Caraccia and National Disability Insurance Agency (NDIS) [2025] ARTA 2637 | Case summary

Respondent: NATIONAL DISABILITY INSURANCE AGENCY

Caraccia and National Disability Insurance Agency (NDIS) [2025] ARTA 2637 | Case summary | Zoe

[24]

The development of the Scheme proceeded on the basis of a report of the Productivity Commission inquiry into disability care and support in Australia.[2]
In instituting the recommendations from the Productivity Commission's report, parliament sought to provide a Scheme which recognised the rights of persons with a disability to self-determination, dignity and the opportunity to live independently as fully participating citizens. This goal was to be balanced by the need to maintain the financial sustainability of the Scheme.[3]
The NDIS Act provided for the Agency whose role was to manage the Scheme and to:
1. Provide general services in the form of co-ordination, strategic or referral services or activities for people with a disability generally;[4]
2. Provide funding for persons or entities to enable them to assist people with a disability generally by way of information, building community capacity or by helping people to participate in economic or social life;[5]
3. Assist in developing the disability sector by facilitating innovation, research and best practice standards and to assist in building community awareness about disabilities;[6] and
4. Create individual plans providing funding for reasonable and necessary supports for those persons who meet the access criteria to become full participants in the Scheme.[7]
The Scheme was not intended to provide individualised plans and funding for reasonable and necessary supports to all persons with a disability. Instead, prospective participants must make an access request and only if the CEO was satisfied the prospective participant met the access requirements in sections 21 to 25 of the NDIS Act, would they become a Scheme participant.
The statutory provisions relevant to this review are:
1. the National Disability Insurance Scheme Act 2013 ('the NDIS Act') (as in place prior to 3 October 2024); and
2. the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Sections 27 and 209 of the NDIS Act for the purposes of section 24 and 25 of the NDIS Act**.**
The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines ('the Access Guidelines').
The Tribunal is not bound to follow the Access Guidelines and will not do so where they are inconsistent with the NDIS Act.
However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[8] Brennan J held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation and does not lead to an unjust decision in the circumstances of a particular case. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.
With the passage of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 amendments were made to the NDIS Act, including to sections 24 and 25 of the NDIS Act which address access issues_._ This amending act commenced on 3 October 2024 and included transitional provisions applying to matters already on foot. Item 126 of Schedule 1 provided that amendments made to sections 24 and 25 of the NDIS Act only apply to applications made after 3 October 2024.
As Ms Caraccia's application was made before 3 October 2024 the amendments will not apply to this application.
Subitem 126(3) also provides that the Access Rules as in force prior to the amendments will continue to apply to this application.

[52]

The decision under review advised Ms Caraccia that in the delegate's view she did not meet the disability requirements for access to the Scheme because:
1. Ms Caraccia's physical impairment attributable to lympoedema and her psychosocial impairment attributable to chronic anxiety and depression were not permanent. (s24(1)(b)) The delegate was not satisfied that all available treatments had yet been exhausted.
2. The impairments present did not result in substantially reduced functional capacity (s24(1)(c));
3. The impairments did not affect Ms Caraccia's capacity for social or economic participation (s24(1)(d)); and
4. The delegate noted that the NDIS is not responsible for gaps in other government services. In their view the necessary treatment for Ms Caraccia's conditions were most appropriately funded by the Health System (s24(1)(e)).
In their Statement of Facts, Issues and Contentions (SFIC) issued just before hearing, the respondent conceded that Ms Caraccia had a physical impairment attributable to lymphoedema which was permanent and likely affected her capacity for economic participation (ss24(1)(a), (b) and (d) of the NDIS Act).
However, the respondent maintained their view that there was insufficient evidence available for the Tribunal to be satisfied;
1. Ms Caraccia's psychosocial impairments were permanent; or
2. that her impairments substantially reduced her functional capacity to undertake any of the nominated six activities in section 24; or
3. that Ms Caraccia's circumstances met the early intervention criteria.
The issues before the Tribunal then include:
1. What are Ms Caraccia' impairments? (s24(1)(a));
2. Whether Ms Caraccia's impairments are permanent or not (s24(1)(b));
3. Whether any permanent impairments result in substantially reduced functional capacity to undertake relevant activities (s24(1)(c)); and
4. Whether Ms Caraccia is likely to require support under the NDIS for her lifetime (s24(1)(e)).
5. Whether Ms Caraccia's circumstances meet the early intervention criteria (s25).

[55]

The primary consideration for access requests, therefore, is the concept of 'impairment'. It is:
1. the prospective participant's impairment which must be permanent (not the underlying medical condition); and
2. the severity of the impairment's impact on function which will determine whether the prospective participant may be eligible for access to the Scheme or not.
As discussed previously, an impairment is generally understood to involve 'the loss of or damage to a physical, sensory or mental function'.[21] This concept has been included in this form in the Access Guidelines.
Rule 5.4 of the Access Rules sets out matters to be considered in determining whether an identified impairment is permanent. Rule 5.4 provides that an impairment 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.'
In the matter of Davis v National Disability Insurance Agency (Davis)[22] Mortimer J considered that 'permanent', as used in the Act, should be understood to mean 'enduring', rather than 'irreversible' or 'longstanding'. In that context, to 'remedy' an impairment, should be understood to mean something approaching a removal or cure of the impairment, not just relief or improvement.[23]
In making a finding in relation to any particular matter before it, the Tribunal must reach the necessary degree of satisfaction on the basis of the evidence before it. While neither party bears any formal onus of proof in such a matter, each realistically does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it of that party's position.[24]
If there is insufficient evidence available about a particular issue, this will limit the Tribunal's ability to be satisfied to the requisite degree.
I will consider each of Ms Caraccia's medical conditions with a view to addressing the nature and permanency of any resulting impairment on her function.

[57]

It was Ms Caraccia's evidence to the Tribunal[25] that symptoms of lymphoedema commenced shortly after she underwent a surgical hysterectomy in 2014. She stated that following the operation her legs 'ballooned out' and were so tight she could barely walk. Her legs were sore to touch and she was embarrassed to go out in public because of their size. Her mobility was very limited by the size and discomfort of her legs.
Both her usual GP and her surgeon just dismissed the condition as 'fluid retention' and prescribed medication which helped marginally. About 18 months later, however, a different GP took one look at her and diagnosed lymphoedema. It was that doctor's advice to Ms Caraccia that although there was no cure for the condition it could be managed by regular lymph drainage massage.
Ms Caraccia was referred to Professor Neil Pillar, lymphologist and director of Lymphoedeme Clinical Research, who referred her for lymphatic drainage massage and advised her to engage in walking and water therapy. Ms Caraccia has been compliant with all treatment recommendations, attending three different massage sessions a week, walking on a daily basis and utilising her therapy pool whenever she can. She states that the expense of these treatments puts an enormous strain on the family budget and precludes her from any additional treatment. She does obtain benefit from the massages but the lymphatic fluid builds up again quite quickly.
Ms Caraccia explained that as a result of physical impairments attributable to her lymphoedema, she is unable to undertake any low-level activities, such as gardening or cleaning the shower floor or her skirting boards. She is unable to kneel and has difficulty using stairs or walking on uneven ground due to the small amount of foot clearance she can manage with each step. Her mobility is limited, particularly just prior to treatments when her legs become very swollen and heavy. Fatigue is a significant issue for her and she must pace activities to allow for elevation of her legs throughout the day. Failure to do so exacerbates her condition.
The treating medical report dated 20 November 2023 completed by Dr Nwachuku, GP, confirmed the diagnosis of lymphoedema and that the condition would be managed by twice weekly lymphatic massage for the rest of Ms Caraccia's life. This condition was noted to impair Ms Caraccia's mobility, self-care and socialising. Ms Caraccia was noted to also utilise compression stockings.[26]
Ms Alford, massage therapist, attended the hearing to assist the Tribunal. Ms Alford is a remedial massage therapist with a diploma of remedial massage. This qualifies her to undertake deep tissue massage, trigger point work, myofascial work and lymphatic drainage. She has also undertaken further study covering a number of other treatment modalities. She has over 7 years of experience in this field.
Ms Alford explained to the Tribunal that lymphoedema occurs when there is a blockage in the lymphatic system. This can be caused either by damage to lymph nodes, or surgical removal of lymph nodes, and results in a build-up of fluids in tissue. Lymphatic massage assists by manually moving the excess fluid to parts of the lymphatic pathway that are still working. This stimulates or allows those systems to do what they are intended to do and to drain the fluid away.
Unfortunately, this treatment provides only a temporary relief of the condition, as the damaged lymph node will continue to cause the fluid build-up as soon as treatment has concluded. There is, as yet, no cure for the condition.
Ms Alford explained that for severe lymphoedema cases, such as Ms Caraccia's, the recommendation for treatment is at least three times a week. She acknowledged that this can be very expensive.
It was Ms Alford's evidence that in between treatments she recommends clients undertake some self-drainage techniques, wearing compression stockings, walking on a daily basis and doing exercises in a pool. Ms Alford's experience is that Ms Caraccia is very proactive with her treatment and home exercises.
In the report of Ms Kate Smith, occupational therapist, Ms Smith noted that Ms Caraccia has consulted with a lymphoedema specialist and has been advised that alternative treatment options which are available (such as vacsularised lymph node transfer, lymphaticovenous anastomoses, and suction-assisted protein lipectomy) are not suitable in her circumstance.[27]
Having considered the evidence before the Tribunal I am satisfied and I find that Ms Caraccia has a physical impairment attributable to the condition of lymphoedema. I am further satisfied that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. Ongoing treatment will be required but this is to manage the condition rather than in hope of a cure.
I find the disability criteria in section 24(1)(a) and (b) are met for this impairment.

[58]

Ms Caraccia was referred to Dr Neha Mahajan, clinical psychologist in or about 2014 and commenced seeing her in December 2014. Although Dr Mahajan's letter dated 18 August 2020[28] stated Ms Caraccia commenced treatment for 'weight management' it is clear that the weight issues Ms Caraccia was facing at that time arose largely from her undiagnosed and untreated lymphoedema. Dr Mahajan unsurprisingly records that despite Ms Caraccia's best efforts her weight did not improve. This would not have been possible until Ms Caraccia commenced lymphatic massage.
Over time Ms Caraccia was noted to have developed symptoms consistent with depression and anxiety. Treatment had involved cognitive behaviour therapy, mindfulness and acceptance and commitment therapy. Dr Mahajan noted that although these modalities had helped with stability, there had not been any long term clinically significant gains made.[29]
In her oral evidence to the Tribunal Dr Mahajan noted that she had continued to see Ms Caraccia (and sometimes Mr Johns, her husband) intermittently, but that the costs of treatment had been a barrier. Ms Caraccia would understandably have to prioritise treatment of her lymphodema over psychological treatment if affording these both clashed.
Dr Mahajan expressed the view that there were multiple factors that contributed to Ms Caraccia's chronic depression and anxiety. These included Ms Caraccia's young son's autism diagnosis and difficulties associated with that condition, her husband's own bipolar diagnosis and her own distress in relation to the impact her lymphoedema has had on her self-esteem and life choices. Dr Mahajan also felt that there had been an aspect of post-traumatic stress disorder at an early stage which likely arose because of the adverse outcome experienced as a result of Ms Caraccia's hysterectomy.
Dr Mahajan described her treatment approach with Ms Caraccia as 'eclectic', dealing with whatever crisis was facing the family at the time so that they could continue to function. She was of the view that there were no further treatments likely to make a difference at this point but that occasional sessions may still assist with stress management. Dr Mahajan did not think that there was any need for a referral to a psychiatrist as in her view there was no diagnostic clarification required. For the most part Ms Caraccia managed her situation well.
Ms Caraccia's evidence is that she has been prescribed Lexapro which she takes on an 'as needs' basis when she is experiencing increased stress.
I am satisfied that the evidence before the Tribunal, particularly the new oral evidence from Dr Mahajan, supports a finding that Ms Caraccia has a psychosocial impairment attributable to depression and anxiety. On the basis of Dr Mahajan's evidence, I accept that there are no other available, appropriate and evidence-based treatment options which are likely to remedy this impairment in the manner contemplated by the NDIS Act. Ongoing and intermittent intervention is likely to be required on occasion, but on the evidence will be aimed at management of situational exacerbations rather than in expectation of a cure.
I find Ms Caraccia meets section 24(1)(a) and (b) in relation to her psychosocial impairments.

[60]

Section 24(1)(c) requires that in order to meet the access criteria, a prospective participant's permanent impairments must result in substantially reduced functional capacity to undertake one or more of six identified activities. There is no definition in the NDIS Act in relation to the activities, but the Access Guidelines suggest the following:
1. 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. Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
3. Learning - how you learn, understand and remember new things, and practise and use new skills.
4. Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
5. 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.
6. Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[30]
In Foster and NDIA[31] (Foster 2), SM French expressed the view that it was necessary, in determining whether a substantially reduced functional capacity existed, to regard the bundle of tasks that comprise each activity as 'designated and determinate, rather than infinitely variate and elastic.'
Thus, in the matter of Burrows and CEO, National Disability Insurance Agency[32] SM French gave consideration to what the specific content of the 6 nominated activities might involve. His conclusions reflected his assessment of the wording of the Act, and the expressed government policy reflected in the Access Guidelines. I adopt his categorisation of the bundles of tasks as follows:

[84]

The necessary assessment was not considered to be a comparative exercise, assessing what one person could do against another, but rather a 'functional, practical assessment of what a person can and cannot do'. It is sufficient, for the purposes of the Act, for a person to have substantially reduced functional capacity in relation to one on the identified activities.[34]
In Davis Mortimer J clarified that her use of the term 'high degree of precision' was not intended to imply that there was a higher standard of proof or satisfaction required of the decision-maker, rather that the task was specific and required the decision-maker to consider all the matters set out in the NDIS Act.[35]
In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the Full Court held that it was not sufficient that a person had difficulty with only one or two tasks that comprise a part of the activity, but rather the focus should be on whether they were unable to manage the whole or majority of the activity. The fact that a person may undertake an activity in a different manner to others, or more slowly, did not constitute an inability.[36]
In Garcia Albiol and NDIA (Albiol)[37] Senior Member Collins reflected that 'substantially reduced function' had a high threshold in the context of the Scheme given the NDIS was not intended to provide customised supports to everyone with a disability.[38]
Rule 5.8 of the Access Rules specifically addresses the issue of when an impairment may result in substantially reduced functional capacity to undertake relevant activities. In Mulligan, these were considered 'deeming provisions', such that if a prospective participant met the criteria in Rules 5.8(a), (b) or (c), the effect would be to mandatorily include them in the category of persons with substantially reduced functional capacity.[39] A shortcut to access.
However, that is not the end of the task. Consideration of the section 24(1)(c) criterion must be completed in two stages:
1. Firstly the Tribunal must consider whether the prospective participant's circumstances are captured by the deeming provisions in the Access Rules; and
2. Secondly, if the deeming provisions do not apply, the Tribunal must consider if the prospective participant has a substantially reduced functional capacity outside of those provisions. [40]
Rule 5.8 provides that:

[93]

The bundle of tasks in this activity is limited to tasks associated with making and keeping friends interacting with the community and managing emotions in social settings in acceptable ways.
In the Full Federal Court decision of NDIA v Lampard[43] the Court agreed with the reasoning of SM French in Foster and NDIA[44] to the extent that he found the section 24(1)(c) disability requirement was distinct from and did not overlap with the section 24(1)(d) disability requirement. Instead, the s24(1)(c) requirement should be seen as 'concerned with the prospective participant's functional capacity to undertake' the nominated activities (ie what they can and cannot do) rather than whether they choose to undertake the activities or not.
It was Ms Caraccia's evidence to the Tribunal that she does not like to go out socially or out in public much because she feels self-conscious about the appearance of her legs. She stated that she had been subject to unkind and judgemental comments in the past, including from strangers. She worries about her son feeling like he has to defend his mum against such adverse comments and therefore prefers just to socialise with people she trusts.
Ms Caraccia's evidence to the Tribunal was that she does have a small group of good friends and family members who she remains in contact with, both in person and by text. She reported that she and her family have been on holiday with these friends and their family on occasion, and that they will catch up for coffee sometimes. They maintain a group chat to keep in touch in between times.
Ms Caraccia stated that if she has to go to a function with anyone else, she has to mentally prepare herself and never feels comfortable. She will avoid these situations if possible. She noted that she was a lot less patient socially than she used to be, but that she is still able to be appropriate if she has to. She gave an example of choosing not to engage with an inappropriate stranger so as not to cause distress to her son.
It was the oral evidence of Dr Mahajan that Ms Caraccia has substantial capacity to be able to go out in social situations and interact socially, but that she has difficulty because of the interaction between the symptoms of her lymphoedema and her mental health issues (including her perception of her body and how she thinks others perceive her). This causes Ms Caraccia to be reluctant to engage socially. Ms Caraccia has had difficulty applying cognitive behavioural techniques to these situations.
Having regard to the evidence before the Tribunal, I accept that the combination of Ms Caraccia's impairments impact on her enjoyment of social interactions and therefore impair her willingness to engage in these occasions. However, I am not satisfied that the evidence establishes Ms Caraccia has an impaired capacity for social interaction, either by way of the deeming provisions or otherwise, once she has decided to engage. I therefore find that Ms Caraccia does not meet the s24(1)(c) criterion in relation to the activity of social interaction.

[94]

The bundle of tasks within the learning activity is limited to acquiring knowledge, skills or understanding and application of memory.
Ms Caraccia did not contend that she had impaired capacity to learn, although she did acknowledge that if she were having an exacerbation of her depression, she can experience more negative thought patterns that interfere with her problem solving and memory.
It was Dr Mahajan's oral evidence to the Tribunal that when she was teaching Ms Caraccia strategies to manage negative thoughts or difficult situations, she was confident that Ms Caraccia had no difficulty in understanding the concepts she was being taught. The difficulty arose, instead, in the application of those concepts in the moment when distress may be high.
Ms Caraccia also gave the Tribunal an example in which, when building the family's new home, she had researched and designed steps with her physical capacity in mind, such that these steps were built with a small rise and long tread, to enable her to manage them safely. She noted the builder had subsequently utilised that design in other homes.
Ms Caraccia also gave evidence that she undertook basic bookkeeping for her husband's business, requiring her to learn the use of account keeping software.
Ms Smith, in her functional capacity assessment, recorded that Ms Caraccia found stress and fatigue caused 'brain fog' which impacted her working memory. In that circumstance Ms Caraccia had to rely on aids (such as the calendar on her phone or notes on her fridge) to remember important information, or on prompts from her family (such as text messages to remind her about birthdays)[45].
It was Ms Caraccia's evidence that if she were having a bad day, when her legs were troubling her and her mood was low, she may have difficulty with problem solving. This was intermittent however and she usually managed daily activities by planning ahead.
On balance I find the evidence demonstrates Ms Caraccia does not have a substantially reduced functional capacity to undertake the activity of learning, either due to the deeming provisions or otherwise.

[95]

The bundle of tasks associated with the mobility activity is limited to tasks associated with moving around the home, and in the community, and getting in and out of bed or a chair.
It was Ms Alford's oral evidence to the Tribunal that lymphoedema results in the buildup of lymphatic fluid in affected limbs. In Ms Caraccia's situation both lower limbs are affected, with the result that her legs become very swollen and heavy.
Ms Smith in her functional capacity assessment reported that Ms Caraccia continued to experience significant swelling in both limbs. The degree of swelling varied according to factors such as the length of time since a massage treatment, how long since she has sat with her legs elevated and even according to weather variations.[46]
In 2019, while still in the process of getting her lymphoedema to a manageable level Ms Caraccia developed a severe case of cellulitis for which amputation was considered. Her legs bear the scars from this incident.[47]
Ms Smith reported markedly restricted range of motion in Ms Caraccia's lower joints as a result of swelling, tissue changes and the sheer weight of her fluid loaded limbs. Range of movement improved when the impact of gravity was removed. Ms Caraccia was reported to have to pace her activities throughout the day to ensure that she has sufficient time to elevate her legs. Ms Caraccia is unable to squat or kneel.[48]
Based on Ms Caraccia's evidence Ms Smith reported that Ms Caraccia could walk up to 2.6km on flat ground but that she was a constant falls risk due to her limited foot clearance while walking. Ms Caraccia was noted to hitch through her hips to gain additional foot clearance from the ground. Limited foot clearance is due to Ms Caraccia's difficulty in lifting the weight of her fluid loaded legs and makes use of steps very difficult.[49]
Ms Smith reports that Ms Caraccia is able to transfer independently and is able to drive. She is able to mobilise around her home without assistance and generally without the use of mobility aids.
Ms Caraccia does not generally require the assistance of another person nor any assistive technology in order to mobilise but has, on occasion, required the use of a walking stick, particularly when her left leg flared up.
In her oral evidence to the Tribunal Ms Smith particularly wished the Tribunal to understand the impact of Ms Caraccia's need to pace her activities through the day on the volume of activities she could complete in the day. This need for pacing arose because of the need to spend time elevating her lower limbs and because of the impact of fatigue. It was essential for Ms Caraccia to mobilise as the muscle contractions assist in moving the fluid around, but at times this may create more swelling. This was demonstrated in Ms Smith's assessment with measurements pre and post assessment indicating a significant increase in swelling of the legs. The accumulation of fluid significantly increases the weight of Ms Caraccia's legs, but her muscle size is not increased. As such it requires more effort to lift her legs, leading to increased fatigue. Ms Caraccia was reported to need regular breaks during the assessment.
Ms Smith also clarified that while Ms Caraccia has been recorded as being able to transfer on and off the sofa or the toilet, the manner in which this was accomplished was at times not safe. For example, Ms Caraccia was observed to 'fall' onto the sofa rather than lower herself in a controlled manner. Rising from the toilet seat, Ms Caraccia was noted to use the walls to pull herself up. It was noted that Ms Caraccia does not sleep in her bed, preferring to sleep in her lounge chair.
In Madelaine and NDIA[50] DP Humphries referred to the description of functional capacity to mobilise in the Access Guideline which is described as follows:

[97]

He noted that these threshold requirements to achieve functional capacity were relatively modest and opined that a person who could travel 50m by themselves was likely to have the capacity to do the things referred to in the Access Guideline. Ms Caraccia is able to mobilise much further than this.
I have considered the NDIS Act and the fact that the Scheme was not intended to provide funded supports to all persons with a disability. I am satisfied I can consider these Guidelines reflect the legislative intention of the Act as well as the policy position.
I accept that Ms Caraccia's life is made infinitely more difficult by the physical impairment she experiences attributable to her lower limb lymphoedema. I accept that her function is significantly impaired in comparison to her function prior to the lymphoedema. That she functions as well as she does is a credit to her stoicism and determination to do all that she can to reduce the impact of her condition on herself and her family. I acknowledge the care she has taken to maximise her capacity, such as installing manageable stairs in her home, concreting the driveway to remove uneven trip hazards and installing a mineral pool to allow her to do home hydrotherapy exercises. Ms Caraccia has lost employment as a result of not being able to elevate her legs at work or to work reduced hours. As part of this she has lost part of her self-view as someone who contributes to the family financially. Mr Johns, Ms Caraccia's husband, described the impact of the lymphoedema on his wife as enormous. He noted she had previously been so active and now was simply unable to be. I acknowledge and accept that this properly reflects the family's experience.
Despite this, I must apply the legislation in the manner intended by parliament. The threshold for functional capacity with regards to mobility is relatively modest and on the basis of the evidence before the Tribunal I am unable to find that Ms Caraccia's physical impairment creates a substantially reduced functional capacity in the activity of mobility.
I find the use of a walking stick on occasion does not enliven the deeming provisions; partly because it is not always required and partly because a walking stick must be considered a commonly used item.
On the basis of the above evidence (and aside from the deeming provisions) Ms Caraccia's capacity for mobility is not substantially reduced as contemplated by the NDIS Act.
I find that the disability requirement in section 24(1)(c) is not met for the activity of mobility.

Caraccia and National Disability Insurance Agency (NDIS) [2025] ARTA 2637 (11 December 2025)

At a glance

Court

Decision date

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Judgment (127 paragraphs)

Caraccia and National Disability Insurance Agency (NDIS) [2025] ARTA 2637 (11 December 2025)

Legislation Cited (4)