1. For the following reasons, the Tribunal has found that the Applicant has permanent impairments which result in substantially reduced functional capacity. However, the Tribunal has concluded that the Applicant's supports are more appropriately funded under the aged care system. Accordingly, the Tribunal has determined that the correct or preferable decision is to affirm the reviewable decision.

1. The Applicant initially appeared before the Tribunal on 2 and 3 July 2025. He was represented by Ms Claire Faulkner of Legal Aid WA. The Respondent was represented by Ms Jennifer Flinn of counsel, instructed by Moray & Agnew Lawyers.
2. The following documents were marked as exhibits:

(a) Joint and Supplemental Tender Bundles (543 pages combined) (Exhibit 1), including the parties' respective Statements of Facts, Issues and Contentions (SFIC).

1. The Tribunal reserved its decision at the conclusion of the two-day hearing on 3 July 2025 and set a programme for the parties' closing submissions to be done in writing.
2. With his closing submissions, the Applicant sought to adduce new evidence without leave. This new evidence consisted of a journal article[4] and documents taken from the Department of Health (WA) website regarding physiotherapy services available at various departmental business units in metropolitan Perth (and their geographical areas of coverage).
3. The Respondent objected to that new evidence being received by the Tribunal.[5]
4. The Applicant subsequently sought leave to adduce the new evidence and an extract of an email chain between Ms Faulkner and the Applicant dated 12 February 2025 regarding the preparation of his witness statement.[6] He also sought leave to adduce fresh evidence,[7] being the Affidavit of Mikaela Rose English affirmed 7 August 2025 regarding her observations of the Tribunal hearing on 2 July 2025 and transport arrangements made for the Applicant.
5. The Tribunal held an interlocutory hearing on 22 August 2025 regarding the further evidence. At this hearing, the Applicant abandoned the application for leave to adduce the English Affidavit. He subsequently abandoned reliance on the email extract.
6. At the substantive hearing of the review, the Tribunal took oral evidence from:

(a) the Applicant;

(b) Ms Rebecca Ann Thompson, occupational therapist;

(c) Ms Claudia Di Lazzaro, occupational therapist; and

(d) Prof Eric John Visser, specialist medical practitioner.

1. The Tribunal heard evidence from another health professional, Mr Eshan Shona Pal Thomson, physiotherapist, on 2 July 2025. However, when questions were raised about this witness' expertise, the Applicant made a forensic decision not to rely on it.
2. The parties accepted that the only relevant part of the evidence given by Mr Pal Thomson was the fact of the Applicant's attendance at physiotherapy sessions at Enhance Physiotherapy in Applecross.[8]

WHETHER LEAVE SHOULD BE GRANTED FOR THE APPLICANT TO RE-OPEN HIS CASE

1. The Tribunal has a discretion to allow a party to re-open their case and to adduce further evidence after it has reserved its decision.[9] This is reflected in the Common Procedures Practice Direction 2024 (Practice Direction), which provides that the Tribunal 'will not normally permit' the tender of any evidence which an opposing party has not been give advance notice of, and that permission to adduce evidence post-hearing must be sought from the Tribunal absent which such material will 'not usually be taken into account'.[10]
2. The questions for the Tribunal in exercising the discretion to allow a party to re-open their case are:

(a) whether the proposed further evidentiary material is relevant and probative of the issues to be decided;

(b) whether the other party has been given an opportunity to respond to that material; and

(c) ultimately, whether, as a matter of fairness, the request to adduce further evidence should be granted.

1. In this context, 'fairness' includes 'the public interest in the finality of litigation' and whether allowing such material to be tendered post-hearing would best achieve the Tribunal's statutory objectives.
2. The Applicant relied on the decision of Justice Northrop in Boucher v Australian Securities Commission [1996] FCA 1523; (1996) 41 ALD 274, where his Honour held (at 280) that the Australian Securities Commission, as an administrative decision-maker, was not bound by the rules governing re-opening of a hearing before a court. It was put by the Applicant that the documents sought to be adduced are publicly available documents and that there was no real opportunity to put them to any of the witnesses, particularly Prof Visser. It was conceded that any failure to put these documents, or to apply for an adjournment, was the fault of counsel.
3. The Respondent relied on the analysis of Senior Member Buxton in Re Spencer and National Disability Insurance Agency [2024] AATA 3507 at [60]- [61].
4. The Tribunal is not satisfied that it should grant the Applicant leave to adduce the journal article or the Department of Health documents. First, the applicant was given a reasonable opportunity to present his case. The matter was commenced in August 2023, and, at all material times, he was either represented by a disability advocate or by Legal Aid. Second, the re-opening of the hearing to allow a journal article and contested factual evidence to be adduced without this being put to any witness would not be consistent with the Tribunal's statutory objectives; nor would it be appropriate to re-list the matter for further hearing for this to occur. Third, the evidence is 'new evidence' and could have been obtained and adduced with reasonable diligence. There is no mistake or misapprehension as to each party's case, because this was clearly articulated in their respective SFICs.

1. The question for determination by the Tribunal is whether the Applicant meets the 'access criteria' found in s 21(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
2. The statutory framework governing the NDIS was substantially amended from 3 October 2024. However, those legislative amendments only apply to access requests made on or after that date.[11]
3. Section 21(1) of the NDIS Act, as of 20 April 2023 (when the access request was made), provided that:

(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).

4. The parties agree, and the Tribunal accepts, that the Applicant meets the age and residence requirements.[12]
5. For the avoidance of doubt, the Tribunal finds that s 22 of the NDIS Act confines the Tribunal's attention to a particular time, being 'when the access request in relation to the person was made'.[13] This view is reinforced by r 3.1 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
6. An access request is 'made' to the Respondent (not the Tribunal),[14] and must meet the content requirements set out in s 19(1) of the NDIS Act, including being in the form approved by the Chief Executive Officer of the Respondent (if any). In this context, 'made' means 'dispatched'.[15]
7. The Applicant made his access request to the Respondent, on the approved application form (including with endorsement by his treating medical practitioner), on or about 20 April 2023.[16] At that time, he was under 65 years of age.[17] There were also no additional age requirements for the Applicant found in r 3.2 and sch A to the Access Rules.
8. The delegate found, and the Tribunal accepts, that the Applicant meets the residence requirements.[18]
9. The dispute between the parties is whether the Applicant meets the 'disability requirements', and, if not, whether he meets the 'early intervention requirements.'
10. Section 24 of the NDIS Act (in April 2023) provided that:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and > > (b) the impairment or impairments are, or are likely to be, permanent; and > > (c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(d) the impairment or impairments affect the person's capacity for social 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. Given the Tribunal's findings with respect to s 24(1)(e) of the NDIS Act, it is only necessary to refer to the following exclusion in the early intervention requirements found s 25 of the NDIS Act (as in force in April 2023):

1. Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

(a) as part of a universal service obligation; or > > (b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. The Applicant must satisfy the Tribunal that he meets these legislative requirements.[19] These requirements are 'cumulative'.[20] The focus in addressing each criterion is 'not the person's disability, nor the diagnoses given to a person- but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life'.[21]
2. An 'impairment' involves 'the loss or damage to a physical, sensory or mental function'.[22]
3. The phrase 'permanent' in s 24(1)(b) of the NDIS Act means 'enduring'.[23] An impairment may 'endure' even if it is not stable, or it fluctuates in intensity and impact.[24]
4. Part 5 of the Access Rules informs the Tribunal's assessment of the statutory criteria by:

(a) confirming that an impairment that varies in intensity may be permanent, and may mean that the person is likely to require lifetime support despite the variation (rr 5.2, 5.5);

(b) providing that an 'impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment' (r 5.4) (emphasis added);

(c) observing that

an impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanence or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated)' [(r 5.6); and]

(d) observing that if 'an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition' (r 5.7).

1. The same part of the Access Rules also provides useful (and binding) guidance on when an impairment results in substantially reduced functional capacity, as follows:

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. Lastly, the Respondent has published policy guidelines on access requests.[25] The Tribunal is authorised, but not bound, to give that policy guidance weight.[26]

WHETHER THE APPLICANT MEETS THE DISABILITY REQUIREMENTS

Disability attributable to one or more intellectual, cognitive, neurological, or sensory, physical impairments, or impairments to which a psychosocial disability is attributable

1. On 23 July 1987, Mr Warren (then 27) fell from a scaffold at work.[27] The fall from height caused 'a wedge fracture of the L1 vertebral body with sensory disturbance in the right S1 dermatome.'[28] The 'sensory disturbance' was reported to have resolved by August 1988, and the Applicant then considered to be 'fit for light work'.[29]
2. Since then, the Applicant has suffered CLBP. He has been in receipt of a disability support pension (DSP) since February 1997. The Tribunal was told that a forensic choice was made not to adduce evidence relevant to that DSP, notwithstanding the potential relevance of any assessments made against s 94 of the Social Security Act 1994 (Cth).
3. Lumbar spine magnetic resonance imaging (MRI) was conducted in May 2019[30] and January 2020.[31] The Tribunal notes the findings of those MRI reports, including the 'stable appearance of significant L1 anterior wedge compression fracture'. It was also reported that the Applicant had 'mid to lower thoracic spine mild spondylotic degenerative disc disease' in July 2021.[32]
4. A Computed Tomography (CT) scan was conducted in November 2022, which confirmed that the Applicant had 'chronic anterior wedge compression fracture of the L1 verterbra', which was stable, and multilevel minor degenerative disc disease.[33]
5. Radiofrequency ablation (RFA) (or 'spinal nerve blocks') were performed in November 2022 and January 2023.[34] The 'clinical indication' recorded by the radiologist for each procedure was that:
   1. Chronic low back pain. No response to physiotherapy and several epidural injections. Chronic wedge compression fracture of L1 relating to prior trauma 1987. Absence of radicular pain. CT lumbar spine 15 November 2022.[35]
6. A CT-guided facet joint injection was performed in July 2023.[36]
7. Mr Warren was reviewed by the Respondent's independent expert, Prof Visser, in February 2024 at his consultation rooms in Perth.[37] Professor Visser confirms the diagnosis of CLBP associated with the L1 wedge vertebral fracture.[38] He observed 'chronic musculoskeletal pain', 'chronic post trauma pain', 'nociplastic pain (central nervous system pain amplification)' and that the Applicant's low back pain was worse with sitting for ten minutes and that 'walking one suburban block is [the] level of endurance re back pain'. [39] Professor Visser referred to the Applicant's previous medication and treatment, including analgesia, physiotherapy and spinal nerve blocks.[40] He thought these were appropriate treatments,[41] and noted that it was 'not clear' how physiotherapy affects the Applicant's physical functioning but this was reported to reduce the back pain for approximately one to two days.[42] He confirmed in his report and in oral evidence to the Tribunal that the Applicant's CLBP is permanent.[43] When asked whether there were any other appropriate, evidence-based clinical, medical or other treatment options that would likely remedy, alleviate or improve the symptoms of the Applicant's CLBP, he said:
   1. At this time there are no other treatments I would recommend, except for access to a physiotherapist weekly for pain relief, maintaining spinal muscle core strength, and also hydrotherapy. I recommend this be trailed for 9 months, with the proviso that the patient and physiotherapist keep a diary of pain and functional gains (sitting and walking endurance in particular) during this treatment course. The benefits of physiotherapy should then be re-assessed.
   2. ...
   3. I also recommend review by a spinal orthopedic surgeon to ascertain the biomechanical status of his thoracolumbar spine, particularly the site of L1 vertebral facture, and to exclude new spinal pathology related to his ongoing low back pain. A thoracolumbar MRO scan would be required for such an assessment.
   4. I cannot suggest a prognosis regarding the effects of otherwise of the treatments above. The report in the T documents by Jordan Podesta physiotherapist are thorough, evidence based and some pain-related outcomes are being measured, including the Orebro Musculoskeletal Pain Questionnaire.

1. There were two functional capacity assessments undertaken in April 2024 and January 2025, respectively.[44]
2. The first was conducted by the Respondent's independent occupational therapist, Ms Di Lazzaro.

(a) It was observed by Ms Di Lazzaro in respect of mobility that: > > > (i) Mr Warren could walk independently (approximately a distance of 20 m) within his home, with no walking aids and did not require walking aids or upper limb support when mobilising; > > > > (ii) Mr Warren could walk 'unaided' from his home to the neighbouring shops (approximately 100 m), at an average pace and with no limitations observed; > > > > (iii) Mr Warren could sit for between three to five minutes before needing to change his posture from sitting due to his reported lower back pain and discomfort;[45] > > > > (iv) Mr Warren was able to walk through his door threshold, over grass and sand with no observed difficulties; and he could unilaterally balance standing on a rug in his loungeroom for approximately 10 seconds on each side before losing his balance;[46] > > > > (v) Mr Warren reported that he has restricted capacity to sit in a car as either the driver or a passenger; he reports to be independent with accessing public transport but frequently uses his elbow crutch as an assistive technology to balance and support when walking to/from and standing on public transport;[47] > > > > (vi) The home was observed to be cluttered; dust was on surfaces in the loungeroom; the vinyl floors had dirt and water marks; but the bathroom and toilet were clean;[48] > > > > (vii) Mr Warren reported that he can change his bed linens with minimal difficulty and is able to load/unload his front-loading washing machine by holding on to the machine for support when squatting down, and that he can hang out/pick up cloths with his eye-level washing line and carry light loads in a basket;[49] > > > > (viii) Based on his reported capacity and her observations:

• his back pain restricts the distance, duration and frequency of walking more than 350 m at a time;[50]
  • he required support from furniture to transfer to/from floor level;[51]
  • he is able to manage reaching movements from mid-thigh to overhead height with no difficulty, however, is restricted in his capacity to sit, stand, forward bend, lift and carry (above 5 kgs from waist height), squat and kneel, thereby reducing his capacity for tasks associated with these movements and postures, such as driving, gardening and cleaning;[52]
  • his back pain impacts on his capacity to manage stairs and uneven surfaces, and he therefore avoids navigating these; he has reduced unilateral balance, impacting his ability to stand on slippery or uneven surfaces and to climb stairs without a handrail;[53]
  • he can independently manage cleaning at waist height, sweeping the floor and short periods of light dusting; he is however restricted with heavier cleaning because this requires him to assume postures of repetitive pushing a vacuum or mop with force, frequent bending down or prolonged and repetitive squatting;[54]
  • there was a pile of dirty linens in the laundry, but this was consistent with a reported exacerbation of symptoms following a lengthy drive;[55]

(b) It was observed by Ms Di Lazzaro in respect of self-care that: > > > (i) Although Mr Warren reported to be independent with his showering, grab rails are recommended to support safe transfers and balance;[56] > > > > (ii) Mr Warren can toilet and feed/eat for himself;[57] and > > > > (iii) Mr Warren uses adaptions to manage dressing of his lower body independently; if he was required to wear shoes, long-handled shoehorns, elasticated laces and a sock aide would be recommended.[58] > > (c) Overall, Ms Di Lazzaro considered the Applicant to have 'moderate to severe impairment across all domains', with WHO Disability Assessment Schedule 2.0 (WHODAS) scores of 85% for mobility, 44% for self-care and 69% overall.[59] It was observed that Mr Warren's physical limitations from his back condition and associated pain impacts on his ability to manage tasks that require forward bending, prolonged or repetitive squatting postures and sitting.[60] > > (d) Relevant to the Respondent's argument about physical interventions, Ms Di Lazzaro noted that Mr Warren had reported ceasing his walking programme, which has been part of his prescribed physiotherapy programme, due to tennis elbow associated with his elbow crutches.[61] Similarly, he did not participate in pain management counselling.[62] Ms Di Lazzaro opined that it 'is difficult to predict whether this intervention will improve Mr Warren's function, however it is outlined in the WHO guidelines as recommended treatment for non - surgical management of chronic back pain, which he has not fully pursued.'[63] She observed that:

would be beneficial to explore whether Mr Warren responds to more frequent physiotherapy intervention and a suitable exercise program aimed at optimising his physical capacity. It is however noted that his ongoing pain may limit Mr Warren from improving his physical capacity, and therefore limit treatment in these circumstances would be aimed at maintaining his current function.[64]

1. The second assessment was conducted by the Applicant's independent occupational therapist, Ms Thompson.

(a) Ms Thompson described Mr Warren as having 'physical symptoms - pain in lower back' as a result of the L1 wedge fracture.[65] This accorded with the premise of Ms Di Lazzaro's assessment.

(b) Notably, unlike Ms Di Lazzaro, Ms Thompson differentiated between the Applicant having a 'good day', an 'average day' and a 'bad day'.[66] Mr Warren reported that his pain always fluctuated between nine and ten out of ten, regardless of the type of day.

(c) Ms Thompson scored the Applicant on the WHODAS, using the 'item response theory'. She gave him scores of 75% for 'Getting Around' and 37.5% for 'Self-Care'. She described this assessment as follows:

...moderate levels of disability across day-to-day life because of his physical impairments. Upon finer analysis of [Mr Warren's] domain level scores [on the WHODAS], the greatest level of difficulty is experienced within the domains of 'Getting Around' which encompasses mobility, 'Life Activities' which includes domestic and home maintenance tasks and 'Participation in Society' which includes participation in paid or non-paid employment and schooling. Of note, [Mr Warren] demonstrated total disability within the areas of 'Life Activites', indicating the severe level of difficulty he experiences performing home and maintenance tasks.[67]

(d) It was observed that Mr Warren's capacity for mobility 'is severely impacted by the pain experienced in his lower back, and subsequently reduced ability to perform movements such as bending, lifting and twisting.'[68] Ms Thompson saw the Applicant walk around his home and courtyard independently; shift postures every 15 minutes; stand for a maximum of ten minutes; sit for a maximum of five to ten minutes; and to have limited tolerance for bending, twisting, lifting/carrying and reaching.[69]

(e) Mr Warren reported accessing physiotherapy through Medicare and his private health insurance (caped at 12 sessions per year), and it was recommended that he be funded to attend weekly physiotherapy sessions to 'manage his [CLBP] and maintain his current levels of mobility which will reduce the risk of future deconditioning and increased pain.'[70]

(f) In terms of self-care, Ms Thompson's observations were consistent with those of Ms Di Lazzaro, save the Applicant had reported to Ms Thompson that he could not use his washing machine because it was broken and be could not bend to load/unload it.[71]

1. Both occupational therapists gave oral evidence to the Tribunal.

(a) In evidence-in-chief, Ms Thompson remarked that it was obvious when she went to Mr Warren's house in January 2025 that it was not clean and that he had not been physically able to clean the floors, bathroom and kitchen properly. She said that for most of her assessment the Applicant had been reclined and that his movements had been 'guarded' and that there was 'very stiff' movement in the pelvic and back. These movements were consistent with what she expected to see from someone with severe back pain. In cross-examination, Ms Thompson said that the day of her assessment must have been a 'good day' and that a 'bad day' was when he could not get out of bed. Counsel put to Ms Thompson observations of the Applicant from the hearing, however these did not meaningfully change her evidence.

(b) In evidence-in-chief, Ms Di Lazzaro confirmed the basis of her assessment and expertise. The Tribunal notes that both clinicians were experienced and that the only real point of difference between them was that Ms Di Lazzaro held a master's degree whereas Ms Thompson only held a bachelor's degree. Ms Di Lazzaro was asked if Mr Warren had the capacity to do his own grocery shopping and she said that he did but he needed to 'modify' this by making more frequent, smaller trips. She said that 'because of pain fluctuation, this has a potential to impact on his capacity.' In terms of showering/grooming, Ms Di Lazzaro observed the Applicant transfer into/out of his shower and that he could wash his upper body. She said that the issue was bending forward and touching his feet, which caused pain. The Applicant was able to lift his foot to reduce forward bending, but it was identified that safety could be improved by the installation of grab rails. She said that the Applicant had capacity to prepare light meals. In cross-examination, she admitted that the Applicant did not present like the typical 65-year-old. She said that 'chronic pain does have an impact on his ability to function' but that he was observed to mobilise independently for short periods/distances without difficulty. Ms Di Lazzaro considered that, at baseline, Mr Warren likely had capacity to do his own laundry, but this could be affected by fluctuations in pain. She confirmed Ms Thompson's observation that chronic pain does fluctuate and there are days where he can manage and days where he cannot. She admitted that Mr Warren would find 'anything outside bed' as 'physical activity'. In re-examination, Ms Di Lazzaro clarified that the WHODAS assessment is based on self-reporting by the patient.

1. The Applicant contends that the evidence before the Tribunal demonstrates:

(a) he has a disability attributable to the physical, sensory and neurological impairments arising from the spinal fracture he sustained in 1987 and consequent CLBP;

(b) his physical, sensory and neurological impairments are, or are likely to be, permanent;

(c) his physical, sensory and neurological impairments result in substantially reduced functional capacity to undertake the activities of mobility and self-care;

(d) his physical, sensory and neurological impairments affect his capacity for social and economic participation; and

(e) he is likely to require support under the NDIS for his lifetime.[72]

(a) accepts that the Applicant's 'condition' of CLBP results in him having a disability that is attributable to the following physical impairments:

(i) reduction in range of movement in the lumbar region, including bending and ability to maintain a sitting position;

(ii) reduction in walking distances;

(iii) reduction in balance; and

(iv) reduction in ability to lift heavy objects.

(b) disputes that there is sufficient evidence demonstrating that the above 'impairments'

(i) are permanent;

(ii) result in substantially reduced functional capacity to undertake mobility and self-care; and

(iii) that the Applicant will likely require NDIS Supports under the NDIS for his lifetime.[73]

1. In the context of s 24(1)(a) of the NDIS Act, the term 'disability' has a specific meaning - being a functional outcome that is attributable to specified categories of impairment.[74] The Act identifies 'intellectual, cognitive, neurological, sensory and physical impairments.'
2. For the reasons explained by Senior Member French in Re Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (Burrows), at [25]-[26], the International Classification of Functioning, Disability and Health (ICF) (World Health Organisation, 2005-01),[75] is extrinsic material to which the Tribunal may have regard 'in ascertaining with objective precision the impairment of body structure or function which is at issue in each case' for the purposes of s 24 of the NDIS Act.
3. The evidence in this case is that the Applicant lives with the following health conditions:

(a) significant L1 anterior wedge compression fracture;

(b) kyphosis (excessive forward curvature of the spine);

(c) right L5/S1 disc protrusion;

(d) right S1 nerve abutment;

(e) multilevel degenerative disc disease;

(f) pain, including:

(i) chronic musculoskeletal pain;

(ii) chronic post trauma pain; and

(iii) nociplastic pain (central nervous system pain amplification).[76]

1. Pain is described in the ICF under 'sensory functions and pain' as the 'sensation of unpleasant feeling indicating potential or actual damage to some body structure' (ICF, b280). The ICF provides qualifiers to the 'extent or magnitude of impairment' ranging from 'no impairment' to 'complete impairment'.
2. In Burrows, Senior Member French found that the applicant in that case, amongst other impairments, had 'impaired sensory functions and pain', being 'sensation of pain', specifically pain in the head, neck and back.[77] The Senior Member then said:

[38] There is however an issue as to how the impairments set out in paragraph 36(ii) are to be conceptualised for the purposes of s 24(1)(a). The Agency's operational policy appears to limit the meaning of "sensory" impairment to "how you see or hear". That would not appear to include vestibular function or pain. In closing oral submissions, if I understood her correctly, counsel for the CEO submitted that pain should not be understood as an impairment at all for the purposes of s 24(1)(a), but as a condition that is potentially "secondary" to one or more of the categories of impairment set out there.

[40] I do not accept the CEO's submission that pain is not to be regarded as an impairment for the purposes of s 24(1)(a). Pain constitutes a loss or variation to typical body function (typical body function does not involve persistent experience of pain). Pain is a sensory experience produced by the nervous system usually in response to damage to body structure. Within the framework of the ICF pain is categorised with other sensory functions, including sight and hearing. I adopt that categorisation here even though the Agency's operational policy appears to limit sensory impairment to sight and hearing impairment. The alternative would be to find, at least in this case, that the Applicant's experience of pain is a neurological impairment because it is produced by her nervous system. In either case it is an impairment for the purposes of s 24(1)(a).

1. The Tribunal finds that the Applicant's pain is either a sensory and/or neurological impairment for the purposes of s 24(1)(a) of the NDIS Act.
2. At the level of body structure, the Tribunal finds that the Applicant lives with:

(a) impaired structures of the nervous system, being the spinal cord and related structures (ICF, s120), specifically compression of the spinal nerves (ICF, s1201);

(b) impaired structures related to movement, being the structure of the trunk (ICF, s760), namely the thoracic and lumbar vertebral columns (ICF, s76001, s76002); and

(c) impairment (deconditioning) of the muscles of the trunk (ICF, s7601).

1. The impairments at paragraphs [52] and [53] above are neurological and physical impairments for the purposes of s 24(1)(a) of the NDIS Act.

The impairments are, or are likely to be, permanent

1. The Respondent's position was that the Applicant's impairments could not be said to be permanent because he has not undertaken all known, available and appropriate treatments, namely physical interventions such as structured exercise therapies or programmes (including physiotherapy).[78]
2. The problem with this submission is that it proceeded on a false premise that the Applicant's 'impairments' were those stated at [46(a)] above. For the above reasons, the Tribunal does not agree with that characterisation.
3. Professor Visser testified that the Applicant's pain was permanent. That is self-evidently the case, particularly because of its underlying physical cause, which is long-standing and inoperable.[79] The evidence before the Tribunal demonstrated that there has been multidisciplinary treatment for over 30 years. These interventions, which have included physical interventions, have not meaningfully improved his long-term capacity for mobility or for self-care. It is the case that the Applicant's pain fluctuates. That is to be expected.
4. The impaired structures of the nervous system and related to movement are clearly permanent.
5. The Tribunal notes that assessments have been made that:

[Mr Warren's] capacity to complete domestic activities, transfers and [to] ambulate is grossly hampered by de-conditioning, Due to [Mr Warren's] high severity of pain this has led to learned non-use of the lumbo-pelvic region. [Mr Warren] struggles to complete strengthening programs and mobility programs due to his high level of muscular de-conditioning. In my clinical opinion I feel [Mr Warren] would benefit from physiotherapy intervention and exercise physiology in conjunction to allow hands on therapies to modulate pain whilst strength/conditioning is improved throughout the lumbo-pelvic region/lower limbs with gym-based loading programs.

[Mr Warren] would grossly benefit from continued physiotherapy services to allow for continued regulation/reduction of his current high levels of pain. Secondly [Mr Warren] would also benefit from exercise physiology review for a personalised and supervised gym strengthening program. This would allow [Mr Warren] to progressively load and strengthen his lumbar region in a supported/controlled environment allowing for greater regulation of his central nervous system and to avoid flare ups of his chronic pain...[80]

1. Whilst that assessment was made by Mr Podesta, it reveals the consistent theme in the evidential material before the Tribunal - physical intervention is about maintenance of pain not remedying it.[81]
2. The Tribunal accepts that physical intervention is relevant to the Applicant's trunk muscles, and that this physical impairment could not therefore be said to be permanent.
3. The fundamental proposition is whether physical interventions will be likely to remedy the permanent impairments. The word 'remedy' in r 5.4 of the Access Rules is taken to mean 'something approaching a removal or cure of the impairment'.[82]
4. As observed above, the better view of the evidence is that physical interventions are only going to be about management of the Applicant's pain and maintenance of his current levels of mobility. That is, the prevention of further deconditioning and temporary relief or improvement of some of the symptoms. It is not likely to remedy the sensory and neurological impairments in any meaningful way.
5. The Tribunal finds that the Applicant's sensory and neurological impairments are permanent for the purposes of s 24(1)(b) of the NDIS Act.

The impairments result in substantially reduced functional capacity to undertake mobility and self-care

1. The Tribunal respectfully adopts Senior Member French's observations in Burrows at [59]-[96]. Section 24(1)(c) of the NDIS Act requires the Tribunal assess what, from a practical functional perspective, a prospective participant can and cannot do. The tasks that make up 'mobility' and 'self-care' are:

(a) Mobility (or "mobility and moving around" as it is referred to in the policy) > > > (i) tasks associated with moving around within the home, > > > > (ii) tasks associated with moving around within the community (how you get out and about), > > > > (iii) tasks associated with getting in and out of bed, and > > > > (iv) tasks associated with getting in and out of a chair. > > (b) Self-care > > > (i) tasks associated with personal care, including personal hygiene and grooming, > > > > (ii) tasks associated with eating and drinking, and > > > > (iii) tasks associated with health care.

2. I depart from the reasoning in Burrows in one respect. I accept that 'self-care' includes domestic tasks such as laundry and cleaning. These tasks are essential to 'personal care'. They are also associated with 'moving around within the home'. I accept that it is less clear that the NDIS Act contemplates tasks associated with other 'domestic activities', such as gardening and yard maintenance. I note that 'cleaning' and 'caring for your belongings' is considered under the 'Life activities' domain on the WHODAS, and that this domain is not explicitly listed in s 24(1)(c) of the NDIS Act. However, 'hygiene' is an essential precursor to self-care and, in my view, this term should not be construed narrowly because that would not accord with the overall legislative context and purpose.
3. In Re Foster and National Disability Insurance Agency [2025] ARTA 718, which was cited with approval by the Full Court in National Disability Insurance Agency v Lampard [2025] FCAFC 139, Senior Member French remarked that:

[56] In Burrows I have sought to bring some social scientific objectivity to the task of ascertaining the meaning of the term, or more specifically, the threshold at which it is enlivened, by reference to the calculus used in the ICF and its designated assessment tool, the World Health Organisation Disability Assessment Schedule (WHODAS 2.0) to assess and describe the degree of difficulty a person may experience in executing tasks of daily living due to impairment.

[57] WHODAS 2.0 assesses the "degree of difficulty" a person experiences in doing specified activities of daily living in terms of "increased effort", experience of "discomfort or pain", "slowness" and "changes in the way the person does the activity" (the difficulty factors) according to a five-point scale which is "none", "mild", "moderate", "severe", and "extreme or cannot do" (the difficulty ratings). A "mild" degree of difficulty or reduced functional capacity to perform a task is a degree of difficulty up to 25% greater than that of a person who does not have the assessed person's impairments, "moderate" is a degree of difficulty up to 50% greater, and "severe" is a degree of difficulty greater than 50% than that of a person who does not have the assessed person's impairments. In my opinion this analytical framework is helpful in giving meaning to the concept of substantially reduced function by providing an objective measure of the threshold at which it is enlivened. In my view, "substantial" should be understood as connoting a degree of difficulty, or reduced functional capacity, in performing a task or action that is greater than "moderate", and "reduced" should be understood as being in one of the four ways specified by the difficulty factors.

[58] I should be clear that it is not my intention to suggest that the WHODAS 2.0 difficulty ratings are a proxy for the statutory concept; merely that they are an aid that assist in bringing some social-scientific objectivity to ascertaining when the statutory threshold is enlivened.

1. As summarised above, Ms Di Lazzaro assessed the Applicant in April 2024 on WHODAS as having 85% for mobility (severe disability), 44% for self-care (moderate disability) and 69% overall (severe disability).[83] Ms Thompson in January 2025, using the 'item-response-theory' method, scored the Applicant with 75% for 'getting around' (mobility), 37.50% for self-care and 60.59% overall.[84]
2. In my view, the evidence establishes a substantial reduction in functional capacity with respect to mobility. That is, the Applicant experiences a degree of difficulty in getting around that is 50% or greater than that experienced by another (unassisted) person without his neurological and sensory impairments. It does not do so with respect to self-care (though they are clearly inter-related).

The impairments or impairments affect the person's capacity for social or economic participation

1. The Respondent did not contest that Mr Warren meets the criteria in s 24(1)(d) of the NDIS Act.[85] That concession was appropriate.

The person is likely to require support under the NDIS for the person's lifetime

1. The Respondent argued that because the Applicant is now 65 years of age he is not likely to require supports under the NDIS because the supports sought to be funded under the NDIS (namely assistance with housework and physiotherapy) are separately available to Mr Warren through the 'MyAged Care' programme, including the Commonwealth Home Support Programme, which provides for 'clinical supports' (including physiotherapy), 'independence' (help with showering, taking medications, transport or respite) and 'everyday living' (including cleaning, gardening or meal preparation).[86]
2. The Respondent referred the Tribunal to National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521, where the Full Court identified that:

(a) the 'focus of [this criterion] is on whether the prospective participant is likely to require support under the NDIS, or whether those supports are most appropriately met by other systems;'[87]

(b) the 'likely' support referred in s 24(1)(e) of the NDIS Act 'can only be referable to the result of the impairment the subject of the application to gain access to the NDIS;'[88] and

(c) whether the support available under other systems is comparable to what would be available under the NDIS is not the question to be asked.[89]

1. The Aged Care Act 2024 (Cth) (Aged Care Act) commenced on 1 November 2025 and replaced the Aged Care Act 1997 (Cth) (repealed).[90] The objects of that Act are to:

(a) in conjunction with other laws, give effect to Australia's obligations under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities; and

(b) provide a forward‑looking aged care system that is designed to:

(i) uphold the rights of individuals under the Statement of Rights; and

(ii) assist individuals accessing funded aged care services to live active, self‑determined and meaningful lives; and

(iii) ensure equitable access to, and flexible delivery of, funded aged care services that put older people first and take into account the needs of individuals, regardless of their location, background and life experience; and

(iv) support individuals accessing funded aged care services to effectively participate in society on an equal basis with others, thereby promoting positive community attitudes to ageing; and

(v) facilitate access to integrated services in other sectors where required; and

(c) enable individuals accessing funded aged care services to exercise choice and control in the planning and delivery of those services; and

(d) ensure individuals accessing funded aged care services are free from mistreatment, neglect and harm from poor quality or unsafe care; and

(e) provide a robust and risk‑based regulatory framework for the delivery of funded aged care services, including accessible complaint mechanisms for individuals accessing those services, that will promote public confidence and trust in the Commonwealth aged care system; and

(f) provide and support education and advocacy arrangements that can assist individuals accessing funded aged care services to understand their rights, make decisions and provide feedback on the delivery of those services without reprisal; and

(g) provide for sustainable funding arrangements for the delivery of funded aged care services by a diverse, trained and appropriately skilled workforce; and

(h) promote innovation in the Commonwealth aged care system based on research and support continuous improvement in the Commonwealth aged care system.

1. It is clear from those objects that the Aged Care system operates alongside the NDIS in giving effect to Australia's international obligations with respect to human rights.
2. Entry into the aged care system is governed by ch 2 of the Aged Care Act.

(a) A prospective individual who 'needs care' may apply under s 56 of the Act if:

(i) they are aged 65 or over; (s 58(a)(i)) and

(ii) 'information of a kind prescribed by the rules has been provided relating to the individual's care needs' (s 58(b)).

(b) Rule 58-5 of the Aged Care Rules 2025 (Cth) (Aged Care Rules) provides that this must be

(i) a declaration by the individual that they have 'care needs';

(ii) a written statement from a prescribed third party (as to which see r 56-5) setting out those care needs; and

(iii) written medical records of the individual's care needs.

(c) The term 'care needs' is defined in s 7 of the Aged Care Act as:

...one or both of the following that apply in relation to an individual:

(a) the individual has difficulty (whether physical, mental or social) undertaking any daily living activities;

(b) the individual requires help from another person, or the assistance of one or more aids, to maintain their physical, mental or social capacity to function independently.

1. Section 57 of the Aged Care Act requires the 'System Governor' (the Secretary of the Department of Health, Disability and Ageing) to consider an access application and decide whether to make an 'eligibility determination for an aged care needs assessment for the individual'.
2. An eligibility determination requires an assessment be undertaken by an approved needs assessor (s 61(1)) using the 'Integrated Assessment Tool' prescribed by r 62-5 of the Aged Care Rules (s 62(1)). This assessment must include a discussion with the applicant about what the assessment has identified in terms of funded aged care services the individual may require access to and may assist the individual to maintain their independence (s 62(2)(a)) and a report about that assessment is provided to the Secretary (s 63). The Integrated Assessment Tool includes a functional capacity assessment.
3. 'Funded aged care services' are services prescribed under pt 3 of the Aged Care Rules, including 'allied health and therapy', 'domestic assistance', 'hoarding and squalor assistance', 'home maintenance and repairs' and 'therapeutic services for independent living', which can each be delivered in a 'home or community setting' (ss 8-10).
4. It follows from the above summary of the legislative framework governing the aged care system that there is, in fact, another system available to the Applicant, as someone aged 65, which, upon application, can provide the same types of supports potentially available to him under the NDIS; namely, allied health and therapy and domestic assistance in a home or community setting.
5. The question then is whether these supports are more appropriately funded under the NDIS or the aged care system?
6. The Applicant argued that:

[39] The document commonly referred to as the Applied Principles and Tables of Support (APTOS) provides at principle 5 that: 'In determining the approach to the supports funded by the NDIS and other service systems governments will have regard to the efficiency, the existing statutory responsibilities and policy objective of other service systems and operational implications.' The principles relating to the interaction of Aged Care and the NDIS provide that they have different areas of expertise and interact with one another, and that: 'A participant can choose to continue to receive supports from the NDIS after age 65, or can choose to take up an aged care place'. The fact that the Aged Care system exists and that as of last month the Applicant is eligible to receive supports from that system therefore does not answer the question of which system is most appropriate to provide that support.

[40] The evidence of Professor Visser is that the Applicant's pain is being generated at a centralised nervous system level, and that whilst he might also be experiencing degeneration due to age, the Applicant's L1 fracture is the direct source of the Applicant's most severe degeneration. The Applicant's L1 fracture was not caused by his age but by an injury. The supports he requires are therefore not aged care supports, but rather supports which flow from a substantially reduced functional capacity to engaged in mobility and self-care as a result of a disability attributable to physical, sensory and/or neurological impairments flowing from that fracture.[91]

[41] During the hearing, Mr Warren's representative made a submission to the effect that the NDIS provides disability supports, whereas My Aged Care provides aged care supports. The Agency submits that is a distinction with no difference. For example, providing assistance with home cleaning duties is the same support, whether it is categorised as a 'disability support' or an 'aged care support'. Further, such a distinction is inconsistent with the Full Court's decision in Foster ...[92]

1. In Re Peters and National Disability Insurance Agency [2025] ARTA 2053, GM Proske observed:

[101] In closing submissions, counsel for the Applicant contended that s 22 provides that it does not matter, if someone is granted access as a participant of the NDIS before the age of 65, the NDIS will provide supports for life. It is not in contest that the Applicant was under 65 when her access request was made and she therefore meets the age requirement in s 22; however, at the time the Tribunal is considering whether she is likely to require support under the NDIS for her lifetime, she is aged 67. Consistent with the view expressed by the Tribunal (differently constituted) in Morris and National Disability Insurance Agency [2024] ARTA 186, which was included in the joint bundle of authorities filed by the parties, this Tribunal considers that for the purpose of accessing whether the Applicant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems, it is her age at the time of this decision that must be considered.

[102] The Tribunal notes that s 3(3)(b) provides that in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS; and s 4(17) provides that it is the intention of Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under the NDIS Act in accordance with the principles in s 4, having regard to the need to ensure the financial sustainability of the NDIS. The Tribunal agrees with the submission made by counsel for the Respondent in closing that this statutory context supports a construction of s 24(1)(e) that requires the Tribunal to undertake an assessment of whether the supports required by the Applicant could be provided by other services systems when considering whether it is satisfied the requirement in s 24(1)(e) is met.

[103] The Tribunal has previously considered whether a person who is eligible to receive supports under My Aged Care is likely to require support under the NDIS for their lifetime; and has found that in those circumstances the support needs were most appropriately met by My Aged Care. In Brickhill and National Disability Insurance Agency [2025] ARTA 707 the Tribunal dismissed a review application pursuant to s 101(1)(b) of the ART Act on the basis it had no reasonable prospects of success because it considered the Applicant incapable of meeting the disability requirement in s 24(1)(e) in circumstances where she was the current recipient of a Home Care Package.

[107] Whilst it may be the case that supports provided under My Aged Care are delivered in a way that is not ideal for someone such as the Applicant who is well but for her impairments and continues to work as a general practitioner; and that programs available under My Aged Care are intended to support older people to remain living independently and safely rather than to support an individual who only requires support because of a non-age related impairment or impairments; the fact remains that the Tribunal has accepted at paragraph [100] that the supports required by the Applicant in respect of her reduced functional capacity are available through My Aged Care; and in those circumstances, in the absence of evidence the Applicant is ineligible for support under that system, the Tribunal is not satisfied she is likely to require support under the NDIS for her lifetime.

1. I am not satisfied that the reasoning in the above decision, and the other Tribunal decisions to which it refers, are plainly in error. Accordingly, it is appropriate that I follow it.[93]
2. For those reasons, the Tribunal is not satisfied that the Applicant is likely to require support under the NDIS for his lifetime. He therefore does not satisfy s 24(1)(e) of the NDIS Act.

1. There are two things which may be said about the early intervention requirements considering the findings made above in respect of the disability requirements.

(a) The Tribunal is not satisfied that provision of early intervention supports for the Applicant is likely to benefit him by reducing his future needs for supports in relation to disability (s 25(1)(b) of the NDIS Act; rr 6.8-6.9 of the Access Rules). As the evidence demonstrates, the requested supports are about maintenance of the Applicant's sensory and neurological impairments. He separately has degenerative disc disease, which is highly likely to exacerbate those future disability needs over time; and

(b) The Tribunal is satisfied that early intervention support for the Applicant is most appropriately funded or provided through the systems of service delivery or support services offered under the Aged Care Act, being another law dealing with discrimination based on disability (s 25(3); rr 6.1, 8.4).

1. As Ovid is reported to have said in the English translation of Metamorphoses, Book XV, 234-236 (Pythagoras's Teachings: The Four Ages of Man):

When the middle years are also done, life takes the downward path of declining age. Milon, the athlete, grown old, cries when he looks at those weak and flabby arms, that were once, like those of Hercules, a solid mass of muscle. Helen, the daughter of Tyndareus, also weeps, when she sees an old woman's wrinkles in the glass, and asks why she has been twice ravaged. Devouring Time, and you, jealous Age, consume everything, and slowly gnawing at them, with your teeth, little by little, consign all things to eternal death

1. Age is catching up with Mr Warren, and it is the aged care system which should now respond to his disability needs rather than the NDIS.
2. Accordingly, the Tribunal is not satisfied that the Applicant meets the early intervention requirements for the purposes of s 25 of the NDIS Act.

1. The Tribunal is not satisfied that the Applicant meets either the disability requirements or the early intervention requirements necessary for him to become a participant of the NDIS. Accordingly, the correct or preferable decision is to affirm the reviewable decision.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

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

[1] See Exhibit 1, pp 90-117; but cf. an earlier request and decision in February/March 2023, pp 54-86.

[2] Exhibit 1, p 8; RSFIC, [24]; ASFIC, [17]; but Cf RSFIC, [33], [35].

[3] Respondent's closing submissions, [1].

[4] B Kraft, R Bo, R Jonassen, A Heeren, VS Ulset, TC Stiles and NI Landro, 'The association between depression symptoms and reduced executive functioning is primarily linked by fatigue' (2023) 3 Psychiatry Research Communications, 100120.

[5] Respondent's closing submissions dated 31 July 2025, [17].

[6] Reply closing submissions dated 7 August 2025, [9].

[7] Reply closing submissions dared 7 August 2025, [13].

[9] See Administrative Review Tribunal Act 2024 (ART Act), ss 49, 50, 52, 55, 56; See also Menon v Minister for Immigration and Border Protection [2018] FCA 1497, [35]-[36]; Re Kowalski and Military Rehabilitation and Compensation Commission [2007] AATA 1988; (2007) 47 AAR 300, [21]-[22], [26], [30], [35]-[36]; Re BQRW and Commissioner of Taxation [2014] AATA 410; (2014) 63 AAR 503, [60]-[61]; Re Superannuation Warehouse Australia Pty Ltd and Australian Securities and Investments Commission (2019) 77 AAR 300, [78]-[80].

[11] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), sch 1, item 125.

[12] See Exhibit 1, T1A; Respondent's closing submissions, [2]; RSFIC, [22].

[13] See VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230, [22]-[27]

[15] See Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; (2020) 281 FCR 578, [43], [50].

[18] See Exhibit 1, T2, p 27; T14, p 56; T15, p 83.

[19] See Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 68 AAR 23, [68].

[20] National Disability Insurance Agency v Davis [2022] FCA 1002, [7].

[21] National Disability Insurance Agency v Davis [2022] FCA 1002, [69]; National Disability Insurance Agency v Lampard [2025] FCAFC 139, [27]-[29].

[22] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201, [51].

[23] National Disability Insurance Agency v Davis [2022] FCA 1002, [85].

[24] National Disability Insurance Agency v Davis [2022] FCA 1002, [82].

[25] Exhibit 1, T28, 'Applying to the NDIS' (dated 1 July 2022).

[26] See Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276, [25]-[26].

[35] See Exhibit 1, A13, p 69, A14, p 70.

[39] See Exhibit 1, R2, p 167 Q1 [2], [3], [5].

[40] See Exhibit 1, R2, pp 167-168 Q1 [7]-[10].

[44] See Exhibit 1, A21, pp 116-146; R4, pp 179-203.

[74] Re Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607, [24].

[75] Accessible online https://icd.who.int/browse/2025-01/icf/en#894218497.

[77] Re Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607, [36(ii)(b)].

[78] Closing submissions, [1(a)], [3], [5]-[9], [11]-[14].

[82] National Disability Insurance Agency v Davis [2022] FCA 1002, [136].

[86] Respondent's closing submissions, [1](c)], [37]; Exhibit 1, R6, R7, R8, R9, R10.

[87] National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521, [93].

[88] National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521, [94].

[89] National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521, [96].

[93] See Re Scott and Commissioner of Superannuation (1986) 9 ALD 491, 499; Re The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346, [31]; Gemmill Homes Pty Ltd v Sanders [2018] WASC 179, [87]-[94]; Commonwealth of Australia v Snell [2019] FCAFC 57; (2019) 269 FCR 18, [76].

[94] Accessible online at https://ovid.lib.virginia.edu/trans/Metamorph15.htm