Consideration of the section 24(1)(c) criteria

1. It was BFYK's evidence at hearing, that he was not impaired in his ability to communicate, socially interact, learn or self-manage.

1. At hearing the Tribunal observed BFYK was able to express himself clearly despite English being his second language. He understood and was able to respond appropriately to questions.
2. BFYK spoke of his ability to utilise his phone and computer for communication and discussed longstanding friendships and family relationships which he was able to maintain. He recently returned from 4 months in Bali in which he was able to navigate local services which had been arranged by his brother. BFYK was able to understand new information (including about the hearing process) and described having been involved in arranging volunteers at a local booth in the recent Federal election.
3. I am satisfied that BFYK's impairments have not resulted in a substantially reduced functional capacity in the activities of communication, social interaction, learning or self-management.
4. BFYK does contend, however, that as a result of his permanent physical impairment attributable to his back condition he does have a substantially reduced functional capacity in the activities of mobility and self-care.
5. The Agency accepts that BFYK undoubtedly has some functional difficulties as a result of his physical impairment. They argue, however, that this difficulty does not reach the threshold necessary to be considered 'substantially reduced' in any of the identified activities.
6. In considering the section 24(1)(c) criterion, the Tribunal's task must be completed in two stages:
   1. Firstly the Tribunal must consider whether the applicant's circumstances are captured by the deeming provisions in the Access Rules; and
   2. Secondly, if the applicant's circumstances are not captured by the deeming provisions the Tribunal must consider they any event have a substantially reduced functional capacity in respect of the section 24(1)(c) activities. [56]
7. The Agency relies on the report of Elliott Mate, Occupational Therapist, which reports on a functional capacity assessment undertaken by Mr Mate at BFYK's home on 4 October 2024.[57]

1. In undertaking his assessment Mr Mate's methodology included:

1. An interview with BFYK;
2. Observation of existing home environment and relevant barriers/adaptations; and
3. Observation of BFYK undertaking selected activities of daily living and demonstrating his functional tolerances.[58]

1. BFYK relies on the report of Ms Eden Dowers documenting a functional capacity assessment she undertook on 27 May 2024.[59]

1. In undertaking her assessment Ms Dowers' methodology included:

1. A 90-minute assessment based on an interview with BFYK; and
2. Administration of a WHODAS standardised assessment.

Ms Dowers noted that her assessment was conducted from a seated position.[60]

1. BFYK argues I should place little weight on Mr Mate's report as:

1. Mr Mate has made errors in recording the outcome of his assessment, particularly in relation to the distance walked by BFYK outside and as to who prepared a hot chocolate; and

1. that BFYK's condition has significantly deteriorated since Mr Mate's assessment, particularly after a bad fall which occurred when BFYK was holidaying in Bali.

1. The agency's position is that I should give more weight to the report of Mr Mate given this was based on actual observations of BFYK undertaking various activities and not just his self-reporting of capacity (as was the case with Ms Dowling's report).

1. I accept this submission. To the extent of any inconsistency between the two reports the Tribunal will rely on the observations and report of Mr Mate, particularly where this is supported by other evidence.

1. Noting BFYK's assertion that his condition has deteriorated since that assessment I will take into consideration commentary in other medical information available.

1. Mr Mate's assessment in relation to the activity of mobility notes the following:[61]
   1. BFYK was observed mobilising independently throughout his home and front yard areas without the use of a walking aid. He was noted to walk very slowly with an asymmetrical gait, often rubbing his back, indicating pain, and often using walls, doors or furniture for support.
   2. Mr Mate reports BFYK was observed mobilising for a maximum of three minutes at a time.
   3. Mr Mate indicated that BFYK walked independently to his letter box from his lounge room (a distance estimated to be 25m) and was able to return to the loungeroom (including negotiating four steps to the front patio) after a short rest.
   4. In oral evidence BFYK disputed this, recalling that he also required a rest half-way down the driveway, estimating the distance he was able to walk without stopping was about 10m. In his oral evidence Mr Mate did not recall this stop but was willing to concede the point.
   5. The total distance covered on a round trip, including stops, was estimated to be 50m.
   6. BFYK was observed to have difficulty in accessing lower cupboards and drawers, relying on the kitchen bench for support when doing so.
   7. BFYK was noted to perform transfers from sit to stand and bed to stand independently but with difficulty due to reduced lower limb strength. He was noted to rely on stable surfaces (such as a grab rail, armrest or table) as support. His transfers from the lounge chair (in which BFYK spends most of his day) were noted to be very difficult due to its low height. BFYK was noted to use an ordinary chair in the shower which was not recommended due to its lack of arms and low height.
   8. Mr Mate suggested BFYK could benefit from a number of modifications (such as a bed pole, a lift chair, a proper shower chair and a toilet surround) to increase his safety and independence. BFYK was noted to have a high risk of falls.
   9. BFYK was noted to have a low lifting capacity due to his back condition but sufficient to manage most household items.
   10. BFYK reported to Mr Mate he last drove 4 months prior to Mr Mate's assessment. At hearing he stated he had not driven for some 18 months prior. Generally BFYK relies on family to drive him to appointments and reported being unable to manage public transport. Given BFYK could manage travel as a passenger, Mr Mate was of the view he would also be able to utilise taxis or Ubers. At hearing BFYK disputed that, noting that he requires support and assistance at his destination (due to his fear of falling) and had no confidence a taxi would provide this assistance.
   11. BFYK was noted by Mr Mate to have access to a 4 wheeled walker and walking stick to assist with his mobility but that he does not use them because he does not want to 'appear weak' in front of others. He also refrained from using these aids in front of his family for similar reasons. In Mr Mate's view BFYK would be more likely to walk if he used his walker and felt safe. This was likely to assist in maintaining strength and function and had been recommended by BFYK's physiotherapist.
   12. Mr Mate noted that BFYK reported he did not engage in home exercises, gym or walking as recommended by his physiotherapist to maintain his function. He advised he spent 90% of his day sitting on his couch. Mr Mate was of the view this was likely to lead to further deconditioning and reduction in capacity.
   13. In summary Mr Mate was confident BFYK was independent in the activity of mobility although he was of the view BFYK could benefit from some commonly available mobility aids.
2. In his oral evidence (and as noted above) BFYK did not agree with Mr Mate's observations about his capacity. He reported his condition had deteriorated further since Mr Mate's assessment and that he was afraid of falling. He reported having had many falls as he felt his feet were 'not under his control at times'. A particularly bad fall occurred while he was in Bali, resulting in him hitting his head on a table.
3. A letter from Dr Mahardika dated 21 February 2025 confirmed this fall.
4. BFYK's youngest daughter advised that her father never uses the 4-wheel walker and rarely uses his walking stick. She confirmed he will not use any aid in front of other people. Instead, she observed her father uses the walls and furniture for support to mobilise in the house. BFYK's other daughter confirmed this detail.
5. When questioned about BFYK's falls the youngest daughter advised she was aware of one fall in the last six months and 1 other fall last year where medical attention was required.
6. This daughter was of the view her father's ability to move around had deteriorated since before his trip to Bali, although she conceded the pressures of her job meant she had not been around very much since he had returned.
7. Dr Mian in her oral evidence advised the Tribunal she had been consulted about one fall, being the one that occurred in Bali. She knew BFYK had said his function was worse but conceded she had not had the opportunity to observe this in person due to the nature of her contact with BFYK. She stated that she was only in a position to observe BFYK's mobility from the door of her consulting room to the consultation chair and out again.
8. I have considered the report of Ms Dowling. She notes the following in relation to the activity of mobility:[62]
   1. BFYK was observed moving slowly and cautiously using furniture to support his sit-stand transfers and his mobility within the home.
   2. BFYK was noted to have access to a manual wheelchair which Ms Dowling reported he uses when he engages with the community.
   3. BFYK reported recurrent falls due to lower limb weakness and/or loss of volitional control of his feet/legs.
   4. BFYK noted acute pain with mobilisation and reported he was unable to stand for longer than 5 minutes and was unable to walk more than 100 metres unassisted.
   5. BFYK was noted to restrict his overall mobility, rarely going outside and relying on his wife to drive him due to his pain or the effects of his medication.
9. I am satisfied there is no extensive conflict between the reports of Mr Mate and Ms Dowling with respect to the activity of mobilisation. Ms Dowling observed slow and cautious walking, with a distance of 100 metres possible with a 4wheeled walker. Mr Mate had the opportunity to observe mobilisation over a shorter distance (a total of 50 metres including rests) without a walking aid.
10. I have considered other evidence on file and note the following:
    1. Ms Chan, physiotherapist, in her letter dated 20 April 2024, recorded BFYK found it difficult to stand for more than five minutes or to walk more than 100 metres without a walking stick or a frame. He was noted to have difficulty in rising from a chair or his bed. BFYK was reported to have been compliant with all exercises shown him. However, Ms Chan also stated BFYK was 'too weak and painful to walk independently', to perform household chores, to engage in some self-care activities or in self-management activities such as swimming or gym work'. These statements seem somewhat inconsistent with her earlier statements and I take them to reflect BFYK's self-report. She recommended NDIS be approved so BFYK could access more physiotherapy treatment.[63]
    2. Dr Zimet, oncologist, has been treating BFYK for a chronic pain condition since 1999. This pain condition is attributable to surgery in 1998 to remove two ribs affected by osteoblastoma.[64] Aside from pain this condition was not reported as leading to any functional incapacity.
    3. From 2013 BFYK started reporting low back pain which increased over time and was attributable to multilevel mild degenerative disease within the spine, the most significant being at L4/5.[65] Over the years since BFYK has been treated with pain medication, epidural injections and a laminectomy but his condition has continued to deteriorate.
    4. A letter from BFYK to Dr Zimet dated 19 January 2016 requested support from Dr Zimet for BFYK's request to Centrelink to allow him to spend longer in Thailand than would usually be acceptable for receipt of payments. In the letter BFYK reported he was in so much pain that he was 'unable to wear clothes independently, shower on his own or go to the toilet without assistance'. He reported difficulty in moving and standing for long periods of time.[66] This seems at odds with the below.
    5. In September 2017 Dr Zimet recorded an incident in which BFYK had hurt his knee playing soccer with his son seven months before.[67]
    6. In February 2018 BFYK had a fall and was admitted to hospital where he had several corticosteroid injections. On discharge BFYK reported he was gardening three to four hours a day.[68]
    7. A letter from Stephanie Crabbe, occupational therapist with Geriatric Rehabilitation service, dated 20 June 2018, recorded that BFYK was experiencing increased pain and falls at home. After epidural injection BFYK was discharged with a frame to assist with mobilisation.[69]
    8. A letter from Dr Wang, Neurosurgeon, dated 30 July 2019 reports BFYK had a laminectomy in December 2018 which had not improved his leg pain. Dr Wang was of the view this indicated the pain was not 'neuro referred pain'.[70]
    9. In July 2019 a consultation note by Dr Gloria Seah, a pain specialist, recorded BFYK initially reported his movement was better but then recanted. BFYK had stopped attending the pain clinic program as he did not understand the lectures. He was using YouTube for resources instead.
11. Having considered the totality of the evidence, on balance I have formed the view that the functional capacity assessment of Mr Mate is a reliable assessment of BFYK's functional capacity. I am not satisfied the evidence supports a finding that BFYK's condition has deteriorated significantly since that assessment. I have considered the letter of BFYK dated 19 January 2016 (noted above) in the context of other evidence from a similar time period and find I am less confident in accepting BFYK's self-reporting of his capacity without objective confirmatory evidence.
12. On the basis of Mr Mate's report I find that BFYK can mobilise independently around his home and up to 50 metres at a time, albeit with several rests in between. I find BFYK is independent in transferring from sit to stand and from bed to stand. I acknowledge these activities are performed with pain and some difficulty and that BFYK is fearful of falling. BFYK is able to travel as a passenger in a car and advised Mr Mate that he was able to transfer into and out of the car himself.
13. I accept Mr Mate's recommendations that BFYK would benefit from a number of walking aids (such as a bed pole, a wheeled walking frame or single point stick and a higher lounge chair) but acknowledge Mr Mate has observed BFYK performing these mobility tasks without any aids.
14. I accept Mr Mate's opinion that deconditioning through lack of activity is likely to further decrease BFYK's capacity.
15. It was BFYK's evidence to the Tribunal that he does not use walking aids in front of other people as he believes this will make him look 'weak'. This was confirmed by both daughters. Although he is slow and has a modified approach I find BFYK is able to participate effectively in the whole of the activity of mobilisation without assistive technology or the assistance of another person.
16. I find that the deeming provisions in Rule 5.8 do not apply in this circumstance.
17. I now need to consider whether BFYK has a substantially reduced functional capacity for mobility apart from the deeming provision.
18. In its ordinary meaning the word 'substantially' suggests functional capacity must be impacted 'considerably'[75] or to a great extent. This reflects a Scheme that was not intended to provide supports for every person with a disability.[76]
19. As was said in National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the task before me involves a 'functional, practical assessment of what a person can and cannot do'. In Timofticiuc and National Disability Insurance Agency[77] this was expressed as the task of determining what activities a person is capable of doing, whether they are actually doing those activities or not.
20. In Madelaine and National Disability Insurance Agency Deputy President Humphries expressed the view that the threshold requirement to achieve functional capacity in relation to mobility was relatively modest. He observed a person 'has functional capacity if they can move about their home, get in and out of a bed or chair, and mobilise in the community'. A very small distance was seen as sufficient in that circumstance.[78]
21. On the basis of my findings set out in paragraphs 121 above I am satisfied that although impaired, BFYK does not have a substantially reduced functional capacity for the activity of mobility in the manner contemplated by the NDIS Act.

1. The Guidelines consider that self-care includes personal care, hygiene, grooming, eating and drinking, and health, how a person gets dressed, showers or bathes, eats or go to the toilet. Somewhere between self-care and self-management sit the other life tasks of home maintenance, laundry, cooking and cleaning. I will consider them under this activity.

1. In Foster and National Disability Insurance Agency [2025] ARTA 718 Senior Member French considered the activities in the context of determining whether there was substantially reduced functional capacity in self-care. He considered the proper approach was to assess the 'cluster of tasks' that comprised the activity and to assess whether on balance this led to a finding of substantial incapacity. I find this is a useful approach in this circumstance.

1. BFYK's evidence to the Tribunal was that he can manage toileting independently but that it is difficult and can be painful. He advised that he had a frame for the toilet but that his family move it and he is unable to put it back by himself. He observed that sometimes he sits on the toilet for some hours because he has difficulty getting up.
2. Mr Mate observed BFYK rising from the toilet seat by using the frame of the adjacent window. This was not considered a safe option and a toilet frame was recommended. BFYK reported to Mr Mate that he used a hand held bidet for perineal hygiene but the twisting motion caused pain. BFYK was able to wash his hands independently.
3. Ms Dowling reported that BFYK was independent with toileting but experienced acute pain when doing so.
4. BFYK's evidence was that he was at home alone for the whole of the day, sometimes until 10pm. In that time he manages his toileting independently.
5. BFYK's daughter reported that BFYK had, on occasion, urinated in his bed but was not sure if that was because he did not realise or because his movement was too slow to get to the toilet in time. She had not discussed this with her father. These were rare occasions. In oral evidence Mr Mate suggested a urinal bottle might be utilised for times when BFYK was unable to get to the toilet quickly.
6. In his evidence BFYK confirmed that sometimes he just loses control and urinates. It is not clear whether this has been discussed with his doctor so I am unable to conclude this aspect has been properly investigated.
7. I find on the balance of probabilities that BFYK is generally independent with toileting and safe in doing so with a toilet frame. I consider a toilet frame a commonly used item. It does not require any special set up or prescription and can be purchased readily from home aid retail stores. It would not be difficult for BFYK's family to ensure the toilet frame was replaced each time it was moved to ensure his maximum independence.

1. BFYK's evidence was that if he is provided with a shower chair he is able to shower himself but with great pain. He noted he was always afraid he would fall and break the glass shower surround. Because this task is so difficult for him he will often put off showering for a number of days. It is not culturally appropriate for him to ask for assistance from his children though he says he sometimes requires it.
2. Mr Mate observed BFYK simulating showering activities. He noted BFYK's reduced capacity for standing meant he needed to sit to shower. At the time of the assessment BFYK was using a standard plastic chair without arms. This was considered unsafe. A proper shower chair was considered to be a safer option. It was noted that BFYK had difficulty in washing his lower limbs and back and that drying himself was painful and difficult because of the reaching, twisting and bending required. Mr Mate suggested the use of a long-handled sponge and toe washer may help with washing hard to reach areas. There was no suggestion BFYK was unable to complete this task.
3. Ms Dowers recorded BFYK showered infrequently from a seated position. She notes he was assisted in this task but did not state by whom.
4. I accept the report of Mr Mate based on his observations of BFYK simulating showing tasks. I find BFYK has the capacity to complete this task independently, albeit with difficulty. I accept he would benefit from long handled aids and a proper shower chair with arms. I consider these to be commonly used items.

1. BFYK's evidence was that he sat on the bed to dress himself. He indicated that dressing his upper body was easy but putting on his pants, socks and shoes was difficult. He stated that he is not able to dress himself.
2. Mr Mate recorded that BFYK was able to dress his upper body independently but needed to sit on his bed to dress his lower body. BFYK's reduced capacity for bending and reaching was noted to impair his ability to don/doff shoes and socks. Mr Mate recommended a long-handed shoehorn and sock aid to assist with his independence with shoes and socks.
3. Ms Dowers recorded BFYK's report that he had difficulty in donning and doffing socks and shoes due to restricted movement and pain. BFYK reported that at that time his wife assisted him with these. BFYK's oral evidence was that his ex-wife no longer assists him. Long-handled aids described by Mr Mate may address this deficit.
4. I find that based on Mr Mate's observations BFYK has the functional capacity to perform the task of dressing independently with the provision of commonly used aids recommended by Mr Mate.

1. Mr Mate observed BFYK simulating brushing his teeth independently. BFYK could groom his hair and shave independently. He was able to trim his fingernails but was unable to reach his toenails. Mr Mate felt BFYK may benefit from a stool so as to reduce time standing while grooming
2. Ms Dowers did not address these tasks.
3. I accept Mr Mate's evidence, based on his observations, that BFYK can completed this task independently.

1. BFYK stated that he is left alone at home all day, often until 10pm. He reported feeling aggrieved that his now ex-wife prioritised her work over caring for him. He advised he receives little assistance from his family, including that they rarely leave him food to eat during the day. BFYK states he is often left fasting for the whole of the day, including not having any water to drink, from early morning to 10pm at night. He states he feels he cannot get his own food as he is scared of burning things or falling. BFYK stated to Mr Mate that sometimes his family left him cans of food but that this lowered his self-esteem. In his oral evidence he spoke about having once burnt some eggs when trying to cook.
   1. BFYK stated that in the four months he stayed in Bali he had staff around who would assist him with everything, including bringing him food and drink all day.
   2. BFYK's daughter confirmed that BFYK did not eat during the day. She noted that her mum cooked for the family at night but there was usually nothing left over for BFYK to eat the next day. They were often home very late because they were so busy. She stated BFYK only liked Persian food and would not eat muesli bars or other take away food.
   3. Mr Mate observed BFYK mobilise to the kitchen and access the fridge and the kettle. Mr Mate's recollection was that BFYK made him a hot chocolate but BFYK refutes this. Nevertheless, Mr Mate was of the view that having watched him access the kitchen it was within BFYK's capacity to prepare a simple meal, such as a sandwich or warming up a meal in the microwave. Mr Mate felt that reluctance in preparing food arose not from incapacity but from BFYK limiting himself by choosing not to. It was Mr Mate's opinion in oral evidence that the more BFYK would attempt to do this activity the more his function would be maintained. Mr Mate recommended the use of a perch stool to reduce the need for BFYK to stand for prolonged periods in the kitchen. This would address BFYK's fear of falling.
   4. Ms Dowers reported BFYK did not attempt meal preparation or eating and drinking during the day. She reported BFYK's reasons for this included pain when standing or mobilising, fear of injuring himself when cooking and loss of appetite or interest in food or drink.
   5. On the balance of probabilities I find that BFYK has the functional capacity to prepare something simple to eat and drink during the day. His fear of falling is a factor in him choosing not to, but this could be addressed with a perching stool in the kitchen. A drink bottle might alleviate his concerns about dropping and breaking a glass of water.
   6. Once he has food BFYK is independent in eating and drinking.
   7. It is likely BFYK would find the process of preparing a large meal beyond his capacity. The oral evidence of both BFYK and his daughter was that this was not a task he had generally been involved in prior to his impairment.

1. BFYK advised the Tribunal that although he likes to go to the shops on occasion he is usually unable to because of his pain and limited mobility. His ex-wife or daughter generally do the household shopping.
2. BFYK's evidence was that throughout their life his ex-wife had done all the shopping, cleaning, washing and cooking. His daughter confirmed this.
3. Mr Mate accepted BFYK's reduced capacity for standing and prolonged mobility would hamper his capacity for shopping. He suggested BFYK could utilise online shopping services if necessary. It was the opinion of his daughter that BFYK did not have the skills to manage online shopping.
4. Ms Dowers reported BFYK was unable to complete shopping tasks.
5. I have considered BFYK's capacity to organise an election booth using phone and computer and his obvious intellect. I find on the balance of probabilities that BFYK could manage shopping, if he needed to, by utilising online shopping and home delivery services if required. I find it is a task that is (and has generally been) completed by his ex-wife.

1. The general consensus is that BFYK is unable to complete these tasks because of poor balance, pain and inability to bend. Mr Mate thought some light cleaning tasks, such as wiping down benches, might be within BFYK's capacity but all heavier tasks are beyond him.
2. I find BFYK is unable to undertake the task of cleaning.

1. For the same reasons the general consensus is that this task is beyond the capability of BFYK. The requirement to lift, reach and bend would beyond BFYK's physical capacity.
2. I find he is unable to undertake this task.

1. Mr Mate is of the view BFYK does not have the physical capacity to undertake any lawn or gardening tasks without assistance.

1. Foster is Federal Court authority for the fact an inability to perform one task (as part of the whole of an activity) without assistive technology or without personal assistance is not enough to enliven the deeming provisions.[79] Rather the decision maker is to have regard to the whole of the activity and the entire bundle of tasks that comprise that activity.
2. I acknowledge that there are some tasks within the cluster of tasks comprising this activity that BFYK is unable to complete without assistance, and that many of the other tasks are completed with difficulty. Nevertheless, having regard to the whole of the activity of self-care, I find BFYK does have the functional capacity to complete the majority of self-care tasks independently or with the use of commonly used items.
3. Need for assistance to complete heavier tasks, such as heavy cleaning, laundry and gardening, could be considered to be consistent with normal expectations of a person of BFYK's age.
4. On balance I find BFYK's functional capacity is not substantially reduced in the activity of self-care, either through engagement with the deeming provisions or otherwise.
5. Having made this finding it necessarily flows that BFYK does not meet the disability requirement set out in section 24(1)(c) of the NDIS Act.
6. Having reached this conclusion it is not necessary for me to consider the other criteria. For completeness I will discuss them briefly.

Does BFYK's impairment affect his capacity for social or economic participation?

1. The Agency has conceded that BFYK's physical impairment affects his capacity for social or economic participation. Given his limited mobility and his use of strong pain medication I agree it would be very difficult for BFYK to manage employment. The disability requirement in section 24(1)(d) is met.

Is BFYK is likely to require support under the NDIS for his lifetime as required by section 24(1)(e)

1. BFYK argues the Tribunal should rely on the decision of JLZT and National Disability Insurance Agency (JLZT)[80] in which the presiding member interpreted this provision to require a consideration of simply how long the applicant would require support under the Scheme. The member specifically rejected the Agency's submission the proper approach was to consider whether the required supports could be obtained from some other more appropriate scheme or support network.
2. I do not accept this submission. Where an impairment has been determined to be permanent and to result in significantly impaired functional capacity so as to meet the criterion in section 24(1)(c) of the NDIS Act, it is difficult to conceive of a circumstance in which any need for ongoing support from the NDIS would cease or diminish. There is no known, available treatment which will improve the need producing impairment. This then leaves little work for section 24(1)(e) to do.
3. In Foster, the Full Court of the Federal Court held that the statutory task before the Tribunal in considering section 24(1)(e) was to determine whether a prospective participant is likely to require support under the NDIS or whether those support needs are most appropriately met by other systems.[81] It was never the intention that the Scheme would take over responsibility from all other services and supports available in the community.[82]
4. In this circumstance there is another system available to BFYK, being the Aged Care Home Care Packages system.
5. BFYK argues that because his need for support arises primarily from a disability, rather than an aged-related issue, the NDIS is the appropriate scheme.
6. I do not accept this submission. BFYK's chronic and degenerative low back condition, along with his deconditioning, is the primary driver of his permanent impairment. This is an age-related impairment which will likely deteriorate over time.
7. The relevant consideration is which is the appropriate scheme to provide necessary supports to BFYK.
8. Mr Mate has identified the following support needs for BFYK:[83]
   1. Commonly available aids such as over toilet frames, shower chairs, long handled utensils and walking aids, grab rails and a falls alert;
   2. Subsidised taxi scheme enrolment;
   3. Occupational therapy intervention;
   4. Fortnightly commercial cleaning;
   5. Monthly gardening assistance; and
   6. Medical and other therapeutic interventions.
9. In his oral evidence to the Tribunal Mr Mate stated that based on his previous experience in working with people with similar presentations to BFYK, he expected that all of the services and supports he had recommended would be available under the aged care scheme. I have considered the services recommended and I consider these do not involve disability specific services. I accept Mr Mate's evidence these needs could be met through the aged care services.
10. In oral evidence BFYK advised that he had made contact with a home assistance scheme recommended by Merri Health but that he did not find their suggestions of home modifications useful. He maintained that he needed personal assistance, not aids.
11. BFYK also advised he had made contact with the local area co-ordinator recommended by the NDIS for assistance to get out into the community and for help with gardening. He advised they asked him to come to their offices which he felt he was unable to do.
12. He was advised to contact the Moreland City Council for help but believes he was only offered cleaning assistance by the council. He declined this assistance as he wanted more. He wanted someone to care about him, not the material in his house.
13. BFYK also did not accept food services as he did not think they would suit his cultural needs. There is no evidence before the Tribunal to suggest that dietary requirements such as Halal foods cannot be met by community services. This is not a disability related need that suggests the NDIS would be more appropriate.
14. I have had regard to Exhibit 2 in which types of support services available through the Commonwealth Aged Care package are set out.[84] These include:
    1. Transport to appointments and activities;
    2. Domestic help;
    3. Personal care;
    4. Home maintenance;
    5. Minor home modifications;
    6. Aids and equipment;
    7. Meals, help with food preparation;
    8. Nursing;
    9. Allied health;
    10. Social support;
    11. Respite; and
    12. Specialised other support.
15. I note that this scheme offers an aged care assessment and is best able to take into account the particular age-related factors likely to impact on BFYK's condition. I am satisfied and find that the My Aged Care Commonwealth Home Support Programme is the most appropriate scheme for him to access.
16. As a result I find BFYK does not require supports under the NDIS for his lifetime. The disability requirement in section 24(1)(e) is therefore not met.

Does BFYK meet the Early Intervention Requirements?

1. Early intervention requirements are appropriate where their provision will reduce a participant's future need for supports or will reduce the impact of or improve a person's functional capacity.[85]
2. Rule 6.9 of the Access Rules provides that in considering whether provision of early intervention supports is likely to benefit a person, it is necessary to consider the likely trajectory and impact of the person's impairment over time and the likely benefits of early intervention on this. Evidence from a range of sources is required.
3. The medical evidence provided, particularly by Dr Zimet and Dr Mian, is that BFYK's condition is long standing and degenerative. No evidence has been provided to support a finding that assistance provided now would change the course of this condition or the impact of it on BFYK's functional capacity. I cannot be satisfied BFYK meets the early intervention criteria in section 25(1)(b) or (c).
4. In any event, given my finding that supports required by BFYK are more appropriately funded or provided through general systems in place (the My Aged Care system) and not under the NDIS, BFYK does not meet the early intervention criterion in section 25(3).
5. I am unable to be satisfied that the early intervention requirements are met.

1. As I have reached the same conclusion as the decision under review I will affirm that decision.

The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Act 2024.

[1] Email from BFYk's daughter dated 26 July 2024 at page 137 of Exhibit 1

[2] Agency's Statement of Facts Issues and Contentions at page 8 of Exhibit 1

[5] Item 126 of Schedule 1 of the Amending Act

[6] (1979) 2 ALD 634

[10] Sections 24 and 25 (respectively) NDIS Act

[11] Item 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024

[15] Exhibit 1 at [16.1], [35] and [39]

[28] Pages 640-643 and 256 of Exhibit 1

[40] NDIS Access Guidelines October 2024

[41] Mulligan and National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [55] to [56]

[44] [2024] AATA 496 at [68] to [69]

[45] Albiol and Section 3(3) and section 4(17) of the NDIS Act

[46] See Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) at [67]; Rooney v National Disability Insurance Agency [2021] AATA 3523 at [17].

[47] NDIA Assistive Technology (equipment, technology and devices)

[53] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 [69] - [70]

[54] Australian Postal Corporation v Sinnaih [2013] FCAFC 98

[55] Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 [26]

[56] [2024] AATA 496 at [29]; Mulligan and NDIA (Mulligan) at [77]

[65] Page 221, 219 and 548 of Exhibit 1

[75] Macquarie Dictionary online accessed July 2025

[76] Disability Care and Support - Productivity Commission Inquiry Report Overview and Recommendations No. 54 31 July 2011, 10-21

[77] [2021] AATA 3015

[78] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [104] and [106]

[80] [2022] AATA 541

[81] National Disability Insurance Agency v Foster [2023 FCAFC 11 [93]

[82] Recommendation 3.4 Disability Care and Support, Productivity Commission Inquiry Report No. 54, 31 July 2011.