capacity to participate in the activity of socialisation is reduced to the level required for the threshold of a ‘substantially reduced functional capacity’ under the scheme.
Conclusion
I am satisfied based on the evidence that Mr Makwana’s functional capacity to interact socially is not substantially reduced.
Learning
The Operational Guidelines describe learning as follows:
Learning – how you learn, understand and remember new things, and practise and use new skills.
In Madelaine the activity of learning was explained as having the cognitive capacity to absorb and apply new skills. Furthermore, that the activity of learning should not be confused with higher order issues.[32]
[32] Ibid 93 and 95.
Ms Lavelle states in her report that Mr Makwana ‘has severe difficulties with learning, memory retention and cognitive processing, making it extremely challenging for him to acquire skills or retain new information.’[33]
[33] JTB3
Mr Miszczuk’s opinion is that Mr Makwana has modified independence in the domain of learning.
Mr Makwana gave evidence that he enjoys watching the news. He described himself as a ‘junkie of watching news.’
Mr Makwana explained that he enjoys keeping ‘up to date’ with world events. He stated, ‘everyday there’s Trump news and that keeps me excited’.
When questioned by the Tribunal, Mr Makwana openly accepted that he liked to remain actively informed in relation to both world and local events.
Mr Makwana has a laptop, which he is unable to use on the basis he has forgotten the access password and he is unable to afford to have this problem fixed. He is however able to access the internet through his mobile phone.
Mr Makwana would like to write a book.
Conclusion
Based on the evidence I am satisfied that Mr Makwana’s functional capacity for learning is not substantially reduced.
Mobility
The Operational Guidelines describe mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[34]
A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.
[34] Madelaine at [104]–[105].
Mr Makwana is able to mobilise in his home however does become ‘out of breath’.[35] He explained that at night he uses a CPAP machine to help with his breathing.
[35] Day 1 recording
Mr Makwana is able to get into a sofa chair using the arms of the sofa to stabilise him. To get out of a sofa chair he uses the arms of the sofa to push himself upwards.
Mr Makwana uses a walking stick occasionally inside his home and sometimes when accessing his front garden[36]. He is able to mobilise in the community using a taxi service.
[36] Note Oral evidence of Miszczuk- Mr Makwana was able to walk on grass without a walking stick.
He can manage chair transfers with a modifed technique. He can get in and out of the shower and he can toilet himself.
He can unpack his ‘Light n’ Easy’ meals into his freezer. He can also mobilise to ensure that his cats are fed and watered. He can walk to his letterbox and collect his mail.
He can dress and undress himself in a seated position. He can also dry himself after a shower in a seated position.
He can heat up meals and undertake small cleaning tasks.
In his report Mr Miszczuk referred to the following in respect of Mr Makwana’s mobility:
· The ability to mobilise independently in and around his home without the use of mobility aids for approximately 10 minutes;
· The unrestricted ability to access his freezer and microwave and also to bend to feed his cats;
· His independence with lounge, shower and toilet transfers;
· Independence with bed transfers using a monkey bar;
· Independence with car transfers;
· The ability to navigate his front stairs using the wall for support and to walk in his front yard.
Conclusion
I am satisfied based on the evidence that Mr Makwana’s functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced.
Self-care
The Operational Guidelines describe self-care as follows:
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.
Mr Makwana explained that his hands shake. Whilst he is presently able to feed himself he anticipates that ‘in due time, I will need help feeding’.[37]
[37] Day 1 recording
Currently he eats ‘Light n’ Easy’ meals which he orders on a weekly basis from a menu provided in advance. Mr Makwana’s ‘Light n’ Easy’ meals are delivered to him each week in a box which he unpacks into his freezer, whilst seated. Mr Makwana is currently able to heat these meals using a microwave. He is able to sit at a table and eat meals and use cutlery. He can also fill a water bottle from the sink and drink from this bottle throughout the day.
Mr Makwana is able to pour himself a glass of milk and eat fruit when he chooses to do so.
Mr Makwana advised the Tribunal that he was capable of doing basic tidying and clearing up for himself. He gets help from his support workers with any heavy lifting and laundry.
Mr Makwana is able to shower himself using a shower stool with handles. He uses a shower brush to clean his body, including his feet. He is able to shampoo his hair. His shower is configured so that soap, shampoo and conditioner are all at ‘hand- eye level’ so that he may access these items. Once showered he is able to dry himself off in a seated position.
Mr Makwana finds it difficult to dress and undress but he is able to complete these tasks in a seated position.
He is able to toilet himself . At times he has difficulties getting off the toilet and will use the door handle to assist him. He has requested that Aged Care install a handrail in his toilet to assist him which is sensible. He has also asked for a small ramp into his shower on the basis of a ‘one inch lip.’
Mr Makwana is able to trim his facial hair using clippers. He takes several medications which he manages himself.
In his report Mr Miszczuk refers to the following:
The ability to cut his own fingernails, whilst a podiatrist manages his toenails;
The capacity to wash dishes, wipe benches and perform incidental spot cleaning.
Conclusion
I am satisfied based on the evidence that Mr Makwana’s functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced.
Self-Management
The Operational Guidelines describe self-management as follows;
Self-management – 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.
Mr Makwana gave evidence that he manages his own bills and has set up automatic payment for all of his bills which include his rent, ‘Light n’ Easy’ meals and electricity.
He is able to order his ‘Light n’ Easy’ meals in advance from a menu which is provided on an ongoing basis. He is also able to prepare a shopping list each week for his aged care support workers. This list includes instructions on which supermarket particular groceries should be purchased from.
In order to pay for his groceries he provides his support workers with his debit card to use. He has a withdrawal limit of $100 on his debit card. On the basis that the cost of groceries exceeds this $100 limit Mr Makwana instructs his support workers to make ‘more than one transaction’. Mr Makwana explained that he is generally able to ‘estimate’ the costs of each grocery shop.
Mr Makwana is able to review receipts for groceries which are provided by his Aged Care support workers following each grocery shop. He stated, ‘I cross check everything’…….Just to make sure that it’s all above board’. He is also able to check his bank account using a ‘banking App’.
Mr Makwana checks invoices provided from his Aged Care provider and historically has identified being charged for items that he had never utilised. If dissatisfied with the services of Aged Care Mr Makwana is able to telephone and make a complaint.
Mr Makwana accesses his finances using a ‘banking App’.
Mr Makwana is able to make appointments with his doctor.
Mr Makwana can manage his own medical and allied health appointments. He is able to organise taxis to transport him to and from these appointments.
Mr Makwana can manage his own medications, including the timing of prescriptions being filled.
Conclusion
I am satisfied based on the evidence that Ms Makwana’s functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced.
Conclusion – subsection 24(1)(c) of the NDIS Act
Subsection 24(1)(c) of the NDIS Act is not satisfied.
Respectfully, Mr Makwana does not appreciate that the threshold for a ‘substantially reduced functional capacity’ equates to a level of capacity which is significantly lower than the level of capacity that he currently possesses. The fact that there has been some decline in his capacity to undertake the activities in subsection 24(1)(c ) of the NDIS Act over the years does not necessarily establish that he meets this threshold.
Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 24(1) of the NDIS Act.
Mr Makwana therefore does not meet the ‘disability requirements’.
Section 25 NDIS Act: The Early Intervention Requirements
Ms Makwana contends as a broad submission that he satisfies the early intervention requirements of section 25 of the NDIS Act.
The Agency submits that Mr Makwana’s conditions are long standing and that the evidence is insufficient to establish that the provision of ‘early intervention support’ is likely to benefit Mr Makwana by reducing his future needs for supports in relation to his disabilities within the meaning of subsection 25(b) of the NDIS Act.
145. Dr Wijeratne states in his report ‘None of the four disorders or their associated impairments are in their early stages, given they have all been present for more than two years.’[38]
[38] JTB9
The Agency’s submission is accepted. There is no evidence before the Tribunal to suggest that the provision of early intervention supports would alter the outcome for Mr Makwana by reducing his future need for supports in relation to his disability. There is also no evidence that suggests that the supports sought by Mr Makwana are early intervention in nature and are likely to reduce his future support needs.
On this basis I am not satisfied that that the provision of early intervention supports for Mr Makwana is likely to reduce his future needs for support for the purposes of subsection 25(1)(b) of the NDIS Act.
As stated, the early intervention requirements in section 25 of the NDIS Act are cumulative. Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 25(1) of the NDIS Act.
CONCLUSION
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements Mr Makwana will not be granted access to the scheme.
Decision
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).
1. I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.
................[SGD]................
Associate
Date(s) of hearing: 15 and 16 October 2025 Applicant: Mr Depak Makwana Solicitors for the Respondent: Sparke Helmore Lawyers Counsel for the Respondent: Mr Greg Johnson 30 October 2025
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