Tudor and National Disability Insurance Agency (NDIS) - [2025] ARTA 1772

Tudor and National Disability Insurance Agency (NDIS) [2025] ARTA 1772 (12 March 2025)
Applicant:Riley Tudor
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9363

Tribunal:General Member A Colvin
Place:Brisbane
Date:12 March 2025

Decision:The Tribunal affirms the decision under review.

......................SGD.................................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access – autism spectrum disorder –whether applicant meets disability requirements – whether applicant meets disability requirements – NDIS Act s24(1)(c) and s25
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
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
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
National Disability Insurance Agency v Foster [2015] FCA 544
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Davis and National Disability Insurance Agency [2023] AATA 1437
Secondary Materials
NDIS – Applying to the NDIS Guidelines
Statement of Reasons
BACKGROUND

This review is about whether Mr Tudor (the Applicant) should be granted access to the National Disability Insurance Scheme (NDIS). He is 24 years old and seeks access to the NDIS based on impairments arising from autism spectrum disorder level 1 (ASD).
The Applicant applied to the National Disability Insurance Agency (the Agency) to become a participant in the NDIS on 5 May 2023.[1] However, on 13 August 2023 the Agency decided that he did not meet the criteria to become a participant.[2] It confirmed that decision on internal review on 9 November 2023.[3] The Applicant then applied to the Administrative Appeals Tribunal (AAT) on 7 December 2023 seeking review of the Agency’s decision.[4]
[1] T6.
[2] T10.
[3] T2.
[4] T1.
From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[5]
[5] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The hearing took place on 25 and 26 February 2025. Documents before the Tribunal are contained in two bundles of documents, referred to as the T Documents and the hearing bundle (HB).
ISSUES
To become a participant in the NDIS, a person must meet the requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). These are referred to as the ‘access criteria’. A person meets the access criteria if the person meets the age requirements,[6] the residence requirements,[7] and either the requirements set out in section 24 (the disability requirements) or section 25 of the NDIS Act (the early intervention requirements).
[6] See section 22 of the NDIS Act.
[7] See section 23 of the NDIS Act.
It is not in dispute that the Applicant meets the age and residence requirements. At issue is whether he meets the disability requirements or early intervention requirements.
LEGISLATIVE FRAMEWORK
The statutory provisions relevant to this review are contained in the NDIS Act and the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
The Agency also issues Operational guidelines. The Tribunal is not bound to follow Operational guidelines issued by the Agency. However, in the absence of statutory indication to the contrary, lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account.[8] Guidelines that are relevant in the present matter are the NDIS – Applying to the NDIS Guidelines (Access Guidelines).[9]
[8] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[9] National Disability Insurance Agency, Our Guidelines: Applying to the NDIS, <>
The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Amending Act). The amendments to sections 21, 24 and 25 only apply to access requests made on or after 3 October 2024.[10] The present application was made prior to that date. The provisions discussed below are therefore the provisions in force prior to 3 October 2024.
[10] Items 125 and 126, Part 3 of the Amending Act.
The disability requirements
The disability requirements are set out in section 24 of the NDIS Act, as follows:[11]
[11] Section 24 as in force immediately prior to 3 October 2024.
(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 Access Rules contain the following provisions:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
When does an impairment result in substantially reduced functional capacity to undertake relevant activities?
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The Access Guidelines contain the following provisions:
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
·     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.
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.
The early intervention requirements
The early intervention requirements are set out in section 25 of the NDIS Act:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
SUBMISSIONS
The Applicant did not participate at the hearing. He was represented by his mother, Ms M Tudor (“Ms Tudor’). She made oral submissions and provided two documents: the ‘Applicant’s Response to Statement of Facts Issues and Contentions’ (Applicant’s Reply)[12] and a document containing the Applicant’s response to the access criteria (Response to Access Criteria).[13]
[12] A5.
[13] A3.
On the Applicant’s behalf, it is contended that he meets the disability requirements and the early intervention requirements. In relation to the disability requirements, it is contended that he has permanent impairments from ASD that result in substantially reduced functional capacity, particularly in communication and social interaction.
The Agency provided a Statement of Facts, Issues and Contentions dated 24 January 2025 (Agency’s SFIC).[14] The Agency conceded that the Applicant satisfies the requirements in paragraphs 24(1)(a) and (b) of the NDIS Act in relation to impairments arising from ASD. It does not concede that the requirements in paragraphs 24(1)(c), (d) and (e) are met, or that the early intervention requirements are met.
[14] R7.
THE EVIDENCE
In determining this application, I have had regard to the T Documents and hearing bundle, and oral evidence given at the hearing.
The Tribunal heard evidence from Ms Tudor and the Applicant’s grandmother, Mrs P Tudor. They each also provided a letter, dated 27 March 2024 and 5 January 2025 respectively.[15] The Applicant did not give oral evidence. He completed an Access Request Form[16] and provided an undated unsworn statement (Applicant’s statement).[17] He also made comments that were included in the Response to Access Criteria and I accept, based on his mother’s evidence, that those passages were prepared by the Applicant in his own words.
[15] A1 and A2.
[16] T6.
[17] A4.
The Tribunal also heard oral evidence from Mr Anderton and Ms Smith-Burchell. Mr Anderton is a social worker who has provided therapeutic services to the Applicant since March 2022. He provided letters dated 13 July 2023 and 24 August 2023.[18] Ms Smith-Burchell is an independent occupational therapist who provided a report dated 26 June 2024[19] and a supplementary report dated 13 October 2024.[20]
[18] T8 and T11.
[19] R2.
[20] R6.
The material before the Tribunal also included documents prepared by Dr Turner (a report dated 7 June 2019 and a response to targeted questions dated 16 September 2024).[21] He is a clinical psychologist who treated the Applicant in 2018 and 2019. He did not give oral evidence.
[21] T4A and R4.
The Applicant’s current circumstances
The Applicant resides with three family members. He receives jobseeker payment and has been seeking employment. Mr Anderton’s evidence, which I accept, is that the Applicant has recently been successful in securing a short-term full-time position which will commence in March 2025. Mr Anderton explained that the Applicant had been exploring work options and had identified that for him, at present, there are positive aspects to positions that are short-term.
After completing high school, the Applicant commenced a four-year degree course. He has not completed that course and is not currently enrolled to study. He has previously worked for two significant periods, in technical support roles. These positions were in different organisations but through the same agency. He left both positions voluntarily.
Dr Turner’s assessment in 2018 – 2019
In 2018, the Applicant was diagnosed with ASD by a clinical psychologist, Dr Turner. The Applicant had commenced seeing Dr Turner in July 2018 when the Applicant was 17 and still at school. He saw Dr Turner on eight occasions over 14 months.[22] As Dr Turner explained in his report in 2019, the Applicant commenced seeing Dr Turner specifically for an opinion on whether the Applicant met the diagnostic criteria for ASD.
[22] R4.
Dr Turner concluded in 2018 that the Applicant’s presentation and profile of abilities could be explained by a diagnosis of ASD, without intellectual impairment, in line with the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. Dr Turner assessed the Applicant’s social communication difficulties at level 1 and, similarly, assessed his restricted, repetitive behaviours at level 1. Dr Turner arrived at the diagnosis of ASD based on his own observations of the Applicant over three dates in 2018 together with a questionnaire completed by the Applicant and his mother, a Checklist for Autism Spectrum Disorder (CASD), and results of the Reading the Mind in the Eyes Test and The Awareness of Social-Interference Test – Revised.[23]
[23] T4A.
Dr Turner also felt that his assessment highlighted the Applicant’s longstanding difficulties with acquisition and use of language and speech sound production. Dr Turner felt that this suggested the Applicant may have a communication disorder, warranting formal assessments by a speech pathologist and audiologist. There was no evidence provided to demonstrate that the Applicant has since seen a speech pathologist or audiologist.
In his response to targeted questions, and his report, Dr Turner provided information regarding the impairments that he considered the Applicant had related to ASD. In his response to targeted questions, Dr Turner described the Applicant’s impairments related to ASD as: difficulty in interpreting and responding to non-verbal cues, perspective taking, and social inferencing; restricted, repetitive behaviours and interests; and significant challenges in recognising and processing emotional states, with alexithymia complicating the Applicant’s emotional regulation.
In his report, Dr Turner stated that the Applicant had difficulties with some executive functions (and would therefore likely benefit from interventions focussed on executive function, for example, memory and attention tasks). He also considered that the Applicant had difficulty identifying and interpreting emotions and difficulty with predictive coding in response to changes in his environment, leading to emotional dysregulation, and had difficulty with non-verbal communication. He therefore thought that the Applicant would benefit from interventions focussed on emotional regulation and social understanding. He also thought the Applicant may benefit from interventions focussed on sensory processing.
The Applicant’s current diagnosis and treatment

The Applicant has a mental health plan through a general practitioner (GP) and has done so for some years. However, no information was provided to the Tribunal from the Applicant’s GP.
The Applicant has never seen a psychiatrist. He has also not seen a clinical psychologist since he saw Dr Turner in 2019.
The Applicant takes no medication for ASD or any other mental health condition. He said in his statement that he dislikes taking medication and currently takes none. The Applicant’s mother gave evidence that for approximately two and a half weeks, about 18 months ago, the Applicant took medication prescribed by his GP before self-ceasing that medication. She was unable to describe the name or purpose of that medication.
The Applicant sees Mr Anderton regularly and has done so since March 2022. Mr Anderton is an accredited mental health social worker who provides therapeutic services to the Applicant as part of the Applicant’s mental health plan. Mr Anderton explained in his oral evidence that his role is limited to the therapeutic services he provides to the Applicant. He acknowledged that he has no role in diagnosis or in recommending or prescribing treatment for the Applicant. He has been proceeding on the basis that the Applicant has ASD, that all the Applicant’s current symptoms are part of that condition, and that the Applicant has no other mental health conditions, but Mr Anderton acknowledges that he is not informed by, or in regular contact with, the Applicant’s GP about the Applicant’s current diagnosis or treatment recommendations.
In his report in July 2023, Mr Anderton stated that the Applicant has ASD and that, because of his disability, the Applicant experiences severe symptoms of anxiety and depression, body dysphoria, limited interpersonal skills, limited expressive and receptive language skills, and auditory processing difficulties. Mr Anderton indicated in his report in August 2023 that the diagnosis of ASD was based on Dr Turner’s report.
Ms Smith-Burchell commented numerous times in her report and supplementary report to references in the available documents to the Applicant having severe anxiety, depression and body dysphoria. She notes the absence of information about those symptoms (including the lack of diagnostic clarity and information regarding treatment) and the benefit of referral to a psychiatrist or clinical psychologist.
The disability requirements
To meet the disability requirements, a person must meet all five requirements in subsection 24(1) of the NDIS Act.
Paragraph 24(1)(a)
Paragraph 24(1)(a) of the NDIS Act requires that a 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.
Section 24 focusses on a person’s impairments, not the diagnosis given to a person.[24] An ‘impairment’ is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function, whereas ‘disability’ is a descriptive concept for the overall effect of a person’s impairments on the person’s abilities to participate in all aspects of personal and community life.[25]
[24] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69] (Mortimer J).
[25] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51] (Mortimer J).
The Applicant contends that he has impairments attributable to ASD. He does not seek access to the NDIS based on impairments attributable to any other condition. The Agency concedes that the requirements in paragraph 24(1)(a) are met in respect to the Applicant’s ‘cognitive impairment attributable to ASD Level 1’ but are not met regarding anxiety, depression and body dysphoria.[26]
[26] Agency’s SFIC at paragraph 34.
There is no information before the Tribunal from an appropriately qualified professional about the Applicant’s current diagnoses and treatment plan. The Applicant has never seen a psychiatrist, his last contact with a clinical psychologist was when he saw Dr Turner in 2019, and there is no information from the Applicant’s GP.
This means that, regarding the Applicant’s diagnosis of ASD, the only diagnostic opinion on this condition is contained in documents completed by Dr Turner, who has not seen the Applicant since 2019. There may have been a significant change in the Applicant’s clinical presentation since then. Mr Anderton describes the Applicant experiencing severe depression and anxiety, and body dysphoria. These symptoms seem to be different in nature, or more severe than, those reported by Dr Turner. The Tribunal does not have the benefit of evidence from an appropriately qualified professional, who has recently seen the Applicant, on the relevance of this, and whether the diagnosis of ASD is still regarded as accurate.
However, Dr Turner saw the Applicant over an extended period and has provided a detailed report outlining his assessment and conclusions and setting out the nature of the Applicant’s impairments. ASD is also a lifelong condition[27] and Mr Anderton is an experienced social worker, trained in mental health, who describes the Applicant as currently experiencing the kinds of difficulties observed by Dr Turner. I am therefore satisfied, on balance, on present evidence that the Applicant has cognitive impairments attributable to ASD, and that the requirements of paragraph 24(1)(a) of the NDIS Act are therefore met in relation to cognitive impairments attributable to ASD.
[27] T11.
Mr Anderton also described the Applicant as having severe depression and anxiety, and body dysphoria. Mr Anderton’s evidence was that he regards these as part of the Applicant’s ASD and that the Applicant’s anxiety has a significant impact on the Applicant. Ms Smith-Burchell recommended the Applicant be referred to a psychiatrist or clinical psychologist to review his diagnosis. There is no current opinion from an appropriately qualified professional regarding depression, anxiety, and body dysphoria to confirm these are impairments related to ASD, or to another diagnosed mental health condition. I am therefore unable to conclude on present evidence that the requirements of paragraph 24(1)(a) are met in relation to depression and anxiety, and body dysphoria.
Paragraph 24(1)(b)
Paragraph 24(1)(b) of the NDIS Act requires that a person’s impairment/s are, or are likely to be, permanent. In this context ‘permanent’ means ‘enduring’. It is the person’s impairments that must have an enduring quality, rather than the cause of the impairments.[28] Impairments that ‘vary in intensity’ may be permanent[29] and impairments that are ‘episodic or fluctuating’ may be taken to be permanent.[30] The Access Rules further provide that an impairment may be permanent notwithstanding that the severity of its impact on functional capacity may fluctuate or there are prospects this may improve.[31] An impairment is not permanent, however, if there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.[32]
[28] Davis at [86].
[29] Subsection 24(2) of the NDIS Act.
[30] Subsection 24(3) of the NDIS Act.
[31] Rule 5.5 of the Access Rules.
[32] Rule 5.4 of the Access Rules.
The Agency concedes, and I so find, that the Applicant has cognitive impairments related to ASD, and that these meet the requirements in paragraph 24(1)(b) of the NDIS Act.
Regarding anxiety, depression and body dysphoria, even if these had met paragraph 24(1)(a), there is insufficient evidence to conclude that they are permanent impairments. There is evidence the Applicant’s GP has recommended in the past that the Applicant take medication for mental health issues and that the Applicant is unwilling to do so, and there are recommendations by Ms Smith-Burchell for referral to a psychiatrist or clinical psychologist.
Paragraph 24(1)(c)
Paragraph 24(1)(c) requires that the person’s impairments result in substantially reduced functional capacity to undertake one or more of six activities: communication; social interaction; learning; mobility; self-care; and self-management. This is a functional, practical assessment of what a person can and cannot do. It involves no qualitative judgement or comparison with others. Each activity has a different focus, and each must be examined individually rather than globally, and decision-makers must exercise a relatively high degree of precision in the assessment.[33]
[33] Mulligan at [55] to [60].
There are two paths to satisfying paragraph 24(1)(c). One path is to meet the terms of paragraph 24(1)(c) itself. The other path is to meet Rule 5.8 of the Access Rules.[34]
[34] Davis and National Disability Insurance Agency [2023] AATA 1437 at [79] (DP Donovan).
Rule 5.8 of the Access Rules is a deeming provision. It includes some people in the category of persons with substantially reduced functional capacity if the requirements in Rule 5.8(a), (b) or (c) are met.[35] Paragraph 5.8(b) is particularly relevant in the present case. It deals with circumstances where the person requires assistance from others. It mandates that an impairment results in substantially reduced functional capacity to undertake one of the relevant activities if its result is that the person usually requires assistance, including guidance or prompting, from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity.
[35] Mulligan at [77].
In applying Rule 5.8, the decision-maker must assess the degree to which the person can participate in the relevant activity, such as self-care, rather than tasks or actions to participate completely in an activity.[36]
[36] National Disability Insurance Agency v Foster [2015] FCA 544 (Foster) at [65] to [67].
On the Applicant’s behalf, it was contended that he has substantially reduced functionality in two areas in particular, communication and social interaction. The Agency contended that the Applicant’s permanent impairments resulting from ASD do not result in substantially reduced functional capacity for the purposes of subsection 24(1) and Rule 5.8.[37]
[37] Agency’s SFIC at paragraph 42.
For each of the activities below I have considered Rule 5.8 of the Access Rules and the terms of paragraph 24(1)(c) itself.
Learning
In relation to learning, the Access Guidelines focus on having the cognitive capacity to absorb and apply new skills.[38] They describe learning as:
how you learn, understand and remember new things, and practise and use new skills.
[38] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [93], when considering an earlier similar version of the Access Guidelines.
I accept, based on comments in the Response to Access Criteria, that the Applicant had difficulty adjusting to tertiary study, and that he learns best through a practical approach. I also accept Mr Anderton’s evidence that the Applicant experiences difficulties in learning, including in focussing and follow through[39] and that his functional capacity to learn is context-related, in that he has difficulty with non-preferred tasks. However, Mr Anderton’s oral evidence was also that the Applicant was employed in two technical roles and is about to commence another. There was no evidence that the Applicant struggled with learning technical aspects of his work and in fact Mr Anderton’s evidence was that the Applicant reported often completing assigned work in one of those positions faster than expected.
[39] T11.
This demonstrates that the Applicant’s functional capacity in learning exceeds the level set out in the Access Guidelines and accords with Ms Smith-Burchell’s assessment that the Applicant has no reduction in functional capacity in learning. I am therefore not satisfied on the evidence that Rule 5.8 is met or that the Applicant’s impairments result in substantially reduced functional capacity to undertake the activity of ‘learning’.
Mobility
The threshold requirements of functionality in mobility, in the Access Guidelines, are relatively modest.[40] They describe ‘mobility’ or ‘moving around’ as:
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.
[40] Madelaine at [104]–[105].
It was not contended on the Applicant’s behalf that he has reduced functional capacity in mobility. He has no physical impairments affecting his mobility and he regularly drives his own vehicle. Ms Smith-Burchell also reported no limitations in mobility. I am therefore not satisfied that Rule 5.8 is met or that the Applicant’s impairments result in substantially reduced functional capacity to undertake the activity of ‘mobility’.
Self-care
The Access Guidelines describe self-care as:
personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
It was not pressed at the hearing on the Applicant’s behalf that he has substantially reduced functional capacity in self-care. There is evidence, which I accept, that he devalues some self-care tasks, has limited abilities in some areas, and requires prompting with some tasks. For example, Mr Anderton states that the Applicant’s nutritional intake is poor and there was evidence from Ms Tudor that the Applicant makes only a very simple breakfast, does not prepare other meals, and regularly orders home-delivered take-away meals. Ms Smith-Burchell also recommended support in the form of further assessment, possible participation in skills education to develop a routine and incorporate personal and domestic household tasks, and input from an occupational therapist to develop a routine and incorporate personal and domestic tasks.
However, the Applicant is physically able to independently complete all forms of self-care tasks and the evidence does not establish that he usually requires assistance in self-care when the task of self-care is considered as a whole. Rule 5.8 is therefore not met. The evidence also does not establish a substantial reduction in the Applicant’s functional capacity in self-care.
Self-management
The Access Guidelines describe ‘self-management (if older than 6)’ as:
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.
Again, it was not pressed on the Applicant’s behalf at the hearing that he has substantially reduced functional capacity in self-management. Mr Anderton described difficulties the Applicant experiences in self-management.[41] However, the evidence is that the Applicant independently manages his own finances, pays board, manages his interactions with Centrelink, applies for jobs, orders items online, and drives to appointments with Mr Anderton. I am not satisfied on this evidence that Rule 5.8 is met or that the Applicant’s impairments result in substantially reduced functional capacity to undertake the activity of ‘self-management’.
Communication
[41] T11.
The two main areas in which it was contended on the Applicant’s behalf that he meets paragraph 24(1)(c) of the NDIS Act are in the activities of communication and social interaction.
On the Applicant’s behalf, it was contended that he has substantially reduced functional capacity in communication because he has difficulty, for example, describing his own emotions and recognising nonverbal body language and emotions in others. It was also asserted that communication is much more than being able to answer a question and that it involves the process of sending and receiving messages through verbal or nonverbal means.
However, that is not the test the Tribunal must apply. The Access Guidelines describe ‘communicating’ as:
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.
This level of functionality is ‘fairly basic’. It involves, for example, being able to tell a family member about something that has happened, explain to a doctor in what part of the body pain is experienced, or ask for help to reach something.[42] This is the test of functionality that the Tribunal must apply. A prospective participant will only have a substantially reduced functional capacity in communication if they do not meet this fairly basic level of functionality.
[42] Madelaine at [79].
Ms Smith-Burchell considered the Applicant may benefit from additional assessment to identify limitations and further interventions and supports that may assist, but that he is otherwise able to communicate without assistance. Regarding written communication, the evidence is that the Applicant has no reduction in functional capacity. That was Mr Anderton’s evidence. The Applicant also provided thoughtful, articulate written comments in the Response to Access Criteria, and the evidence is that he can shop online, communicate with others via texts and emails, and navigate applying online for work and for Centrelink payments.
In relation to verbal communication, there is significant evidence before the Tribunal about difficulties the Applicant experiences in verbal communication. The Applicant’s Reply points to multiple references to those limitations in the reports of Mr Anderton and Dr Turner. Mr Anderton also provided oral evidence about the Applicant’s current difficulties. Mr Anderton’s oral evidence, however, was also that the Applicant can participate in a job interview and the evidence of the Applicant’s grandmother was that the Applicant had engaged verbally with his grandfather in a way that seemed sympathetic to his grandfather’s cognitive decline.
Even if I accept that the Applicant experiences the difficulties described by Mr Anderton, the requirements of Rule 5.8 are clearly not met when the activity of communication is considered as a whole. Similarly, the Applicant’s functional capacity well exceeds the ‘fairly basic’ level of communication within the terms of paragraph 24(1)(c) itself.
I am therefore not satisfied, regarding communication, that Rule 5.8 is met or that the Applicant’s impairments result in substantially reduced functional capacity within the terms of paragraph 24(1)(c) itself.
Social interaction
The Access Guidelines describe socialising as:
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.
In assessing functionality in ‘social interaction’, the Access Guidelines are ‘directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills’.[43]
[43] Madelaine at [87].
The Agency contended that while the material suggests that the Applicant experiences some limitations in respect of social interaction, the impact of those limitations is not to the requisite degree required by paragraph 24(1)(c).[44] The Applicant’s Reply draws attention to the various references in the material to the Applicant’s difficulties with social engagements, including the Applicant’s own description.
[44] Agency’s SFIC at paragraphs 46-52.
Mr Anderton described in his reports and oral evidence difficulties the Applicant experiences in social engagement. There is also evidence that this has impacted the Applicant’s work and studies, and that his interactions with family are minimal. Ms Smith-Burchell also recommended support in the form of further assessment, support worker assistance to build capacity for accessing the community, and occupational therapy aimed at social skills and coping strategies. However, even if I accept the Applicant experiences difficulties at the level described by the Applicant and Mr Anderton and accept that the Applicant would benefit from the matters recommended by Ms Smith-Burchell, the evidence does not establish that he is unable to participate in social interaction, or usually requires assistance to do so, or that his functional capacity is so reduced as to meet the level required by the Act.

The evidence is that the Applicant interacts socially with his immediate and broader family. He participates in a recreational activity at home with another family member three nights/week for about 45 minutes, watches football at home occasionally with family, attends occasional family dinners, and receives and sends brief texts and emails. He sustained work for two significant periods in technical roles that required interaction with others and is about to undertake a further short period of work. He also enjoys gaming and interacts in writing with others while gaming. Some years ago, he enjoyed leading a team in e-sports but there are currently no opportunities to pursue that social activity.
I am not satisfied that Rule 5.8 is met or that there is a substantial reduction in functional capacity in the activity of social interaction. Even if I accept that the Applicant is unable to participate in social interaction, or usually requires assistance to do so, or that there is a substantial reduction in his functional capacity in social interaction, there is a further issue. It is not possible to be satisfied on the evidence that this is related to the cognitive impairments from ASD that met paragraphs 24(1)(a) and (b). Mr Anderton describes the Applicant as having severe depression and anxiety, and body dysphoria. In the absence of further evidence about those matters, it is not possible to conclude either that all reduction in the Applicant’s functional capacity in social interaction must be attributed to cognitive impairments from ASD, or to differentiate between the impact of cognitive impairments related to ASD and other impairments.
Having found that the Applicant’s cognitive impairments related to ASD do not result in substantially reduced functional capacity to undertake one or more of the activities in paragraph 24(1)(c) of the NDIS Act, the disability criteria are not met. It follows therefore that I am not required to consider the remaining criteria in paragraphs 24(1)(d) and 24(1)(e) of the NDIS Act.
The early intervention requirements
The Agency contends that section 25 is concerned with ‘early intervention’ of an impairment’s trajectory when that early intervention is likely to have a significant impact on the course taken by that impairment, and that the objective of early intervention support is to ‘lower the costs and impacts’ associated with the disability for individuals and the wider community over the long term.[45]
[45] Agency’s SFIC at paragraph 32 referring to Puster and National Disability Insurance Agency [2023] AATA 1760 at [66]; FBJV and National Disability Insurance Agency [2021] AATA 913 at [170]; James and National Disability Insurance Agency [2019] AATA 4248 at [49] to [52].
The Agency emphasises that there is no evidence indicating that, since being diagnosed, the Applicant has received interventions to address his functional capacity. It also points to Ms Smith-Burchell’s report in which she indicates that she cannot identify whether early intervention is likely to improve the Applicant's functional capacity given that he has not participated in any interventions. The Agency also contends that there is no evidence demonstrating the potential benefits of early intervention supports upon the Applicant’s functional capacity, nor is there evidence that early intervention supports would be likely to reduce the Applicant's future needs for supports.[46]
[46] Agency’s SFIC at paragraphs 66-68.
Mr Anderton’s evidence was that the Applicant needs substantial short- and long-term assistance. He believed the Applicant would benefit from regular sessions with allied health professionals including occupational therapy and speech and language pathology, ongoing focussed psychological sessions, support in finding and gaining employment, and a support worker. Without this support he believed the Applicant was at significant risk of further isolation and disengagement.[47] Mr Anderton also stated that ASD is a lifelong condition, and that support would benefit the Applicant by assisting him in building his capacity for everyday living skills and access to the community as well as future sustainable employment or studies.[48]
[47] T8.
[48] T11.
Ms Smith-Burchell did not discount in her report that the Applicant may benefit from support, but she said only that it may reduce his future need for support, that it may improve his functional capacity, and that without it he may deteriorate and there is a possibility his mother may be unable to continue to provide informal support. Ms Smith-Burchell also referred, numerous times, when discussing the early intervention requirements, to the Applicant having anxiety, depression, and body dysphoria, to the absence of diagnostic information about those symptoms, and to the benefit of referral to a psychiatrist or clinical psychologist.
The evidence therefore is that the Applicant may benefit from the assessments and supports referred to by Mr Anderton and Ms Smith-Burchell. However, the evidence does not establish that early intervention supports for cognitive impairments related to ASD are likely to benefit the Applicant by reducing future needs for supports and benefit the Applicant in one of the specific ways set out in paragraph 25(1)(c). The requirements in section 25 of the NDIS Act are therefore not met.
As neither the disability requirements nor the early intervention requirements are met, the Applicant does not meet the access criteria in section 21 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

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Associate
12 March 2025

Date(s) of hearing: 25 and 26 February 2025

Applicant’s Advocate: Ms Tudor

Solicitor for the Respondent: Ms Ramnoruth, Moray & Agnew

Counsel for the Respondent: Ms C De Marco