1. By way of a form dated 1 August 2023 ZBGS applied to access the NDIS.[2] On 22 August 2023 a delegate of the Chief Executive Officer (CEO) of the Agency refused that application, finding that ZBGS had not met the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), or the early intervention requirements under section 25 of the NDIS Act.[3] These requirements are explained in detail in following sections of this decision.
2. On 10 October 2023 ZBGS asked the Agency to conduct an internal review of that decision.[4] On 9 November 2023 another delegate of the CEO upheld the original decision that ZBGS did not meet the access requirements for the NDIS.[5] This is the 'reviewable decision' (the decision under review) that is now before the Tribunal.
3. In providing reasons for that decision to ZBGS, the Agency's decision-maker advised that while ZBGS met the age and residency requirements in the NDIS Act, she was not satisfied that ZBGS had met any of the disability criteria. The delegate also found that ZBGS did not meet the early intervention requirements in the NDIS Act.
4. On 22 November 2023 ZBGS lodged an application with the former Administrative Appeals Tribunal (the AAT) seeking review of this decision.[6]
5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. After the filing by ZBGS of her review application in the AAT, a Senior Member of the Tribunal made an order pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (Cth), restricting the publication of the name or any information which would tend to reveal the applicant's identity. Accordingly, the pseudonym ZBGS is used to identify the applicant in this decision. Further, the Senior Member also ordered that the hearing of the review be private. Given these orders, in this decision I will use pseudonyms to refer to some witnesses and other persons where publication of their names might tend to identify the applicant. Relevant geographical locations, such as the location where ZBGS resides, will also be referred to in general terms, to limit any identifying information.
7. The review was heard by video (by Microsoft Teams) on 22 July 2025. ZBGS represented herself throughout the review. The Agency was represented by Ms Bianca Stringer of Counsel, instructed by Moray & Agnew Lawyers.
8. At the hearing, the Tribunal had before it the evidence and other materials lodged by the parties during the review. These materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency. The Hearing Bundle also referenced documents produced under summonses, issued by the Tribunal at the request of the Agency, from two psychiatrists who are providing treatment to ZBGS. The Hearing Bundle became Exhibit 1 in the proceedings. The Tribunal had before it the documents lodged by the Agency under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents). The T-Documents became Exhibit 2.
9. The Agency filed a written submission during the review, being its Statement of Facts, Issues and Contentions dated 21 February 2025 (the Agency's SFIC).[7]
10. ZBGS gave evidence at the hearing, and also called her treating General Practitioner, whom I will refer to as Dr A, to give evidence. The Agency called Mr Elliott Mate, an Occupational Therapist who had undertaken an independent functional assessment of ZBGS at the Agency's request. Mr Mate's report, dated 24 December 2024 (Mr Mate's report), was in evidence and was included in the Hearing Bundle,[8] as was the letter of instruction provided to Mr Mate by the Agency's lawyers.[9]

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[11]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[12] In undertaking its review, the Tribunal may exercise all the powers and discretions that are conferred on the maker of the decision under review.[13] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[14]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[15]
2. In the recent appeal decision of National Disability Insurance Agency v Lampard [2025] FCAFC 139 (Lampard) the Full Court of the Federal Court cited with approval the following observations made by Senior Member French of the Tribunal in Foster and National Disability Insurance Agency [2025] ARTA 718, a remittal decision following the Full Court decision in National Disability Insurance Agency v Foster [2023] FCAFC 11; 295 FCR 521 (Katzmann, Perry and Sarah C Derrington JJ) (Foster):

Section 21(1) [of the NDIS Act] provides that a prospective participant will meet the access criteria for the NDIS if the CEO is 'satisfied' that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically. Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the access criteria are met.[16]

1. The applicable legislation in this review is the NDIS Act. Section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements and the section 25 early intervention requirements. Those rules, being the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), are also applicable.

1. After ZBGS filed her application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note are the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[17] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when ZBGS applied to access the NDIS, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
2. The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, ZBGS's application must be determined in accordance with the provisions of the NDIS Act existing before that date.
3. Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.

1. Section 18 of the NDIS Act provides that a person may make a request (an access request) to the Agency to become a participant in the NDIS. Pursuant to section 20 of the NDIS Act, the Agency's CEO must decide if the person making the access request meets 'the access criteria'. Section 21(1) of the NDIS Act (as it read prior to 3 October 2024) sets out the relevant requirements for this, and provides:

21 When a person meets the access criteria > > (1) A person meets the access criteria if:

(a) the CEO is satisfied that the person meets the age requirements (see section 22); and

(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and

(c) the CEO is satisfied that, at the time of considering the request:

(i) the person meets the disability requirements (see section 24); or

(ii) the person meets the early intervention requirements (see section 25).

1. Section 9 of the NDIS Act defines 'meets the disability requirements' to have the meaning given by section 24, which provides as follows:

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.

1. 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.
2. 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.
3. Subsection (3) does not limit subsection (2).
4. The five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met.
5. The Agency initially contended in its SFIC that the available evidence did not support a finding that ZBGS met the permanence criteria under section 24(1)(b) of the disability requirements.[19] However, at the hearing, Counsel for the Agency submitted that the Agency was satisfied as to the permanence of ZBGS's impairments. This left in contest whether ZBGS satisfied the requirements concerning:

(a) substantially reduced functional capacity criteria pursuant to section 24(1)(c), in the domains of communication, social interaction, learning, self-care and self-management (ZBGS confirmed at the hearing that she did not assert substantially reduced functional capacity in the domain of mobility); > > (b) whether her impairments affect ZBGS's capacity for social or economic participation; and > > (c) the requirement of support under the NDIS for the person's lifetime, under section 24(1)(e).[20]

6. Section 25(1) provides as follows, in relation to the early intervention requirements:
   1. Early intervention requirements

(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;

(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:

(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. Similarly, the early intervention requirements under section 25(1) are cumulative. The Agency contended in its SFIC[21] and at the hearing that ZBGS does not meet the requirements for early intervention, in that there is insufficient evidence to enable the Tribunal to be satisfied that the provision of support will reduce ZBGS's future support needs (subsection (b) of section 25(1)).

1. As noted, section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements, or the section 25 early intervention requirements. Section 27 provides:

27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:

(a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or

(b) one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or

(c) one or more impairments affect a person's capacity for social and economic participation for the purposes of paragraph 24(1)(d); or

(d) the provision of early intervention supports is likely to benefit a person by reducing the person's future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or

(e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person's functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or

(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person's carer for the purposes of subparagraph 25(1)(c)(iv).

1. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. As noted, NDIS Rules relating to the disability and early intervention requirements have been made (the Access Rules). Relevantly, Part 5 of those Rules addresses 'When does a person meet the disability requirements?' and the requirements of 'permanency' and 'substantially reduced functional capacity to undertake relevant activities.'
2. Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements.
3. Rule 5.8 addresses the issue of when does an impairment result in substantially reduced functional capacity to undertake one or more of the relevant activities outlined in section 24(1)(c) of the Act, and provides:

When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

5.8 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.

1. Part 6 of the Access Rules addresses '[W]hen does a person meet the early intervention requirements?' and again addresses the requirement of 'permanency', and additionally 'deciding whether provision of early intervention supports is likely to benefit the person.'

1. The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the Agency as guidelines that set out some of the Agency's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation.' [22] The guidelines of relevance to this review are those entitled 'Applying to the NDIS' (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.
2. Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[23] As such, the Guidelines set out the Agency's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[24]

1. In applying to the Tribunal for review of the Agency's decision to refuse her access to the NDIS, ZBGS explained:

I believe the decision is wrong as I have three types of permanent disabilities (mental health) and I therefore need to be an NDIS participant.[25]

1. The T-Documents filed by the Agency establish that ZBGS made an earlier request to access the NDIS, in 2018,[26] (the earlier application). The Agency determined in August 2019 that ZBGS did not meet the access criteria.[27]
2. In support of her earlier application, ZBGS lodged some reports which spoke to her disability, and which were included in the T-Documents for this review. Given the age of those materials I will not dwell in detail upon their content, other than to note some details about ZBGS's relevant medical history and the impacts of her resulting impairments.
3. Accompanying the earlier application was a 'Psychosocial Report' provide by a social worker, attached to a State Mental Health Community Support Service.[28] That report noted that ZBGS:
   • Has been receiving treatment, in the form of psychotherapy and pharmacotherapy (medication) since she was 16 years of age.
   • Was diagnosed with major depression in 1996, following a marriage breakdown, and was later diagnosed with an adjustment disorder.
   • In 2007 was diagnosed with Bipolar Affective Disorder.
4. This report also noted that ZBGS's mental illness adversely impacted her ability to sleep, leading to concentration difficulties and her being overwhelmed easily. The report also stated that ZBGS required assistance in the domains of communication, social interaction, self-care and self-management.
5. A short letter dated 4 July 2019 from ZBGS's then treating psychiatrist was also provided.[29] It stated that ZBGS had been under this psychiatrist's care since September 2018; that she was suffering from delusional disorder, anxiety and depression; was on daily antipsychotic and mood stabilising medications; and that her condition impacted 'on most domains of her functioning, including work, relationships and finances.'

Evidence of Doctor A, ZBGS's General Practitioner

1. Turning to more contemporary evidence, ZBGS's General Practitioner, Dr A, provided a 'Supporting Evidence Form' for ZBGS's 2023 NDIS access request.[30] Therein, Dr A confirmed ZBGS's diagnoses of Bipolar II Disorder (BPAD) and Schizoid Affective Disorder, noting also that ADHD was diagnosed in March 2023. Past and current treatment consisted of ongoing reviews by a psychiatrist, psychologist and general practitioner, and medication.
2. Further, D A advised that the provision of 'early intervention supports' to ZBGS, in the form of the treatments noted above, would 'strengthen the sustainability of available or existing supports.'
3. Regarding ZBGS's functional capacity, Dr A noted that ZBGS did not require assistance in the domains of mobility and communication. He stated that assistance was required in the remaining four domains, as follows:

Social Interaction - ZBGS needs assistive technology and assistance from other persons:

For ZBGS to be able to successfully maintain social interactions and friendships, it is reliant on stability in her mental wellbeing. This means ongoing supports from psychologist and psychiatrist reviews of her wellbeing and medications. ZBGS also uses phones/tablets/computer to assist with messaging others, video calls. She also will use this for medical appointments when necessary.

Learning - ZBGS needs assistive technology and assistance from other persons:

ZBGS is often reliant on lists and keeping notes to ensure she is able to complete her daily tasks and function well at home and at work. She does this either by writing things down or making notes on an electronic device. She can also receive support from others around her with remembering tasks and events including at home and at work.

Self-care - ZBGS needs assistance from other persons:

Due to ZBGS's mental health issues, personal care is an area that has had a tendency to need extra assistance and support. This was noted most clearly during the lockdown periods in [the city where ZBGS lives] where she struggled more in maintaining personal hygiene as a symptom of her declining mental health.

Self-management - ZBGS needs assistive technology and assistance from other persons:

Due to ZBGS's diagnoses particularly ADHD and BPAD II, she can be more prone to procrastination and delaying tasks and daily jobs. She often benefits from prompting either from other or from reminders to ensure she can go about her day to day.

ZBGS currently only works 4 days a week, she has found this is vital to allow time for her to self regulate and manage her illnesses. In previous times when working longer hours/days, she saw a decline in her mental health with poor concentration, lethargy and was often more distractible.

1. After ZBGS's 2023 access application was initially refused, Dr A provided a letter in support for ZBGS, dated 6 September 2023.[31] Therein, he referred to ZBGS's 'long-standing battle' with ADHD, anxiety, depression and BAPD, and stated:

ZBGS's struggles with ADHD have been persistent, even while under the care of medication. She consistently experiences forgetfulness and poor concentration, which have a substantial impact on her daily life and work responsibilities. To manage these challenges, ZBGS has diligently maintained a note-taking system to compensate for her memory lapses. Despite her admirable efforts, the symptoms of ADHD often disrupt her ability to review and document policies effectively. This can, regrettably, result in inadvertent non-compliance with the policies she is required to adhere to, thereby affecting the quality of her work.

In addition to her ADHD, ZBGS faces the complex and emotionally taxing battle with bipolar disorder. She regularly experiences low moods, and at times, even contemplates suicide. These depressive episodes impose a significant burden on her mental and emotional well-being, further complicating her ability to maintain a consistent and productive work routine. The heightened levels of anxiety that she frequently endures only exacerbate her overall mental health challenges.

1. Dr A also stated in this letter:
   • That he considered ZBGS's conditions to be reasonably treated and stabilised, and her diagnoses and subsequent symptoms to be permanent, and he did 'not expect her functional capacity to improve over the next few years without the aid of additional supports.'
   • A report dated 23 August 2023 from ZBGS's psychologist was relevant to her functional capacity.

... will enable her to continue contributing meaningfully to her workplace and her community. She possesses a wealth of knowledge and expertise, and her dedication to her work is evident to those around her. However, the disabling effects of her mental health conditions have placed substantial obstacles in her path.

1. Dr A also provided answers to some targeted questions asked of him by the Agency; these answers were in evidence.[32]
2. Therein, Dr A confirmed that he first consulted with ZBGS in February 2021, and typically saw her 'every few months.' He confirmed the diagnoses relevant to ZBGS's current application and noted some other current and past physical conditions. Dr A also described the impact of ZBGS's conditions in similar terms to the excerpts noted above from his September 2023 letter.
3. Dr A also noted that he had referred ZBGS to a psychologist (who I will identify in this decision as Mr W) and two psychiatrists (whom I will identify as Dr C and Dr Z respectively). I note here that the two summonses issued in this matter were to these two psychiatrists, and their respective summons records were in evidence.[33]
4. The Agency's questions included some specifically addressed to ZBGS's functional capacity and the requirements of section 24(1)(c) of the NDIS Act. In responding to those questions, Dr A stated:
   • Regarding ZBGS's capacity to participate effectively or completely in relevant activities (mobility not being in issue):

ZBGS is able to speak clearly and communicate well. Where ZBGS struggles is when she experiences associated forgetfulness or poor concentration where she may not be able to communicate effectively what she had intended to.

ZBGS's background of ADHD can be impactful in social settings, where it is not uncommon that she may experience feelings of being overstimulated and have trouble keeping track of conversation, particularly in bigger groups.

ZBGS's ADHD symptoms do have significant impacts on her ability to learn. ZBGS can struggle most with attention and concentration, particularly if what she is learning is not a point of interest. She can also struggle with committing things to memory.

Self care can be closely associated with ZBGS's mental health stability. During times of depressed or lower mood, it is not uncommon that self care will begin to lack.

ZBGS's ADHD symptoms often do make her struggle with life management including record keeping, task and time management, committing tasks to memory and how she plans accordingly. ZBGS has had to develop unique solutions such as note taking to reduce the risk of these symptoms manifesting and overwhelming her.

• In relation to the use of assistive technology by ZBGS:

ZBGS's symptoms are significantly impacted by her access to assistive technology. One example of this is ZBGS's use of her mobile phone to take down notes and set reminders for herself. The use of assistive technology has also been imperative in assisting with engagement with health practitioners involved in her care e.g. emails, telehealth visits.

• While ZBGS does not require physical assistance and prompting on a daily basis from others, she benefits from access to and ongoing engagement with her mental health team; in particular, her work with her psychologist around self-management of her conditions.
• As to whether ZBGS's functional capacity was reduced:

The domains most relevant to ZBGS's history include communication, learning, socialising and self management. The main nature of her impairment under these domains are associated with her current diagnoses of ADHD, BPAD, anxiety and depression. The way these manifest are outlined above but include poor concentration, forgetfulness/poor memory, impulsivity, mood fluctuations, difficulty with time management and focus/concentration.

• ZBGS needed ongoing reviews and support from her treating mental health professionals, particularly from her psychologist (Mr W), who has made recommendations for fortnightly sessions to focus on capacity building and to develop skills and strategies for better control and management of mental health systems. Here, the costs of proposed treatment were a big hurdle.

1. Dr A also gave evidence at the hearing.[34] In giving his evidence, he noted that responsibility for ZBGS's prescribed medications had been transitioned to him by the psychiatrist Dr Z. He agreed that ZBGS had reported a benefit in her concentration arising from taking her ADHD medication (Ritalin), noting that she also experienced some significant side effects (including facial tics), necessitating a reduction in this medication and finding a balance between side effects and benefits. Dr A also explained that he had put together mental health care plans for ZBGS. Dr A advised that ZBGS was very diligent in her compliance with her medications, and attending appointments and referrals. He described her mental health as stable and well controlled with the current treatment regimes, noting however that symptoms can fluctuate due to outside factors.
2. Regarding ZBGS's functional capacity, Dr A agreed he had no difficulties in communicating with ZBGS during consultations. He was aware of her working arrangements and had previously assisted her by providing a letter to support her having some time off to attend appointments. In the context of her ADHD, Dr A had discussed with ZBGS some strategies such as writing notes and setting up reminders. On the basis of her presentation, he had no concerns about ZBGS's hygiene.
3. Dr A also addressed ZBGS's possible access to allied health services under a 'chronic condition management plan', which he stated would be limited to five sessions, spread across disciplines (such as an occupational therapist or a dietician).
4. Dr A also advised that he was of the view that ZBGS had:

... good insight into the nature of her mental health conditions and I think that's reflected in her not shying away from it, being willing to engage in both treatments and follow up at the direction of primarily the psychologist and myself.

1. Mr W provided two reports, dated respectively 23 August 2023[35] and 30 November 2023,[36] and also answers to targeted questions asked of him by the Agency.[37] Mr W's curriculum vitae was also in evidence.[38]
2. Mr W described his first report (23 August 2023) as providing a brief snapshot pf the impact of ZBGS's disability on her psychological functioning. He explained that ZBGS was seeing him for 'focused psychological intervention, via her GP Mental Health Care Plan.'
3. In a 'Background' section of this report, Mr W noted that ZBGS reported that she lived alone, had limited family and social connections and sparse contact with her family, and occasional contact with friends; 'most of her social interactions occur with her friends and work colleagues.'
4. Mr W also noted ZBGS's report that while she takes medication for her mental health conditions, which provides some assistance, 'she still finds herself feeling anxious and depressed most days, which she reports impacts her ability to social and work in an office space.'
5. Mr W reported the results of his assessment of ZBGS, undertaken across three sessions and using the Depression Anxiety and Stress Scale (DASS21); the Adult ADHD Self-Report Scale (ASRS), and The World Health Organization Disability Assessment Schedule (WHODAS). They were as follows.
6. For the DASS21 (a 21-item questionnaire used to determine the severity of symptoms across the tri-axis of depression, anxiety, and stress in the past week), Mr W reported that ZBGS was 'mostly experiencing a moderately impacted emotional state, which 'is consistent with [her] self-report that her anxiety symptoms are most severe.'
7. For the ASRS (an 18 item self-report questionnaire designed to assess ADHD symptoms in adults), Mr W reported that ZBGS's 'symptoms of ADHD are average in the Inattentive domain, and severe in the hyperactive/Impulsive - Verbal domain.'
8. For the WHODAS (a 39-item self-report measure designed to measure the impact a health condition (disability or otherwise) has on a person's functioning across six domains: Cognition, Mobility, Self-Care, Getting Along, Life Activities and Participation), Mr W reported that:

ZBGS's self-report results indicate that her disability is having a moderate overall impact on her functioning. Her most impacted domains are Life Activities and Participation which are both within the severe range. All other domains are within the moderate range.

1. As noted by Dr A above, Mr W recommended that ZBGS engage in fortnightly psychological capacity building sessions; with Cognitive Behavioural Therapy being an appropriate treatment in improving her understanding of her disability, and in developing strategies to manage symptoms and respond to challenges.
2. Mr W's later report of November 2023 was framed in similar terms and contained much similar content to his earlier report. Mr W noted that ZBGS had attended 10 appointments to date with him, under her mental health care plan, and had engaged well by answering all questions openly and practising skills and strategies she was taught. Mr W noted there was 'no improvement to her condition. She has reported temporary benefit in discussing issues, however, struggles to maintain any lasting improvement.'
3. In addition to the recommendation noted above for psychological capacity building, Mr W stated that ZBGS would benefit from receiving assistance from a support worker, to help her with engaging in social activities to develop her confidence and skills, and also from assistance in cleaning her home.
4. In answering the Agency's questions, Mr W advised that ZBGS had been attending psychology interventions with him since June 2023. She attends monthly.
5. In answering a question about the impact of ZBGS's conditions, Mr W noted:

Due to her diagnosed conditions, the applicant has difficulty developing and maintain friendships and romantic relationships. She often mistakes cues and is susceptible to being manipulated by others.

The applicant's symptoms become overwhelming and impact her activities of daily living, where she frequently is unable to tend to household chores, self-care and social/community activities.

1. In explaining ZBGS's impairments, Mr W noted that ZBGS's 'disability is psychosocial which also impacts her intellectual and cognitive capacity.' By way of elaborating, he said:

The applicant has difficult with engaging in activities of daily living, to the degree that general population would. This is demonstrated in her WHODAS 2.0 results ...

In the course of her focused psychological interventions since commencing with the writer, the applicant had revealed that she has difficulty with forming and maintaining relationships, romantic, collegial or companionship.

Further, due to the effect that her conditions have on motivation and energy, the applicant's capacity for domestic duties is reduced. Further, she has difficulties with leisure activities and may opt to engage in solitary activities or isolate herself from crowds.

1. The results from the WHODAS assessment noted above were outlined by Mr W:

The areas that areas most impacted by her disability are Life Activities and Participation. Life Activities refers to what most people do in day-to-day life which includes work, school,

domestic responsibilities and leisure. Participation assesses the limitations the [person] has in social and community activities.

These two domains appear to relate to 'Socialising' and 'Self-Management' activities listed above.[39] Whilst the applicant has engaged in some forms of social activities, she has either done so in isolation of others or her interpersonal issues quickly erode opportunities for friendships or relationships. She also struggles to maintain her home and is often disorganised and messy. This has been observed by the writer via telehealth sessions.

As other domains are all within the Moderate range, the applicant is experiencing a degree of difficulty that most other people her age is not. Her 'Communication', whilst she is articulate, has minimal to no speech impediments and can comprehend most conversations (with the writer), she struggles to recognise friendly and romantic behaviours, and is often confused which leads to erosion of rapport within workplaces and social settings.

Her symptoms of anxiety and depression often preoccupy her mind and make it difficult for her to concentrate and absorb new information via written, practical or audible methods, therefore impacting the cognition domain in the WHODAS 2.0 relating to the 'Learning'

1. Mr A suggested that ZBGS's capacity concerning 'Activities of Daily Living, would be best addressed by an occupational therapist.

1. Mr W stated that ZBGS would benefit from a psychosocial recovery coach or a support worker, working collaboratively with a psychologist to develop her capacity to engage in community activities such as leisure and domestic responsibilities.

1. When asked if ZBGS has reductions in her functional capacity, Mr W answered:

As demonstrated by the applicant's WHODAS 2.0 results, the conditions are causing a level of disability greater than 94.7% of the general population. This is despite the applicant reporting that she has been engaged psychologically and psychiatric for 15 years.

Her psychosocial disability (Schizoaffective Disorder, Bipolar II, Depression and Anxiety), impact her motivation and energy for [Activities of Daily Living] ADL's. Her ADL's are also impaired by her disorders, as she has difficulties with joining community and social events, and struggles with developing and maintaining friends and connections with other people.

1. ZBGS gave evidence at the hearing. She spoke to how her disability impacts her daily life, through:
   • Her energy levels - becoming quite tired from time to time, which impacts her at work.
   • Sleep disturbances - trouble in falling and staying asleep. Sleep medication helps, but not always.
   • Concentration issues - difficulty in focusing, especially on things that aren't of particular interest. This can impact on meeting deadlines at work.
   • Relationship challenges - with partners, family and friends. She experiences ongoing challenges with others who aren't open and honest with her.
   • Work performance issues - leading to ZBGS needing to more open with her employer (for whom she has worked for 12 years), about her ADHD and what she needs, such as breaks to restore her focus.
   • Impulsive behaviours - relating to her ADHD and BAPD. Sometimes she spends money without thinking things through. She has been scammed and lost money.
2. ZBGS works in the public service in a project co-ordination role. She has reporting responsibilities, and uses a project management system for this purpose, which she had to learn to use. She took notes and listened to recorded learning sessions multiple times to help her learn to use this system. ZBGS also liaises with a range of colleagues; this includes attending regular meetings with colleagues and contact by MS Teams and email.
3. ZBGS has a formal qualification in project management (a Certificate IV), obtained in 2008 from a university. She works a full-time week of hours, but across four days (under a flexible working arrangement, to allow her a day to attend her medical appointments), working from home three days and one day on site, for which she travels by car (a 50-minute trip each way). ZBGS said she will use adaptive techniques such as taking regular breaks during her work, often taking notes of issues that she thinks of after meetings, to follow-up through emails, which her colleagues respond to. ZBGS has explained to her manager that she has ADHD. Consequently, she is able to use an office when in the workplace, to reduce distractions. ZBGS aspires to stay in her role with her current public service employer until she reaches retirement age.
4. ZBGS gave evidence that she thought she had good insight into her mental health conditions. She also gave evidence about how often she attends upon all her treating professionals, making sure she is early for her appointments She attends upon Mr W by telehealth appointments as he is located interstate. She attends all her appointments on her own. She sometimes prepares notes in relation to her consultations.
5. Following a referral from her psychologist, she saw an ADHD coach on a number of occasions, which she found helpful. ZBGS attends other medical specialists from time to time, for her non-mental health conditions (for example, she has previously had breast cancer).
6. ZBGS monitors her medications, and rings her pharmacy (which holds her prescriptions), to arrange to pick up repeats when needed. She has reminders on her phone to take her Ritalin medication; ZBGS set this up herself. She uses notes on her phone to remind her about other tasks.
7. ZBGS also said she would attend shops to buy groceries up to twice per week, although she also uses a pre-packaged food delivery service. She uses an app, or calls on the phone if the app isn't working, to place her orders with that service. She is able to engage with workers at the shops; for instance, to ask if she cannot locate an item.
8. ZBGS gave evidence about a short trip away she had organised by herself over the Christmas period, and how she located a motel to stay at. She also noted she was taking a holiday cruise this year.[40] ZBGS volunteered in her evidence that she had met someone since Mr Mate undertook his assessment (in November 2024), and that her partner was travelling with her on this cruise. ZBGS booked this trip herself. She met her partner online, through a dating website. ZBGS sees her partner twice a week; sometimes going on daytrips or out for a coffee. They have been together for seven months (as of the date of the hearing).
9. ZBGS stated that she sees her mother twice a week, often to share meals, and sometimes to attend a movie. She has a small friendship group, including longstanding friendships with a former work colleague that she has known since 2000, and with another couple. ZBGS meets these friends for lunch, usually at her house or theirs, and also for coffee outings. ZBGS's mother will help her with cooking for these occasions. When her partner visits, they cook meals together, which she enjoys. In 2024 she attended some concerts. ZBGS also said that she uses Facebook but does not post herself.
10. ZBGS also explained that she had joined a local Rotary Club for a few months, leaving after she was asked to give a talk about her life (which she did not wish to do). She had attended some club events, listening to guest speakers at events and getting to know other members. She did some volunteer work through Rotary as well, packaging goods for people in situations of disadvantage. ZBGS said she found this work to be very rewarding, and that she would like to use her administrative skills (such as co-ordinating), in a future volunteer role.
11. ZBGS made contact to join her local Rotary Club after speaking with a work colleague, and when her aunt spoke to her about connecting with people.
12. ZBGS said she is comfortable using the internet and undertaking research. She uses the internet for shopping and sometimes to book appointments.
13. In answering questions about her self-care, ZBGS explained that she did not like showering regularly in winter, due to the cold, and that was her personal choice. She also stated that while she had told Mr Mate that sometimes she did not brush her teeth regularly, she now brushed them twice a day as a habit, due to having her new partner. She sees her dentist regularly.
14. ZBGS explained that she is capable of doing household domestic tasks, although she employs a cleaner.
15. ZBGS moved home in 2024. Her Aunt sent her some links for rental properties. ZBGS is comfortable in liaising with her property manager; she is able to use an app for property-related requests. She organised the move to her new home herself, obtaining several quotes from removalists. However, ZBGS also engaged a professional organiser to help her unpack and organise her belongings once she had moved, as she felt she needed help to do that.
16. ZBGS does her banking through an app. She has set up some direct debits for bills and is able to pay others on time. She uses cash or a card to pay for items. While she at times makes 'impulse buys,' by doing this online she can return items she does not wish to retain.
17. In applying to access the NDIS, ZBGS confirmed she is seeking assistance to fund the cost of her psychology and psychiatry appointments. She described her current mental health as steady, although she still has vulnerabilities and challenges.
18. I will note her that in giving her evidence, ZBGS did so with a level of candour that was both evident and admirable.

1. As noted, Mr Mate was engaged by the Agency to undertake an independent functional assessment of ZBGS. He undertook this assessment on 20 November 2024, at ZBGS's home. In his report, Mr Mate reached the following conclusions.[41]
   • ZBGS was independent in the domain of communication; no formal support or intervention is required. Mr Mate noted that during the assessment ZBGS communicated with him and he observed no impairments. Further, she was able to independently answer questions, follow instructions and ask appropriate questions of her own. ZBGS confirmed that she is able to read, write and use technology.
   • In order to further improve and maximise ZBGS's functional capacity in the domain of social interaction, he supported occupational therapy intervention for ZBGS, to support her to engage and link with social groups related to her interests; that ZBGS remain under the care of her current treatment providers; and that she undergoes some free training/education to reduce her risk of falling victim to scams. He did not consider she has a need for person-to-person support in this domain.

In this domain, Mr Mate also noted that ZBGS reported a small network of friends; a couple she sees every few months, and a friend she sees for dinner every second Saturday. She sees her mother and Aunty most weeks (or more regularly), and her siblings every few months. ZBGS reported wanting to make more community connections.

ZBGS reported being married previously, divorcing in the 1990s. She engages in online dating, although she has fallen victim to 'romance scams' on two occasions, 'losing most of her money.' ZBGS reported that she has learned from these episodes and feels unlikely to be scammed again.

Mr Mate found ZBGS was independent with community interactions, confirming she is able to speak to receptionists and shopkeepers and to order food and drinks. There were no reported or observed deficits in ZBGS's behaviour, or in relation to her capacity for coping with feelings/emotions in a social context.

• While ZBGS's symptoms reduce her concentration and can cause forgetfulness, impacting her learning, through the use of her current compensatory techniques (such as using alerts and reminders on her phone, and note taking), ZBGS was independent in the domain of learning; no formal support or intervention is required.

... she is able to be across large volumes of information in her role, and she stated that she is able to learn the information required to perform this role and undergo training in order to become qualified to perform this role.

This demonstrates her independence with learning tasks, and I expect that through the use of her existing strategies and adherence to her ADHD medication, she will retain her independence with learning.

• In order to further improve and maximise ZBGS's functional capacity in the domain of self-care, he supported occupational therapy intervention for ZBGS, to develop visual schedules, complemented by electronic reminders, to assist her in structuring her self-care tasks each week. He noted that while ZBGS was able to independently perform self-care tasks, for some personal care tasks such as showering and brushing her teeth, she does so with reduced consistency at times, citing reduced motivation and need. Mr Mate attributed this to her ADHD and mental health symptoms. He did not observe any signs of reduced hygiene during his assessment.

Mr Mate also noted that ZBGS employs a gardener, and also a home cleaner who attends fortnightly, and earlier in the year sought the services of a 'professional organiser' to help her unpack and organise her belongings.

• ZBGS was independent in the domain of self-management; no formal support or intervention is required. Mr Mate noted ZBGS was able to make complex decisions and solve problems independently. Mr Mate cited several examples reflecting ZBGS's independence in this domain, including organising all of her own medical and therapy appointments; managing her own finances, budgeting, banking and paying bills; and organising home assistance such as engaging the cleaning service.

1. Given that mobility is not a domain in contention I will omit references to Mr Mate's evidence about ZBGS's functional capacity in this domain, other than to note that he found ZBGS to be fully independent, and I note his evidence that ZBGS owns a car and drives with full independence and, while she prefers to drive, uses public transport in the form of ferries and trains at times.
2. Additionally, Mr Mate noted that ZBGS reported she had good and bad days; good days occurring from three to five days per month, when she has increased motivation, improved attention and fewer depressive symptoms. On bad days, she has increased depressive symptoms and reduced motivation and organisation.
3. Mr Mate described ZBGS's working day in these terms:

ZBGS works 4 days per week, 3 at home and 1 day in the office. She worked full-time hours over those days, completing 10-hour workdays. On workdays, she wakes at 5.30 AM, makes breakfast and coffee, goes for a walk and then starts work at 7.30 AM, finishing at 6 PM. On Thursdays, she is in the office.

1. After reviewing the medical reports provided to him,[42] Mr Mate stated that due to the effects of her medical conditions:

ZBGS experiences difficulties undertaking tasks that involve:

• cognitive endurance, particularly in relation to memory, concentration and attention
• attending to complex or concurrent tasks
• developing and maintaining social/community connections.

1. In his report Mr Mate also addressed some state-based community supports and services that may be available to ZBGS.
2. On the basis of ZBGS's demonstrated functional capacity Mr Mate did not see any present requirement for assistive equipment, or for minor or major home modifications.
3. Mr Mate gave evidence at the hearing. He was asked about the evidence ZBGS gave about joining a Rotary Club in late 2023. Mr Mate answered that while he was not aware of that, such involvement was the type of social interaction that he was suggesting would benefit ZBGS:

Essentially, I wanted an occupational therapist to assist her in in identifying and engaging in some community based groups relevant to her interest.

I was of the opinion that once those groups were identified, then she would have the capacity to attend those independently.

But yes, the Rotary Club would really, that's the sort of thing that I thought she would benefit from accessing, because of the benefits she would get from having those social connections and social interactions.

1. Similarly, when taken to the evidence about ZBGS's planned holiday cruise with her partner, he noted this would not impact on his recommendations, although it suggested that ZBGS has capacity to independently access some social groups. He explained his recommendation for occupational therapy assistance as involving from one to three sessions, with review, over a short, targeted period of time. When asked about whether such services might be available through the chronic condition planning framework noted by Dr A, Mr Mate advised that he was aware of occupational therapists in ZBGS's locality who provide services through Medicare. He also advised that occupational therapy services may be available through another community care program, if ZBGS was eligible.
2. Mr Mate also advised that the evidence about ZBGS forming a relationship did not impact on his conclusions.

1. In her opening statement, ZBGS noted that while her disabilities 'can't be seen', her journey has been long and challenging for her and, while she had made improvements over the years with treatment, she needed supports through the NDIS.
2. ZBGS was also provided at the hearing with an opportunity to make closing submissions, which she declined (beyond seeking clarification around an issue relating to psychological and psychiatric services/supports under the NDIS).
3. It is clear from ZBGS's application, supporting material and her opening statement and evidence at the hearing that she contends that she meets the disability requirements in the NDIS Act and, in reference to section 24(1)(c), she experiences substantially reduced functional capacity in the domains of communication, social interaction, learning, self-care and self-management.

1. As noted, at the hearing the Agency conceded that ZBGS met the permanency requirement in section 24(1)(b) of the NDIS Act.
2. The Agency addressed the issue of whether ZBGS met the requirements of section 24(1)(c) at length in its SFIC, and in submissions at the hearing.
3. Generally, the Agency submitted that while the six activities/domains listed in section 24(1)(c) were not defined in the NDIS Act or the Access Rules, the Access Guidelines provide some guiding definitions. Further, the Agency submitted:[43]

In s24(1)(c) of the Act, the word "substantially" carries a high threshold. Its meaning should be considered in the context that the NDIS was not intended to provide reasonable and necessary supports to every person with a disability. Rather, access to the NDIS was intended to minimize the impact on those who are 'suffering the consequences of disability' such as 'isolation. Poverty, loss of dignity, stress, hopelessness and fear of the future'. The word also needs to be understood in the context of ensuring the financial sustainability of the NDIS.[44]

The Applicant must demonstrate that she has substantially reduced functional capacity in relation to an activity, and this is to be assessed by reference to the bundle of tasks that make up the activity, and not just in relation to one of those tasks.[45] The assessment is avowedly functional and multi-faceted and requires a relatively high degree of precision by decision-makers in assessing what a person can or cannot do.[46]

The Applicant's capacity to perform the activities has to be viewed in the context not only of what she cannot do, but what she can do, even with limitations. The consideration goes beyond what the person is in fact doing or not doing and extends to what activities the Applicant is capable of doing or not doing.[47] It is appropriate to engage in comparisons of an applicant's impairment or function with that of another person's.[48] The proper approach is to objectively consider what the person with their impairment can or cannot do.

1. The Agency also noted the deeming provisions in Rule 5.8 of the Access Rules and submitted that ZBGS did not satisfy those provisions in any domain. Further, it was submitted that while the Agency accepted that ZBGS experiences some reduction in functional capacity in the domains of social interaction and self-care, the evidence did not meet the threshold of substantially reduced functional capacity, within the meaning of section 24(1)(c). The Agency's SFIC contained detailed references to the evidence upon which these submissions were based.[49]
2. In closing submissions, the Agency also referred to the Tribunal decision of Senior Member French in Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (Burrows), and expanded on the above submissions and evidentiary references.

DOES ZBGS MEET THE ACCESS REQUIREMENTS FOR THE NDIS?

1. ZBGS was 56 years old at the time when she applied to the NDIS in 2023. She is an Australian citizen, living permanently in this country.[50] The Agency accepted that there was no dispute that ZBGS satisfies the age and residency requirements in the NDIS Act.[51] As such, I find that ZBGS meets the age and residence requirements in sections 22 and 23 of the NDIS Act.

Section 24(1)(a) - disability attributable to impairments

1. The first of the section 24 disability requirements is that the person applying for access to the NDIS has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or the person has one or more impairments to which a psychosocial disability is attributable.
2. In the case of Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), Mortimer J (as her Honour then was) said the following about the concepts of 'disability' and 'impairments', in the context of the section 24 requirements:

... The term "disability" is used in the Act, and in s 24, as 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. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.[52]

1. In its SFIC,[53] the Agency accepted that ZBGS has 'intellectual and cognitive' impairments to which a psychosocial disability is attributable, arising from her Bipolar Disorder, Schizoid Affective Disorder, Delusional Disorder, Anxiety, Depression and ADHD.
2. It is necessary to identify with some precision the impairments to which ZBGS's psychosocial disability is attributable, as the access criteria in paragraphs (b), (c) and (d) of section 24(1) require consideration of whether those specific impairments are permanent, result in substantially reduce functional capacity and affect the applicant's capacity for social or economic participation.
3. Recent Tribunal decisions have noted the utility of the International Classification of Functioning Disability and Health (ICF)[54] as extrinsic material providing a useful analytical framework for the purposes of section 24(1)(a).[55]
4. Applying that framework, the impairments identified by ZBGS and her treating medical professionals are those of global and specific mental function. More specifically, they are:
   • Global mental function - impairments of temperament and personality functions (conscientiousness, openness to experience, confidence and trustworthiness); energy and drive functions (energy level, motivation and impulse control); and sleep functions.
   • Specific mental function - impairments of attention, memory, emotional functions and higher-level cognitive functions.
5. On the evidence of ZBGS and her treating medical professionals, as noted above, I am satisfied as to the existence of these impairments. As such, ZBGS meets the requirements of section 24(1)(a).

1. As noted, at the hearing the Agency agreed that ZBGS met the permanency requirements in section 24(1)(b) of the NDIS Act. This was an appropriate concession, in my view.
2. The medical evidence before me establishes that ZBGS's various psychosocial conditions and her resulting impairments are now very long-standing in nature. The evidence also establishes that over a long period ZBGS has both regularly and diligently sought treatment from a range of suitable providers, and has complied with treatment recommendations, such as taking prescribed medication.
3. I am satisfied that ZBGS meets the requirements of section 24 (1)(b).

Section 24(1)(c) - substantially reduced functional capacity

1. As noted, this is a main issue of contest in this review, with ZBGS asserting that her impairments result in substantially reduced functional capacity in the domains of communication, social interaction, learning, self-care and self-management.
2. ZBGS did not assert a substantial reduction of functional capacity in the domain of mobility. Mr Mate assessed her as being fully independent in that domain.
3. To meet the requirement within section 24(1)(c), it is only necessary for ZBGS to establish that her impairments result in substantially reduced functional capacity in one of the domains in contest.
4. Rule 5.8 of the Access Rules has been set out above. In Mulligan, Mortimer J explained the operation of Rule 5.8:

Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have "substantially reduced functional capacity" for the purposes of s 24(1)(c) of the Act.

Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person's impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates_.[56]_

1. Further, Mortimer J noted in relation to the Tribunal's statutory task of considering whether a person's functional capacity is substantially reduced in any of the relevant six activities, that Rule 5.8 does not exhaustively define the concept of "substantially reduced functional capacity":

I note that the Tribunal appears to have approached the concept of "substantially reduced functional capacity" in s.24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the meaning of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas.[57]

1. As such, my task in assessing ZBGS's functional capacity is effectively two-fold. The first is to consider whether her circumstances are included within the deeming effect of Rule 5.8. Should Rule 5.8 not be enlivened, I must still proceed to determine whether ZBGS's functional capacity in any of the six activities is substantially reduced.
2. There are three subparagraphs in Rule 5.8. They operate as alternatives. Subparagraph (a) of Rule 5.8(a) requires an assessment as to whether ZBGS is unable to participate 'effectively or completely,' or to perform tasks or actions required to undertake or participate effectively or completely in one or more of the relevant activities, without assistive technology, equipment (other than commonly used items), or home modifications.
3. Alternatively, Rule 5.8(b) addresses whether ZBGS usually requires assistance from other people to participate in the activity, or to perform tasks or actions required to undertake or participate in the activity. Finally, Rule 5.8(c) addresses whether ZBGS 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.
4. In Foster, the Full Court of the Federal Court considered the proper construction of the words 'effectively or completely' in Rule 5.8(a), concluding that a person will not necessarily be deemed to have a substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.[58]
5. Further, in Mulligan, Mortimer J said the following about the operation of section 24(1)(c) of the Act:

[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. > > [56] That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.[59]

6. In the context of how section 24(1)(c) is to operate, a subjective comparison between what a person could do before the onset of their disability and their function currently is 'not the appropriate yardstick'.[60] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[61]
7. I will deal first with the deeming provisions of Rule 5.8 and whether they are of application to ZBGS's circumstances.
8. Turning first to Rule 5.8(a), the terms 'assistive technology' and 'equipment' are not defined in the NDIS Act or the Access Rules. However, the NDIS has issued an 'Assistive Technology' Operational Guideline, which provides:

The World Health Organisation has a universal definition of assistive technology.

Assistive technology is equipment or devices that help you do things you can't do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.

This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.

Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.

Assistive technology is only the equipment you need because it helps you do things that you normally can't do because of your disability.[62]

1. The evidence is that ZBGS does not currently use any assistive technology or equipment to undertake or participate in any relevant activities, with the exception of using her mobile phone for reminders and alerts, and to take notes about matters such as her medical appointments and consultations. Mr Mate considered, based on ZBGS's demonstrated functional capacity during his assessment, that there was no present requirement for assistive equipment.[63]
2. The term 'commonly used items' as it is used in Rule 5.8(a) was considered by the Tribunal in Rooney and National Disability Insurance Agency [2021] AATA 3523, where the Tribunal identified the following indicators as to whether items of assistive technology should be considered to be 'commonly used items'; being where they were generally accessible; can be used without the need for complex or specialised customisation or installation; are relatively simple to use; and are relatively inexpensive.[64] Given these indicators I am satisfied that in this context, ZBGS's mobile phone can properly be described as a 'commonly used item.'
3. For these reasons, I am satisfied that Rule 5.8(a) is not of application to ZBGS's circumstances.
4. Turning to the second paragraph of Rule 5.8, ZBGS will be deemed to meet this requirement if I am satisfied that she usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in one of the five relevant activities specified in section 24(1)(c), or to perform tasks or actions required to undertake or participate in the activity. In this context, the Access Guidelines provide that a person's impairment will substantially reduce their functional capacity if they usually need 'disability-specific supports' to participate in or complete tasks in the six domains. These 'disability-specific supports' are expressed to include, in addition to assistive technology and home modifications (as dealt with above), a 'high level of support from other people.'
5. ZBGS's evidence (as set out above) reflects that while from time-to-time she may receive assistance with some activities (such as cooking meals and domestic household cleaning), in some instances this is a matter of choice for her, rather than an issue of her own incapacity. Also, she may adopt strategies to perform some activities (such as note-taking and repetition to assist her learning).
6. In considering the possible operation of Rule 5.8(b) the Tribunal is required to make an assessment based upon the bundle of tasks and actions that form an activity,[65] and the degree to which ZBGS can participate in the activity.[66]
7. On the basis of ZBGS's evidence about her functional capacity and challenges, as well as Mr Mate's assessment, I cannot find that ZBGS 'usually' requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the five domains of communication, social interaction, learning, self-care and self-management, or to perform tasks or actions required to undertake or participate in those domains, such as to enliven the deeming effect of Rule 5.8(b).
8. I also find that the evidence I have noted above does not support a view, in terms of the possible application of paragraph (c) of Rule 5.8, that ZBGS is 'unable' to participate in any of those domains or to perform tasks or actions required to undertake or participate in the domains, even with assistance from another person. Hence, paragraph (c) of Rule 5.8 does not assist ZBGS.
9. As ZBGS does not fall within the deeming operation of Rule 5.8 to satisfy the requirement of substantially reduced functional capacity for any of the activities set out in section 24(1)(c) of the NDIS Act, in accordance with Mulligan, I must still undertake the statutory task of considering whether ZBGS's functional capacity is substantially reduced in any one of the five activities in issue.
10. The Agency has submitted, and I accept, that the use of the word 'substantially' in section 24(1)(c) carries a high threshold for an applicant to satisfy.[67] As noted, in closing submissions Counsel for the Agency referred to the recent Tribunal decision of Burrows. Relevantly, I note that in another recent decision Senior Member French has said the following of his decision in Burrows (footnotes omitted):

In Burrows I concluded that the determination of what constitutes 'substantially reduced functional capacity' should be approached with the interpretative assistance available from the World Health Organisation Disability Assessment Schedule (WHODAS:2.0), which is a standardised assessment tool for measuring health and disability under the framework of the ICF.

WHODAS:2.0 assesses the 'degree of difficulty' a person experiences in doing specified activities of daily living in terms of "increased effort", "experience of discomfort or pain", "slowness" and "changes in the way a person does the activity" (the difficulty factors) according to a five-point scale expressed as a % of functional limitation which is 'none' (or 'no problem', 0 - 4%), 'mild' (or 'mild problem', 5 - 24%), 'moderate' (or 'moderate problem', 25 - 49%), 'severe' (or severe problem', 50 - 95%), and 'extreme or cannot do' (or 'complete problem', 96 - 100%) (the difficulty ratings). I note that the comparator base for the difficulty factors and ratings is a person who does not have the subject person's health condition/impairments.[68]

In Burrows I expressed the opinion that the statutory concept of 'substantially reduced functional capacity' should be understood as involving a degree functional limitation greater than moderate having regard to the ICF/WHODAS2.0 difficulty ratings. That is, it requires a determination that the subject person's impairments result in functional limitations that are 50% or greater than the degree of function expected of a person who does not have their health condition/impairment.[69]

1. In Burrows, Senior Member French also addressed the meaning of the terms used in section 24(1)(c), as to the 'tasks' that should be included in each of the section 24(1)(c) domains, applying the Agency's policy guidelines.[70] I will adopt that interpretation of the scope and content of the relevant section 24(1)(c) domains.
2. I will now consider each of the five domains in issue.

1. From Burrows, the bundle of tasks within this activity or domain relate to:

- expressive language tasks (how you speak, write or use sign languages and gestures to express yourself and how others understand you); and

- receptive language tasks (how well you understand people).

1. In the case of Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine), the Tribunal found that an applicant who ' ... is able to speak, be understood, write messages by hand and send and receive electronic communications, albeit, in the latter category, slowly and with difficulty' possessed, and even exceeded, the communication skills threshold envisaged in the Access Guidelines.[71]
2. Mr Mate assessed ZBGS as being independent in this domain, observing that during his assessment ZBGS was able to independently answer questions, follow instructions and ask appropriate questions. Further, that ZBGS confirmed she is able to read, write and use technology.
3. As noted above, Dr A stated that at times ZBGS's communication was affected by the impairments of her memory and concentration. Mr W noted that ZBGS's communication was 'articulate', although she struggled at times to recognise friendly and romantic behaviours.
4. I had the opportunity to engage with and observe ZBGS at some length during the hearing, and my observations accord with those of Mr Mate. To my observation, ZBGS was able to follow and respond effectively to the questioning of Counsel for the Agency and myself, and to understand instructions regarding the process of the hearing. Further, I note ZBGS's evidence about her working environment and her regular communication with her colleagues, which occurs in person, and through the use of technology such as MS Teams and email.
5. Notwithstanding the issues noted by ZBGS's general practitioner and psychologist regarding her occasional difficulties with both expressive and receptive communication, I am not persuaded that having regard to the bundle of tasks in this domain that those difficulties constitute a substantially reduced functional capacity for communication.

1. Again, from Burrows, the bundle of tasks within this activity or domain relate to:

- tasks associated with making and keeping friends,

- tasks associated with interacting with other people in the community (who are not friends), and

- tasks associated with behavioural and emotional regulation in a social context.

1. I also note that in Burrows, Senior Member French observed (footnote omitted):

I note that this bundle of tasks, as identified, does not incorporate any reference to social interaction with immediate family, which is often referred to as evidence of functional capacity for social interaction in access cases ... It is to be noted that represents a departure from the ICF/WHODAS assessment framework. However, upon reflection, it appears to me that this is a deliberate departure that 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.[72]

1. Accordingly, in considering ZBGS's functional capacity here, I do not attach significant weight to her interactions with her family members.
2. The Tribunal has noted previously that this domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.[73] Additionally, in the case of Kilgallin and the National Disability Insurance Agency [2017] AATA 186, the Tribunal stated that:

Social interaction as referred to in in 24(1)(c)(ii) doesn't, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.[74]

3. In that case, the Tribunal also said that the Applicant's interaction on a more-or-less regular basis with people that he felt comfortable with amounted, in its view, to social interaction.[75]
4. I accept that ZBGS has experienced, and continues to experience, challenges in this domain. Mr W's evidence reflects her WHODAS result in the area of 'Participation', being the limitations ZBGS has in social and community activities, as being in the 'severe' range. He noted the difficulties ZBGS experiences in joining community and social events, and in developing and maintaining connections with other people.
5. Mr Mate assessed ZBGS as being independent in this domain, but recommended some occupational therapy to help ZBGS identify and link with community and social groups of likely interest to her. He also recommended ongoing support from her mental health treating team, an further that ZBGS might benefit from undertaking some free, online training to reduce her risk of falling victim to scams. He did not consider that she needed person-to-person support in this domain.
6. The evidence that ZBGS gave at the hearing demonstrated, in my view, both a high level of insight on her part into the challenges that she faces in undertaking some of the activities in this domain, but also a commendable determination to continue to work on her skills and to identify and pursue opportunities to engage in social interaction that might be rewarding and otherwise beneficial for her. Her evidence reflected demonstrable changes and improvements in her social interactions in relatively recent times, and since she completed the WHODAS assessment with Mr W in 2023.
7. In this regard, I note ZBGS's evidence about identifying and engaging with a local Rotary Club and undertaking an associated volunteer role (and her interest in doing further volunteer work), and also her evidence about her relationship with her partner, of some seven months duration as at the time of the hearing. ZBGS also explained that she had learned from her previous experience in falling victim to scams, and did not think she would again become a victim.
8. It is also clear from ZBGS's evidence that she openly communicates with her psychologist about her challenges in this domain and explores and follows strategies to maintain and build her capacity.
9. I am satisfied, on the basis of this evidence, that ZBGS has functional capacity to identify and engage in some opportunities to broaden her social interaction. She may still benefit from the limited occupational therapy assistance envisioned by Mr Mate. As per his evidence, this support could be provided through Medicare and a community health scheme.
10. I also note ZBGS's evidence about her friendship group. While this group is small, ZBGS's evidence demonstrates that these friendships are long-standing, and characterised by regular interactions of a reciprocal nature (that is, interaction is initiated by both her and her friends, with engagement at their respective houses, and in the community).
11. ZBGS's evidence also reflects that she is able to attend (and enjoy) community events such as concerts, and that she is able to engage with members of the broader community without difficulty while, for example, shopping.
12. Dr A stated that stability in ZBGS's mental wellbeing was important to her ability to successfully maintain social interactions and friendships. As I have noted, ZBGS has in place a suitable team of treating professionals, in whom she clearly has confidence, and her conditions and impairments are being suitably treated. She has good insight into both her conditions and her treatment needs. Her mental health is generally stable; it would appear that the foundational stability noted by Dr A is in place.
13. There is no evidence that would indicate ZBGS experiences difficulty in regulating her emotions or behaving appropriately in her interactions with others, or while out and about in the community. I note also that while representing herself at the hearing, which is clearly an unfamiliar environment for many self-represented applicants, ZBGS conducted herself and interacted with the Tribunal and the Agency's Counsel in an appropriate and polite manner.
14. For these reasons, I am not satisfied that ZBGS has substantially reduced functional capacity in this domain.

1. Form Burrows, the bundle of tasks within this activity or domain involve:

- tasks associated with acquiring knowledge, skills or understanding (how you learn, how you practice and use new skills),

- tasks associated with cognition (how you understand),

- tasks associated with memory (how you remember things).

What the Guideline foreshadows is having the cognitive capacity to absorb and apply new skills. The phrase practising and using new skills should not be interpreted as meaning that any inability to utilise a skill connotes an inability to learn.[76]

1. ZBGS's evidence reflects that at times she needs to employ adaptive techniques to assist her with learning. An example was learning to use a new project management system in her workplace, which she was able to do by taking notes and listening to recorded sessions multiple times to acquire the relevant knowledge and skills. Similar techniques of note taking, and the use of reminders, assist ZBGS to remember important things.
2. In this context, I note that ZBGS has maintained her employment with her current employer for 12 years, working across different roles. Her flexible working arrangements allow her to work a full week across four days, meaning she works long hours on each workday. ZBGS is able to structure her days to take breaks in order to assist her concentration and understanding of work tasks. It seems from her evidence that she has been supported by her employer, in that some helpful adjustments have been made to accommodate her needs arising from her ADHD, such as access to an office to minimise the impact of noise and distractions. To support herself in this role, ZBGS was able to obtain a formal qualification through university study.
3. I have not included detailed information about ZBGS's working role in my decision, in order not to identify ZBGS, but it can be noted that her role is an important and valuable one, delivering services within an organisation that in turn provides critical services to the public. It is also clear from ZBGS's evidence that she values and cares about her work and her performance, and that her role is important to her. Dr A noted that ZBGS 'possesses a wealth of knowledge and expertise' and her dedication to her work was evident, notwithstanding the 'substantial obstacles' that her impairments placed in her path.
4. I agree with those comments by Dr A. ZBGS's considerable and continuing efforts to adapt to, and to manage the significant demands of her role, warrant recognition.
5. Mr Mate noted that in her role, ZBGS was able to be across large volumes of information, and able to learn information required for her role and to undertake training.
6. Mr Mate assessed that ZBGS is independent in this domain, noting that she had developed 'compensatory strategies' to help her learn and retain information.
7. I am satisfied that the evidence does not establish that ZBGS's functional capacity for learning is substantially reduced.

1. In Burrows, Senior Member French found that the bundle of tasks to be considered in this domain involved:

- tasks associated with personal care, including personal hygiene and grooming,

1. Senior Member French considered that domestic cleaning and shopping for food do not fall within the bundle of tasks that make up this domain.[77] That formulation of the relevant bundle of tasks is consistent with the tasks description contained for this domain in the Access Guidelines and, for the reasons set out in the Burrows decision,[78] I am content to proceed on this construction of the scope of the tasks falling within this domain.
2. For ZBGS to have a substantially reduced functional capacity in the domain of self-care, she must establish that there are 'significant gaps' in her capacity to maintain her personal health, safety and well-being.[79]
3. I am not so satisfied. The evidence reflects that ZBGS is generally able to attend to her personal care tasks. At times, her inclination to do so is affected by her motivation-related impairments, but also personal choices (such as showering less in winter, and opting for a meal delivery service, rather than cooking herself). There is no current evidence to indicate that ZBGS experiences any significant gaps in her self-care, such as her attention to hygiene related tasks, about which some concern was expressed previously by Dr A, and which influenced her previous WHODAS assessment by Mr W. I note ZBGS's evidence that she is now regularly motivated to attend to her dental hygiene, in view of her relationship, which indicates capacity on her part to attend to such self-care activities.
4. The evidence supports a finding that ZBGS is attentive and diligent in attending to her medical needs, regularly attending upon and engaging with her treating doctors and health professionals and following their recommendations around strategies and medication.
5. Again, Mr Mate supported occupational therapy to assist ZBGS with the structuring of her self-care tasks, noting that while she was able to independently perform tasks, she did so with reduced capacity at times. On the basis of the evidence, I have noted above, the incidence of this appears to have abated somewhat for ZBGS.
6. I am satisfied that the evidence does not establish that ZBGS's functional capacity for self-care is substantially reduced.

1. Finally, from Burrows the bundle of tasks in this domain involve:

- cognitive tasks associated with personal organisation,

- cognitive tasks associated with personal planning,

- cognitive tasks associated with personal decision-making,

- cognitive tasks associated with problem solving, and

- cognitive tasks associated with personal financial management.

1. Mr Mate noted that ZBGS was able to organise and manage her own medical appointments, finances and bills, concluding she was independent in this domain.
2. I accept that because of her psychosocial impairments ZBGS experiences difficulties at times in planning and decision-making. However, in her evidence ZBGS demonstrated her functional capacity in this domain through speaking, for example, about the arrangements she makes to monitor her prescription medicines and ensure she has supplies; organising meal delivery through a company's app or ringing them if the app isn't working; organising and booking holidays; and organising most aspects of her recent move to a new home (with some assistance). She manages her own banking and finances, paying her bills through direct debit, or manually. She shops online, returning items when needed. She arranges and attends her medical appointments by herself. She has been able to plan and make decisions around her working arrangements, and in undertaking her work tasks.
3. For these reasons, I am satisfied that the evidence does not establish that ZBGS's functional capacity for self-management is substantially reduced.

1. For the reasons I have set out above, I am not satisfied that ZBGS has substantially reduced functional capacity in any of the five domains of relevance.
2. As the requirements in section 24(1) are cumulative, this means that ZBGS cannot meet the disability requirements for access to the NDIS. As such, I will not proceed to address the remaining section 24(1) requirements.

Does ZBGS meet the early intervention requirements?

1. ZBGS did not advance this pathway in any detailed way during the review. However, it was not expressly disavowed, so I will address it.
2. I have set out above the requirements within section 25 and noted the relevant rules within the Access Rules.
3. For the purposes of section 25(1)(a)(ii), I have found that ZBGS has identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent.
4. Paragraph (b) of section 25(1) requires, in the context of this review, that the Tribunal be satisfied that the provision of early intervention supports for ZBGS is likely to benefit her, by reducing her future needs for supports in relation to disability. Additionally, paragraph (c) requires the Tribunal to be satisfied that the provision of early intervention supports for ZBGS is likely to benefit her by mitigating or alleviating the impact of her impairments upon her functional capacity in the domains already discussed; or by preventing the deterioration of such functional capacity or improving it; or strengthening the sustainability of informal supports available to ZBGS.
5. Part 6 of the NDIA's Access Rules addresses the early intervention requirements. Rule 6.9 sets out the issues to be considered in in deciding whether the provision of early intervention supports is likely to benefit the person in the ways set out in paragraphs (b) and (c) of section 25(1) of the NDIS Act:

6.9 In deciding whether provision of early intervention supports is likely to benefit the person in the ways mentioned in paragraphs 6.2(b) and (c) above, it is expected that the CEO would consider:

(a) the likely trajectory and impact of the person's impairment over time; and

(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

1. The Access Guidelines relevantly explain that "[E]arly intervention is usually early access to support, to help reduce the functional impacts of your impairment ... You won't need these supports for your lifetime, so your treating professional ... will tell us how early intervention support could benefit you."[80] The Access Guidelines also provide the following commentary (footnotes omitted):

We need to decide that getting early intervention supports means you'll likely need fewer disability supports in the future.[8]

We need to know that early intervention supports will help you with at least one of the following:

• addressing the impact of your impairment on your ability to move around, communicate, socialise, learn, look after yourself and organise your life
• preventing your functional capacity from getting worse
• improving your functional capacity
• supporting your informal supports, which includes building their skills to help you.

To help us decide if the early intervention will help you in these ways, we look at:

• how your impairment might change over time
• how long you've had your impairment
• if there's been a significant change to your impairment
• if your needs are likely to change soon, such as if you're finishing school.

1. The Access Rules require a consideration of the likely trajectory and impact of ZBGS's impairments over time, and the potential benefits of early intervention on the impact of the impairment on her functional capacity and in reducing her need for future supports.
2. The Agency contended that ZBGS does not meet the early intervention requirements; more specifically, that no evidence has been adduced which goes to the likely trajectory and impact of ZBGS's relevant impairments, and how early intervention supports would reduce ZBGS's future needs for supports.[81]
3. In the case of James and National Disability Insurance Agency, the Tribunal said the following about the early intervention requirements under section 25:

The objective of early intervention support is expressed to be to 'lower the costs and impacts' associated with the disability for individuals and the wider community over the long term. Accordingly, the early intervention requirements look at the likely trajectory and impact of a person's impairment over time and the potential benefits for early intervention on the impact of the impairment on the person's functional capacity.[82]

4. In that decision the Tribunal also commented on the operation of the 'second gateway' set out in section 25(1)(b):

... the section is concerned not with 'early' intervention in terms of an early diagnosis, but rather early in the course of the impairment where early intervention is likely to have a significant impact on the course taken by that impairment.[83]

5. The evidence about the various medical conditions giving rise to ZBGS's impairments, and the evidence about those impairments, establishes that they are long-standing in nature. Additionally, the evidence establishes that ZBGS has pursued and participated in treatment since she was a teenager. She is currently receiving treatment from various health professionals, and the indications are that she will need to continue this treatment - including pharmacotherapy and psychotherapy and support - throughout her life.
6. ZBGS's impairments are enduring and cannot be said to be at an early stage of their trajectory.[84] The provision of supports at this time could not in turn be considered to be 'early'.
7. When completing the supporting form for ZBGS's NDIS access request in August 2023, Dr A noted that early intervention supports, in the form of the existing treatments then being provided to ZBGS, would strengthen the sustainability of available or existing supports.[85] Beyond that note, there is no other evidence about recommended early intervention strategies and their impacts, in terms of the requirements set out in sections 25(1)(b) and (c) and the Access Rules. As noted, those treatments have been provided to ZBGS for many years. I also note, in reference to section 25(3), that some are currently provided to ZBGS through the health system.
8. It is necessary for required early intervention reports to be identified with some precision, in order to properly inform assessments of the various considerations referred to in section 25.[86] The available evidence is not sufficient to satisfy me that the provision of early intervention supports for ZBGS is likely to benefit her by reducing her future needs for supports in relation to disability, or by achieving the functional and other outcomes contemplated by subparagraphs (1)(c)(i) to (iv) of section 25.
9. For these reasons, I find that ZBGS does not meet the early intervention requirements under section 25 of the NDIS Act.

1. It follows that as ZBGS does not meet either the disability requirements under section 24 or the early intervention requirements under section 25, she does not meet the access criteria under section 21 of the NDIS Act.
2. In so deciding, I acknowledge that as a result of her psychosocial disability and impairments, ZBGS's life has been significantly impacted. This is so despite her significant and diligent efforts to obtain treatment and to implement strategies to manage and lessen the impacts of her impairments, and notwithstanding the limited support available to her through Australia's public health system and the financial constraints attaching to private treatment. However, as the Federal Court observed in Mulligan, the access criteria in the NDIS Act are an essential component of the NDIS, imposing a number of thresholds on access to the Scheme. Such access, and the supports, funding and autonomy that the NDIS delivers, is reserved for a subcategory of persons with disabilities, rather than every person with disability.[87]

1. The Tribunal affirms the decision under review.

[1] During the review ZBGS confirmed these conditions as the basis for her application to access the NDIS; Hearing Bundle, Document 8, Email from ZBGS, 8 April 2024.

[2] T-Documents, Document T7, NDIS Access Request Form, 1 August 2023, pages 50-57.

[3] T-Documents, Document T8, Access Decision Letter, 22 August 2023, pages 58-62.

[4] T-Documents, Document T9, NDIS Extract of Interaction Record (Request for review of a reviewable decision) 10 October 2023, page 63.

[5] T-Documents, Document T2, Internal Review Decision, 9 November 2023, pages 21-30.

[6] T-Documents, Document T1, Application for Review, 22 November 2023, pages 1-20. (It is noted the application attached two reports and a copy of the Internal Review Decision).

[7] Hearing Bundle, Document 1, Agency's Statement of Facts, Issues and Contentions dated 21 February 2025, (the Agency's SFIC).

[8] Hearing Bundle, Document 4, Functional Capacity Assessment Report of Elliott Mate, Occupational Therapist, dated 24 December 2024 (Mr Mate's report).

[9] Hearing Bundle, Document 4, Letter of instruction to Mr Mate, Moray & Agnew, 15 November 2024.

[10] This and some following sections of this decision dealing with the applicable law have been adapted from prior NDIS access decisions of this Tribunal Member.

[11] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at [78].

[12] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi), at 324-325, 327 (Kiefel J).

[13] Administrative Review Tribunal Act 2024 (Cth), s 54.

[14] Shi, at 300-301 (Kirby J); at 314-315 (Hayne and Heydon JJ); at 327-328 (Kiefel J).

[15] Beezley v Repatriation Commission [2015] FCAFC 165, at [68], as applied in Sutherland v National Disability Insurance Agency [2024] AATA 411, at [53].

[16] National Disability Insurance Agency v Lampard [2025] FCAFC 139, per Bromwich, Neskovcin and Vandongen JJ, at [31].

[17] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s. 2.

[18] The following excerpts reflect how these provisions read prior to 3 October 2024.

[22] See https://www.ndis.gov.au/about-us/operational-guidelines

[23] G v Minister for Home Affairs [2019] FCAFC 79, at [18].

[24] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, at 645 (President Brennan J).

[25] T-Documents, Document T1, Application for Review, 22 November 2023, page 4.

[26] T-Documents, Document T3, NDIS Access Request form, 21 November 2018, pages 31-38.

[27] T-Documents, Document T6, Access Decision Letter, 23 August 2019, pages 48-49.

[28] T-Documents, Document T4, Psychosocial Report, (Social Worker), 7 December 2018, pages 39-46.

[29] T-Documents, Document T5, Letter from Psychiatrist, 4 July 2019, page 47.

[30] T-Documents, Document T7, NDIA Access Request Supporting Evidence Form (ZBGS's General Practitioner), 1 August 2023, pages 50-57.

[31] T-Documents, Document T1B, Letter from Dr A, 6 September 2023, pages 9-10.

[32] Hearing Bundle, Document A5, Answers to targeted questions (Dr A), 27 May 2024.

[33] Hearing Bundle, Document 11, Summons records of Dr C; Document 12, Summons records of Dr Z.

[35] T-Documents, Document T1A, Report of Psychologist (Mr W), 23 August 2023.

[36] Hearing Bundle, Document 10, Report of Psychologist (Mr W), 30 November 2023.

[37] Hearing Bundle, Document 6, Answers to targeted questions (Mr W), 2 September 2024.

[38] Hearing Bundle, Document 7, Curriculum vitae of Mr W.

[39] This was in reference to a question using the wording of the six activities specified in section 24(1)(c) of the NDIS Act.

[40] These trips and other contacts/outings were noted in the summons records produced by Dr C and A.

[42] These were listed in Addendum A to Mr Mate's report.

[44] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), at [39]-[41].

[45] National Disability Insurance Agency v Foster [2023] FCAFC 11, (Foster), at [64]-[66].

[46] Mulligan, at [55], cited with approval by the Full Court in Foster, at [55].

[47] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, at [96].

[50] Hearing Bundle, Document T3, NDIS Access Request Form, 21 November 2018, page 31. (Note: this was the earlier access request made by ZBGS).

[51] Opening submissions of Counsel for the Agency, 22 July 2025.

[54] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF)

[55] See, for example, DQKZ and National Disability Insurance Agency [2024] AATA 2276, at [144]-[149].

[60] Madelaine and National Disability Insurance Agency [2020] AATA 4025, (Madelaine), at [109].

[61] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015, at [96].

[62] NDIS Operational Guideline, Assistive Technology (equipment, technology and devices), 20 December 2023, page 2.

[67] See Albiol and National Disability Insurance Agency [2024] AATA 496, at [68].

[68] Ibid at page 38; see also World Health Organisation, International Classification of Functioning, Disability and Health, Geneva, 2001 at page 22.

[69]Sethi and National Disability Insurance Agency [2025] ARTA 2648, at [51]-[53].

[70] Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607, (Burrows), at [73]-[95].

[72] Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607, (Burrows), at [108]-[109].

[73] Ghezzaoui and National Disability Insurance Agency [2023] AATA 2835, [79]; noting Madelaine at [87], and Nika and National Disability Insurance Agency [2021] AATA 2127, at [241].

[74] Kilgallin and the National Disability Insurance Agency [2017] AATA 186, at [19].

[77] Burrows, at [140] and [144].

[80] Applying to the NDIS Operational Guideline, at page 11.

[82] James and National Disability Insurance Agency [2019] AATA 4248, at [49].

[84] FBJV and National Disability Insurance Agency [2021] AATA 913, at [170]; Puster and National Disability Insurance Agency [2023] AATA 1760, at [67]; XVYL and National Disability Insurance Agency [2024] AATA 498, at [145].

[85] T-Documents, Document T7, NDIA Access Request Supporting Evidence Form (ZBGS's General Practitioner), 1 August 2023, pages 50-57.

[86] National Disability Insurance Agency v Jones [2025] FCA 877, at [23]-[27].