1. The disability requirements for access to the NDIS is found in s 24 of the Act and Part 5 of the 'Becoming a Participant' Rules.
2. Section 24 (as in force prior to 3 October 2024) provided:
   1. Disability requirements

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory, or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(d) the impairment or impairments affect the person's capacity for social and economic participation; and

(e) the person is likely to require supports 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 supports 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 supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

1. Rules 5.4 to 5.7 deal with the question of when an impairment is permanent or likely to be permanent for the disability requirement. Those Rules provide:

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 ... 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.

1. Rule 5.8 deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:

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 or self-management ... - 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.

1. As stated by Senior Member French in Burrows and CEO, National Disability Insurance Agency (NDIS) (Burrows) [2025] ARTA 607 at [22], pursuant to s 24(1) of the NDIS Act, five criteria must be satisfied for the disability requirement to be met. These criteria are expressed to be conjunctive in nature, meaning that if any one criterion is not satisfied, the disability requirement cannot be met. Having regard to that fact, one way of conceptualising these criteria is as a series of gateways along a linear pathway. The criterion specified in s 24(1)(a) must be satisfied before the gate opens to consideration of the criteria specified in s 24(1)(b), and that criterion must be satisfied for the gate to open consideration of the criterion specified in s 24(1)(c), and so on. If a gateway to consideration of a subsequent criterion does not open, there is no utility in consideration of that or any other subsequent criteria.
2. Section 24(1)(a) requires the Applicant to establish that he has a 'disability' that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments to which a psychosocial disability is attributable.
3. In the context of s 24(1)(a), and Chapter 3 of the NDIS Act more generally, the term 'disability' has a specific meaning, being a functional outcome that is attributable to specified categories of impairment. The concept of impairment is distinct from the concept of 'disability', and from a diagnosed health condition. Care needs to be taken not to conflate these separate concepts or use them interchangeably. Failure to maintain this conceptual distinction may lead to a misapplication of the access provisions.[21]
4. The term 'impairment' is not defined in the NDIS Act. However, the Guidelines define it to mean 'a loss of or damage to your body's function'. The Court in Davis specifically approved this conceptualisation.[22] The Tribunal must identify and describe with precision the impairment resulting from any disability or health condition suffered by the Applicant.
5. As stated by the Tribunal in Foster at [37]:

Specifically with respect to s 24(1)(a), as the Court observed in Davis, it is necessary to identify and describe with precision the impairment to which a prospective participant's disability is attributable, because the access criteria contained in ss 24(1)(b) to (d) require evaluation of the permanency and impact of that impairment on the prospective participant's functional capacity and social and economic participation.

1. As stated by the Court in Mulligan at [55]:

Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

2. In his Access Request Form, the Applicant seeks access to the NDIS based on his schizophrenia and depressive disorder.[23] There is mention in the medical evidence of other potential mental illnesses that the Applicant may suffer from including borderline personality disorder, post-traumatic stress disorder and anxiety. There is no conclusive medical evidence in the materials provided to the Tribunal that the Applicant suffers from these additional conditions. The medical evidence is unclear about exactly what mental health conditions the Applicant suffers from. The Tribunal will limit the scope of this review to the disorders that the Applicant seeks access to the NDIS and which the Respondent has accepted that the Applicant has, namely schizophrenia and depressive disorder.
3. The Applicant has only sought access to the NDIS based on his schizophrenia and depressive disorders. The Tribunal will limit the scope of this review to those disorders.[24] The Respondent accepts that the Applicant has diagnoses of schizophrenia and depressive disorders. Based on the medical evidence, the Tribunal is satisfied that the Applicant lives with these health conditions.

Does the Applicant have a disability attributable to impairment? - s24(1)(a)

1. For the purposes of s 24(1)(a) the Tribunal must be satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable. The Tribunal is required to determine what impairments, if any, are associated with the Applicant's health conditions.
2. The term 'disability' in the NDIS Act, and in s 24, is a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. An 'impairment' is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function.[25] Section 24 focuses on a person's impairments, rather than the name of a person's disability or the diagnosis given to a person.[26] Using the concept of impairment enables an assessment of the severity and permanency of the person's condition, and of the effects of that condition.[27]
3. The Respondent accepts that s 24(1)(a) is met on the 'basis that the Applicant has impairments in the form of schizophrenia and depressive disorder, to which a psychosocial disability is attributable'.[28]
4. As he stated above, the Applicant's diagnosed mental health conditions are not readily identifiable from the material provided to the Tribunal, nor are the impairments related to them.
5. Dr Samer Sarour (Psychiatrist) says in his report dated 25 March 2024 that the Applicant's 'first psychotic episode was in 2016 and he had 5 or 6 admissions ever since. When he is unwell, he would report auditory and visual hallucinations and delusions of persecution where he would be fearful for his life which ends up in him call [sic] the ambulance and going to hospital'.[29] On the date Dr Sarour examined the Applicant (25 March 2024) He did not identify any specific impairments suffered by the Applicant. Dr Sarour says that the Applicant 'will need NDIS support as he is facing social challenges at the present time, including limited social supports, employment difficulties, and financial hardship'.[30]
6. Mr Terrence Rundell (Psychologist) says in his report dated 5 November 2024, there are many limitations in his report, including the way in which information has been gathered.[31] He says that all information has been gained from the Applicant or from self-reports. He said that errors stemming from self-reports or from the Applicant directly cannot be completely ruled out.[32] Accordingly, the Tribunal must exercise caution when considering the weight to be placed on the contents of Mr Rundell's report.
7. At the request of the Respondent, Ms Laura Pizzica (Occupational Therapist) assessed the Applicant. In her report dated 14 March 2025, she says that as a result of the Applicant's schizophrenia he has episodes whereby he 'experiences occasional hallucinations and delusions.'[33] During these episodes the Applicant can perceive things that are not there, such as hearing voices or feeling paranoid about people around him, have irrational beliefs and have difficulty distinguishing between what is real and what is a product of his altered perceptions.[34] As a result of the Applicant's depression Ms Pizzica says the Applicant can experience low mood, lack of interest in activities and feelings of hopelessness and distress. He also struggles with poor concentration and low energy.[35]
8. The Tribunal finds that the Applicant experiences impairments in relation to mood, emotional regulation, motivation and concentration. When the Applicant's symptoms are heightened during a psychotic episode he experiences an impairment in relation to perception. Accordingly, the Tribunal is satisfied that the Applicant has impairments to which a psychosocial disability is attributable and therefore the requirements of s 24(1)(a) are met.

Are the psychosocial impairments permanent? - s 24(1)(b)

1. In order to satisfy s 24(1)(b) the Tribunal must find that the Applicant's impairments are, or are likely to be, permanent.
2. Having regard to s 24(1)(b) of the Act, and Rule 5.4 of the Becoming a Participant Rules, the questions that the Tribunal must ask and answer to determine if the Applicant's impairments are, or likely to be, permanent, are:

a) Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments? and > > b) Do any of the Applicant's impairments require medical treatment or review before a determination can be made about whether the impairments are permanent or likely to be permanent?

3. In Davis, Mortimer J (as she then was) stated at [85] and [86];

In my opinion, the correct meaning of "permanent" in s 24(1)(b) is "enduring". This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.

The critical point is that "permanent" is used as an adjective in s 24(1) to the noun "impairment" (or in the plural, "impairments"). The focus of the text, consistently with the purposes of the scheme, is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme.

1. Mortimer J rejected a submission that the word 'enduring' should be understood as meaning 'irreversible'. At [58] her honour said:

The concept of "irreversible" is unhelpful, and a distraction from the context and purpose of the legislation. It prompts the question - 'reversible by what?' That is, how far does an (sic) NDIS applicant need to go to attempt to 'reverse' their impairment? And what does 'reversible' mean? Is it a question of degree? Fifty percent reversible? Thirty percent reversible? Does irreversible mean 'cannot be improved'? Of course, many impairments covered by the NDIS - such as psychiatric impairments - can be 'improved' (in terms of the way an individual experiences the impairment) by therapy and medication. Are they 'reversed' if the medication is very successful? Obviously, the answer is they are not. The impairment remains, but the symptoms or manifestations may be controlled or somewhat ameliorated.

1. In Davis, Mortimer J also considered the meaning of the phrase 'known, available and appropriate'. She said: 'In r 5.4, the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo. She further stated: 'The word "available" should be understood as meaning available to a particular individual' and 'what treatments an individual can, in reality, access'.[36]
2. The Respondent contends that while the medical evidence supports a conclusion that the Applicant's schizophrenia will never be resolved, no such evidence exists in respect of his depression. The Respondent further contends that there is no evidence of any pharmacological intervention in respect of the Applicant's depression and submits that on the present evidence the Applicant's depression is not permanent because his treatment is ongoing. With respect to treatment for depression the Respondent refers to the report of Dr Sorour, who recommends that the Applicant should have 'Ongoing psychotherapy, Cognitive Behavioural Therapy (CBT) to address negative thoughts, improve self-esteem, and manage symptoms of anxiety and depression'.[37]
3. The Respondent's contention that there is no evidence of any pharmacological intervention in respect of the Applicant's depression is incorrect. The evidence is that he is prescribed the antidepressant (Venlafaxine) and that CBT may manage his symptoms of anxiety and depression.
4. Applying Davis the facts in this case, the evidence indicates that the Applicant's psychosocial impairments are improved by the medication he takes namely an antipsychotic Depo needle (Aripiprazole) monthly at his GPs office and an antidepressant (Venlafaxine) daily.[38] However, the fact that the medication he takes is successful, when he takes it on a regular basis, does not mean that his psychosocial impairments are not permanent. His impairments remain but his symptoms and manifestations are controlled or somewhat ameliorated. Further, the fact that CBT may assist the Applicant manage his symptoms of anxiety and depression does not mean that the Applicant's depression is not permanent. There is no evidence that CBT or any other treatment will do anything other than assist the Applicant manage his symptoms of depression. There is no suggestion that any treatment will provide anything approaching a cure for his depression.
5. There is evidence supporting the permanence of the Applicant's psychosocial impairments arising from his depression and schizophrenia. Therefore, the Tribunal finds that the Applicant's psychosocial impairments attributable to his schizophrenia and depressive disorder are permanent within the meaning of s24(1)(b).

Do the Applicant's impairments result in substantially reduced functional capacity?

1. The Tribunal must now determine whether the Applicant's impairments result in substantially reduced functional capacity to perform one or more of the following six activities:
   1. Communication;
   2. Social interaction;
   3. Learning;
   4. Mobility;
   5. Self-care; or
   6. Self-management.
2. It is only necessary for the Applicant to establish that he experiences substantially reduced functional capacity in one of the above life activities in order to satisfy s24(1)(c).
3. In the case of National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521 the Full Court held at [62] that in determining whether a prospective participant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range of 'tasks and actions' (as referred to in Rule 5.8) that comprise the 'activities' the decision-maker is required to consider, consistent with the legislative history, context, and purpose. It further held at [64] that a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
4. None of the life activities referred to in s24(1)(c) are defined in the NDIS Act or the Becoming a Participant Rules. The Guidelines describe each life activity as follows:

Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

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.

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.

1. In the case of Burrows at [90], Senior Member French concludes that 'domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance as examples, do not fall within any of the section 24(1)(c) activity areas. Senior Member French reached this conclusion based on a _'_straightforward reading of the statutory language of the section which does not refer to a domestic activity area, and the [Respondent's] operational policy [the Guidelines], which does not include any reference to the physical tasks associated with domestic activity.' In this respect, the tasks attributed to self-management by the Respondent's operational policy include 'day to day tasks at home', but limit those tasks to mental or cognitive tasks, not physical ability to do these tasks.
2. In the Tribunal's view, the recent Full Court decision of National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [41] endorsed the rationale in Burrows and the Respondent's submission that each of the activities listed in s24(1)(c) should have determinate meaning. The Full Court referred to the following approach taken in Burrows at [78]:

Applying these principles, it is to be recognised that s 24(1)(c) is a component of a statutory test, the overall purpose of which is to determine if a prospective participant meets the requirements for access to the NDIS. In this regard, it is an express object of the NDIS Act to "facilitate the development of a nationally consistent approach to access to ... supports for people with disability." In my opinion, fulfilment of this purpose requires that the test operate normatively rather than arbitrarily. It can only do so if the tasks that fall within each activity area for the purposes of s 24(1)(c) are designated and determinate rather than infinitely variate and elastic.

1. The Tribunal accepts that the determination of Senior Member French in Burrows with respect to section 24(1)(c) activity areas is correct and should be followed. The Tribunal will now consider each of the section 24(1)(c) life activity areas and how they apply in this case.

1. This activity area includes tasks associated with expressive and receptive language. The threshold for this activity area is 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in which part of the body pain is experienced, asking for help to reach something, and so on.'[39]
2. In Dr Sorour's report dated 25 March 2024 he says that during his interview of the Applicant 'Remained oriented, attentive, reciprocal, coherent, relevant and engaged in the discussion with politeness, and in a cooperative spirit'. He further sates, 'Speech is Induced coherent relevant to the point with average tone and rate'.[40]
3. In Mr Rundell's report he says that he suspects that the Applicant's emotional instability is often born from the ongoing frustration he experiences from communication errors. He forms the opinion that the Applicant's lack of insight into how others interpret this communication style often makes him feel misunderstood and angry.[41]
4. Under the heading 'Communication' in the report of Ms Pizzica, she says:

Due to his mental health conditions, he demonstrates difficulty in expressing his emotional needs or articulating more specific feelings, especially in times of distress. While he generally communicates effectively, his tone of voice tends to be monotone, and he often lacks eye contact, which reduces the clarity and emotional depth of his communication. These limitations are more pronounced when he is under stress or trying to explain complex emotional needs. However, in everyday situations, he is generally able to communicate his basic needs independently and clearly.[42]

1. In her report Ms Pizzica says that at the time of assessment the Applicant:

...demonstrated the ability to listen, comprehend and respond appropriately to questions. However, his communication style was characterised by limited eye contact and a monotone voice. Despite this, he was able to engage in the conversation and convey his thoughts clearly.[43]

1. Ms Pizzica also reports that the Applicant 'participated in the conversation appropriately, effectively demonstrating his communication skills' and that the Applicant 'is capable of using all functions of his phone independently. He uses social media, can text and call his friends'.[44]
2. The Applicant is able to communicate with others without disability related assistive technology, equipment or home modifications. He does not require guidance, supervision or prompting to enable him to communicate. There is evidence that the Applicant may have difficulty communicating when he is under stress or trying to explain complex emotional needs and further that his tone of voice tends to be monotone, and he often lacks eye contact, which reduces the clarity and emotional depth of his communication. However, this is not equivalent to the Applicant usually requiring assistance with expressive and receptive communication within the communication activity area, taken as a whole. Therefore, Rule 5.8 has no application in this case. The evidence is that the Applicant does have some difficulties at times with specific types of communication tasks but that he is able to communicate effectively, most of the time, with most people. Therefore, the Tribunal concludes that his reduced functional capacity for communication is mild and not substantial.

1. The bundle of tasks within the social interaction activity area is limited to tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context. It does not include social interaction with immediate family which is consistent with the objects of the NDIS Act, with its emphasis on the independence and social and economic participation of persons with disability, beyond their immediate family.[45] The focus is on interpersonal skills, far more than the location or frequency of opportunities to practice such interpersonal skills.[46] It is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.[47] Social interaction does not mean interaction with the whole community, but with elements of the community.[48]
2. At the time the Applicant saw Dr Sorour in March 2024 the applicant said he was in a long-term relationship with his ex-partner (10 years) and he had a good relationship with his stepfather and mother. The Tribunal understands this is not the current situation but has no evidence as to what the Applicant's current situation actually is.
3. Mr Rundell records that the Applicant self-reported that he has issues with emotional regulation, managing alcohol and interpersonal conflicts.[49]
4. At the time Ms Pizzica saw the Applicant in February 2025, he reported that he was able to interact with others in social situations. He spoke with his mother on the telephone daily. He spent a significant amount of time texting friends and consuming social media content. He went to his friends' house weekly to work on cars or go fishing. Ms Pizzica states that this indicates he is capable of participating in social activities in familiar and comfortable settings.[50]
5. Under the heading 'social interaction' Ms Pizzica states that the Applicant:

... identified two main friends with whom he maintained regular social interactions. One of these friends is someone he works on cars with, while the other is a long-standing friend from his school days. They stay in regular contact, primarily through text messages, and make an effort to catch up in person once or twice a week. These connections appear to provide him with consistent social support and engagement.[51]

1. Ms Pizzica also reports that the Applicant is able to navigate the community independently, he can use public transport like Uber to travel. He visits his local shops weekly. However, his community involvement is otherwise limited, as he prefers to avoid large crowds of people.[52] Ms Pizzica, also states that whilst the Applicant is capable of interacting socially in smaller, more familiar settings, his ability to engage meaningfully in larger social contexts is significantly limited by his mental health conditions. By way of explanation, Ms Pizzica says that the Applicant can feel overwhelmed in social situations, particularly in large crowds because he often experiences paranoia, including hearing other people's conversations, which makes social interaction challenging.[53]
2. The evidence is that the Applicant is able to perform the tasks associated with making and keeping friends and with interacting with other people in the community. He moves around in the community on his own and visits his local shops. He spends a significant amount of time texting friends. He enjoys spending time with friends working on cars and going fishing. He is capable of social interaction in familiar and comfortable settings.
3. The Tribunal accepts that due to the Applicant's schizophrenia he will, at times, experience difficulty engaging in some social situations, particularly in large crowds. It is likely that, at times, he could feel overwhelmed and paranoid in these environments, which would make social interaction challenging.[54] The Tribunal also accepts that his difficulties with social interaction are exacerbated by his sometimes- poor judgement and lack of impulse control.[55]
4. There is evidence that the Applicant has at least two main friends and is able to move about and interact with other people in the community. The Tribunal accepts that at times the Applicant has issues with emotional regulation and interpersonal conflicts. However, for the purposes of s24(1)(c), a distinction must be drawn between functional capacity at a point in time, and functional capacity over time.[56] It is the Tribunal's view that Rule 5.8 does not apply. Further, whilst the Applicant may have days when he has been or will be emotionally and behaviourally dysregulated in his social interaction, when viewed over time, the Applicant retains substantial functional capacity for social interaction.

1. The bundle of tasks within the learning activity area is limited to tasks associated with acquiring knowledge, skills or understanding and memory.
2. Dr Sorour reported that when he saw the Applicant his thought form was logical, coherent and goal directed.[57] He was conscious, alert and oriented to time. His concentration was not affected and his memory was intact. He had a good recognition and attribution of his illness as well as awareness of his treatment including the benefits of having the treatment and adherence/compliance to treatment. His judgement was intact.[58]
3. Mr Rundell reported that a number of aspects of the Applicant's self-description suggest noteworthy peculiarities in thinking and experience. Mr Rundell notes that the Applicant's Intelligence Quotient (IQ) was not evaluated and although testing the Applicant's IQ 'may have revealed more information about the structure of his intelligence, ultimately, the overall benefit in this report would have been mild at best.' He goes on to say that there is some evidence to suggest that the Applicant 'does have ongoing issues with his cognitive abilities that are placing pressure on his mental resources.' He does note that all of the information he relied upon when preparing his report was gained from the Applicant or from self-reports.[59]
4. Ms Pizzica reports that the Applicant's mental health conditions can cause difficulties with concentration, memory, and processing complex information, particularly when he is feeling overwhelmed or stressed. As a result, he may struggle with tasks that require sustained attention or the ability to learn new skills in certain contexts. It is more significant when he is experiencing heightened symptoms of his mental health conditions.[60]
5. Ms Pizzica records that the Applicant held casual employment between the ages of 14 and 18, working as a trolley collector at supermarkets. Since that time, he has not been employed and is currently receiving the disability support pension.[61]
6. Rule 5.8 has no application in this case because there is no evidence that the Applicant:
   • is unable to acquire knowledge, skills or understanding, or remember things, without assistive technology, equipment or home modifications.
   • usually requires assistance in the form of physical assistance, guidance, supervision or prompting to acquire knowledge, skills or understanding, or remember things.
   • Is unable to acquire knowledge, skills or understanding, even with support.
7. At its highest the evidence is that the Applicant has difficulties with concentration, memory, and processing complex information, particularly when he is feeling overwhelmed or stressed and that he may struggle with tasks that require sustained attention or the ability to learn new skills in certain contexts and the extent of his functional capacity for learning is more when he is experiencing heightened symptoms of his mental conditions.
8. The Tribunal accepts that the Applicant may benefit from physical assistance to learn and retain new information and that he would benefit from physical assistance in the form of prompts and reminders in relation to attending appointments, accessing health care, taking his medication, performing certain domestic tasks, daily planning and goal orientation.
9. The Tribunal is satisfied that when the Applicant's schizophrenia is fully symptomatic, he may experience substantially reduced functioning in relation to the acquisition and retention of knowledge, skills and understanding overall but according to Dr Sorour's report the Applicant's first psychotic episode was in 2016 and he has had 5 or 6 admissions ever since. Dr Sorour reports that when the Applicant 'is unwell he would report auditory and visual hallucinations and delusions of persecution where he would be fearful for his life which ends up in him call [sic] the ambulance and going to hospital.'
10. The Tribunal cannot only focus on the Applicant's 'bad days' when he is fully symptomatic. The Tribunal must consider the Applicant's capacity over time and in between his acute episodes. On the facts of this case when viewed over time, the Applicant experiences some difficulties in relation to the acquisition and retention of knowledge, skills and understanding overall, but this does not amount to a substantially reduced functional capacity in the bundle of tasks associated with learning.

1. The bundle of tasks within the mobility area is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and the chair.
2. The only evidence in relation to the Applicant's mobility can be found in Ms Pizzica's report. She says that the Applicant:

... Currently moves around independently, both within his home and the community. He is able to navigate his environment without assistance, using public transport or ride-share services such as Uber when needed. He walks to local shops weekly and enjoys going for walks around the block. There are no reported issues with his general mobility, and it does not require assistance for day movement or transportation. In my opinion, he is fully independent in this area.

1. Based on the evidence, the Tribunal finds that the Applicant does not have a substantially reduced functional capacity to perform the tasks in the domain of mobility.

1. The bundle of tasks within the self-care activity area are limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care.
2. In Dr Sorour's report he says that when he examined the Applicant was sufficiently groomed, wearing appropriate clothing and no self-neglecting features were evident.[62]
3. In Ms Pizzica reports that the Applicant is independent with all aspects of grooming and bathing, dressing, feeding, drinking, toileting and meal preparation. She comments that the Applicant requires verbal prompting from his mother to take his oral medications each day but that he is physically capable of dispensing and taking his medications. She says that the Applicant's mother takes him for his monthly depot antipsychotic injection to ensure he attends this. There is no suggestion that the Applicant does not have the functional capacity to perform the task of taking his medication or attending his general practitioner for his monthly depot antipsychotic injection. The Applicant has the capacity to be independent in this self-care activity. Any failure by the Applicant to perform these tasks is not covered in the area of his functional capacity for self-care.
4. Ms Pizzica reports that the Applicant is able to independently perform laundry tasks shopping and lawn mowing. The Applicant reported to her that he neglects cleaning tasks. However, neglecting to do a task is not the same as being unable to perform that task. It is important to distinguish between what a person does not do as opposed to what they cannot do. [63]In any event, none of these tasks fall within the bundle of tasks that make up the self-care activity area.[64]
5. The Tribunal finds that the Applicant does not require assistive technology, physical assistance, guidance, supervision or prompting. He has the capacity to perform all of the tasks that fall within the self-care activity area. The Tribunal finds that Rule 5.8 does not apply and when the Applicant's capacity for the activities associated with self-care are considered as a whole, the Tribunal finds that the Applicant does not have substantially reduced functional capacity to perform the tasks associated with self-care.

1. The bundle of tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning decision-making, self-care, problem-solving and financial management.
2. In Mr Rundell's report he says that the Applicant's mental health condition, which he diagnoses as schizoaffective disorder:

...usually results in an impaired ability to organise and manage daily routines. Furthermore, this condition is often characterised by fluctuating moods, psychotic symptoms and cognitive difficulties, severely affecting one's capacity to maintain a consistent schedule. Symptoms such as disorganised thinking, hallucinations and mood instability make it extremely challenging for a person with this condition to plan, prioritise and complete essential daily tasks, such as personal care, household chores and attending appointments. Furthermore, it is likely that [the Applicant] will have ongoing issues managing his finances. Unfortunately, without support in this matter, there is a strong possibility that his ongoing financial security will be compromised...Things like daily planning and goal orientation require a significant amount of mental organisation that translates into motivation, which is clearly something that [the Applicant] is still struggling with. In some cases, the fear of mental health relapse becomes a daily barrier preventing a person diagnosed with a serious mental health condition from being goal orientated. Or it could be that the ongoing disruptions to their executive functions impact daily planning despite being medicated. In [the Applicant's] case, I suspect that it is a combination of both factors. I would also suggest that these factors have created deficits in his self-concept and identity, further disrupting his motivation towards achieving important goals. It probably helps to explain why [the Applicant's] days are somewhat chaotic and why he is drawn to instant gratification as a means of both managing anxiety and boredom (emphasis added).[65]

1. Mr Rundell records that the Applicant recorded a Global Assessment of Function Scale (GAF) score of 30, which is considerably low when compared to most people and suggests that he will require some form of regular support. This is corroborated by his scores on the Personality Assessment Inventory (PAI), which suggests he is having severe impairments in his overall functioning. He says the Applicant's daily life probably contains episodes of emotional dysregulation and, at times poorly controlled anger and that it is likely that the Applicant has significant trouble organising his day, let alone planning for his future (emphasis added).[66]
2. Mr Rundell's report is problematic. As stated above he concludes that there are many limitations in his report including the way in which the information has been gathered. As can be seen from the words emphasised by the Tribunal, his views and opinions are not specific to the Applicant and they are expressed in very broad and generalised terms.
3. As stated above, the Tribunal must be precise in its consideration of what the Applicant can and cannot do.[67] This does not involve speculation. Therefore, Mr Rundell's report does not assist the Tribunal assess with a relatively high degree of precision (as it is required to do) what the Applicant can and cannot do with statements such as:
   • The condition the Applicant suffers from usually results in an impaired ability to organise and manage daily routines.
   • The Applicant's condition is often characterised by fluctuating moods, psychotic symptoms and cognitive difficulties, severely affecting one's capacity to maintain a consistent schedule.
   • It is likely that the Applicant will have ongoing issues managing financial issues and there is a strong possibility that the Applicant's ongoing financial security will be compromised.
   • I suspect that fear of mental health relapse and ongoing disruption to executive functions impact his daily planning and disrupt the Applicant's motivation towards achieving important goals and it probably helps to explain why the Applicant's days are somewhat chaotic and why he is drawn to instant gratification.
   • His GAF score suggests that he will require some form of regular support.
   • His PAI score suggests he is having severe impairments in his overall functioning.
4. In contrast to Mr Rundell's report, the reports of Dr Sorour and Ms Pizzica provide specific statements about what the Applicant can and cannot do on the dates they assessed him.
5. Dr Sorour notes that the Applicant has access to strong family cohesion, positive values and beliefs and the ability to access help through a variety of clinical and community interventions. He notes the Applicant has psychological symptoms associated with his mental health problems and that he has a history of impulsivity under stress which points to the fact that the Applicant has a high level of changeability and that his impulsivity increases when refusing treatment and or taking drugs. He notes the Applicant has the capacity and willingness to enter into therapeutic alliance and he gave meaningful reassurance that he has no intention of harming himself.[68]
6. Ms Pizzica reports that at the time of her assessment, the Applicant reported he currently manages his finances independently, however he has difficulty with budgeting. He reported after receiving his disability support pension, he pays his bills and then has very little money remaining.[69] Ms Pizzica, reports that when the Applicant was asked how he would respond in the event of an emergency he provided a clear and appropriate response. She reported that during episodes of acute distress the Applicant's ability to manage his safety can be compromised because during these times he may experience heightened paranoia, agitation and difficulty controlling his emotions, which could put him at risk. He has a crisis plan and receives support from his mother to help de-escalate these situations. Ms Pizzica goes on to say that the Applicant may require assistance during periods of heightened distress but outside of these episodes he appears to be independent.[70]
7. Under the heading of self-management, Ms Pizzica reports that the Applicant:
   • is generally able to make personal decisions independently, including managing his finances;
   • is generally able to make and attend appointments independently;
   • would benefit from reminders to ensure he attends his appointments;
   • has insight into his mental health conditions his ability to make decisions;
   • can manage simpler decisions;
   • can manage his financial obligations and handle his affairs on a day-to-day basis.[71]
8. Ms Pizzica concludes in relation to self-management that the Applicant's mental health conditions [his psychosocial impairments]

...can impact his ability to manage tasks consistently, especially when symptoms are more pronounced. For instance, during episodes of delusions or hallucinations related to his schizophrenia, his focus and decision-making ability may be impaired, making it more difficult for him to manage his affairs effectively. Similarly, his anxiety and depression can lead to low motivation, forgetfulness, or difficulty in organising tasks, which may affect his ability to manage routine activities such as maintaining a schedule or managing finances. However, these challenges are not constant, and he can function independently when his symptoms are less severe.

1. There is no doubt that when the Applicant is as a result of his schizophrenia and is experiencing hallucinations and delusions his capacity to function in self would be severely impacted. However, the evidence from Dr Sorour is that his first psychotic episode was in 2016 and as of March 2024 he had been admitted to hospital on 5 or 6 occasions as a result of these psychotic episodes. There is evidence that at times the Applicant's mother has provided him with support by prompting him to take his medication and attend his monthly appointments to his GP and has accompanied him to those appointments. However, that is not equivalent to the Applicant usually requiring assistance with the activities associated with self-management. The evidence is that he can function with activities of self-management independently when his symptoms are not severe.
2. The evidence is that the Applicant is able to solve problems, make personal plans, make decisions and manage his healthcare and finances without disability related assistive technology, equipment or home modifications. Rule 5.8 has no application. There is some evidence that the Applicant is assisted by his mother with some aspects of his healthcare, including prompting him to take his medication and to attend his medical appointments with his GP on a monthly basis. However, this does not amount to the Applicant experiencing substantially reduced function in relation to the cognitive tasks associated with his healthcare. The Tribunal finds that whilst the Applicant's psychosocial impairments may occasionally affect his capacity for self-management, he does have the capacity to independently manage his finances and other personal responsibilities. The Tribunal accepts that there is evidence that when the Applicant's symptoms associated with his psychosocial impairments are severe his cognition is impaired and he may require assistance with in particular healthcare and financial management but this is not equivalent to the Applicant usually requiring assistance with the activities of self-management as a whole and the evidence does not lead to the conclusion that the Applicant experiences substantial reduced functional capacity in relation to personal organisation, planning decision-making, self-care, problem-solving and financial management.

1. For the reasons stated the Tribunal has found that the Applicant does not experience substantially reduced functional capacity in any of the six activity areas specified in s24(1)(c). This finding does not mean that the Applicant does not have reduced functional capacity to perform some tasks associated with daily living. He clearly does. However, to the extent that these tasks fall within the s24(1)(c) activity areas, his reduced function is not sufficiently acute to constitute substantially reduced function as compared with a person who does not have his impairments.[72]

1. As the Tribunal has concluded that the Applicant does not meet the disability requirement for access to the NDIS, it is unnecessary for the Tribunal to consider the requirements of s24(1)(d) and (e).

1. The Tribunal has found that the Applicant has psychosocial impairments attributable to his schizophrenia and depressive disorder and that they are permanent.
2. In order to meet the early intervention requirements in s25 the Tribunal also need to be satisfied that provision of early intervention supports is likely to benefit the Applicant by reducing his need for future supports and either mitigating the impact of his permanent impairments on his functional capacity, preventing deterioration of such capacity, improving such capacity or strengthening the sustainability of his informal supports.
3. A person does not meet the early intervention requirements if supports they require are more appropriately funded or provided through another service system rather than the NDIS.
4. Mr Rundell states that the Applicant would socially benefit from regularly engaging with a support service. He describes the Applicant's risks as mental health relapse, harm stemming from poor diet or other bad lifestyle choices. He says that a NDIS support worker would help the Applicant work towards important goals.[73] Dr Sorour, suggests that the Applicant should apply to the NDIS to access support services for social challenges, employment and financial hardship.[74] The Tribunal notes that the NDIS is not necessarily a support service for all people with psychosocial impairments such as the Applicant. Not all people with disabilities can access the NDIS. As stated, access to the NDIS, and the supports, funding and the autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.[75]
5. Rule 6.9 provides that in deciding whether the provision of early intervention supports is likely to benefit the person the Tribunal must consider:
   • The likely trajectory and impact of the person's impairment over time; and
   • The potential benefits of early intervention on the impact of the impairment on functional capacity and in reducing the future needs for supports; and
   • Evidence from a range of sources, such as information provided by the prospective participant, family members, carers and experts.
6. There is no evidence available in relation to the trajectory of the Applicant's psychosocial impairments. The Tribunal finds that as a matter of common sense it is unlikely early intervention supports will affect the trajectory of those impairments in any way. On the facts of this case, the Tribunal is not satisfied that the Applicant would benefit from early intervention supports. Accordingly, the Tribunal finds that he does not meet the early intervention requirements of s25 of the NDIS.

1. The Tribunal affirms the decision under review.

1. I certify that the preceding 107 (one-hundred-and-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Clues

............................[SGD]......................................

Representative for the Applicant: Ms Zena Dyson - Esteem Care Services

Solicitors for the Respondent: Moray & Agnew Lawyers

[6] The NDIS also provides time limited early intervention to persons with disability who experience intellectual, cognitive, neurological, or physical impairments or impairments to which a psychosocial disability is attributable, all which are permanent or likely to be permanent, who will benefit from such support in specified ways. Again, this is a limited subcategory of the total population of persons with disability Australia.

[8] National Disability Insurance Agency v Davis (Davis) [2022] FCA 1002 at [82]

[9] Drake and Minister for Immigration and Ethnic Affairs (No. 2)(Drake) [1979] FCAFC 39 at [644]- [655].

[14] Shi v Migration Agent's Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [45]- [46].

[16] Beezley v Repatriation Commission [2015] FCAFC 165 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].

[24] Administrative Review Tribunal Act 2024 (Cth) s 53.

[39] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [79].

[46] Nika and National Disability Insurance Agency [2021] AATA 2127 at [241].

[47] Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835 at [79].

[48] Kilgallin and National Disability Insurance Agency [2017] AATA 186 at [19].