Tomlinson and National Disability Insurance Agency (NDIS) - [2025] ARTA 1056

Tomlinson and National Disability Insurance Agency (NDIS) [2025] ARTA 1056 (22 July 2025)
Applicant/s:  Robyn Tomlinson
Respondent:  National Disability Insurance Agency
Tribunal Number:                2023/6181
Tribunal:  Senior Member De Villiers
Place:  Perth
Date of decision:                 22 July 2025

Decision:The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).

……[SGD]………………………
Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access – degenerative spinal
disability – fibromyalgia – NDIS Act s24(1)(a) – whether applicant has a disability attributable to an impairment – NDIS Act s24(1)(b) – whether impairment likely to be permanent – Rule 8.5 – are deeming provisions met – NDIS Act s24(1)(c) – whether impairment substantially reduces functional capacity – social interaction – mobility – self-care – NDIS Act s24(1)(e) – is support likely for life – NDIS Act s25 – whether requirements for early intervention are satisfied – decision under review affirmed.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
CASES
Beezley v Repatriation Commission (2015) 150 ALD 11
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237
Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718
G v Minister for Home Affairs [2019] FCAFC 79
G v Minister for Immigration and Border Protection [2018] FCA 1229
Garcia Albiol v National Disability Insurance Agency [2024] AATA 496
HPSC and National Disability Insurance Agency [2021] AATA 727
Kilgallin v National Disability Insurance Agency [2017] AATA 186
Madelaine v National Disability Insurance Agency [2020] AATA 4025
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Foster [2023] FCAFC 11
National Disability Insurance Agency v Davis [2022] FCA 1002
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577
Re Schwass and National Disability Insurance Agency [2019] AATA
Rooney and National Disability Insurance Agency [2021] AATA 3523
Ward v Western Australia (1996) 69 FCR 208
SECONDARY MATERIALS
Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth)
National Disability Insurance Agency, Applying to the NDIS access guidelines (at 11 March 2025)
Statement of Reasons
BACKGROUND

Mrs Robyn Tomlinson (‘the Applicant’) is a 63-year-old female. The Applicant lives in a single-level home with her husband and two adult children. The Applicant works full-time from home as a bookkeeper/accounts manager in the employment of her daughter.
The Applicant seeks access to the National Disability Insurance Scheme (‘the Scheme’) so that she can receive supports based on impairments due to a degenerative spinal condition and fibromyalgia. She says the primary impairments arise from the spinal degeneration. Occupational Therapist, Ms Catherine Cummings summarises the disability of the Applicant as follows:
Chronic Spinal Condition (C3/4, C4/5, C5/6, C6/7, C7/T1 and L5/S1). The Applicant stated that she has osteoarthritis primarily in her back. She explained that she has had six-disc ruptures in the past with two being serious and requiring two surgeries (lumbar 2013, and cervical 2020). The Applicant explained that the surgery to her lumbar spine caused adhesions that ‘wrapped around the nerve’ causing constant pain and changes to sensation down her left leg. She stated that at C4 and C5 there was a disc rupture that crushed the nerve, and at C8 surgery occurred to take the disc out and put screws in there which has resulted in some limited neck flexion and extension. The Applicant stated that as a result of the cervical injury she has increased weakness and changes to sensation in her left hand and difficulty with fine motor skills. She can use a keyboard and mouse with her left hand’.[1] In oral evidence the Applicant says she experiences constant pain in her back and muscles, it is debilitating, everything hurts, her back is main problem, she cannot bend, she cannot crouch, she cannot pick things up, and she cannot perform household chores that requires bending or reaching.[2]
[1] HB p 147.
[2] HB p 147.
The Respondent, the National Disability Insurance Agency (‘the Agency’), says that the evidence does not support access to the Scheme being granted to the Applicant.
The Applicant says she meets the disability requirements as well as the early intervention requirements as set out respectively in sections 24 and 25 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).
The Agency accepts that the disability of the Applicant is permanent[3] and attributable to physical and neurological impairments related to her lumbar spinal condition and disc protrusion compressing her left-sided S1 nerve, as well as fibromyalgia.[4] The Agency also accepts that those impairments affect the Applicant’s capacity for social and economic participation as required by subsection 24(1)(d) of the NDIS Act.
[3] Subsection 24(1)(b) of the NDIS Act.
[4] Subsection 24(1)(a) of the NDIS Act.
The Agency contends, however, there is inadequate evidence that:
(a)the impairments result in substantially reduced functional capacity of the Applicant to undertake the activities in subsection 24(1)(c)(i)-(vi) of the NDIS Act;
(b)the Applicant is likely to require NDIS supports for her lifetime as required by subsection 24(1)(e) of the NDIS Act; and
(c)the Applicant meets the requirements for early intervention under section 25 of the NDIS Act.
The Applicant’s application for access to the Scheme was refused at first instance by the Agency, and that decision was affirmed upon internal review by a different delegate of the Agency.[5]
[5] HB pp 81-9.
The Applicant subsequently applied to the Administrative Appeals Tribunal (‘AAT’) on 22 August 2023 for a review of the Agency’s internal review decision (‘the Reviewable Decision’).[6] In her application to the AAT the Applicant stated:[7]
[6] HB pp 27-32; section 103 of the NDIS Act.
[7] HB p 31.
The reasons are as follow:
1My surgeon letter quite clearly states my spinal issue is permanent and can not be fixed. The descision (sic) said I can't prove it is permanent. I think the surgeon who knows my situation clearly states this.
2It is stated in my rejection that i have avenues I can try via an FC A report from an O.T. This report is clearly stating help NDIS can give me for maintenance of my situation not improvement or cure. Surgeon clearly stated my issue is permanent.
3The rejection mentioned my Diabeties (sic) does not meet the criteria, however I did not have anything on my application about Diabeties. (sic) I only had my severe back problem which is permanent and also my Fibromyalgia which also is known to have no cure.
I am looking at NDIS assistance to try and maintain some kind of quality of life and slow further deterioration.
I am also very concerned that the comment about Diabeties (sic) was in there. It was not part of my application so I would assume this was simply cut and pasted from a previous application. Not only is the disturbing to me but my understanding is the review would be independently (sic) reviewed. This clearly was not the case.
The simple truth is that I have a serious disability that is permanent and I have proven this with numerous supporting documents and my only hope of slowing my decline is with some help to maintain my current situation as per the Occupational Therapy FCA.
The parties submitted a joint bundle of material comprising pages 1-827, marked Hearing Book (‘HB’) and a CT scan of Cervical Spine Report and Ultrasound of Right Hip Report, marked Supplementary Document (‘SD’).
The hearing took place in Perth on 8 July 2025. The parties participated via video link.
At the hearing the Applicant was self-represented. The Agency was represented by Mr Philip Nolan of Counsel, instructed by Mr Erin Thomas from Maddocks Lawyers.
I find, for reasons explained below, that the Applicant meets the requirements of subsections 24(1)(a), 24(1)(b), and 24(1)(d) of the NDIS Act, but that the Applicant does not meet the requirements of subsection 24(1)(c) of the NDIS Act, or subsection 24(1)(e) of the NDIS Act. I also find that the Applicant does not meet the requirements of section 25 of the NDIS Act.
I therefore affirm the decision under review.
STATUTORY FRAMEWORK IN RESPECT OF JURISDICTION
The Applicant sought to become a participant of the Scheme on 10 February 2023 pursuant to sections 24 and 25 of the NDIS Act, respectively. After her application had been refused and she had exhausted the internal review process of the Agency, the Applicant sought a review of the decision in the AAT on 22 August 2023. Before the AAT could determine the application for review, the Administrative Review Tribunal (‘the Tribunal’) came into being on 14 October 2024 to replace the AAT.
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
I am therefore satisfied that the Reviewable Decision falls within jurisdiction of the Tribunal for me to determine.
Since the Applicant has lodged her application to become a participant in the Scheme, the NDIS Act has been amended. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (‘Amending Act’) received royal assent on 5 September 2024 and commenced on 3 October 2024. Relevantly, sections 24 and 25 of the NDIS Act have been amended by the Amending Act. However, section 126(1)(a) of the Amending Act states, relevantly, that the amendments to sections 24 and 25 apply in relation to ‘…a person who makes an access request on or after that commencement, for the purposes of deciding whether the person meets the access criteria on or after that commencement’. Section 126(3) of the Amending Act also states that the National Disability Insurance Scheme rules made for the purposes of section 27 of the NDIS Act that were in force immediately before the commencement of this Schedule continue in force (and may be dealt with) as if made for the purposes of that section as amended by this Schedule.
Therefore, because the Applicant sought access to the Scheme prior to 3 October 2024, sections 24 and 25 of the NDIS Act as it existed prior to that date, apply.
ISSUE
The issue to determine is whether the Applicant meets the access criteria required to be a ‘participant’ of the Scheme, particularly the requirements of subsections 24(1)(c) and (e) of the NDIS Act.
By section 21 of the NDIS Act, the Applicant must meet:
(a)the age requirements in section 22; and
(b)the residence requirements in section 23; and
(c)the disability requirements in section 24; or
(d)the early intervention requirements in section 25.
Access to the Scheme requires the Applicant to satisfy that she meets the ‘access criteria’ under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:
When a person meets the access criteria
1 A person meets the access 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).
2For the purposes of paragraph (1)(c), the CEO must separately consider and decide:
(a)whether or not the prospective participant meets the disability requirements; and
(b)whether or not the prospective participant meets the early intervention requirements.
…
3The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a)the CEO does not do a thing referred to in paragraph 20(1)(a) or (b) within the period applicable under section 20; or
(b)if subsection 26(2) applies--the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection.
…
Note 2:  Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
The Agency accepts, and so do I find, that the Applicant meets the following requirements:
(a)The age requirement, since she was 61 years of age when the application was made;[8] and
(b)the residence requirement, since she was at the time the application was made and remains, a resident in Australia and an Australian citizen. [9]
[8] Subsection 21(1)(a) of the NDIS Act.
[9] Subsection 21(1)(b) of the NDIS Act.
The Agency says the Applicant does not satisfy the disability requirements in subsections 24(1)(c) and 24(1)(d) of the NDIS Act, or the early intervention requirements in section 25 of the NDIS Act.
The issues for my determination are therefore whether the Applicant meets the disability requirements under section 24 of the NDIS Act, or whether the Applicant meets the early intervention requirements under section 25 of the NDIS Act.
THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)
The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
1A 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.
The requirements of section 24 of the NDIS Act are cumulative and all requirements must be met for the Applicant to become a participant in the Scheme.
The early intervention requirements contained in section 25 of the NDIS Act provides as follows:
1A 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;
(ii)    has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction;
(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.
The requirements of section 25 of the NDIS Act are cumulative and all requirements must be met for the Applicant to become a participant in the Scheme.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘Access Rules’).
The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The Operational Guidelines represent government policy. The relevant guidelines in this review are the National Disability Insurance Agency, Applying to the NDIS access guidelines (version dated 14 October 2024, current as at 11 March 2025) (‘Guidelines’).
There is no power conferred by the NDIS Act to make Guidelines. They are issued in an exercise of executive power.[10] The Tribunal is therefore not bound by any policy set out in the Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[11] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[12] where Mortimer J held:
Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it …
[10] G v Minister for Home Affairs [2019] FCAFC 79, [18].
[11] [1979] 24 ALR 577, [590].
[12] [2018] FCA 1229, [171].
Therefore, unless the Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether the Applicant meets the disability requirements or the early interventions requirements.
Whether the Applicant meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a ‘fact-finding task’[13] with a relatively high degree of precision and be positively satisfied.[14]
[13] National Disability Insurance Agency v Davis [2022] FCA 1002, [42].
[14] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 (‘Mulligan’), [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28, [29]; National Disability Insurance Agency v Davis [2022] FCA 1002, [61].
APPLICANT’S POSITION IN SUMMARY
The Applicant in her application to become a participant, in her written material provided to the Agency and this Tribunal, in her oral evidence during the hearing, and in her statement of lived experience,[15] says that she meets the disability requirements in section 24, or in the alternative, that she meets the early intervention requirements in section 25 of the NDIS Act.
[15] HB pp 139-140.

The Applicant describes in oral evidence her typical working day as follows:
I work from home, full time, 38 hours, OT business, bookkeeping, cannot work from an office, previously office manager, work from home since 3 years. I get up at around 8am, shower and get dressed, have brekkie which my husband and prepare for the day. Log in for work around 9am, lunch depending on needs, can make an own salad sandwich, heating up food, but not low or high reach. I have a sit and stand desk and work until around 5pm unless something urgent. May then go to shops with daughter with Emely a couple of times a week. I usually shower at night unless wash hair than in morning, my husband prepares dinner, then we watch tv but I cannot sit for long so we usually watch from sit-up in bed. Go so sleep around 10.30pm.
The Applicant says, in essence, that she has a degenerative spinal disability and fibromyalgia; that these disabilities are attributable to impairments that are permanent; that as a result of the impairments she has substantially reduced functional capacity in social interaction, mobility, and self-care; that the impairments affect her capacity for social or economic participation; and that she is likely to require support under the NDIS for her lifetime. The Applicant furthermore says that for the purposes of section 25 of the NDIA Act she meets the early intervention requirements since a NDIS-funded Plan may improve and extend her quality of life and thereby reduce or mitigate future support needs. The Applicant says she does not have impairments in respect of communication, learning, and self-management.
THE AGENCY’S POSITION IN SUMMARY
The Agency accepts that the Applicant has a disability that meets the requirements of subsection 24(1)(a) of the NDIS Act attributable to a degenerative spinal condition and fibromyalgia. The Agency accepts that the disability is attributable to impairments of a physiological and neurological nature consistent with subsection 24(1)(a) of the NDIS Act; that the impairments are permanent pursuant to subsection 24(1)(b) of the NDIS Act; and that her capacity for social and economic participation as per subsection 24(1)(d) of the NDIS Act is affected by the impairments.
The Agency does not accept that the Applicant meets the requirement for substantially reduced functional capacity as per subsection 24(1)(c) of the NDIS Act, or that the Applicant meets the requirement for support under the NDIS for her lifetime as per subsection 24(1)(e) of the NDIS Act.[16] The Agency says furthermore that the Applicant does not meet the early intervention requirements of section 25 of the NDIS Act.
[16] HB p 6.
THE EVIDENCE
I have considered all the written evidence filed with the Tribunal and provided in the joint hearing bundle, the oral evidence provided at the hearing on 8 July 2025, and the parties’ closing submissions. I will refer in my reasons for decision to some of the more salient aspects of the evidence.
I will assess separately each of the statutory requirements for the Applicant to become a participant in the Scheme.
Section 22: Age requirement
I have found at [22(a)] above that the Applicant meets the age requirement since she was 61-years-old at the time she applied to the Agency to become a participant.
Section 23: Residence requirement
I have found at [22(b)] above that the Applicant meets the residence requirement since she is resident in Australia and an Australian citizen.
Section 24: Disability requirements
The elements of the disability requirements are as follows.
Subsection 24(1)(a) – a disability attributable to an impairment
The Applicant contends, and the Agency accepts, that she has physical and neurological impairments attributable to a disability caused by degenerative changes in her cervical and lumbar spine, and fibromyalgia.
The Applicant says that she has a ‘spinal issue that is permanent’.[17] The Applicant says she has also been diagnosed with fibromyalgia, which is a permanent condition causing nerve pain in the entire body. The Applicant says the chronic back pain she experiences together with the pain arising from the fibromyalgia, meet the requirements of subsection 24(1)(a) of the NDIS Act. The Applicant says her impairments principally arise from her spinal condition.
[17] HB p 31.
The Agency agrees with the Applicant that, based on the medical evidence and her lived experiences, she has a disability that is attributable to neurological and physical impairments. The Agency does not distinguish between the impairment related to her spine and the fibromyalgia. It has however been accepted that the most severe impairments relate to the degeneration of her spine.
Having considered the evidence, I find that the Applicant has a disability that is attributable to physical and neurological impairments due to degenerative spinal condition and fibromyalgia.
I find that the primary impairments arise from the spinal condition, with the fibromyalgia being the cause of secondary impairments. The Applicant meets the requirement of subsection 24(1)(a). The reasons for this finding are:
(a)Dr Michael Bryant, Neurosurgeon, confirmed the diagnosis of a sizable disc protrusion in the Applicant’s lumbar spine, which needed to be operated on in 2013. Dr Bryant treated the lumbar spinal condition of the Applicant in 2013 when the Applicant presented with a disc protrusion compressing her left-sided S1 nerve. Dr Bryant said in a letter dated 19 June 2023 that the Applicant had a ‘sizable disc protrusion and we were able to retrieve a lot of the disc material but not all of it and she has been left with significant ongoing disablement as a result’.[18] It became apparent after the 2013-surgery that the nerve had sustained some internal damage and incomplete resolution of her symptoms eventuated. The Applicant has been left with significant post nerve injury pain that has caused a ‘permanent incapacity’. Dr Bryant is of the opinion that ‘all available treatment strategies have now been undertaken’. In his written answers to questions dated 13 February 2024, Dr Bryant said the Applicant has ‘widespread degenerative changes throughout the cervical spine’.[19] Dr Bryant said the Applicant’s condition should be considered as ‘prognostically poor’.[20]
(b)Dr Hamish Alexander, Neurosurgeon, confirmed the Applicant’s ‘cervical and lumbar spinal problems’. Dr Alexander undertook a C7-T1 anterior cervical discectomy and fusion procedure in 2020. It appeared that the Applicant was experiencing widespread degenerative changes throughout the cervical spine. In his letter of 26 March 2021, Dr Alexander said the cervical and spinal problems of the Applicant cause ‘persistent leg and arm pain’ for which there is ‘no surgical solution’ and it would have to be managed as a ‘chronic problem’.[21] The CT Scan of Cervical Spine Report and Ultrasound of Right Hip Report by Dr Winston Erng on 25 April 2025 notes ‘multilevel intervertebral disc narrowing, worse at the lower cervical spine’.[22]
(c)Dr Renu Rayani, General Practitioner, confirms a diagnosis of a ‘back disability with multiple ruptures and crushed nerves’ and fibromyalgia. He says the Applicant has been diagnosed with fibromyalgia for ‘several years’ and this causes restricted movements of her upper limbs.[23] He adds that despite undergoing neck fusion surgery, she continues to have neck pains and lower back pains. She also has ‘numbness of her fingers’.
(d)Dr Sherry Girgis in his letter of 2 May 2024 says that the Applicant describes ‘daily pain, with pain in both shoulders’.[24]
(e)Occupational Therapist Natalie Tathem, in her report of 12 October 2022 describes the impairment of the Applicant as follows:
Robyn’s diagnosis and the related symptoms of Fibromyalgia resulting in Chronic pain greatly impact on Robyn’s ability to complete her activities of daily living. Robyn also has multiple adhesions surrounding her Sciatic nerve which impact on the sensation in her legs and increase pain in lower back. Robyn has also had surgery to her neck to insert screws which has cause nerve damage affecting her gross and fine motor ability in her hands.[25]
Although this assessment was done by telehealth and not by personal observations, I am satisfied that the description of impairments is consistent with the other expert evidence as well as evidence of the Applicant.
(f)Occupational Therapist Catherine Cummings, in her report of 25 March 2024, describes some of the symptoms experienced by the Applicant as weakness in the left hand, left foot can drag when walking, left leg gives way without warning, reduced walking tolerance, and reduced range of motion in the back.[26]
[18] HB p 38.
[19] HB p 135.
[20] HB p 136.
[21] HB p 74.
[22] SD.
[23] HB p 70.
[24] HB p 138.
[25] HB p 91.
[26] HB p 147.
I find that the evidence of the medical practitioners, read with the observations and opinions of the occupational therapists, and the lived experiences of the Applicant, meet the requirement that the Applicant has a disability attributable to a physical and neurological impairment arising primarily from the degeneration of her spine, particularly the lower cervical spine, and secondary from fibromyalgia. Subsection 24(1)(a) of the NDIS Act is satisfied.
Subsection 24(1)(b) – permanence
Section 24(1)(b) of the Act requires the impairment or impairments to be permanent or likely to be permanent. An impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the Scheme for the person’s lifetime, despite the variation.
The Applicant must put forward evidence and information sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements in the Act have been met.[27] In accordance with rule 5.4 of the Access Rules, the Tribunal needs to be positively satisfied that there are no known, available and appropriate treatments for the impairment. In other words, if the Tribunal is left in doubt about whether there is treatment available to the Applicant, then the rule is not met. The obligation is therefore on the Applicant to demonstrate the existence of a negative, being that there are no known, available and appropriate treatments.[28]
[27] Beezley v Repatriation Commission (2015) 150 ALD 11, [68]; HPSC and National Disability Insurance Agency [2021] AATA 727, [85]: ‘In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person ‘must satisfy’ the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security (1984) 1 FCR 354, 356-8 (per Woodward J), 366 (per Northrop J), 369 (per Jenkinson J); Ward v Western Australia (1996) 69 FCR 208, 215-8; Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237, [18] and the cases there cited.’
[28] National Disability Insurance Agency v Davis [2022] FCA 1002, [131]; Kelly v National Disability Insurance Agency [2024] FCA 1462, [22].
The parties agree that the impairments of the Applicant meet the permanency requirement.[29]
[29] The written submissions the Agency questioned whether the permanency condition had been met, but in oral submissions during the hearing the Agency accepted that permanency had been established.
The Applicant refers to her lived experience as well as to the reports of Dr Bryant, Dr Alexander, and Dr Rayani to contend that the impairments are, or are likely to be, permanent.
The Agency agrees that the evidence establishes that there are no known, available, or appropriate treatments for the impairments, which primarily is the pain experienced by the Applicant caused by the degenerative condition of her spine.
I find for the following reasons that the impairments of the Applicant are, or are likely to be, permanent.
(a)Dr Bryant speaks of the ‘significant ongoing disablement’ of the Applicant due to disc material that had not been able to be cleared. He says the Applicant now has a ‘permanent incapacity’ as a result of her condition and that her spine shows a ‘propensity for injury and a weakness in her discs’. Finally, he opines that ‘her condition should not be considered maximally treated and stable and stationary’.[30]
(b)Dr Alexander says the Applicant has ‘persistent radicular leg and arm pain for which there is no ongoing solution’.[31]
(c)Dr Girgis says the fibromyalgia is not related to the spinal problems of the Applicant.[32] The fibromyalgia is therefore a separate disability.
(d)The Applicant gave evidence about the nature of the impairments she experiences, how the impacts thereof on her daily functioning have worsened since her surgery in 2013, and how she has been told that there are no surgical solutions left other than pain management and pain medication.[33] The Agency accepts the evidence of the Applicant.
[30] HB p 38.
[31] HB p 56.
[32] HB p 138.
[33] The Applicant is currently on the following pain medication: Gabapentin twice per day; and Panadol osteo 665mg twice a day: HB p 150. The Applicant says Dr Richard Pendleton only recommended medication and no other pain management course or treatment.
I find that that the impairments of the Applicant are permanent or likely to be permanent since there are no known, available, and appropriate treatments. Subsection 24(1)(b) of the NDIS Act is satisfied.
Sub-Section 24(1)(c) – substantially reduced functional capacity
Subsection 24(1)(c) of the Act requires that the impairments result in a substantially reduced functional capacity to undertake one or more of the activities of communication, social interaction, learning, mobility, self-care, or self-management.
The subsection 24(1)(c) inquiry is limited to those permanent impairments that have been established in the subsections 24(1)(a) and 24(1)(b) enquiries.[34] The functional activities of subsection 24(1)(c) are not conjunctive, and therefore it is only necessary for the Applicant to establish that she experiences substantially reduced functional capacity in one of the designated life activity areas.
[34] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (‘Burrows’), [60].
The NDIS Act does not define what is meant by ‘substantial’. It is ultimately a question of fact. In Burrows, Senior Member French usefully cites the assessment tool used by the World Health Organisation to assess the ‘degree of difficulty’ a person experiences in doing a specific function.[35] Senior Member French states as follows:
For present purposes I note that WHODAS 2.0 assesses the “degree of difficulty” a person experiences in doing specified activities of daily living in terms of “increased effort”, experience of “discomfort or pain”, “slowness” and “changes in the way the person does the activity” (the difficulty factors) according to a five-point scale which is “none” (“1”), “mild”(“2”), “moderate”(“3”), “severe” (“4”) and “Extreme or cannot do” (“5”) (the difficulty ratings). For present purposes I note that “moderate” refers to an approximate 25-50% reduced functional capacity to perform and activity and “severe” refers to an approximate greater than 50% reduced functional capacity to perform the activity. In my opinion this analytical framework is helpful in giving meaning to the concept of substantially reduced function. In my view, “substantial” should be understood as connoting a degree of difficulty in performing a task that is more than “moderate”, and “reduced” should be understood as being in one of the four ways specified by the difficulty factors.
[35] Burrows, [64].
I am not bound by this decision, but I find it apposite as a tool to assess if the Applicant meets the requirement of substantially reduced functional capacity to perform the functions of social interaction, mobility, and self-care. The scale of difficulty is not intended to replace or supplement the statutory requirement, but rather to assist to give effect to the statutory requirement by way of practical indicia.
The Applicant says that she does not experience substantially reduced functional capacity regarding communication, learning, or self-management.
I find that the impairment of the Applicant does not result in substantially reduced functional capacity in respect of functions listed in subsections 24(1)(c)(i), 24(1)(c)(iii) and 24(1)(c)(vi), being communication, learning, or self-management.
The Applicant says that the impairments result in substantially reduced functional capacity in respect of social interaction, mobility, and self-care.
The Agency accepts that the impairments result in reduced functional capacity in the areas of social interaction, mobility, and self-care, but the Agency disputes that the Applicant meets the requirement of substantially reduced functional capacity. The Agency does not, however, challenge the evidence of pain experienced by the Applicant in her daily living.
The Applicant cites the medical reports of Dr Bryant, Dr Rayani, and Dr Alexander, as well as the occupational therapist reports of Ms Tathem and Ms Cummings, to support her evidence about life experiences that the impairments result in reduced functional capacity in the areas of social interaction, mobility, and self-care.
In oral evidence the Applicant says she agrees with the observations made by Ms Cummings in her report of 25 March 2024 about the constraints under which the Applicant functions.[36]
[36] HB p 141.
The Applicant says, in essence, that
(a)her movements are constrained by relentless pain;
(b)she cannot bend or reach to perform household duties or personal care;
(c)the functions she performs are severely constrained by the impairments;
(d)the help and assistance she requires exceed what is reasonable for her husband to provide;
(e)she should not be prejudiced by a withholding of services by the Agency because of her being strong-willed, the adjustments she has made to mitigate the impact of the impairments, and her doing her best to cope on her own and with the assistance of her husband with the challenges brought about by the impairments; and
(f)the supports she needs are low-cost and relatively minor, but those would assist her to improve her quality of life and mitigate the impacts of the impairments on her daily living.
The Agency says that substantial weight should be given to the report of Ms Cummings since she had done an in-person functional capacity assessment by visiting the house of the Applicant and making observations about her actual movements and activities. The Agency says that although Ms Cummings makes recommendations about pain management options that could be pursued by the Applicant and identifies potential equipment and home modifications that could maximise the safety and independence of the Applicant,[37] those recommendations ought not be construed as indicative that the Applicant meets the statutory test of ‘substantially’ reduced functional capacity in respect of social interaction, mobility, and self-care.
[37] HB pp 165-8.
The Agency, in summary, refers to the answer given by Ms Cummings in response to my question of whether, in her opinion, the Applicant meets the statutory test of substantially reduced functional capacity in respect of social interaction, mobility, and self-care. Ms Cummings answered unequivocally ‘no’ in respect of the Applicant experiencing substantially reduced functional capacity in those functional areas.

The Tribunal’s task in determining whether the Applicant’s functional capacity is substantially reduced, is twofold.
The ‘first task’ is to consider whether the Applicant’s circumstances are captured within the deeming effect of rule 5.8 of the Access Rules. Rule 5.8 is intended to simplify the evidentiary requirements for a potential participant to demonstrate that they meet the requirements of subsection 24(1)(c) of the NDIS Act.
In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must then proceed to a ‘second task’. The second task requires the Tribunal, on all the evidence available, to determine whether the Applicant’s functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is ‘substantially’ reduced.
The first task: Whether the Applicant can rely on the deeming effect of rule 5.8 of the Access Rules to establish that she has a substantially reduced functional capacity
Rule 5.8 of the Access Rules provides as follows:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(d)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
(e)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
(f)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.
Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether the Applicant can participate ‘effectively or completely’ on the basis that she is unaided by assistive technology, equipment, or home modifications other than ‘commonly used items’.
Senior Member French in Foster usefully sets out the methodology to apply Rule 5.8, and although I am not bound by the decision, I find it apposite in this case:[38]
[38] Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 (‘Foster’), [104]-[108].
103In this respect Rule 5.8 is made for the purposes of determining when a prospective participant has substantially reduced functional capacity to undertake a relevant activity within the premises of s 24(1)(c): see Rule 5.1(c). It is not relevant to the disability requirements specified in s24(1)(d) or (e).That must be taken to be the case despite the use of the word “participate” in reference to the life activity areas in paragraph (a) of the Rule. In context, that word must be understood as referring to the prospective participant’s functional capacity to undertake the bundle of tasks within the activity (that being the term and concept used in the statute under which the Rule is made), rather than to social and economic participation more generally.
104To determine if a prospective participant has substantially reduced functional capacity for self-care by operation of Rule 5.8 or otherwise the Tribunal must pose and answer the following questions:
(i)     What are the prospective applicant’s permanent impairments (as found in the s24(1)(a) and (b) enquiries)?
(ii)    What is the bundle of tasks and actions that falls within the scope of the life activity area?
(iii)   In the prospective participant’s intrinsic state, do the impairments result in a reduction in their functional capacity to undertake any of these tasks and actions?
(iv)   If the answer to (iii) is “yes” go to Rule 5.8 and ask:
(a)Is the prospective participant only able to undertake any of these tasks and actions (in the sense of completing them, or in a way that achieves their intended result) with assistive technology, equipment or home modifications? or
(b)b. is the prospective participant only able to undertake these tasks and actions with assistance? or
(c)is the prospective participant unable to undertake these tasks and actions even with assistive technology, equipment, home modifications or assistance from another person?
(v)    If the answers to anyone or more of the parts of question (iv) is “yes”, what is the extent to which this is the case considering each of the tasks and actions that falls within the life activity area?
105If the result of the chain of enquiry at this stage is that the prospective participant is unable to undertake any of the tasks and actions that come within the scope of the life activity area without assistive technology, equipment, home modifications or assistance, or even with these supports, the circumstances specified by Rule 5.8 will be found and by operation of the Rule the prospective participant will be deemed to have substantially reduced functional capacity to undertake the life activity area for the purposes of s24(1)(c). That is obviously a high threshold to be met. However, in my opinion that is consistent with the purpose of the Rule, which is to truncate the evaluative process required by s 24(1)(c) only in the clearest of cases, bearing in mind the limited target group for the NDIS, which is persons with permanent and significant impairments. In this respect Rule 5.8 should be understood as providing a narrow passage to meeting the requirements of s 24(1)(c)in clear cases. It is not a wide net intended to capture cases that require closer evaluation.
106If the result of the chain of enquiry at this stage is that the prospective participant in their intrinsic state does not have the functional capacity to undertake some tasks and actions with the activity area at all, or only with assistive technology, equipment, home modifications or other assistance, but does have the functional capacity to carry out other tasks and actions within the activity area, then the circumstances specified by Rule 5.8 cannot be found. It is then necessary to continue the enquiry in accordance with the Act and ask the question:
(vi)   Do the prospective participant’s impairments otherwise than in the circumstances specified in the Rule result in them having substantially reduced functional capacity to carry out the tasks and actions within the scope of the activity area?
107The answer to question (vi) is ascertained from an evaluative process that considers:
(a)The prospective participant’s impairments, and
(b)The scope of the tasks and actions that fall within the activity area, and
(c)The number of tasks and actions within the activity area in relation to which the prospective participant in their intrinsic state experiences reduced functional capacity, and
(d)The degree of reduction in functional capacity the prospective participant experiences with respect to each task or action. The WHODAS2.0 difficulty factors and ratings are a helpful aid with respect to this issue, but are not determinative of the ultimate result, and
(e)The overall impact of the prospective participant’s reduced functional capacity in relation to those tasks and actions in the life activity area taken as a whole.
108Unlike the Rule 5.8 enquiry it is not necessary under the Act for a prospective participant to establish that they cannot undertake any of the tasks and actions that come within the scope of the activity area either at all, or only with the use of assistive technology, equipment, home modifications or assistance. It is open to the decision-maker to determine that the prospective participant’s impairments result in substantially reduced functional capacity to undertake the life activity area in circumstances that fall short of all the tasks and actions that make up the activity area. Nevertheless, it remains necessary for the decision maker to be satisfied that the degree and impact of the prospective participant’s reduction in functional capacity to undertake or carry out the tasks and actions within the activity area is substantial. (emphasis added)
The interpretation of ‘commonly used items’ was considered by the Tribunal in Rooney and National Disability Insurance Agency.[39] In Rooney the Tribunal identified the indicia in respect of what are to be considered ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. These indicia, to which I am not bound but that I find apposite in this case, included items which are:
(a)generally accessible;
(b)can be used without the need for complex or specialised customisation or installation;
(c)relatively simple to use; and
(d)relatively inexpensive.
[39] [2021] AATA 3523 (‘Rooney’).
Turning now to the evidence before me in respect of the degree of functional impairment: There have been two functional capacity assessments undertaken, the one via telehealth by Ms Tathem on 10 October 2022,[40] and the second a personal, in-home assessment by Ms Cummings on 29 February 2024.[41] Both therapists speak about the reduced functional capacity of the Applicant to perform certain activities. The written and oral opinions of Ms Tathem and Ms Cummings support the evidence of the Applicant that she experiences some level of impairment daily in performing many everyday tasks.
[40] HB pp 75-80; pp 90-101.
[41] HB pp 141-185.
I accept that the Applicant has reduced functional capacity to perform the bundle of activities arising from functions of social interaction, mobility, and self-care. The question is whether the impairments meet the ‘substantial’ test.
Ms Cummings is unequivocal that the Applicant does not meet the substantial test. To the extent that Ms Tathem and Ms Cummings differ in whether the impairments of the Applicant result in substantially reduced functional capacity to undertake social interaction, mobility, and/or self-care, I prefer the opinion of Ms Cummings as best evidence since she visited the Applicant at home, observed how the Applicant performed several household and daily living tasks, and she gave evidence and answered questions during the hearing. In contrast, Ms Tathem obtained all her information from a telehealth conversation with the Applicant, she did not make any personal observations about the conduct or behaviour of the Applicant, and she did not give oral evidence during the hearing.
I also note that the Applicant gave oral evidence that she generally agreed with the observations made by Ms Cummings in her report and during her oral evidence. The Applicant took little or no issue with the evidence of Ms Cummings during cross-examination in which Ms Cummings described the nature and extent of impairments of the Applicant. The Applicant disagrees however with the opinion of Ms Cummings, who opines that the Applicant does not meet the ‘substantially reduced’ test in the activities of social interaction, mobility, and self-care.
I now turn to the question whether the Applicant is
(a)only able to undertake any of these tasks and actions (in the sense of completing them, or in a way that achieves their intended result) with assistive technology, equipment or home modifications? or
(b)is the prospective participant only able to undertake these tasks and actions with assistance? or
(c)is the prospective participant unable to undertake these tasks and actions even with assistive technology, equipment, home modifications or assistance from another person?
I find in the negative in respect of each of these questions concerning the functions of social interaction, mobility, and self-care.
I find for the following reasons that the impairments of the Applicant do not satisfy the deemed provisions in rule 5.8 of the Access Rules:
(a)In respect of social interaction, the evidence of the Applicant is that she can interact unassisted with persons in her household, her family, her friends, and in society; she engages by way of technology and personal interaction with persons in her household and in society; she does not require assistance to participate in social interaction and communication; she is employed on a full-time basis and engages with clients via telephone and email from her home; she freely communicates with other persons; she actively participated in the compiling of the application to the Agency and reports filed for purposes of this proceeding; and she expressed herself properly and coherently during the hearing. The support that the Applicant may require to be transported from time to time to attend an appointment or to do shopping, is not captured by this deeming provision.
(b)In respect of mobility the evidence of the Applicant is that she moves within the house unassisted; she walks with a slight limp but she does not use a walking stick or any other assistance when moving; her left foot sometimes goes limp but that does not occur constantly; she self-showers and self-toilets; she can walk up to 500m in the garden or shopping centre before resting; she can self-drive her car for up to 30 minutes; she can take herself to medical appointments and do limited shopping; she accompanies her husband when he does shopping; she can park her car and attend to her business; she can swim and help herself into and out of the pool with limited assistance by leaning on a chair next to the pool;[42] and she has developed techniques to assist her when she walks, showers, goes to the toilet, gets out of bed, and in general day-to-day functioning. The observations made by Ms Cummings confirm that the Applicant does not ‘usually requires assistance’ with the general tasks of mobility. Although Ms Cummings made recommendations for home alterations, for example at the shower and pool, the Applicant indicated that she did not require those modifications at this stage. The assistance required by the Applicant is not captured by this deeming provision.
(c)In respect of self-care the evidence of the Applicant is that she generally copes with self-care unassisted except for cutting her toenails and washing her back. She can put on her pants, but her husband also sometimes helps her. She generally puts on her own shoes unassisted. The Applicant explained, and some of the activities were observed by Ms Cummings, that she can dress herself, get out of bed, shower and wash her hair; dry herself; do make up and comb her hair; make a sandwich and help with home chores provided she does not have to bend or reach; enter and exit her car unassisted; and walk unassisted. Ms Cummings recommended some basic equipment and home modification options, but the Applicant indicated in oral evidence that she had either adjusted her practices, or she does not otherwise need the specific assistance at this stage. Even if she were to adopt some of those recommendations of Ms Cummings, such as the use of a front loader washing machine, a long handled reacher, a long handled sponge, a long handled shoehorn, a dressing stick, a no-bend pet bowl, a foldable trolley, or pool rails,[43] I find that they constitute ‘commonly used items’ for the purpose of rule 5.8(a) of the Access Rules. The assistance required by the Applicant is not captured by this deeming provision.
[42] The Applicant said in oral evidence that she regularly swims in the summer and that she can get in and out of the pool by leaning on a chair that has been placed next to the pool. Sometimes her husband or daughter would stabilise the chair. HB p 154.
[43] HB, pp 165-8.
I find that the Applicant does not meet the requirement of substantially reduced functional capacity for social interaction, mobility, or self-care by operation of rule 5.8 of the Access Rules. The Applicant therefore cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.
The second task: Does the Applicant have a ‘substantially’ reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?
It is then necessary to continue the enquiry in accordance with the NDIS Act and ask the question whether the Applicant’s impairments, other than in the circumstances specified in rule 5.8, result in her having substantially reduced functional capacity to carry out the tasks and actions within the scope of the activity area.
The fact that the Applicant does not satisfy the requirements of rule 5.8 does not disqualify her from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether the Applicant has a ‘substantially reduced functional capacity’ for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held:[44]
1As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person’s functional capacity is substantially reduced in any of the six specified areas.
Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, Mortimer J also held in Mulligan:[45]
55... No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
56The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.
[44] Mulligan, [77].
[45] Mulligan, [55]-[56].
In Foster, the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[46]
64In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
65Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of ‘self-care’, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
[46] Foster, [64]-[65].
Therefore, the Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what the Applicant can and cannot do with respect to her self-care, mobility and social interaction for the purposes of subsection 24(1)(c) of the ART Act. This assessment requires consideration of what has been called a ‘bundle of tasks’ associated with a particular function, and actions that comprise any given activity.[47]
[47] Ibid.
In Garcia Albiol v National Disability Insurance Agency[48] the Tribunal considered the use of the word ‘substantially’ as a descriptor of ‘reduced functional capacity’ in subsection 24(1)(c) of the NDIS Act. In doing so, it was determined that the term ‘substantially’ in the context of reduced functional capacity carries a ‘high threshold’. Although I am not bound by the decision, I find it apposite to this proceeding.
[48] [2024] AATA 496.

The Tribunal’s consideration of the Applicant’s functional capacity relates specifically to her ‘daily life activities’. Although I am not bound by the decision, I find it apposite to this proceeding. Relevantly, the current Guidelines state as follows:
1You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
2Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.
Social interaction
The Operational Guidelines describe social interaction as follows:
Socialising – how you make and keep friends or interact with the community… .We also look at your behaviour, and how you cope with feelings and emotions in social situations.
In Madelaine v National Disability Insurance Agency[49] the Tribunal held ‘the criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills’.[50]
[49] [2020] AATA 4025 (‘Madelaine’).
[50] Madelaine, [87].
In Kilgallin and National Disability Insurance Agency the Tribunal observed the following in relation to the threshold requirements for social interaction:[51]
Social interaction as referred to in 24(1)(c)(ii) doesn’t, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.
[51] [2017] AATA 186, [18].
The Applicant does not identify any impairments in respect of her ability to undertake social interaction with others, but she focuses on the circumstances of her impairment that reduce the ease of her social interaction. For example, although the Applicant can socially interact by way of talking, hearing, writing, seeing, engaging, responding, tasting, and observing, she says that her levels of pain have an inhibiting influence on her ability to put those skills to practice. She uses examples such as: her not being able to spend a long amount of time with her grandchildren; not being able to play ten pin bowling or horse riding as she used to do previously; not being able to go to the cinemas unless in the gold class seats; not being able to sit for long; not being able to go for walks on the beach; and not being able to drive far to see her friends.
The Agency says that those practical examples referred to by the Applicant do not meet the threshold of substantially reduced functional capacity within the bundle of tasks associated with social interaction.
I agree with the Agency that the examples of impairments cited by the Applicant do not fall within the scope of threshold of her having ‘substantially’ reduced functional capacity in respect of social interaction. The impairments range between mild to severe, but the impacts of the impairments’ fall short of the threshold of substantially reduced functional capacity.
I accept that in many respects of her daily living, the Applicant is experiencing reduced functional capacity due to persistent pain and restricted ability to move, but the examples she refers to do not meet the threshold of substantially reduced functional capacity to social interaction. The requirement is for the ‘capacity’ of social interaction to be substantially reduced, not whether the Applicant actually engages in social interaction. The fact that the Applicant may need assistance to participate in some forms of social interaction or that she sometimes experiences pain when engaging in social interaction does not mean her capacity to perform the function has been substantially reduced.
I find there is inadequate evidence of substantially reduced functional capacity in the area of social interaction. The Applicant, according to her own evidence, is not only capable of social interaction but she is in fact actively engaged in social interaction, for example: social interaction with her family and friends, with clients of her daughter’s business, having coffee or meals in public places, visiting friends and staying in touch in person and by electronic means, attending appointments, going to the movies, and going for nail and other treatments.
As stated in Madelaine, the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am satisfied that the Applicant does have the skills to interact with others.
I find that the Applicant’s functional capacity to interact socially is not substantially reduced and therefore that subsection 20(1)(c)(ii) of the NDIS Act is not met.
Mobility
The Operational Guidelines describe mobility as follows:
Mobility, or moving around – how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.
In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are ‘relatively modest’ stating that:[52]
104A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move.
105The use of the phrase move around … to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park – the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.
106No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.
[52] Madelaine, [104]-[106].
The threshold requirements to achieve functional capacity in relation to mobility are relatively modest. A person will likely have a functional capacity to mobilise if they can move about in their home, get in and out of a bed and chair, and mobilise in the community.[53] Implicit in this concept is that the distances involved are relatively short. The concept of moving around in the community does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport.[54]
[53] Madelaine, [104].
[54] Madelaine, [105].
The Applicant says that her capacity for mobility is substantially reduced. She says she has adjusted to cope with her reduced capacity, but self-coping does not diminish the fact that she meets the requirements of subsection 20(1)(c)(iv) of the NDIS Act.
In her statement of lived experience[55] the Applicant refers to the following examples of substantially reduced functions in mobility:
… unable to access social activities and outings I previously enjoyed such as Horse Riding, tennis, Squash, Ten Pin Bowling, walks on the beach and travelling
Due to cinema seating, I can no longer go to the movies in a normal theatre as a social outing. The seat causes to much discomfort to my back, more difficulty walking after and increased pain.
Due to my physical limitations, I am not able to complete heavy work domestic tasks. I am not able to complete laundry tasks or gardening that require active bending or lifting. Other tasks I cannot complete that involve lifting, reaching, and grasping are vacuuming, mopping, taking bins to the sidewalk and daily household cleaning.
My ability to go for walks and utilise stairs is severely hampered due to my balance issues and instability with walking, where I favour my right leg. This has now caused me to have tendonitis in my hips and heels. My walking is limited by discomfort, where I can only walk short distances at a maximum of 200 metres in the community and at the shops, where I will then need to sit down.[56]
When I am experiencing extreme discomfort, my ability to sustain a seated position is limited 30 minutes at home. On low set furniture I require help to get up out of chairs and couches to stand. I am limited to remain seated in a car for no more than half an hour whilst driving. When in the passenger seat, my ability to remain seated is limited to 45 minutes, but I will have to adjust my posture regularly if travelling for this duration of time.
My risk of falling within the community has significantly increased as I am not able to lift and clear my left leg properly from the ground when I am walking. I have found myself on more than five occasions where I have had to use nearby benches or rails to stop myself from falling. This has now made me feel hesitant to access the community.
[55] HB pp 139-140.
[56] I note in oral evidence the Applicant says she can walk up to 500m before resting for about 30 minutes, before she can again walk.
In her oral evidence the Applicant referred to several examples of her mobility being substantially reduced: walking in the home, to stand or sit for long, to get out of bed, to shower and stand up from the toilet, to cook and clean, to do household chores, to get in and out of the pool, to do gardening, to engage with grandchildren, to use public transport, and to undertake activities she previously used to do. The Applicant also said she generally walks unassisted, she can walk up to 500m before taking a rest of about 30 minutes, and she can self-drive for about 30 minutes.
The Agency says that although it accepts that in some respects the mobility of the Applicant has reduced, the extent of her capacity to perform the functions associated with mobility cannot be regarded as substantially reduced.
Although the medical evidence before me refers to the disability of the Applicant, the reports do not offer any insight into the impact of the impairments on the capacity of the Applicant to perform the bundle of activities associated with mobility.
Ms Cummings has conducted an in-person visit to the Applicant and I have explained above at [79] why I prefer the evidence and opinions of Ms Cummings to those of Ms Tathem.
Ms Cummings says that the impairments of the Applicant do not result in substantially reduced functional capacity to undertake the bundle of tasks that comprise the activity of mobility.
In her report Ms Cummings says that the Applicant may require assistance to perform certain functions associated with mobility,[57] but the Applicant in her evidence either denies the need for those or says the timing has not yet arrived and she can get along without the assistance at the moment. Ms Cummings refers to the day-to-day activities of the Applicant, her medication, and her medical prognoses. Ms Cummings then expresses the following opinion:
Ms Tomlinson may benefit from attending a multidisciplinary pain management program to improve her function in day-to-day activities and wholistic pain management, she can receive referral to a pain management program through her GP or a pain specialist.[58]
[57] HB p 145.
[58] HB p 150.
Ms Cummings, after having considered the home circumstances of the Applicant,[59] opines that the Applicant is independent in functions such as accessing all rooms of the house, and chair transfers, and moderately impaired in functions such as accessing cupboards, storage, and shelving, risk of falling, bed transfers, toilet transfers, shower transfers, car transfers, stairs, pool access, lifting items, driving, public transport, and mobilising in the community.[60]
[59] HB pp 151-4.
[60] HB pp 156-9.
Ms Cummings concludes that, although measures could be implemented to maximise the safety and independence of the Applicant, the Applicant cannot be regarded as meeting the requirement of substantially reduced functional capacity to undertake the functions associated with mobility.
I accept the opinion of Ms Cummings. The written evidence before me as well as the oral evidence given by the Applicant are adequate to find that the Applicant does experience reduced functional capacity in most areas of mobility, but her functional capacity has not been substantially reduced. The impairments range between mild to severe, but the impacts of the impairments’ fall short of the threshold of substantially reduced functional capacity.
I find that the Applicant’s functional capacity to mobility is not substantially reduced and therefore subsection 20(1)(c)(iv) of the NDIS Act is not met.
Self-care
The Operational Guidelines describe self-care as follows:
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
There is some overlap in the evidence given by the Applicant in respect of her capacity to perform functions of mobility and self-care.
The Applicant says that her capacity to self-care is substantially reduced by reference to the following examples: change of wiping technique when toileting, getting in and out of thw shower and washing her back, putting on pants and shoes, cutting toenails,[61] preparing meals, shopping, house cleaning, laundry, gardening and pool care.
[61] The Applicant says she attends a podiatrist every 6-8 weeks.
In her report, Ms Cummings says that the Applicant may require assistance to perform certain functions associated with mobility,[62] but the Applicant in her evidence either denies the need for those or says the timing had not yet arrived and she can get along at the moment.
[62] HB p 162.
Ms Cummings, after having considered the home circumstances of the Applicant,[63] opines that the Applicant is independent in functions such as washing hands, cleaning teeth, brushing hair, applying make-up, and moderately impaired in functions such as toileting, dressing, cutting nails, preparing meals, shopping, house cleaning, laundry, and pool and garden care.
[63] HB pp 160-2.
Ms Cummings concludes that, although practical measures could be implemented to maximise the safety and independence of the Applicant,[64] the Applicant cannot be regarded as experiencing substantially reduced functional capacity to undertake the functions associated with self-care.
[64] HB p 162.
I accept the opinion of Ms Cummings. The written evidence before me as well as the oral evidence given by the Applicant are adequate to find that the Applicant does experience some level of reduced functional capacity in most areas of self-care, but her functional capacity has not been substantially reduced. The impairments range between mild to severe, but the impacts of the impairments’ fall short of the threshold of substantially reduced functional capacity. The Applicant explained to me that she has made adjustments to cope with her reduced functions, for example: she has adjusted her personal self-care to enable her to shower and toilet independently; she self-washes her hair, brushes hair, and does her make-up; she self-dresses although sometimes her husband assists with her pants but she can also perform that function independently; she can prepare a small meal or sandwich or order food; she assists with cleaning provided she does not have to bend or stretch; she walks with her husband when they do shopping and can shop on her own provided the bag is not too heavy.
I accept that the Applicant experiences varying degrees of reduced functional capacity as a result of the pain, but the impairments do not result in substantially reduced functional capacity to the Applicant undertaking self-care.
I find that the Applicant’s functional capacity to self-care is not substantially reduced and therefore subsection 20(1)(c)(v) of the NDIS Act is not met.
Conclusion
In conclusion, the impairments experienced by the Applicant do not meet the requirements of subsection 24(1)(c) of the NDIS Act.
Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied, I am not required to consider the remaining criterion under subsection 24(1) of the NDIS Act.
Section 25 of the NDIS Act: The Early Intervention Requirements
The Applicant contends that she satisfies the early intervention requirements of section 25 of the NDIS Act.
I have already found that the Applicant has a neurological and physical impairment that is permanent. Accordingly, subsection 25(1)(a)(i) of the NDIS Act is met.
In assessing the early intervention requirements, the Agency contends that regard should
be given to the Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth) (‘Bill’) which enacted the Act and states:
Clause 25 [of the Bill] sets out the early intervention requirements a person must satisfy, as an alternative to satisfying the disability requirements, in order to become a participant in the NDIS launch. This clause recognises that a person may need support to help minimise the impact of a disability from its earliest appearance, and that the provision of support may improve the person’s functioning or prevent the progression of their disability over their lifetime.[65]
[65] Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth) 13.
I agree with the Agency that the reference to the Explanatory Memorandum is of assistance.
I am not satisfied that the provision of early intervention supports as required by subsection 25(1)(b) of the NDIS Act are met.
I must be positively satisfied that the provision of early intervention supports to the Applicant is likely to benefit the Applicant by reducing her future needs for supports in relation to her disability. My reasoning for finding that the requirement is not met, is as follows:
(a)the Applicant is now 63-years-old and there is inadequate evidence that the provision of supports is likely to reduce her future needs for supports in relation to her disability;
(b)it appears from the evidence that the needs for supports of the Applicant are likely to increase as the Applicant ages;
(c)the Applicant has been living with the disability for more than a decade and she had made adjustments to her daily living, which means the supports sought by the Applicant at this stage cannot be regarded as ‘early intervention’;
(d)the impairments of the Applicant are unlikely to be mitigated by intervention;[66] and
(e)the future needs of the Applicant are unlikely to be reduced by intervention at this stage.
[66] The Applicant said during oral evidence that she was not ‘asking much’, just some housekeeping assistance and funding to take pressure off husband, funds to buy a better back-support chair, and a ‘few little things she needs’.
I accept the Agency’s oral submission that the condition of the Applicant is ‘well entrenched’ and that the Applicant does not meet the early intervention requirements on the basis of a failure to satisfy subsection 25(1)(b) of the NDIS Act.

Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied, I am not required to consider the remaining criterion under subsection 25(1) of the NDIS Act.
CONCLUSION
Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements, the Applicant will not be granted access to the Scheme.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).

I certify that the preceding 135 (one hundred and thirt-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member De Villiers

.................[SGD].....................................................
Associate
Dated: 22 July 2025

Date of hearing: 8 July 2025

Applicant: Self-represented

Counsel for the Respondent: Mr Philip Nolan

Solicitor for the Respondent: Ms Remy Marshall, Maddocks Lawyers

Date of hearing:	8 July 2025
Applicant:	Self-represented
Counsel for the Respondent:	Mr Philip Nolan
Solicitor for the Respondent:	Ms Remy Marshall, Maddocks Lawyers