Phillips and National Disability Insurance Agency (NDIS) - [2025] ARTA 159

Phillips and National Disability Insurance Agency (NDIS) [2025] ARTA 159 (1 February 2025)
Applicant:Gary PHILLIPS
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/2648

Tribunal:General Member W Strange
Place:Brisbane
Date:February 2025

Decision:The Tribunal affirms the decision under review.

.........................................
Statement made on 25 February 2025 at 12:48pm...............................
General Member W Strange
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – stroke related impairments – whether Applicant meets disability criteria – likely permanency of impairments – whether impairments result in substantially reduce functional capacity – early intervention requirements – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Beezley v Repatriation Commission [2015] FCAFC 165
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FBJV and National Disability Insurance Agency [2021] AATA 913
G v Minister for Home Affairs [2019] FCAFC 79
Galea and National Disability Insurance Agency [2022] AATA 2263
Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835
Holmes and National Disability Insurance Agency [2017] AATA 2750
James and National Disability Insurance Agency [2019] AATA 4248
Kelly v National Disability Insurance Scheme [2024] FCA 1462
Madelaine and National Disability Insurance Agency [2020] AATA 4025
McLeod and National Disability Insurance Agency [2021] AATA 913
Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan and National Disability Insurance Agency [2015] AATA 974
MZHQ and National Disability Insurance Agency [2019] AATA 810
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster (2023) FCAFC 11
Nika and National Disability Insurance Agency [2021] AATA 2127
Power and National Disability Insurance Agency [2023] AATA 3357
Puster and National Disability Insurance Agency [2023] AATA 1760
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Rooney and National Disability Insurance Agency [2021] AATA 3523
Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286
Sutherland v National Disability Insurance Scheme [2024] AATA 411
Timofticiuc and National Disability Insurance Agency [2021] AATA 3015
XVYL and National Disability Insurance Agency [2024] AATA 498
Secondary Materials
National Disability Insurance Agency, NDIS Operational Guideline, Applying to the NDIS (14 October 2024 applicable to NDIS requests made before 3 October 2024)
National Disability Insurance Agency, NDIS Operational Guideline, Assistive Technology (equipment, technology and devices), 20 December 2023
Statement of Reasons
INTRODUCTION

Mr Gary Phillips is a 62 year old man, who is the Applicant in this review. He lives with his wife, Mrs Kerry Phillips, and other family members in Brisbane. While holidaying in New South Wales in 2015 Mr Phillips unfortunately suffered a heart attack, requiring hospitalisation and coronary surgery (a quintuple bypass procedure). He subsequently suffered a stroke. These medical events and their resulting consequences have had ongoing and life-changing impacts for Mr Phillips and his family.
On 7 October 2022 Mr Phillips applied to access the National Disability Insurance Scheme (the NDIS).[1] In his access form, Mr Phillips’ General Practitioner (Dr Hung Tran), referred to disabilities attributable to diagnoses of stroke (the primary diagnosis), as well as heart disease, Type 2 diabetes and renal impairment.
[1] T-Documents, T3.
On 17 January 2024 a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) refused Mr Phillips’ application to access the NDIS.[2] Mr Phillips subsequently requested that decision be internally reviewed.[3] On 8 April 2024 another delegate of the CEO upheld the original decision.[4] On 29 April 2024 Mr Phillips applied to the former Administrative Appeals Tribunal (the AAT) for a review of that decision (the decision under review).[5]
[2] T-Documents, T6.
[3] T-Documents, T8.
[4] T-Documents, T1A.
[5] T-Documents, T1.
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 (Cth) proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
For the reasons that follow, the Tribunal affirms the decision under review.
PROCEDURAL HISTORY OF THE TRIBUNAL’S REVIEW
Mr Phillips represented himself during the review, assisted by Mrs Phillips. The Agency was represented by Maddocks Lawyers.
During the course of the review Mr Phillips confirmed that he was seeking access to the NDIS only on the basis of impairments arising from his stroke.
Mr Phillips also requested that the review be decided without the Tribunal holding an oral hearing; that is, that the matter be determined “on the papers”. The Agency consented to this request. Noting this consent, the Tribunal was satisfied that the issues for determination in the review could be adequately determined in the absence of the parties and proceeded without an oral hearing.[6]
[6] Administrative Review Tribunal Act 2024 (Cth) s 106.
The Tribunal had before it the documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-documents), and other materials lodged by the parties during the course of the review. These included:
(a)Mr Phillips’ responses to targeted questions asked of him by the Agency (filed on 20 June 2024) (also referred to as Mr Phillips’ Statement of Lived Experience).
(b)A report prepared at the request of the Agency by Glen Dwyer, Occupational Therapist, entitled “Occupational Therapy: Functional Capacity Assessment” and dated 30 August 2024 (filed 3 September 2024), together with the Agency’s letter of instruction to Mr Dwyer (Mr Dwyer’s report).
(c)The Agency’s Statement of Facts, Issues and Contentions (the Agency’s SFIC) dated 29 October 2024.
(d)A response to the Agency’s SFIC, prepared by Mrs Phillips and dated 26 November 2024.
Most of these relevant evidentiary and other materials were collated in the form of a Joint Hearing Book (JHB), prepared and filed by the Agency, which also contained relevant excerpts from legislation and NDIS Rules and Guidelines. Additionally, the Agency provided a bundle of authorities, containing the legislation, Guidelines and case law it considered to be relevant to the review.
THE ISSUES IN THE REVIEW
The primary issue before the Tribunal in this review is whether Mr Phillips meets the criteria for access to the NDIS (the access criteria) as set out in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). In short, this involves meeting the age requirements;[7] the residence requirements,[8] and either of the disability[9] or early intervention[10] requirements.
[7] NDIS Act, s 22.
[8] NDIS Act, s.23.
[9] NDIS Act, s 24.
[10] NDIS Act, s 25.
It was not disputed, and the Tribunal so finds, that Mr Phillips meets both the age requirements (by being aged under 65 when his request to access the NDIS was made), and the residency requirements (by residing in Australia and being an Australian citizen).
The Agency contended however that Mr Phillips does not meet the disability requirements, nor the early intervention requirements, under the NDIS Act.
THE ROLE OF THE TRIBUNAL
In undertaking a review, the Tribunal’s role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:
The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[11]
The Tribunal effectively ‘stands in the shoes’ of the maker of the decision under review.[12] In undertaking its review, the Tribunal may exercise all of the powers and discretions that are conferred on the maker of the decision under review.[13] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[14]
[11] [78].
[12] Shi v Migration Agents’ Registration Authority (2008) 235 CLR 286, 324-325, 327 (Kiefel J).
[13] Administrative Review Tribunal Act 2024 (Cth), s 54.
[14] Shi (n 7) 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).
In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[15]
[15] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Scheme [2024] AATA 411 [53].
THE LEGISLATIVE FRAMEWORK
The applicable legislation in this review is the NDIS Act. Section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements and the section 25 early intervention requirements. Those rules, being the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), are also applicable.
A preliminary issue
After Mr Phillips filed his application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note is the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[16] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when Mr Phillips applied to access the NDIS, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
[16] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s 2.
The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, Mr Phillips’ application must be determined in accordance with the provisions of the NDIS Act existing before that date.
Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.
The NDIS Act[17]
[17] The following excerpts reflect how these provisions read prior to 3 October 2024.
Section 18 of the NDIS Act provides that a person may make a request (an access request) to the Agency to become a participant in the NDIS. Pursuant to section 20 of the NDIS Act, the Agency’s CEO must decide if the person making the access request meets “the access criteria”. Section 21(1) of the NDIS Act (as it read prior to 3 October 2024) sets out the relevant requirements for this, and provides:
21 When a person meets the access criteria
(1) A person meets the access criteria if:
(a)the CEO is satisfied that the person meets the age requirements (see section 22); and
(b)the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)the CEO is satisfied that, at the time of considering the request:
(i)the person meets the disability requirements (see section 24); or
(ii)the person meets the early intervention requirements (see section 25).
Section 9 of the NDIS Act defines ‘meets the disability requirements’ to have the meaning given by section 24, which provides as follows:
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).
The five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met. In this review, the Agency submitted that Mr Phillips does not meet one or more of the following disability requirements:[18]
(a)Section 24(1)(b) – permanence of impairments attributable to stroke;
(b)Section 24(1)(c) – substantially reduced functional capacity (in any of the listed activities); and/or
(c)Section 24(1)(e) - requirement of support under the NDIS for the person’s lifetime.
[18] Respondent Agency’s Statement of Facts, Issues and Contentions, dated 29 October 2024, [16].
Section 25(1) provides as follows, in relation to the early intervention requirements:
25 Early intervention requirements
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;
(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.
Similarly, the early intervention requirements under section 25(1) are cumulative. The Agency submitted that Mr Phillips does not meet one or both of the following requirements:[19]
(a)Section 25(1)(a) - permanence of impairments attributable to stroke;
(b)Section 25(1)(b) – early intervention likely to benefit a person by reducing future needs for support in respect of all conditions for which access is sought; and/or
(c)Section 25(1)(c) – early intervention likely to benefit a person (for one of the reasons in section 25(1)(c)(i) to (1)(c)(iv)).
[19] Agency’s SFIC, [17].
The NDIS Rules
As noted, section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements, or the section 25 early intervention requirements. Section 27 provides:
27National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a)one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or
(b)one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or
(c)one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or
(d)the provision of early intervention supports is likely to benefit a person by reducing the person’s future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or
(e)the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person’s functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or
(f)the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person’s carer for the purposes of subparagraph 25(1)(c)(iv).
Section 9 of the NDIS Act defines ‘National Disability Insurance Scheme Rules’ as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:
209 The National Disability Insurance Scheme rules
(1)The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:
(a)required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or
(b)necessary or convenient to be prescribed in order to carry out or give effect to this Act.

NDIS Rules relating to the disability and early intervention requirements have been made; namely, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules). Relevantly, Part 5 of those Rules addresses ‘[W]hen does a person meet the disability requirements?’ and the requirements of ‘permanency’ and ‘substantially reduced functional capacity to undertake relevant activities.’
Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements. These four Rules provide as follows:[20]
[20] Again, these excerpts relate to the Rules as they were before 3 October 2024.
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4An 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.
5.5An 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.
5.6An 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).
5.7If 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.
Rule 5.8 addresses the issue of when does an impairment result in substantially reduced functional capacity to undertake one or more of the relevant activities outlined in section 24(1)(c) of the Act, and provides:
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8An 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.
Part 6 of the Access Rules addresses ‘[W]hen does a person meet the early intervention requirements?’ and again addresses the requirement of ‘permanency’, and additionally ‘deciding whether provision of early intervention supports is likely to benefit the person.’
The NDIS Operational Guidelines
The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA’s ‘operational information’: ‘[T]hey explain what we need to consider and how we make decisions based on the legislation.’ [21] The guidelines of relevance to this review are those entitled Applying to the NDIS (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.
[21] See >
Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[22] As such, the Guidelines set out the NDIA’s policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[23]
DOES MR PHILLIPS MEET THE DISABILITY REQUIREMENTS?
[22] G v Minister for Home Affairs [2019] FCAFC 79, [18].
[23] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).
Section 24(1)(a) – disability attributable to impairments
The first of the section 24 disability requirements is that the person applying for access to the NDIS 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.
The medical records lodged in support of Mr Phillips’ application to access the NDIS establish that while holidaying in New South Wales in November 2015 Mr Phillips experienced chest pain and was admitted to Gosford District Hospital and later transferred to Royal North Shore Hospital in Sydney. He spent approximately one month in hospital and was diagnosed with an ST elevation myocardial infarction (a heart attack) and cardiac arrest, accompanied by ischaemic stroke and pneumonia. He underwent coronary artery bypass surgery (x 5) and received an intra-aortic balloon pump and other forms of treatment.[24]
[24] Joint Hearing Bundle, Discharge referral report of the Royal North Shore Hospital, 14 December 2015, pages 85-91.
In applying to access the NDIS, Mr Phillips listed his stroke as his main disability, and listed other disabilities of heart disease, diabetes and renal impairment.[25] As noted, during the course of this review Mr Phillips confirmed that he was seeking access to the NDIS only on the basis of impairments arising from his stroke, and the evidence provided by him addressed those impairments.
[25] JHB, NDIS Access Request Form dated 7 October 2022, pages 30 and 34.
That evidence, which is discussed in more detail in the following sections of this decision, illustrates the physical, cognitive and sensory impairments that Mr Phillips has faced in his daily living activities since suffering his stroke. For present purposes it will suffice to note that the Agency accepts that Mr Phillips experiences a disability attributable to physical, cognitive and sensory impairments, attributable to his stroke. The Tribunal therefore finds that Mr Phillips satisfies the requirement in section 24(1)(a).
Section 24(1)(b) – permanency
The Agency’s contentions
In making the decision under review, the Agency accepted that Mr Phillips’ cognitive impairments are, or are likely to be, permanent.[26] However, in this review the Agency contended that none of Mr Phillips’ impairments meets the requirement that they are, or are likely to be, permanent.[27] Noting Rules 5.4 to 5.6 of the Access Rules, the Agency submitted that in respect of each of Mr Phillips’ physical, cognitive and sensory impairments, the detailed supporting evidence provided was old (almost 10 years old); that various recommendations for treatment to support Mr Phillips’ recovery had been made and that his prognosis was optimistic; and that there was insufficient evidence to establish that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy these impairments. More specifically, the Agency contended that in the evidence provided by Mr Phillips there was no detailed treatment history which outlines the types of treatments undertaken in relation to each of the conditions; the frequency and duration of such treatments; and Mr Phillips’ compliance with such treatments and outcomes. The Agency provided detailed submissions relating to Mr Phillips’ physical, cognitive and sensory impairments arising from his stroke.
[26] JHB, NDIA Internal Review Decision, page14.
[27] Agency’s SFIC, [22] – [32].
Regarding Mr Phillips physical impairments, the Agency noted the contents of documents included with Mr Phillips’ discharge referral report from the Royal North Shore Hospital in December 2015, and specifically the observations and recommendations provided by three allied health professionals who had provided rehabilitative treatment to Mr Phillips, as follows:[28]
(a)An Occupational Therapist – who reported that Mr Phillips was toileting and showering on his admission to rehabilitation. He was assessed by a neuropsychologist and found to have some visuo-perceptual changes and reduced attention. Mr Phillips also presented with reduced strength and coordination of his left hand and was provided with a program, in which he participated daily. Mr Phillips was referred ‘ … to a community rehabilitation program at Gold Coast Hospital and Health Service[29] with goals to return to higher level ADLs[30] such as community access, and advice about return to work and driving.’
(b)A Physiotherapist – who reported that Mr Phillips presented with weakness to his left upper limb range of motion and strength. On discharge Mr Phillips was independent with all transfers, mobility and performing stairs. He had regained full range of movement of his left shoulder but fatigued after exercise. He was referred to Gold Coast Cardiac rehabilitation for ongoing cardiac therapy and progression of exercise tolerance.
(c)A Speech Pathologist – who reported that Mr Phillips presented with a mild oral dysphagia (swallowing difficulties) for solids and a mild dysphonia (voice hoarseness) and reduced voice volume, possibly due to an intubation injury arising from his surgery and expected to resolve within 6 to 8 weeks. Mr Phillips also presented with a mild unilateral UMN dysarthria (upper motor neuron speech disorder), although he was 100% intelligible in conversation. While the recommendations made by the speech pathologist were not included in the T-JHB, documents before the Tribunal, the report did note that no formal therapeutic intervention was required.
The Agency contended that Mr Phillips had not provided any evidence demonstrating that he had complied with the recommendations of his treating practitioners or therapists, and that he also had not provided any further evidence demonstrating that he had completed further therapies to improve his physical impairments.
[28] JHB, Allied Health Assessment at Discharge (within Royal North Shore Hospital Discharge report), page 91.
[29] At this time Mr Phillips resided on the Gold Coast in Queensland.
[30] Activities of Daily Living.
Turning to Mr Phillips’ cognitive impairments, the Agency noted the contents of a neuropsychological assessment conducted around the time Mr Phillips was discharged from the Royal North Shore Hospital.[31] This report observed that Mr Phillips had reported that he had not noticed major changes to his cognition since the stroke, but had noticed on occasions he missed things (visual information) on his left side, although this was improving. The Clinical Neuropsychologist who examined Mr Phillips noted that he was able to follow conversation and instructions, respond appropriately, ask good questions and understand recommendations. There was some mild difficulty in holding information and using it, and in dividing attention. There was some difficulty with spatial awareness on occasions. Mr Phillips’ ability to learn and remember new verbal information was normal, although there were some difficulties in retrieving information. His higher-level cognitive skills (problem-solving and planning) were reduced on visual tasks and he could get stuck on, or rush through, some tasks. In summary, the neuropsychologist concluded that there were areas of thinking skills that had changed since Mr Phillips’ stroke, but many were not affected, noting the assessment had taken place less than one month after the stroke, which was early in recovery. Some ongoing recovery was expected, although it was noted “ … but we cannot predict what prove or how much it might improve by.” Ongoing community rehabilitation was recommended and arranged, to continue to help Mr Phillips with high-level tasks such as paying bills/banking and accessing the community, and to provide advice about returning to work and driving at a more appropriate time in his recovery.
Again, the Agency contended that Mr Phillips had not provided any evidence demonstrating that he had complied with the recommendations of his treating practitioners or therapists around the time of his stroke, and that he also had not provided any further evidence demonstrating that he had completed further therapies to improve his cognitive impairments.
[31] JHB, Confidential Neuropsychological Assessment Summary, pages100-101.
Finally, regarding Mr Phillips’ sensory impairments, the Agency noted the evidence provided by Mrs Phillips in her carer’s statement[32] about Mr Phillips’ loss of feeling in the left side of his body. The Agency contended that Mr Phillips had not provided any evidence demonstrating that he has sought treatment or completed any therapies to improve these sensory impairments.
[32] JHB, Carer Statement of Mrs Phillips (undated), page84.
Mr Phillips’ contentions
In the carer’s statement, Mrs Phillips stated that she has ‘ … had to undertake the role of carer for Gary since his Ischaemic Stroke … Gary has a lifelong disability as outlined in the medical reports previously provided through Royal North Shore neurologists. He has undergone inpatient and outpatient rehab and no further improvement to his condition or functional capacity has been seen since he was discharged from these programs.’[33] Mrs Phillips further noted that prior to acquiring his disability Mr Phillips had worked full time, but was medically retired after attempting to return to the role that he had been working in (in Rugby League),[34] and had later been ‘exited’ from disability employment services ‘ … due to concerns he was unable to be safely supported in the workplace’ [35]
[33] Ibid page83.
[34] JHB, Mr Dwyer’s report,’page141
[35] JHB, Carer Statement of Mrs Phillips, page 84.
Further, in responding to the Agency’s contentions about permanence,[36] Mrs Phillips advised that in the absence of her care Mr Phillips “ … has permanent limitations and impairments that require ongoing support. Further, his rehab and support post rehab was non existent and he was not connected to other community and mainstream services in order for him to continue to access interventions that could have increased his capacity. He was transferred between two different state systems and never having had experience in understanding what disability supports were available at that time he has effectively fallen through the cracks and was and is unable to have sufficient capacity to engage in meaningful social and economic participation.”
[36] Response to the Agency’s SFIC, prepared by Mrs Phillips, dated 26 November 2024.
Other evidence
Dr Hung Tran is Mr Phillips’ General Practitioner, and began treating him around three years prior to Mr Phillips seeking access to the NDIS in 2023. In that capacity, Dr Tran completed the relevant section of Mr Phillips’ Access Request Form,[37] in which he advised that Mr Phillips’ impairment was not currently being treated, noting specifically the reason for that was ‘complete rehabilitation.’[38] Dr Tran further noted that Mr Phillips’ previous treatment was rehabilitation at the Gold Cost University Hospital, and indicated that there were no available, evidence-based treatments/interventions that are likely to substantially relieve Mr Phillip’s impairment.[39]
[37] JHB, Access Request Form, dated 7 October 2022, pages 21-48.
[38] JHB, Access Request Form, page 34.
[39] JHB, Access Request Form, page 35.
Additionally, Dr Tran completed two NDIS Access Request – Supporting Evidence Forms for Mr Phillips. The first of these was dated 17 December 2022 (first Supporting Evidence Form).[40] Therein he noted ‘stroke’ as Mr Phillips’ primary impairment, also noting ‘ischaemic heart disease, pacemaker’. Treatments of ‘long term medication’ and ‘regular cardiologist review’ were noted. In the section of the form asking about other significant impairments, Dr Tran noted ‘some weakness left side of body;’ that Mr Phillips has had this impairment since 2016, and answered ‘yes’ to the question asking if the impairment is likely to be lifelong. In the section about relevant treatment undertaken in relation to this impairment, Dr Tran wrote ‘need physiotherapy’.
[40] JHB, First Supporting Evidence Form, dated 17 December 2022, pages 49-57.
Dr Tran also completed a second Supporting Evidence Form on 3 July 2023 (second Supporting Evidence Form),[41] which was closer to the date of Mr Phillips applying to access the NDIS. Again, in this version of the form, ‘stroke’ was noted by Dr Tran as Mr Phillips’ primary impairment, which he has had since 2015, which is treated by medications, and is likely to be lifelong (with heart failure noted as another significant impairment).
[41] JHB, Second Supporting Evidence Form, dated 3 July 2023, pages 58-64.
The Tribunal also notes that Dr Tran furnished a brief letter dated 3 February 2024,[42] noting Mr Phillips’ application to access the NDIS and stating “I agree with the statement in the letter from his wife.” Presumably this references Mrs Phillips’ carers’ statement.
[42] JHB, Letter from Dr Tran, 3 February 2024, page 84.
The Royal North Shore Hospital discharge report noted that Mr Phillips “[P]articipated in rehabilitation program well” and noted his plan upon discharge home interstate to the Gold Coast involved “community and cardiac rehab follow-up” and that Mr Phillips’ General Practitioner was to assist in organising cardiology and neurology follow-up.[43]
[43] JHB, Royal North Shore Hospital Discharge Report, page 90.
Mr Glen Dwyer is an Occupational Therapist, who was engaged by the Agency to undertake a Functional Capacity Assessment of Mr Phillips and to provide a report for consideration in this review. Mr Dwyer’s report is dated 30 August 2024.[44] He was provided with the available medical evidence and noted, in relation to Mr Phillips’ medical condition arising from his stroke in November 2015, the following current symptoms:
[44] JHB, Mr Dwyer’s Report, pages114-164. The Agency’s Letter of Instruction to Mr Dwyer, dated 24 July 2024, was also provided in the JHB (pages102-113).
·Left-sided weakness, with diminished strength and coordination of left upper and lower limb movements
·     Diminished sensation in the left upper limb (including the left hand) and the lower part of the left leg
·     Diminished dexterity and fine motor function of the left (non-dominant) hand
·     Reduction in hearing in the left ear (right side is normal)
·     Occasional word-finding difficulties
·     Reported high levels of frustration and anxiety
·     Vulnerability to becoming easily agitated/upset, including self-reported episodes of anger whilst driving.[45]
Mr Dwyer noted that Mr Phillips had ‘ … engaged in post-stroke rehabilitation, which facilitated a reasonable improvement in his physical tolerances compared to his immediate post-stroke status. He stated formal rehabilitation finished in 2016, following which he has not engaged in any regular physical therapy.’ Mr Dwyer further noted that Mr Phillips had not engaged with any psychological treatment to date, despite reporting issues such as anxiety, frustration and agitation, although it was also noted by Mr Dwyer that there was no medical evidence of a recommendation for this form of treatment, and he would defer to Mr Phillips’ treating doctor to specify such treatment. He did note Dr Tran’s recommendation for ‘physiotherapy’, and Mr Phillips’ advice that he had not engaged in this therapy since completing his rehabilitation in 2016. Mr Dwyer concluded:
The medical evidence indicates that Mr Phillips is expected to experience incapacity arising from his stroke for the rest of his life. The medical evidence also indicates that physiotherapy treatment has been recommended for Mr Phillips, however he has not engaged in that treatment.
Further, as stated in Section 3.3, it is my professional opinion that Mr Phillips may benefit from psychological treatment to address psychological symptoms that have yet to be addressed in any meaningful capacity since his stroke in 2015.
Therefore, for the purpose of this report I have assumed that Mr Phillips’ prognostic picture is likely associated with ongoing functional impairment at similar levels to his current functional capacity, with some scope for improvement in his physical and psychological health in the event he engages in further treatment such as physiotherapy and psychological counselling.
Should Mr Phillips obtain benefit from the recommended treatments, this would be anticipated to reduce the impact of some of his impairments and consequently have a positive impact on his capacity for participation in his activities of daily living.
I defer to medical opinion to confirm treatment recommendations for Mr Phillips, and the impact such treatment may have on his functional incapacity in the future.[46]
[45] JHB, Mr Dwyer’s Report, page120.
[46] JHB, Mr Dwyer’s Report, at page 122.
Discussion

The Agency contends that for each of Mr Phillips’ physical, sensory and cognitive impairments that are attributable to his stroke, there is insufficient evidence for the Tribunal to be positively satisfied that there are no known, available and evidence-based clinical, medical or other treatments that would be likely to remedy these impairments; that is, that none of Mr Phillips impairments is ‘permanent’, for the purposes of the NDIS Act. It is to be noted that the concept of ‘impairment’, within section 24 of the NDIS Act, is generally understood ‘as involving the loss of or damage to a physical, sensory or mental function.’[47]
[47] Mulligan v National Disability Insurance Agency [2015] FCA 544, [51].
The NDIS Act does not define the term ‘permanent’. However, the meaning of that term, and also the relevant rules in Part 5 of the Access Rules, have been considered in previous Federal Court decisions, including by Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), and more recently by McEvoy J in Kelly v National Disability Insurance Scheme [2024] FCA 1462 (Kelly). In that latter decision, McEvoy J said the following of Mortimer J’s decision in Davis:
In that case Mortimer J rejected an argument advanced by the NDIA that permanent meant “irreversible” or “untreatable” (at [77]). Her Honour instead held (at [85]) that the correct meaning of “permanent” in s 24(1)(b) is “enduring”, noting that
… This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[48]
[48] Kelly, [15].
Rule 5.4 of the Access Rules provides that an impairment will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. In Davis, Mortimer J considered the meaning of the word “remedy” in Rule 5.4:
In this context, “remedy” should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word “remedy” should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase “permanent impairment”, as an impairment which is enduring 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.[49]
[49] [136].
Kelly dealt with a challenge to the validity of Rule 5.4 of the Access Rules; McEvoy J finding that the Rule was valid.[50] The decision of the Tribunal that was appealed to the Federal Court in Kelly had found that the applicant in that matter had satisfied s.24(1)(a) of the NDIS Act, in that she had a disability attributable to a physical impairment, with the Tribunal then going on to consider section 24(1)(b) and the question of the permanence or likely permanence of that physical impairment. The Tribunal’s consideration of the meaning of the word “likely” was as follows:
One key word that appears in the legislation and the rules [that] does not appear to have been addressed in the authorities is ‘likely’. The Macquarie Dictionary defines likely as: ‘probably or apparently going or destined (to do, be, etc.)’. Likewise, the Oxford English Dictionary defines the word as ‘probable’ in the sense of ‘having a high chance of occurring’. Accordingly, where this word plays a role in helping to determine permanence, I consider it to be indicative of probability rather than possibility, and certainly not mere speculation.[51]
[50] Kelly, [63].
[51] Kelly, [65].
McEvoy J found that in defining “likely” by reference to probability, in contradistinction to possibility or mere speculation, the construction adopted by the Tribunal accorded with the ordinary meaning of the word “likely”, and also appropriately reflected the beneficial and remedial nature of the NDIS.[52]
[52] Kelly, [71].
The Access Guidelines also provide assistance in assessing permanency (footnotes omitted):
Is your impairment likely to be permanent?
We need evidence that you’ll likely have your impairment for your whole life.
You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.
Even when your condition or diagnosis is permanent, we’ll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.
Generally, we’ll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.
…
Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.
Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:
·      known and available
·      appropriate for you and your impairment
·      evidence-based – that is, there’s proof they are likely to be effective.
The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.
If you’re still undergoing or have recently had treatment, we’ll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.
In some situations, it may be clear your impairment is likely to be permanent while you’re still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it’s clear you’ll have a permanent impairment.
You might still have a permanent impairment, even if its effects may change over time.
For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn’t likely to help or improve the impairment’s effects.
Accordingly, the issue for the Tribunal to determine is whether, using the language of Rule 5.4 of the NDIS Rules, ‘there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment”; being the physical, sensory and cognitive impairments that Mr Phillips has.
The available medical evidence establishes that following his cardiac episode and stroke, Mr Phillips completed an initial program of rehabilitation at the Royal North Shore Hospital. Mr and Mrs Phillips have stated that Mr Phillips attended a further rehabilitation program upon returning home to the Gold Coast in Queensland, as recommended, with rehabilitation ending in 2016 and no improvement in Mr Phillips’ impairments occurring since that time. Their evidence is that Mr Phillips undertook all recommended or provided rehabilitation treatment in the aftermath of his medical episode, although they express residual disappointment with the support they have received since 2016.[53]
[53] Mrs Phillips’ Response to the Agency’s SFIC, dated 26 November 2024.
The Agency contends that the detailed medical evidence provided by Mr Phillips is almost 10 years old. However, as has been noted, there is evidence to establish that Mr Phillips has in recent years attended regularly upon his General Practitioner, Dr Tran,[54] who has opined in support of Mr Phillips’ application to access the NDIS that Mr Phillips’ impairment is likely to be lifelong. On the issue of further treatment, Dr Tran has suggested that Mr Phillips ‘need[s] physiotherapy.’ This is the only recommendation made by Dr Tran for potential further treatment. It was also not the subject of specific contention by the Agency in its Statement of Facts, Issues and Contentions.
[54] JHB, Mr Dwyer’s report, page 121.
In Davis, in deciding that the correct meaning of “permanent” in s 24(1)(b) is “enduring”, Mortimer J further commented about the effect of the adjectival use of “permanent” to the noun “impairment” in s 24(1):
“The focus of the text, consistently with the purposes of the scheme, is whether the impairments experienced by individuals (rather that the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.” [55]
[55] Davis, [86].
A period of approximately eight years has now elapsed from when Mr Phillips completed recommended rehabilitation treatments following his stroke. The Tribunal is satisfied that the impairments experienced by Mr Phillips across that period are of an enduring nature.
Further, returning to the provisions of Rule 5.4 regarding “known, available and appropriate” treatments, in Davis, Mortimer J observed that ‘[T]he word “appropriate” connotes a treatment which has a capacity to “remedy” the impairment and is suitable for the particular individual to undergo.’ [56]
[56] Ibid, [137].
As to the Agency’s contentions regarding the sufficiency of evidence and there being ‘known, available and appropriate treatments”, the key issue is whether such treatments would be ‘likely’ to ‘remedy’ Mr Phillips’ impairments, noting that remedy in Rule 5.4 is to be understood as meaning more than relieve or improve, and ‘likely’ is to understood as indicative of probability, rather than possibility.
Mr Phillips’ evidence is that he undertook all recommended rehabilitative treatments, and has in recent years regularly attended upon and consulted his General Practitioner in relation to his various medical issues. Dr Tran has identified that Mr Phillips ‘needs physiotherapy’ – this is the only treatment recommendation he has noted, while also opining, importantly, that Mr Phillips’ impairments are lifelong.
Mr Phillips has not taken up the recommendation made by his doctor regarding physiotherapy, which can be seen as a ‘known’ and ‘available’ treatment, in the language of Rule 5.4. However, having regard to the evidence about the enduring nature of Mr Phillips physical, cognitive and sensory impairments, the Tribunal does not consider that this one untried treatment is an ‘appropriate’ one, in the sense that it is likely to remedy Mr Phillips’ impairments, given their multi-faceted and enduring nature.
The Tribunal finds that Mr Phillips satisfies the requirements of section 24(1)(b) of the NDIS Act regarding permanence.
Section 24(1)(c) – substantially reduced functional capacity
Do Mr Phillips’ impairments result in substantially reduced functional capacity to undertake one or more of the activities listed in subparagraphs (i) to (vi) of section 24(1)(c) of the Act; namely (i) communication; (ii) social interaction; (iii) learning; (iv) mobility; (v) self-care; and (vi) self-management?
Those activities (or domains) are not defined in the NDIS Act, nor in Rule 5.8 of the Access Rules (as set out above). However, the Access Guidelines provide some assistance in determining when an impairment results in substantially reduced functional capacity:[57]
[57] Noting that the descriptions contained within the Operational Guidelines should be considered as providing ‘non-exclusive content to the range of tasks and action’ (as referred to in Rule 5.8) that comprise the activities the NDIA is required to consider, consistent with the legislative history, context and purpose.’ National Disability Insurance Agency v Foster (2023) FCAFC 11, [62].
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
• 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-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks. [NDIS Act s 25(3). NDIS (Becoming a Participant) Rules r 5.8]
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.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from you when you apply to the NDIS.
If you have more than one permanent impairment, we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
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.
In its final Statement of Facts, Issues and Contentions, the Agency cited several helpful authorities in which the scope and meaning of the six activities has been considered by the Tribunal. These were as follows:
Communication: “The Threshold is ‘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’”.[58]
Social interaction: ‘The Tribunal has previously observed that socialisation is “about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills”’.[59]
Learning: ‘This domain pertains to having the cognitive capacity to absorb and apply new skills. The phrase practising and using new skills should not be interpreted as meaning that any inability to utilise a skill connotes an inability to learn.’[60]
Mobility: ‘The Respondent submits that the Tribunal should adopt the approach to mobility under s24(1)(c)(iv) expressed in Madelaine and National Disability Insurance Agency [2020] AATA 4025. Here, the Tribunal explained that a person has functional capacity (or put differently, does not have substantially reduced functional capacity) if they can move about their home, get in and out of bed or a chair and mobilise.[61] In Madelaine, the ability to independently travel 50m was found to demonstrate a capacity to undertake the activities contemplated in the domain of mobility.’ [62]
Self-care: ‘A person will have a substantially reduced functional capacity in the activity of self-care where there are ‘significant gaps’ in their capacity to maintain their personal health, safety, and well-being.’ [63]
Self-management: ‘The Tribunal has explained that self-management connotes ‘a cognitive capacity to organise one’s life, to plan and made decisions, and to take responsibility for oneself’.’ [64]
[58] Agency’s SFIC dated 29 October 2024, at page 7, citing Madelaine and National Disability Insurance Agency [2020] AATA 4025, [79].
[59] Ibid, citing Madelaine, [87].
[60] Ibid, citing Madelaine, [93].
[61] Ibid, citing Madelaine, [104]-[106].
[62] Ibid, citing Madelaine, [106].
[63] Ibid, citing Madelaine, [121], applied in FBJV and National Disability Insurance Agency [2021] AATA 913, [159].
[64] Mulligan and National Disability Insurance Agency [2015] AATA 974, [138].
Evidence about Mr Phillips’ functional capacity was provided in the various materials compiled by Mr and Mrs Phillips, Dr Tran and Mr Dwyer (occupational therapist).
Communication
In her carer’s statement,[65] Mrs Phillips explained the impacts that her husband’s impairments have on his capacity to communicate and to interact socially. She noted that prior to acquiring his disability, Mr Phillips was active and extroverted, working full-time in his role in Rugby League and enjoying socialising with friends and family. Since his stroke, she has observed that Mr Phillips now spends most of his time at home, was unable to return to work, and was medically retired. Further, she stated that Mr Phillips was embarrassed by his short-term memory loss, often struggling to engage in conversations with friends and on the telephone, including when speaking with government agencies. This results in Mr Phillips becoming frustrated and anxious, particularly when in large groups, sometimes resulting in aggressive outbursts, and/or a need for support from Mrs Phillips.
[65] JHB, Mrs Phillips’ Carer’s Statement, page 83.
It is to be noted that much of this evidence from Mrs Phillips more closely relates to the activity of social interaction, rather than the activity of communication.
When completing the ‘Evidence of Functional Capacity’ section in the Access Request Form for Mr Phillips’ application to access the NDIS, Dr Tran ticked the field indicating that Mr Phillips’ disability substantially impacted his functional capacity for ‘communication.[66] However, Dr Tran did not provide any further information, as requested in the form, as to the type(s) of communication assistance needed by Mr Phillips to participate in life activities.[67]
[66] JHB, Access Request Form, page 39.
[67] Ibid, pages 40-41.
In the First and Second Supporting Evidence forms completed by Dr Tran and dated respectively 17 December 2022[68] and 3 July 2023,[69] Dr Tran indicated that Mr Phillips required assistance with communication because of his impairments. For completeness, the Tribunal notes that the First Supporting Evidence Form was accompanied by an Electronic Care and Needs Scale (eCANS) report completed by Dr Tran, dated 4 January 2023, in which the field ‘Difficulty communicating basic needs’ was answered in the negative.[70]
[68] JHB, First Supporting Evidence Form, page53.
[69] JHB, Second Supporting Evidence Form, page 62.
[70] JHB, First Supporting Evidence Form (eCANS report), page 56.
In his functional capacity assessment report, Mr Dwyer noted that during his assessment Mr Phillips communicated clearly and appropriately with him. While there were some occasions when Mr Phillips had to pause as he experienced difficulty in word-finding, he was able to resolve those instances by either finding the correct word or a replacement, with no impact upon the clarity of his communication. Further, Mr Dwyer noted that Mr Phillips’ left-sided weakness and other stroke-related symptoms did not impact his writing skills, due to Mr Phillips being right-handed, and there were no reported or observed deficits in Mr Phillips’ capacity to understand others.[71] Mr Dwyer concluded that in the domain of communication, Mr Phillips did not require assistance:
Notwithstanding occasional word-finding difficulties which he finds frustrating, [Mr Phillips] is otherwise independent in the domain of communication and no formal supports or interventions are required.[72]
[71] JHB, Mr Dwyer’s Report, at page 131.
[72] Ibid, page 118.
Social interaction

As with his mobility, Mr Phillips experiences some reductions in his capacity to undertake some self-care tasks and requires help with some tasks. Mr Dwyer has recommended the use of some ‘assistive technology’ to increase independence in undertaking some self-care tasks; again, this is in the form of ‘commonly used items.’ However, as the evidence reflects, there remain some tasks that Mr Phillips cannot do by himself, including some dressing tasks that require fine motor function; clipping nails on his right hand; some meal preparation; participating in more physically demanding household tasks such as heavier cleaning of bathrooms and the like; and lawn mowing and yard work. It is relevant that these tasks are not performed daily.[143] Other members of Mr Phillips’ family, with whom he lives, usually undertake these tasks. Many are tasks which, as noted by Mr Dwyer, are for their benefit as well.[144]
[143] Madelaine, [123].
[144] JHB, Mr Dwyer’s report, page 118.
The Agency contends that section 24(1)(c) is not met in the activity of self-care, submitting that even if Mr Phillips has difficulty with some discrete tasks on his average days, such a finding, within the activity of self-care, does not result in a conclusion that an applicant has a substantial reduction in functional capacity for that activity.[145]
[145] Agency’s SFIC, [41.22], citing Foster [64]-[65]; FBJV and National Disability Insurance Agency [2021] AATA 913, [159]; and Madelaine, [121].
The evidence establishes that Mr Phillips is able to independently undertake many tasks essential to his self-care, such as toileting, bathing/showering, most dressing tasks, cleaning his teeth, shaving, doing his hair, preparing light meals, doing light washing-up, and completing light shopping, cleaning and laundry tasks. Some of these tasks are undertaken in a modified way, given Mr Phillips’ impairments (particularly his left-sided weakness and sensory impairments). He requires significant assistance in completing some other tasks, which are not performed daily.
In applying the approach taken in Madelaine, it could be said that what Mr Phillips cannot do indicates some reduction in his functional capacity, that does not amount to a substantial reduction, and that such gaps as there are in his capacity to undertake his self-care do not significantly compromise the maintenance of his health, safety and well-being.[146] Similarly, in the case of McLeod, the Tribunal said that “ … a person may not be deemed to have a substantially reduced functional capacity if they can shower, dress, toilet, groom and feed themselves independently, even if they sometimes need assistance or use adaptive techniques.”[147]
[146] Madelaine, at [126].
[147] McLeod and National Disability Insurance Agency [2021] AATA 913, [154].
For these reasons, the Tribunal is satisfied that the evidence supports a finding that Mr Phillips does not have a substantially reduced functional capacity for self-care.
Self-management: Mr Dwyer assessed Mr Phillips to be independent in this domain.[148] He stated that based on observations made of Mr Phillips during the assessment, Mr Phillips has the capacity for planning, problem solving and making decisions relevant to his life roles and responsibilities without assistance.[149]
[148] JHB, Mr Dwyer’s report, page 118.
[149] Ibid, page 140.
The evidence reflects that tasks relating to the management of household finances and bill management are exclusively undertaken by Mrs Phillips. However, Mr Dwyer reported that Mr Phillips informed him that this was the traditional arrangement, continuing after his stroke.
There was some conflict between what Mr Dwyer related about Mr Phillips’ account of his capacity in this domain, compared to what Mrs Phillips had stated in her call with the NDIA on 4 April 2024. For example, Mrs Phillips stated that she arranged all of Mr Phillips’ medical appointments and she was also required to help him with conversations with his doctors.[150] Mr Dwyer stated that Mr Phillips advised him that he organises all of his own medical and therapy appointments.[151]
[150] JHB, Mrs Phillips’ Functional Call (notes), pages 81-82.
[151] JHB, Mr Dwyer’s report, pages 140.
Ultimately, the Tribunal does not consider it necessary to positively resolve the conflicts in the evidence of Mrs Phillips and Mr Dwyer on these matters. There is common ground in the evidence that Mr Phillips is able to undertake a number of self-management tasks independently, such as using a debit card to make purchases for personal items and light grocery shopping; making personal decisions about what he is to do on a day-to-day basis; and generally taking his medication on time and in the right doses. Undoubtedly Mr Phillips’ capacity to manage his own affairs has reduced due to the impairments arising from his stroke, but the evidence suggests that he can still independently undertake many self-management tasks.
Having regard to all of the evidence and the functional, practical nature of the assessment that the Tribunal is required to make,[152] the Tribunal is satisfied that Mr Phillips does not have a substantially reduced capacity in the activity of self-management.
[152] Mulligan, [55].
Conclusion
As the Tribunal is not satisfied that Mr Phillips’ impairments result in substantially reduced functional capacity to undertake one or more of the six activities specified in section 24(1)(c) of the NDIS Act, it follows that Mr Phillips does not meet disability requirements necessary to meet the access criteria in the NDIS Act. Having regard to the cumulative nature of the disability requirements in section 24(1), it is not necessary for the Tribunal to proceed to determine if Mr Phillips meets the criteria in paragraphs (d) and (e) of section 24(1); namely, whether Mr Phillips’ impairments affect his capacity for social and economic participation, and whether Mr Phillips is likely to require NDIS supports under the Scheme for his lifetime.
The Early Intervention Requirements
Having determined that Mr Phillips does not meet the disability requirements of the NDIS Act, it remains for the Tribunal to determine if he meets the early intervention requirements.
In Mulligan, the Federal Court noted a recommendation made in the Productivity Commission’s 2011 Inquiry Report, “Disability Care and Support”[153] which said that individuals receiving support through the NDIS should have a disability that is or is likely to be permanent, and would meet one of two conditions, with (relevantly) those “in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective.”[154]
[153] Which informed the establishment of the NDIS.
[154] Mulligan, [54]
The Tribunal has determined that Mr Phillips’ physical, cognitive and sensory impairments are, or are likely to be permanent, meaning that he meets the requirement in section 25(1)(a). Paragraph (b) of section 25(1) requires, in the context of this review, that the Tribunal be satisfied that the provision of early intervention supports for Mr Phillips is likely to benefit him, by reducing his future needs for supports in relation to disability. Additionally, paragraph (c) requires the Tribunal to be satisfied that the provision of early intervention supports for Mr Phillips is likely to benefit him by mitigating or alleviating the impact of Mr Phillips’ impairment(s) upon his functional capacity in the six domains already discussed; or by preventing the deterioration of such functional capacity or improving it; or strengthening the sustainability of informal supports available to Mr Phillips.
Part 6 of the NDIA’s Access Rules addresses the early intervention requirements. Rule 6.9 sets out the issues to be considered in in deciding whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs (b) and (c) of section 25(1) of the NDIS Act:
Where evidence is required
6.9In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:
(a)    the likely trajectory and impact of the person's impairment over time; and
(b)     the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and
(c)    evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.
The Access Guidelines relevantly explain that “[E]arly intervention is usually early access to support, to help reduce the functional impacts of your impairment … You won’t need these supports for your lifetime, so your treating professional … will tell us how early intervention support could benefit you.”[155] The Access Guidelines also provide the following commentary (footnotes omitted):
[155] Applying to the NDIS Operational Guideline, at page 11.
How will early intervention help you?
We need to decide that getting early intervention supports means you’ll likely need fewer disability supports in the future.[i]
We need to know that early intervention supports will help you with at least one of the following:
·      addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
·      preventing your functional capacity from getting worse
·      improving your functional capacity
·      supporting your informal supports, which includes building their skills to help you.
To help us decide if the early intervention will help you in these ways, we look at:
·      how your impairment might change over time
·      how long you’ve had your impairment
·      if there’s been a significant change to your impairment
·      if your needs are likely to change soon, such as if you’re finishing school.
The Access Rules require a consideration of the likely trajectory and impact of Mr Phillips’ impairments over time, and the potential benefits of early intervention on the impact of the impairment on his functional capacity and in reducing his need for future supports.
The Agency contends that Mr Phillips does not meet the early intervention requirements; more specifically, the state of the available medical evidence is insufficient to determine which early intervention supports are likely to benefit Mr Phillips by reducing his future needs for supports, and mitigating the impact of, preventing deterioration of, or improving his functional capacity.[156]
[156] Agency’s SFIC, [17] and [48] - [53].
In the case of James and National Disability Insurance Agency, the Tribunal said the following about the early intervention requirements under section 25:
The objective of early intervention support is expressed to be to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the long term. Accordingly, the early intervention requirements look at the likely trajectory and impact of a person’s impairment over time and the potential benefits for early intervention on the impact of the impairment on the person’s functional capacity.[157]
[157] James and National Disability Insurance Agency [2019] AATA 4248, [49].
In that decision the Tribunal also commented on the operation of the ‘second gateway’ set out in section 25(1)(b):
… the section is concerned not with ‘early’ intervention in terms of an early diagnosis, but rather early in the course of the impairment where early intervention is likely to have a significant impact on the course taken by that impairment.[158]
[158] Ibid, [52].
There can be no dispute that Mr Phillips’ impairments are now long-standing in their nature, having first arisen following his stroke in late 2015. Mr Phillips’ impairments are enduring, and cannot be said to be at an early stage of their trajectory.[159] The provision of supports at this time could not in turn be considered to be ‘early’.
[159] FBJV and National Disability Insurance Agency [2021] AATA 913, [170]; Puster and National Disability Insurance Agency [2023] AATA 1760, [67]; XVYL and National Disability Insurance Agency [2024] AATA 498, [145].
When completing Mr Phillips’ Access Request Form, Dr Tran noted that it was not likely that early intervention supports would reduce Mr Phillips’ support needs.[160] However, Dr Tran provided a conflicting view in both Supporting Evidence forms,[161] although no detail was provided in either form as to any recommended early intervention strategies.
[160] JHB, Access Request Form, page 36.
[161] JHB, First Supporting Evidence form, p.52; Second Supporting Evidence Form, page 61.
The Tribunal considers that the medical evidence available to it is not sufficient to satisfy it that the provision of early intervention supports for Mr Phillips is likely to benefit him by reducing his future needs for supports in relation to disability, or by achieving the functional and other outcomes contemplated by subparagraphs (1)(c)(1) to (iv) of section 25.
For these reasons, the Tribunal finds that Mr Phillips does not meet the early intervention requirements under section 25 of the NDIS Act.
CONCLUSION
It follows that as Mr Phillips does not meet either the disability requirements under section 24 or the early intervention requirements under section 25, he does not meet the access criteria under section 21 of the NDIS Act.
In so deciding, the Tribunal acknowledges that as a result of his stroke-related impairments Mr Phillips’ quality of life has been significantly impacted. Those impacts extend to his immediate family members, particularly Mrs Phillips. However, as the Federal Court observed in the case of Mulligan, the access criteria in the NDIS Act are an essential component of the NDIS, imposing a number of thresholds on access to the Scheme. Such access, and the supports, funding and autonomy that the NDIS delivers, is reserved for a subcategory of persons with disabilities, rather than every person with disability.[162]
[162] Mulligan, [50].
DECISION
The Tribunal affirms the decision under review, pursuant to section 105(a) of the Administrative Review Tribunals Act 2024.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of General Member W Strange

.........[SGD].............................................................
Associate
Dated: 25 February 2025

Date of hearing: 16 December 2024

Applicant: In person, assisted by Mrs Kerry Phillips

Solicitors for the Respondent: Maddocks Lawyers

Date of hearing:	16 December 2024
Applicant:	In person, assisted by Mrs Kerry Phillips
Solicitors for the Respondent:	Maddocks Lawyers