Peters and National Disability Insurance Agency (NDIS) - [2025] ARTA 2053

Peters and National Disability Insurance Agency (NDIS) [2025] ARTA 2053 (14 October 2025)
Applicant/s:  Josephine Peters
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/8578

Tribunal:General Member L Proske
Place:Adelaide
Date:14 October 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 14 October 2025 at 4:17pm
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access to the scheme – disability requirements – substantially reduced functional capacity – likely to require support under the NDIS for lifetime – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
Cases
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
Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
NRNK and National Disability Insurance Agency [2024] AATA 110 (15 January 2024)
Morris and National Disability Insurance Agency [2024] ARTA 186 (27 November 2024)
Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (26 May 2025)
Brickhill and National Disability Insurance Agency [2025] ARTA 707 (11 June 2025)
Secondary Materials
NDIS, Applying to the NDIS – Pre-legislation changes updated 14 October 2024
Statement of Reasons

Dr Peters (Applicant) is 67 years old. She lives with her husband (Mr Dawson) and works part-time as a general practitioner. The Applicant has applied to the Tribunal for review of a decision made by the CEO of the National Disability Insurance Agency (Respondent). That decision confirmed an earlier decision made by the Respondent that the Applicant did not meet the access criteria to become a participant of the National Disability Insurance Scheme (NDIS).
For the reasons below, the Tribunal has determined the Applicant does not meet the access criteria to become a participant of the NDIS.
BACKGROUND AND JURISDICTION
The Applicant made an access request to become a participant of the NDIS. On 29 May 2023, a delegate of the CEO of the Respondent determined that the Applicant did not meet the access criteria for the NDIS (original decision).[1] On 24 August 2023, the Applicant requested that the original decision be reviewed by a reviewer.[2]
[1] Exhibit 1 (E1), 87.
[2] E1, 73.
On 21 October 2023, a reviewer confirmed the original decision (internal review decision).[3] On 16 November 2023, the Applicant made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[4] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[5]
[3] E1, 51.
[4] E1,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Peters and National Disability Insurance Agency (NDIS)

Details

AGLC: Peters and National Disability Insurance Agency (NDIS) [2025] ARTA 2053
Case: [2025] ARTA 2053
Decision Date: 14 October 2025

CaseChat Overview and Summary

The case of Peters and the National Disability Insurance Agency (NDIS) involved the Applicant's application for access to the NDIS. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the internal review decision, which upheld the initial determination that the Applicant did not meet the access criteria for the NDIS. The central legal issue before the Tribunal was whether the Applicant met the disability requirements outlined in section 24 of the National Disability Insurance Scheme Act 2013 (NDIS Act).

The Tribunal examined the evidence concerning the Applicant's disabilities, focusing on the substantial impact on her functional capacity. The Applicant sustained significant injuries, including bilateral intra-articular proximal humerus fractures with rotator cuff avulsion, from a fall in March 2018. Despite undergoing surgery and intensive physiotherapy, the Applicant remained impaired, particularly in her dominant right shoulder. Orthopaedic surgeons Dr Henningsen and Dr Wallwork noted that the Applicant's condition persisted, affecting her mobility, self-care, and overall capacity for social or economic participation. The Tribunal considered the Applicant's ongoing need for support, as evidenced by her continued symptoms and the potential for episodic or fluctuating impairments.

The Tribunal concluded that, while the Applicant had impairments that met some criteria, they did not sufficiently demonstrate a substantially reduced functional capacity across the activities specified in section 24(1)(c). The evidence indicated some improvements following surgery, but the Applicant's functional capacity was not deemed substantially reduced in all required activities to the extent that she would likely require support for her lifetime. Therefore, the Tribunal upheld the decision that the Applicant did not meet the disability requirements under section 24. Consequently, the Tribunal affirmed the decision that the Applicant was not eligible to become a participant in the NDIS.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons below, the Tribunal has determined the Applicant does not meet the access criteria to become a participant of the NDIS.BACKGROUND AND JURISDICTION The Applicant made an access request to become a participant of the NDIS. On 29 May 2023, a delegate of the CEO of the Respondent determined that the Applicant did not meet the access criteria for the NDIS (original decision).[1] On 24 August 2023, the Applicant requested that the original decision be reviewed by a reviewer.[2][1] Exhibit 1 (E1), 87.[2] E1, 73. On 21 October 2023, a reviewer confirmed the original decision (internal review decision).[3] On 16 November 2023, the Applicant made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[4] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[5][3] E1, 51.[4] E1, 47.[5] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (NDIS Act) unless otherwise stated. The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[6] The Applicant’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[7] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.[6] Administrative Review Tribunal Act 2024, s 8.[7] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.LEGISLATION AND POLICY The Applicant must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25. It is not in contest between the parties, and the Tribunal is similarly satisfied, that the Applicant meets the age and residence requirements in ss 22 and 23.[8] The Applicant does not contend that she meets the early intervention requirements in s 25.[9] The issue for determination by the Tribunal is therefore whether the Applicant meets the disability requirements in s 24.[8] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [11].[9] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [3.2]. This was also confirmed by counsel for the Applicant in opening submissions and closing submissions. Section 24 provides:24 Disability requirements (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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 21 October 2023, a reviewer confirmed the original decision (internal review decision).[3] On 16 November 2023, the Applicant made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[4] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[5][3] E1, 51.[4] E1, 47.[5] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (NDIS Act) unless otherwise stated. The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[6] The Applicant’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[7] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.[6] Administrative Review Tribunal Act 2024, s 8.[7] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.LEGISLATION AND POLICY The Applicant must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25. It is not in contest between the parties, and the Tribunal is similarly satisfied, that the Applicant meets the age and residence requirements in ss 22 and 23.[8] The Applicant does not contend that she meets the early intervention requirements in s 25.[9] The issue for determination by the Tribunal is therefore whether the Applicant meets the disability requirements in s 24.[8] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [11].[9] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [3.2]. This was also confirmed by counsel for the Applicant in opening submissions and closing submissions. Section 24 provides:24 Disability requirements (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).

Ratio Decidendi

Legal Principle Established

The Tribunal has considered the written evidence, oral evidence, and submissions referred to above in paragraphs [11] to [14]. CONSIDERATION The issue for determination by the Tribunal is whether the Applicant meets the disability requirements in s 24. The Tribunal will begin by setting out the evidence as it relates to the Applicant’s impairments and treatment thereof. The Applicant fell from a stairwell landing in March 2018.[11] She sustained bilateral intra-articular proximal humerus fractures with rotator cuff avulsion.[12] In the immediate aftermath of the fall, the Applicant underwent open reduction and internal fixation of those fractures with Mr James McLean (Dr McLean), an orthopaedic surgeon.[13] Dr Michael Henningsen (Dr Henningsen), an orthopaedic surgeon, reported that despite intensive physiotherapy and hydrotherapy following that surgery, the Applicant remained significantly impaired, in particular in relation to her dominant right shoulder.[14] He recommended she consider undergoing a right reverse total shoulder replacement.[15] Dr Nicholas Wallwork (Dr Wallwork), a shoulder surgeon, similarly reported the Applicant remained with a degree of dysfunction and disability following this surgery.[16] [11] E1, 75, 77, 114, 117, 284, 253.[12] E1, 75, 77, 114, 284, 259.[13] E1, 75, 77, 116, 117.[14] E1, 75.[15] E1, 75.[16] E1, 77. In October 2018, Mr Richard Pope (Mr Pope), performed a right reverse total shoulder replacement in an attempt to maximise the Applicant’s function and decrease her pain.[17] Dr Henningsen reported the Applicant thereafter underwent intensive physiotherapy and hydrotherapy and her range of motion and strength in her right shoulder improved; but she did remain with significant weakness, instability, stiffness and symptoms of fatigue in relation to her right shoulder.[18] Dr Henningsen reported those symptoms were mirrored on the contralateral side, which whilst significant were not as severe.[19] Dr Wallwork, Mr Pope and Dr Maxwell similarly reported that the right reverse total shoulder replacement resulted in some improvement in terms of function, movement and pain.[20][17] E1, 75, 114.[18] E1, 75.[19] E1, 75.[20] E1, 114, 235, 267, 268. Dr Wallwork reviewed the Applicant in January 2022. He recorded the referred complaint as right shoulder acute pain post right total shoulder replacement, and reported the Applicant had recently developed sudden pain over the anterior aspect of her shoulder, which had persisted and left her very restricted.[21] Dr Wallwork recommended a CT scan and undertook to review the Applicant after that investigation.[22][21] E1, 114.[22] E1, 269. Dr Wallwork reviewed the Applicant in September 2022.[23] He recorded the referred complaint as a right shoulder subluxation episode.[24] Dr Wallwork opined the Applicant had suffered an episode of instability which has a tendency for recurrence; and recommended she avoid actions such as leaning on her elbow as well as distraction forces.[25] Dr Wallwork also reported the Applicant had persistent weakness related to her rotator cuff from a prior injury.[26][23] E1, 113.[24] E1, 113.[25] E1, 113.[26] E1, 113.