Decision: Pursuant to subsection 105(a) of the _Administrative Review Tribunal Act 2024 (_Cth), the Tribunal affirms the decision under review.

NATIONAL DISABILITY INSURANCE SCHEME - access - physical impairments - psychosocial impairments - whether applicant meets disability requirements - NDIS Act s24(1)(c) - whether impairments substantially reduce functional capacity - communication - social interaction - mobility - learning - self-care - NDIS Act s25 - whether applicant meets early intervention requirements - decision under review affirmed.

Administrative Review Tribunal Act 2024 (Cth) section 105

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

National Disability Insurance Scheme Act 2013 (Cth_) sections 21,22, 23, 24, 27, 29_

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

G v Minister for Home Affairs [2019] FCAFC 79

G v Minister for Immigration and Border Protection [2018] FCA 1229

National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Davis [2022] FCA 1002

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

Re Schwass and National Disability Insurance Agency [2019] AATA

Rooney and National Disability Insurance Agency [2021] AATA 3523

PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66

Madelaine v National Disability Insurance Agency [2020] AATA 4025

Kilgallin v National Disability Insurance Agency [2017] AATA 186

Garcia Albiol v National Disability Insurance Agency [2024] AATA 496

Moxham v National Disability Insurance Agency [2025] ARTA 290

National Disability Insurance Agency v Lampard [2025] FCAFC 139

Burrows v CEO, National Disability Insurance Agency [2025] ARTA 607

NDIS - Applying to the NDIS access guidelines, as of 11 March 2025.

1. Mr Peter Brassington is a 67-year-old man He seeks access to the National Disability Insurance Scheme ('the scheme') so that he can receive supports on the basis of impairments due to multiple conditions.
2. Mr Brassington's application for access was refused at first instance by the National Disability Insurance Agency ('the Agency') and again upon internal review.[1]
3. Mr Brassington subsequently applied to the Administrative Appeals Tribunal ('AAT') on 5 June 2024 for review of the Agency's internal review decision ('the decision under review').[2] In his application to the AAT he stated:

I was seriously injured physically and mentally in a motor vehicle crash in 2000 and been classified as permanently disabled by various insurance companies and the ATO. I have totally supported and looked after myself. I had carried income protection insurance that allowed me to be independent. My income insurance payments finished on my 65th birthday on 3 November 2013 and I have had no

In preparing my application I drove from my current home (in Queensland that I had been for about 1year) to Wollongong to get my doctor who had been treating me for 23 years to complete the NDIS application form as she knew my history and how hard I have worked to be mobile after I had been told by many doctors that I was unlikely to walk again. The form completed by my doctor indicated that all possible treatments had been explored and the condition was degenerative.

The initial application the NDIS completely ignored the application form and decided that after 23 years of chronic pain and disability I had not tried all available options to improve my situation. The decision to be as honest as possible and drive to Wollongong turned out to be a bad one for me as on my return the next disk up in my back "exploded" resulting in further back surgery and ongoing limited mobility. This occurred prior to my submitting my NDIS application and I stupidly included details of the current interventions to reinforce the degenerative nature of the disability.

1. On 14 October 2024, the AAT became the Administrative Review Tribunal ('the Tribunal'). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 ('Transitional Act'), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
2. At the hearing Mr Brassington was self-represented. The Agency was represented by Ms Madeleine Stone of Counsel instructed by Maddocks Lawyers.
3. For the reasons set out below, the Tribunal affirms the decision under review and finds that Mr Brassington does not meet disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth) ('NDIS Act') or the early intervention requirements under section 25 of the NDIS Act. Mr Brassington therefore does not meet the access criteria under section 21 of the NDIS Act and cannot be granted access to the scheme.

1. On 3 October 2024 and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 ('the Amending Act') made a range of 'amendments' to the NDIS Act including the provisions relating to access to the scheme. These amendments included amendments to sections 21, 24 and 25 of the NDIS Act ('the access provisions').[3]
2. The amending Act included transitional provisions under Items 125 and 126 in Part 3 of Schedule 1 to the Amending Act. The effect of these transitional provisions is that the amendments made to the access provisions apply only to a person who makes an access request on or after 3 October 2024. On this basis Mr Brassington's application will be determined in accordance with the access provisions as they existed before the commencement of the amending Act on 3 October 2025.
3. Item 126(3) in Part 3 of the Amending Act addresses the status of rules made under section 27 of the NDIS Act prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force.
4. On this basis the version of the Access Rules in existence prior to 3 October 2024 continue to apply to Mr Brassington's request for access.

THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. Access to the scheme requires Mr Brassington satisfy that he meets the 'access criteria' under section 21 of the NDIS Act. The access criteria impose a series of thresholds on obtaining access to the scheme.[4] Section 21 of the NDIS Act provides as follows:

(1) A person meets the access criteria if:

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

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

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

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

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

........................................................................................................

1. There was no contention by the Agency that Mr Brassington did not meet the age requirements[5] or the residence requirements.[6]
2. The issue before the Tribunal was therefore whether Mr Brassington meets the disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act.
3. The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
   1. A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

1. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
2. For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
3. Subsection (3) does not limit subsection (2).
4. The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
5. The early intervention requirements contained in section 25 of the NDIS Act provide as follows:

1. A person meets the early intervention requirements if:

(a) the person: > > > (i) has one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent; or > > > > (ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or > > > > (iii) is a child who has developmental delay; and > > (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and > > (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by: > > > (i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or; > > > > (ii) preventing the deterioration of such functional capacity; or > > > > (iii) improving such functional capacity; or > > > > (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) (2), the person does not meet the early intervention requirements if the CEO is satisfied that the 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 of the basis of disability.

1. Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
2. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 ('the Access Rules').
3. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The Guidelines are 'administrative tools' and exist to provide assistance as to the context of each of the activities listed in s 24(1)(c) of the NDIS Act.[7]
4. The relevant guidelines in this review are the NDIS - Applying to the NDIS Guidelines ('the Access Guidelines').[8]
5. There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[10] the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual's case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it.[12]

1. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Mr Brassington meets the disability requirements or the early intervention requirements.
2. Whether Mr Brassington meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a 'fact-finding task'[13] with a relatively high degree of precision and be positively satisfied.[14]

1. Mr Brassington seeks access to the scheme on the basis of having a disability due to the following:

(a) A psychosocial impairment due to low mood, reduced motivation, anxiety and distress as a consequence of depression and post-traumatic stress disorder; and > > (b) A physical impairment due to lower back pain, persistent neck discomfort aggravated by movement, numbness in both arms, reduced sensation in his hands, 'pins and needles' in his fingers, impaired balance, headaches and migraines. These physical impairments are as a consequence of lumbar spondylosis, spinal canal stenosis and facet joint arthropathy.

2. Mr Brassington contends that all of these impairments are permanent for the purposes of section 24(1)(b) of the NDIS Act.
3. As a consequence of these impairments Mr Brassington also contends that he has a substantially reduced functional capacity in relation to his communication, social interaction, learning, mobility, self-care and self-management for the purposes of section 24(1)(c) of the NDIS Act.
4. Mr Brassington also contends that his impairments affect his capacity for social and economic participation for the purposes of section 24(1)(d) of the NDIS Act. Also, that he is likely to require supports under the scheme for his lifetime for the purposes of section 24(1)(e) of the NDIS Act.
5. Finally, Mr Brassington contends that he meets the early intervention requirements pursuant to section 25 of the NDIS Act.

1. For the purposes of section 24(1)(a) of the NDIS Act the Agency accepts Mr Brassington's contentions in [24] above.
2. The Agency does not accept that:

(c) Mr Brassington's psychosocial and physical impairments are permanent for the purposes of subsection 24(1)(b) of the NDIS Act;[15] > > (d) These impairments result in a reduced functional capacity in the activities of social interaction, self-care, self-management, learning, communication and mobility; > > (e) These impairments affect his capacity for social and economic participation; > > (f) Mr Brassington is likely to require support under the scheme for his lifetime.

3. The Agency further contends that the evidence is insufficient to establish that the provision of 'early intervention support' is likely to benefit Mr Brassington within the meaning of subsection 25(b) and (c) of the NDIS Act. Further, that the supports requested by Mr Brassington are more appropriately provided through another service system in accordance with subsection 25(3) of the NDIS Act.

1. I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 11 and 12 November 2025, and the parties' closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

1. Mr Brassington is 68 years of age. He is a medically retired engineer.
2. He lives with his wife and his stepdaughter in his own home which is a two-storey town home.
3. He has three adult daughters, a stepdaughter and a stepson.
4. He is able to live in the downstairs part of the home which contains his bedroom, bathroom, living areas and kitchen.
5. He has applied for services with My Aged Care but has been advised that this will not be processed until the outcome of his application for access to the scheme is finalised.
6. Mr Brassington advised the Tribunal that he seeks access to the scheme so that he may receive funding for support 'around the house' such as cleaning, lawn mowing and gardening. Also for transport to appointments and for physiotherapy and psychological therapy.
7. Mr Brassington's most recent back operation was in the last half of 2023. Following this surgery he attended physiotherapy for a short while but was eventually closed to these physiotherapy services. This was on the basis of not attending scheduled appointments at the hospital. Mr Brassington explained that his non-attendance was only on the basis that he was not in fact ever advised by the hospital of the arrangements for these appointments.
8. Subsequent to his most recent back surgery Mr Brassington remains affected by numbness in his right leg, pins and needles in his arms, feet and legs, also pulsating muscles. He explained that he spends a significant amount of time on his couch each day. In this regard Mr Brassington appeared at the Tribunal for the duration of the hearing in a recumbent position on his couch.
9. Historically, Mr Brassington has taken a variety of antidepressant medications between 2001 and 2023. He ceased these antidepressants in November 2023 for two reasons. Firstly, he could no longer afford this medication on the basis that his income protection payments had ceased upon turning 65 years of age. Secondly, on the basis that these medications had caused significant weight gain which was detrimental to the severity of his back symptoms.
10. Mr Brassington explained that aside from weight gain, these medications 'did help' his mental health. He stated that he was open to a trial of another antidepressant which had no weight gain side effects. In his oral evidence Mr Brassington conceded there to be a likelihood of an improvement in his mental state with an appropriate antidepressant.
11. Recently Mr Brassington has received from the government a pharmaceutical benefit card which will allow him to receive certain prescribed medications at little or no cost. At the time of the hearing he had not sought advice from a general practitioner in relation to any options for antidepressant medication. In this regard he referred to difficulties in locating a general practitioner who would be willing to bulk bill him for treatment.
12. I will refer subsequently to further oral evidence which was also provided by Mr Brassington.

1. Ms Pizzica is an occupational therapist. Ms Pizzica assessed Mr Brassington in his home in March 2025 and provided a report.[16] Ms Pizzica also provided oral evidence at the hearing. I will refer subsequently to Ms Pizzica's evidence.

**_Does Mr Brassington have a disability which is attributable one or more intellectual, cognitive, neurological, sensory or physical impairments?

Does Mr Brassington have one or more impairments to which a psychosocial disability is attributable?_**

1. Mr Brassington sustained significant and severe injuries, particularly to his lower back and neck following a motor vehicle accident in 2000.[17] Since this accident he has undergone a variety of treatments which have included a lumbar laminectomy[18] and a disc sequestrectomy more recently in 2023.[19] MRI scans clearly indicate degenerative disc disease and degeneration at L4/5, L5/S1 and C5/C6.[20]
2. Ms Brassington has also been diagnosed with major depressive disorder and a pain disorder associated with psychological factors and a general medical condition.[21] He has been prescribed antidepressants for over 20 years and reports there to have been a marked improvement as a consequence of this pharmacological treatment.
3. The evidence overwhelmingly establishes that Mr Brassington has a psychosocial impairment as a consequence of his major depressive disorder. These impairments include a lack of motivation, low mood, distress and anxiety.
4. The evidence also overwhelming establishes that Mr Brassington has physical impairments. These impairments include lower back pain, neck pain and discomfort, numbness in both arms, reduced sensation in his hands, 'pins and needles' in his fingers, impaired balance, headaches and migraines.
5. The Agency accepts that Mr Brassington has a disability that is attributable to a psychosocial impairment and a physical impairment.
6. Based on the evidence I am satisfied that the Agency's concession is reasonable and proper.

1. I am satisfied that Mr Brassington has a disability that is attributable to a psychosocial impairment. His psychosocial impairments include a lack of motivation, low mood, distress and anxiety and occur as a consequence of major depressive disorder.
2. I am also satisfied that Mr Brassington has a disability that is attributable to physical impairments. His physical impairments include lower back pain, neck pain and discomfort, numbness in both arms, reduced sensation in his hands, 'pins and needles' in his fingers, impaired balance, headaches and migraines.
3. Subsection 24(1)(a) of the NDIS Act is satisfied.

Subsection 24(1)(c): Do Mr Brassington's impairments result in a 'substantially reduced functional capacity' for him to engage in the activities of communication, social interaction, learning, mobility, self-care and self-management?

1. The Tribunal's task is to consider whether Mr Brassington's functional capacity to undertake communication, social interaction, learning, mobility, self-care and self-management is 'substantially reduced'.
2. For reasons which will follow I am not positively satisfied that Mr Brassington's functional capacity to undertake any of the activities in subsection 24(1)(c) of the NDIS Act is substantially reduced to the extent of the 'threshold' required for access to the scheme.
3. In considering Mr Brassington's functional capacity the Tribunal's task is twofold.
4. The 'first task' is to consider whether Mr Brassington's circumstances are captured within the deeming effect of rule 5.8 of the Access Rules to establish a 'substantially reduced functional capacity'. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must still proceed to a 'second task'. This second task requires the Tribunal, on the evidence available, to determine whether Mr Brassington's functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is 'substantially reduced'.

Can Mr Brassington rely on the deeming effect of rule 5.8 of the Access Rules to establish that he has a substantially reduced functional capacity?

1. Rule 5.8 of the Access Rules provides as follows:

When does an impairment result in substantially reduced functional capacity to undertake relevant activities? > > 5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that: > > (a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications_; or_ > > (b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or > > (c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person. > > (Tribunal emphasis added)

2. Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Mr Brassington can participate 'effectively or completely' on the basis that he is unaided by assistive technology, equipment or home modifications other than 'commonly used items'.
3. The interpretation of 'commonly used items' was considered by the Tribunal in Rooney and National Disability Insurance Agency ('Rooney').[22] In Rooney the Tribunal identified the indicia in respect of what are to be considered 'commonly used items' for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
   • generally accessible;
   • can be used without the need for complex or specialised customisation or installation;
   • relatively simple to use; and
   • relatively inexpensive.
4. Mr Brassington's evidence is that:
   • Towards the end of each day he will rely on a single point walking stick to ambulate around his home;
   • When accessing the community he relies on crutches to stabilise himself and avoid the risk of falling;
   • He uses a long-handled shower brush to assist with bathing.
5. I am satisfied that a walking stick, crutches and a long-handled shower brush fall well within the category of commonly used items for the purposes of rule 5.8(a) of the Access Rules.
6. I am satisfied that Mr Brassington cannot rely upon the deeming operation of rule 5.8 of the NDIS Rules. This is on the basis that he relies only on commonly used items to ambulate and bathe. There is also no evidence that he currently relies on any assistive technology, complex building modifications or equipment to undertake tasks that form the 'relevant activities' under subsection 24(1)(c) of the NDIS Act.
7. Furthermore there is no evidence that Mr Brassington usually requires assistance (including physical assistance, guidance, supervision or prompting) from any other person to participate in these relevant activities or to perform tasks or actions required to undertake or participate in these relevant activities.

1. Mr Brassington cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.

The second task: Does Mr Brassington have a 'substantially' reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?

1. The fact that Mr Brassington does not satisfy the requirements of rule 5.8 does not disqualify his from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether Mr Brassington has a 'substantially reduced functional capacity' for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held: [23]

As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or his mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas.

2. In respect of the operation of subsection 24(1)(c) of the NDIS Act, in Mulligan Mortimer J also held:[24]

Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted. > > ------ > > ... No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. (Tribunal emphasis)

3. In Foster the Full Court considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[25]

In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do. > > Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of _'_self-care', the Tribunal applied the Guidelines in such a way as to equate Mr Foster's impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.

4. In Foster the Full Court identified that the Tribunal is required to consider the 'bundle of tasks and actions' that fall within the particular activity under consideration.[26] Also that undertaking a task 'differently' or 'more slowly' to others will not necessarily mean a person cannot participate effectively or complete an activity.[27]
5. More recently in Lampard[28] the Full Court identified the Tribunal's task as determining a prospective participant's 'functional capacity' to carry out a task or action in the activities domains of subsection 24(1)(c) of the NDIS Act. In doing so the Full Court emphasised that 'functional capacity' must be distinguished against the prospective participant's 'functional performance', which is of itself not relevant to the task under subsection 24(1)(c) of the NDIS Act.
6. In Madelaine[29] the Tribunal referred to the following Operational Guidelines for guidance in relation to fluctuations in a prospective participant's functional capacity:

When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

1. Those Operational Guidelines have been superseded. The current Access Guidelines however provide as follows:

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MR) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

1. Therefore in determining Mr Brassington's functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act the following is relevant to the Tribunal's consideration:
   • The severity of Mr Brassington's impairment having regard not only to the evidence of Mr Brassington but also medical and clinical evidence;
   • The 'bundle of tasks' that fall within each of the activities in subsection 24(1)(c) of the NDIS Act;
   • Brassington's overall 'functional capacity' in the 'activities' in subsection 24(1) (c) of the NDIS Act, as a whole and over time and taking into account fluctuations in his ability;
   • A practical assessment of what Mr Brassington can do and cannot do.
2. The following however is not relevant to the Tribunal's consideration in determining Mr Brassington's functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act:
   • The fact that Mr Brassington is no longer able to perform the activities in subsection 24(1)(c) of the NDIS Act as often, as freely or as easily as he did previously in his lifetime;
   • Any comparison of Mr Brassington's function with that of another person;
   • Mr Brassington's financial circumstances; and
   • How much better Mr Brassington's life would be if he were to receive supports under the scheme.
3. The Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Mr Brassington can and cannot do with respect to his communication, social interaction, learning, mobility, self-care and self-management for the purposes of subsection 24(1)(c). This assessment requires consideration of the 'bundle of tasks' and actions that comprise any given activity being considered.[30]
4. Previously in the decision of Garcia Albiol v NDIA[31] I considered the use of the word 'substantially_'_ as a descriptor of 'reduced functional capacity' in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term 'substantially' in the context of reduced functional capacity carries a 'high threshold'. That decision has not been appealed and has in fact been adopted in this Tribunal.[32]
5. My view of a 'high threshold' for reduced functional capacity remains unchanged.
6. The Tribunal's consideration of Mr Brassington's functional capacity relates specifically to his 'daily life activities'. Relevantly, the Access Guidelines state as follows:

You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities. > > ................ > > Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.

1. The Operational Guidelines describe communication as follows:

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

2. At the hearing Mr Brassington gave oral evidence in relation to his history of treatment including surgery for his back, his ongoing physical symptoms, his ongoing low mood and lack of motivation and the various advice he had received from a variety of doctors over some years. He was clearly able to explain his history of illness, various treatments and therapies including outcomes.
3. Throughout the hearing process Mr Brassington was independent with his verbal communication. His communication throughout the hearing was clear and entirely comprehendible. I found him to be articulate and intelligent. He was also open and honest in the provision of his evidence.
4. Insofar as is relevant to his ability to undertake the activity of communication, Mr Brassington provided the following oral evidence:
   • He lives with his wife and converses with her on a daily basis;
   • He can talk on the telephone;
   • He can make and receive telephone calls;
   • He can receive and send both text messages and emails;
   • He is able to use Facebook, if he chooses to communicate;
   • He is able to discuss health concerns with a doctor;
   • He enjoys the company of visitors to his home and conversing with them;
   • He receives telephone calls from time to time, from various friends seeking assistance from him. He is able to converse with them and assist them with complex problems based on his professional experience and qualifications and also his knowledge of boating.
5. In her report Ms Pizzica reported that Mr Brassington was:
   • Able to engage in conversations regarding his health and treatment. She described Mr Brassington's comprehension as 'excellent';
   • Able to use a mobile to make and receive calls, also to text;
   • In all respects, independent in his communication and effectively able to engage in verbal and written communication, managing all interactions without assistance.
6. Ms Pizzica stated in her report, '.....there is no reduction in Mr. Brassington's functional capacity for communication. He is able to effectively express his needs, wants, and ideas through speech and gestures, and he demonstrates clear understanding when interacting with others. There are no observed barriers to his communication abilities.'[33]
7. In Madelaine v National Disability Insurance Agency ('Madelaine') the Tribunal considered 'communication functionally' in respect of an earlier (and not dissimilar) version of the Agency's Operational Guidelines.[34] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on'. (Tribunal emphasis)

1. I am satisfied, based on the evidence, that Mr Brassington's functional capacity to communicate, is not substantially reduced. He is able to effectively engage in the expressive and receptive language tasks that form the bundle of tasks within the activity of communication.[35] These tasks include the ability to communicate both orally and using technology such as a mobile phone and a computer. He is able to express his opinions, views and concerns to other persons, including medical practitioners and allied health professionals. He is able to discuss with other people problems that they may have.

1. The Operational Guidelines describe social interaction as follows:

Socialising - how you make and keep friends or interact with the community...We also look at your behaviour, and how you cope with feelings and emotions in social situations.

1. In Madelaine the Tribunal held, 'The criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills.'[36]
2. In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[37]

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

3. In Ghezzaoui and NDIA[38] the Tribunal also made the observation that this 'domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.'
4. In more recent times Mr Brassington and his wife have relocated from Canberra to Queensland. He stated that he has not made any friends in Queensland and that he avoids socialising as much as possible.[39]
5. Mr Brassington's evidence is that he has friends in NSW who visit him occasionally, that on weekends he and his wife access the community together for walks, coffee and to visit a boat club. He also has regular contact with his adult children by telephone.
6. In his oral evidence Mr Brassington expanded his evidence and referred to the following:
   • He leaves his home two or three times each week to access the community;
   • He and his wife attend a local boat club for a meal or a coffee on a regular basis;
   • He speaks with his children and other friends on the telephone;
   • He enjoys playing solitaire on his computer;
   • He receives visitors to his home generally once a month;
   • He and his wife recently enjoyed a meal at a restaurant with friends;
   • He is able to take a holiday and in August 2025 travelled to Wollongong with his wife to visit family members.
7. Ms Pizzica's opinion is that Mr Brassington:
   • Is independent in managing interpersonal relationships;
   • Maintains regular contact with family and friends;
   • Is able to engage in social interaction as needed without assistance;
   • Engages in social activities as he chooses, without requiring assistance;
   • Participates in family life and maintains strong relationships with his immediate family members;
   • Has a friendly and personable demeanour;
   • Does not require any assistance to interact with others in social situations.[40]
8. As stated in Madelaine the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am therefore satisfied that whilst Mr Brassington no longer socialises to the same extent as he did previously when he was able to lead a more active lifestyle, he does still have the personal skills to interact socially with other people.

1. I am satisfied based on the evidence that Mr Brassington's functional capacity to interact socially is not substantially reduced. I am satisfied that Mr Brassington has the personal skills to undertake the tasks associated with social interaction. This includes the ability to engage with his family and friends and also to maintain meaningful relationships. He also has the ability to access the community for social interaction and enjoys doing so.

1. The Operational Guidelines describe learning as follows:

Learning - how you learn, understand and remember new things, and practise and use new skills

1. In Madelaine the activity of learning was explained as having the cognitive capacity to absorb and apply new skills. Furthermore, that the activity of learning should not be confused with higher order issues.[41]
2. Mr Brassington reports difficulties in concentrating and as a result he no longer reads for pleasure. In his oral evidence Mr Brassington referred to the following matters:
   • He enjoys keeping up with the news and the weather;
   • He enjoys doing research on his computer.
3. Ms Pizzica's opinion is that Mr Brassington does not have any reduction in his functional capacity for learning. Ms Pizzica referred to Mr Brassington being capable of the following tasks:
   • checking his emails and reading the news in the morning;
   • the ability to engage in activities such as solitaire, thereby demonstrating an ability to focus, learn and maintain his cognitive function;
   • learn new material or skills.
4. Ms Pizzica described Mr Brassington as having excellent comprehension and demonstrating a strong ability to recall details accurately. Ms Pizzica stated:

He is a reliable historian, maintaining clear recollection of important information such as the names of his doctors, dates of surgeries, and key events in his medical history. His attention and concentration appear intact, as he can focus on relevant tasks and recall specific details without difficulty. There are no notable concerns regarding his memory, literacy, or numeracy skills. His executive functioning, including reasoning, decision-making, planning, problem-solving, and judgment, seems to be preserved, as evidenced by his ability to manage his daily activities and engage in conversations regarding his health and treatment.[42]

1. I am satisfied based on the evidence that Mr Brassington's functional capacity for learning is not substantially reduced. I am satisfied that Mr Brassington has the skills to acquire and understand new knowledge and also to understand complex problems posed to him by friends seeking help. He has no problems with retention of information, including remembering things such as news and world events.

1. The Operational Guidelines describe mobility as follows:

Mobility, or moving around - how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.

2. In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are 'relatively modest' stating that:[43]

A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move. > > The use of the phrase move around ... to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park - the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport. > > No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.

3. In his oral evidence Mr Brassington referred to the following:
   • He is able to mobilise around his home for the early part of the day;
   • By mid-afternoon he relies on his single point walking stick for stability;
   • When accessing the community he uses crutches for stability and to avoid falling;
   • He is able to mobilise to shower and toilet himself independently. This includes the ability to use his arms to soap his body and shampoo his hair;
   • He can collect his mail from his letterbox, relying on his walking stick;
   • He is able to undertake seating to standing transfers independently;
   • He can load and unload a dishwasher using the bench for support;
   • He is able to mobilise to make himself a cup of tea, fill his own water bottle, reheat food, retrieve a leftover meal from the refrigerator and make himself a bowl of cereal;
   • He has a driver's licence and can and does drive a car.
   • Recently he and his wife undertook an approximate 2 day road trip. He was able to share the lesser part of responsibility of the driving with his wife.
4. Mr Brassington is also able to use his arms to dress himself in a seated position.[44] He can also use his arms to operate a laptop.[45]
5. Ms Pizzica's assessment referred to Mr Brassington as being a 'low falls risk' and being capable of the following tasks:
   • Getting in and out of bed independently using an adjustable electric bed;
   • Dressing himself whilst seated;
   • Mobilising in his home without a walking stick during the day but being reliant on a walking stick by the evening;
   • Showering independently;
   • Mobilising in his kitchen to prepare a meal;
   • Driving for approximately two hours without needing a break;
   • Sitting as a passenger in a motor vehicle for lengthy periods of time;
   • Transfer independently on and off the couch, bed, toilet using a walking stick for stability;
   • Lifting a half-full kettle of water;
   • Mobilising independently up and down stairs.

1. I am satisfied based on the evidence that Mr Brassington's functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced. He is clearly able to engage in the tasks associated with moving around and within his home and his community. He is also able to engage in the tasks associated with transfers in and out of his bed and lounge chairs. He is also able to engage in the tasks associated with mobilising for the purposes of his self-care including showering, toileting, meals and dressing himself.

1. The Operational Guidelines describe self-care as follows:

Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

1. In Madelaine the Tribunal stated: 'having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one's capacity to maintain personal health, safety and well-being'[46] (Tribunal emphasis)
2. In his oral evidence Mr Brassington advised that his wife assists with cutting his toenails. Notwithstanding he referred to the following functional capacities:
   • He can make himself a cup of tea and fill his water bottle;
   • He can shower independently using a long-handled shower brush;
   • He can shower without using a shower chair;
   • He can independently access and use soap and shampoo when showering;
   • He can cook a meal, such as a roast dinner approximately twice each week;
   • He can toilet independently and shave himself;
   • When hungry he can prepare snacks for himself, retrieve leftovers from the refrigerator and make a bowl of cereal;
   • He is generally capable of looking after himself when his wife is not in their home.
3. Mr Brassington takes medications which he manages himself. He requires assistance from his wife to don and doff his shoes, also to cut his toenails.
4. Ms Pizzica's assessment referred to Mr Brassington's difficulties in donning and doffing footwear. Ms Pizzica however referred to Mr Brassington being capable of the following tasks:
   • Making a cup of tea and filling his water bottle;
   • Showering independently without a shower chair and using a long-handled shower brush;
   • Cook a meal;
   • Brush his hair and teeth independently;
   • Toilet independently;
   • Dress independently in a seated position, albeit more slowly;
   • Manages medications when he is required to do so;
   • Groom his hair;
   • Undertake small cleaning tasks such as wiping a benchtop.

1. I am satisfied based on the evidence that Mr Brassington's functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced. Mr Brassington is able to undertake a range of tasks in respect of his personal hygiene, grooming, eating and drinking. He is also able to manage independently his health care.

1. The Operational Guidelines describe self-management as follows:

Self-management - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-today tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

1. In his oral evidence Mr Brassington referred to the following:
   • He is able to and does pay the bills;
   • He is capable of online shopping;
   • He can access online banking on his computer.
2. Mr Brassington's wife reports that the Applicant's memory is failing and most mornings he is disoriented and loses his way around the house. Ms Pizzica however reported that Mr Brassington is oriented to time and place and his comprehension is excellent. Further there are no notable concerns with his executive functioning.
3. In her report Ms Pizzica also referred to Mr Brassington being capable of the following tasks:
   • Self-managing his ongoing medical and allied health needs;
   • Making personal decisions independently and demonstrating sound judgment when discussing his daily routines, medical history and preference regarding support and mobility aids;
   • Managing his own schedule, organising and attending appointments independently;
   • Making appropriate decisions regarding his care and daily routines;
   • 'Plan' and follow through with necessary actions.

1. I am satisfied based on the evidence that Mr Brassington's functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced. Mr Brassington is able to undertake a range of tasks in respect of his personal organisation and planning, personal decision making including in relation to his health, self-care, problem solving and also his financial management.[47]

Conclusion - subsection 24(1)(c) of the NDIS Act

1. Mr Brassington does not appreciate that the satisfaction of the threshold for a 'substantially reduced functional capacity' in the activity areas of subsection 24(1)(c) of the NDIS Act equates to a level of functional capacity which is significantly lower than his current level of functional capacity. The fact that his current level of functional capacity is lower than the level he once enjoyed does not of itself establish that he meets this threshold.
2. Subsection 24(1)(c) of the NDIS Act is not satisfied.
3. Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 24(1) of the NDIS Act. Mr Brassington does not meet the disability requirements.

Section 25 NDIS Act: The Early Intervention Requirements

1. Mr Brassington contends as a broad submission that he satisfies the early intervention requirements of section 25 of the NDIS Act.
2. Mr Brassington's evidence is that he seeks assistance in 'around the house' with cleaning, lawn mowing and gardening. He also seeks transport to appointments for physiotherapy and psychological therapy.
3. The Agency submits that given Mr Brassington's age and the longstanding nature of his impairments, any supports now provided could not be considered 'early' in nature or reduce his future support needs for the purposes of subsection 25(1)(b) of the NDIS Act.[48]
4. The Agency's submission is accepted. I am not satisfied that the provision of early intervention supports for Mr Brassington is likely to reduce his future needs for support for the purposes of subsection 25(1)(b) of the NDIS Act.
5. The Agency also submits that the supports sought by Mr Brassington are not most appropriately funded under the scheme. Instead, they are most appropriately provided through other general systems of service delivery or support services for the purposes of subsection 25(3) of the NDIS Act. In this regard the Agency refers to supports being available to Mr Brassington:
   • Through My Aged Care;
   • A pain management service through the public health care system;
   • His pharmaceutical benefit card.
6. This submission is also accepted and Mr Brassington fails to meet the requirements of subsection 25(3) of the NDIS Act.
7. As stated, the early intervention requirements in section 25 of the NDIS Act are cumulative. Having determined that subsection 25(1)(b) and subsection 25(3) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under Section 25 of the NDIS Act. Mr Brassington does not meet the early intervention requirements.

1. Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements Mr Brassington does not meet the access criteria will not be granted access to the scheme.

1. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).

1. I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

[3] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

[4] National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [19].

[5] Subsection 21(1)(a) of the NDIS Act, A3 at [15].

[6] Subsection 21(1)(b) of the NDIS Act, A3 at [15].

[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [62], National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [40].

[8] National Disability Insurance Agency, Applying to the NDIS (Web page, 16 July 2025)

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

[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].

[11] G v Minister for Immigration and Border Protection [2018] FCA 1229.

[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].

[14] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].

[20] T3, T5, T23, T24, T25, T28, T36, T38, T39, T40, C30.

[22] Rooney and National Disability Insurance Agency [2021] AATA 3523.

[28] NDI v Lampard [2-25] FCAFC 139 at [51].

[31] Garcia Albiol v NDIA [2024] AATA 496.

[32] Moxham v CEO,NDIA [2025] ARTA 290_; Foster v NDIA_ [2025] ARTA 718_; TZQP v CEO, NDIA_ [2025] ARTA 839_; Coffey v CEO, NDIA_ [2025] ARTA 634_; Burrows v CEO,NDIA_ [2025] ARTA 607_; BFYK v NDIA [2025] ARTA 1006; KNNW v NDIA_ [2025] ARTA 1033_; Foster v NDIA_ [2025] ARTA 718_._

[34] Madelaine v National Disability Insurance Agency [2020] AATA 4025 at [79].

[35] Burrows v NDIA [2025] ARTA 697 at 87.

[37] Kilgallin and NDIA [2017] AATA 186 at [18].

[38] 2023] AATA 2835, [79].

[39] Applicant's statement of lived experience.