1. On 19 August 2020 the TAC advised the Applicant that it had determined to deny further funding of home services for the Applicant. The Applicant sought an 'Informal Review' of that decision. On 24 August 2021, the TAC advised the Applicant that the decision to deny home services had been altered and that:

...the TAC agrees to fund 2 hours of home services a fortnight at standard TAC rates to support you in completing cleaning tasks that you are unable to complete due to your transport accident injuries.[2]

1. On 24 March 2021 the TAC advised the Applicant that it was unable to pay his physiotherapy and chiropractic treatments from 30 March 2021 and would fund 10 further services of osteopathic treatment from 30 March 2021 to 30 March 2022.[3] On 24 August 2021the Applicant sought an 'Informal Review' of that decision. On 17 May 2022, the Applicant was advised that:

From the evidence on your TAC claims file, it appears that further physical therapy treatment is unlikely to improve your shoulder, head and chest injuries or have any further benefit for you in relation to your transport accident related injuries. As a result, I am unable to change the TAC's decision of 24 March 2021 in relation to physical therapies.[4]

1. The Applicant applied for access to the National Disability Insurance Scheme (NDIS). The Applicant became a participant of the NDIS on 8 March 2022 as a result of impairments arising from his TBI.[5]

1. On 3 April 2023, a delegate of the Respondent approved a Statement of Participant Supports (SOPS) (the original decision) and a NDIS plan was in effect from 3 April 2023 until 2 April 2024.[6] On 3 July 2023, the Applicant submitted a request for internal review of the original decision.[7] The supports requested by the Applicant were:
   • 1 hour per week x 52 weeks of osteopath, and
   • 1 hour per week x 52 weeks of physiotherapy, and
   • 1 hour per week x 52 weeks of exercise physiology, and
   • 4 hours per week of assistance with daily living.[8]

1. On 1 September 2023, a different delegate of the Respondent confirmed the original decision pursuant to s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The delegate determined that by virtue of s34(1)(f) of the NDIS Act, the claimed increased supports were not the responsibility of the NDIS to provide, but rather the responsibility of another service system, namely the TAC (the reviewable decision).[9]
2. On 23 October 2023, the Applicant lodged an application with the Administrative Appeals Tribunal (AAT). The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (the Tribunal) began on 14 October 2024. By virtue of the transitional provisions set out in Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Tribunal has jurisdiction and power to conduct this review.

1. The Tribunal's role in conducting this review has been to reach its own conclusion as to whether the decision of the Respondent's delegate to refuse to approve the Applicant's requested supports in his SOPS is the correct or preferable decision.[10] This involves the independent re-assessment of the evidence that was before the delegate when they made their decision as well as the assessment of the additional documentary and witness evidence that was before the Tribunal at the time of the hearing.[11]
2. Section 34(1) of the NDIS Act provides, relevantly, that for the purposes of specifying the reasonable and necessary supports that will be funded in a SOPS, the CEO must be "satisfied" of each of the matters set out in that section in relation to the funding of each such support. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically.[12] Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the supports in dispute is reasonable and necessary.[13]

1. The hearing was conducted on 4 and 5 December 2025.The Applicant was represented by Ms J Clancy, advocate with Spinal Cord Injuries Australia and the Respondent was represented by Mr P Nolan, counsel.
2. The parties provided to the Tribunal the following evidence and submissions:
   • Respondent's Hearing Tender Bundle (RHTB) pages 1-604.
   • Respondent's statement of facts issues and contentions (RSOFIC) pages 1-18.
   • Applicant's response to the RSOFIC, prepared by his representative, pages 1-12.
   • Report of Catalina Vergen, physiotherapist, dated 23 July 2024, pages 1-2.
   • Bundle of invoices from Peak Flo Physio -Coolangatta Site between 10 May 2024 and 5 July 2024.
   • Access Request Form dated 26 May 2021, pages 1-12.
   • Access Request -Supporting Evidence Form dated 24 May 2021, pages 1-8.
   • Interaction notes dated 19 January 2022, 10 February 2022 and 8 March 2022.
   • Letter to the Applicant dated 8 March 2022, advising that his request to access the NDIS had been successful, pages 1-9.
   • Summary of current plan - 23 August 2024 to 21 February 2026, 1 page.
   • Email from Applicant dated 15 October 2025 outlining his concerns about a witness being called by the Respondent, 1 page.
   • Photos of car after the Applicant's accident x 2.
   • Photos of the Applicant in hospital after the accident x 2.
   • Photos of the Applicant prior to the accident x 2.
   • Applicant's drawing explaining what has happened to his brain after the accident.
   • Applicant's summary of his Freedom of Information requests to Ombudsman, pages 1-2.
   • Applicant's response to the RSOFIC, prepared by the Applicant, pages 1-15.
   • Opening statement of Applicant's representative, pages 1-4.
   • Email to Tribunal dated 24 October 2025, from Applicant's representative objecting to evidence of N Storey, pages 1-4.
   • Clinical Evidence notes of M Vohland, physiotherapist dated 5 December 2025, pages 1-3.
   • TAC Schedule 1 Authorised Rehabilitation Services, pages 1-11.

1. The Respondent contends in its SOFIC at [23]-[24]:

On 3 October 2024, National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Amendment Act) came into effect. The new section 32A of the NDIS Act sets out that there are now two kinds of plans; being 'new framework plans' and 'old framework plans'. The current application relates to an 'old framework plan.'

The Amendment Act amended and inserted several new legislative changes into the NDIS Act. It is the Respondent's position that all material changes to planning provisions applied immediately from commencement of the Amendment Act on 3 October 2024, and as such are to be applied in this matter.

1. Since the application for review has been lodged there have been three variations to the Applicant's SOPS. Each variation was in respect of the plan reassessment date included in the Applicant's approved SOPS. The Tribunal finds that on or about 15 March 2024, 23 August 2024 and 20 February 2025 the reassessment date of the Applicant's plan was varied under s47A(1A)(a) of the NDIS Act. It is upon this basis that the Tribunal has approached the legislation and the operation of transitional provisions in Part 3, Schedule 1 of the Amendment Act.
2. The current period of the Applicant's plan is 23 August 2024 to 21 February 2026. The Tribunal has jurisdiction to consider this plan following the variations by virtue of s 103(2)(c)(i) of the NDIS Act.
3. Section 129(1) of the Amendment Act provides that ss 33, 34 and 35 of the NDIS Act as in force after 3 October 2024, apply to SOPS approved or varied after that date. Section 129(2) of the Amendment Act provides that if a SOPS is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant's plan came into effect before, or on or after commencement.
4. Rules made pursuant to s 138 of the Amendment Act are also engaged. The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (Supports Transitional Rules) are applicable for the purposes of s 10 and s 34(1)(f) of the NDIS Act.
5. The Amendment Act introduced a new s 10 regarding the definition of a NDIS support. Section 10(2) stipulates that for a support to be a NDIS support; the Minister must be satisfied that the support is appropriately funded or provided through the NDIS. The Amendment Act also changed section 34(1) in relation to assessing reasonable and necessary supports. Under the new section 34(1)(f), the support must be a NDIS support for the participant. These changes apply to the Applicant's SOPS and must be considered by the Tribunal.
6. Section 34(1) of the NDIS Act now relevantly states:

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is a NDIS support for the participant.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

1. The plan variations are instrumental in engaging s 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (Miscellaneous Transitional Rules). Section 7(3) of the Miscellaneous Transitional Rules reflects the 'old' section 34(1)(f) provision prior to the Amendment Act and relevantly provides:

The matter of which the CEO must be satisfied is that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or 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. By operation of s 7(4)(a) of the Miscellaneous Transitional Rules, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules) prescribed for the purposes of s 33 and s 34 of the NDIS Act are applicable.[14]
2. The recent Federal Court case of National Disability Insurance Agency v Sutherland [2026] FCA 3 considered an application for access made by Ms Sutherland to the NDIS pursuant to s 24 of the NDIS Act. Ms Sutherland was on an "interim" My Aged Care package, Level 2, pending the determination by the Tribunal of her application for review. Horan J, held at [112]:

The availability of supports outside the NDIS might potentially be relevant when assessing whether the person's impairments result in substantially reduced functional capacity to undertake one or more of the activities set out in s 24(1)(c). Any such support services outside the NDIS may also be taken into account when specifying the general supports that will be provided, and the reasonable and necessary supports that will be funded, in the statement of participant supports under s 34(1). But it is not itself a criterion of access to the NDIS, at least under the disability requirements, that the supports required by the person are not available under any other service system, or that it is more appropriate that such supports are provided or funded under the NDIS rather than another service system.

1. Accordingly, whilst the availability of supports outside the NDIS is not a criterion of access to the NDIS it may be taken into account when specifying the general supports that will be provided, and the reasonable and necessary supports that will be funded, in the statement of participant supports under s 34(1).
2. The Respondent submits that if the Tribunal forms the view that the requested supports are not most appropriately funded by the NDIS, then it is unnecessary for the Tribunal to consider whether the supports are, or might otherwise be, reasonable and necessary under the other criteria in s 34(1) in relation to the circumstances of the individual Applicant.[15] In support of this submission the Respondent relies upon the Santagada and CEO, National Disability Insurance Agency [2025] ARTA 676 at [55].
3. The Tribunal does not consider the issue of whether the requested supports are not most appropriately funded by the NDIS can be determined as a preliminary issue.
4. In Mizzi and National Disability Insurance Agency [2025] ARTA 2155 the Tribunal conducted a detailed analysis of how the National Disability Insurance Scheme (Supports for Participant - Accounting for Compensation) Rules 2013 (Compensation Rules) operate in conjunction with s 34(1) of the NDIS Act and s 7(3) of the Miscellaneous Transitional Rules. At [118] the Tribunal notes:

s 3.5 of the Compensation Rules requires the CEO to reduce funding for reasonable and necessary supports 'that would otherwise be approved.' It is perfectly clear that in order to determine the reasonable and necessary supports that would otherwise be approved, the CEO must be satisfied each of the supports meets each of the criteria in s 34(1) of the NDIS Act and additionally in this case s 7(3) of the Miscellaneous Transitional Rules.

1. In summary, the Tribunal formed the view that it was first required to determine whether the requested supports fall within s 34(1) and then, if they did, it was then required to determine whether the NDIA is the most appropriate system for delivering the support (s 7(3) of the Miscellaneous Transitional Rules).
2. This approach was also accepted by the Tribunal in XNTW and National Disability Insurance Scheme [2023] AATA 759 at [63]:

If a decision maker reaches the conclusion that a support meets the requirements of paragraphs 34(1) (a) to (d) and is otherwise satisfied that the support is a reasonable and necessary support, the last remaining question is who should pay for it or provide it.

1. This approach sits comfortably with the text of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 Explanatory Statement (Explanatory Statement) where it states:

Section 7 [Miscellaneous Transitional Rules] provides an additional requirement for the CEO to be satisfied of in deciding whether a support is reasonable and necessary in accordance with section 34 of the NDIS Act. This relates to a change that will be made by the Amending Act to replace existing paragraph 34(1)(f) with a requirement for a support to be a NDIS support. The change made by section 7 will require the CEO to also be satisfied that the support is appropriately funded or provided by the NDIS.

1. Based on this reasoning, the first issue for the Tribunal to determine is whether the requested supports are reasonable and necessary for the Applicant. If it is, the second issue to be determined is whether the requested supports are most appropriately funded under the NDIS. If it is, the supports must be fully funded by the NDIS. This is the approach the Tribunal will adopt in this case.

1. As stated, on 21 June 2021, after the Applicant's motor vehicle accident that occurred on 27 May 2001, the TAC accepted his claim for reasonable medical and related expenses.[16]
2. On 4 February 2021 a Clinical Panel Consultant Review was conducted in relation to the Applicant's claim for physical therapies. Three consultants (a chiropractor and two neurological physiotherapists) formed part of the review team and a report was prepared. That report states the following:
   • [The Applicant] has received 41 hands on osteopath the services between 23/1/20 and 28/1/21, 100 sessions since 8/11/18 and a total of 684 physical therapy sessions since inception of the claim. The treating Osteopath submitted an AHTRP [Allied health treatment and recovery plan] received 6/1/21 requesting 52 services per year ongoing with no anticipated discharge date for review. The provider was contacted to discuss a reasonable and appropriate treatment plan considering concurrent Physiotherapy and Chiropractic management. At the time of this review, the treater was unable to demonstrate a measurable benefit of treatment, treatment goals are not SMART [Specific, Measurable, Achievable, Realistic and Timely] and [the Applicant] has not progressed to self-management.
   • [The Applicant] is not working with no plans to enter the workforce or retrain and treatment continues to be frequent (weekly) and predominately passive some 19 years and 8 plus months post MVA which does not align with the current high level evidence for the management of [the Applicant's] chronic musculoskeletal conditions.
   • It is likely that [the Applicant] has some level of dependency on passive treatment and has also developed a sense of entitlement after 684 TAC funded services.
   • All providers appear to be addressing the same conditions and therefore management is considered concurrent.
   • It's reasonable and appropriate to take a pragmatic approach and allow [the Applicant] to choose one preferred discipline (Chiro, Osteo or Physio) for up to 10 sessions per annum to deliver these sessions.[17]
   • Claim summary:

1. Based on this Clinical Panel Consultant Review, on 24 March 2021, the Applicant was advised that the TAC had decided that it was unable to pay his physiotherapy and chiropractic treatments from 30 March 2021 and would continue to fund his osteopathic treatment, being 10 services from 30 March 2021 to 30 March 2022 with a focus of self-management strategies.[18]
2. This decision was subject to an informal review. By letter dated 17 May 2022 the Applicant was advised that the original decision of 24 March 2021 was maintained. The Applicant was advised that:
   • the review showed that his transport accident related injuries had not improved despite over 800 physical therapy treatment services since the time of the accident over 19 years ago.
   • The review also showed that at this time his treatment was considered to be in a passive maintenance stage, was not consistent with the Clinical Framework and his treatment providers were unable to demonstrate a measurable benefit of treatment or appropriate goals for the management of chronic musculoskeletal conditions, and did not appear to have any plans for him to transition into self-management of his injuries.
   • The TAC can pay the reasonable costs of physical therapies, in the form of either physiotherapy, chiropractic, osteopathy, etc. that is required as a result of the transport accident injury, is clinically justified, safe and effective. The treatment needs to be likely to achieve or maintain a measurable functional improvement which promotes progress towards functional independence and self-management. It is expected that when the treatment is no longer clinically justified, self-management of your pain is in place.
   • On 6 January 2021, Dr Hollingsworth, osteopath requested 52 services per year ongoing with no anticipated discharge date for review.
   • The goal of physical therapies is to provide education about pain management, assist a patient to a point where hands on treatment is no longer required and a home exercise program is followed rather than in room hands on treatment.
   • The TAC agreed to fund a further 10 treatment services from one provider until 30 March 2022. It was noted that he chose the discipline of osteopath to deliver those 10 further treatment services.
   • The TAC's decision of 24 March 2021 would not be changed in relation to physical therapies as they were unlikely to improve his shoulder, head and chest injuries or have any further benefit for him in relation to his transport accident related injuries.
3. As a result of the TAC refusing to provide the Applicant with all of the physical therapies, he contacted the Ombudsman and was advised that he should apply to access the NDIS. Access to the NDIS was granted on 8 March 2022.[19] The Applicant's first plan started on 31 March 2022 with a review date of 31 March 2023. The Applicant's total funded supports were $21,107.92.[20]
4. On 19 January 2023, the Respondent received a request from the Applicant to change the Support Coordination budget to plan managed. He also requested increased allied health supports. As a result of the Respondent receiving the request a delegate was required to reassess the whole plan.
5. By letter sent to the Applicant on 6 February 2023,[21] he was advised that any supports that are funded or provided by TAC would not be included in his plan because the NDIS is not intended to duplicate supports that may be available to participants through TAC.
6. The Applicant's plan was reassessed under s 48 of the NDIS Act and on 3 April 2023 a new plan was approved for the Applicant (the original decision).
7. The Applicant's new plan provided him with some supports whilst he transitioned to the TAC.[22]
   • Daily Activities budget - $4,367.00.
   • Capacity Building Choice and Control budget (administrative functions) - $1,485.75.
   • Capacity Building Daily Activity budget funding for allied health therapy - two hours per month of physiotherapy x 6 months, 7.5 hours of occupational therapy - $3,782.81.
   • Support Coordination - 52 hours of Support coordination - to assist with re-engaging with TAC - $5,207.28

The following supports were considered to be reasonable and necessary, and not duplications of TAC supports:

• Transport Level 2 - $2,676 to assist with accessing community - access activities (or work and study activities).

Core and Capacity Building budgets that were previously self-managed were changed to plan-management. This decision was made to prevent any risk of misuse of funding.

1. The Applicant was advised that supports such as remedial massage or osteopathy did not fall under NDIS reasonable and necessary supports.
2. As stated, on 3 July 2023 the Applicant submitted a request for internal review of the original decision. On 1 September 2023 a delegate of the respondent confirmed the original decision (the reviewable decision), and it is that decision that is before the Tribunal for review.
3. There is no evidence before the Tribunal of what if any attempts the Applicant made after 3 April 2023 to re-engage with the TAC. The Applicant gave evidence that he settled his damages claim against the TAC in 2021 and he was advised by his solicitors not to settle his claim for future treatment because the TAC would look after his treatment needs for the rest of his life. He agreed there was nothing prohibiting him from reclaiming treatment expenses from the TAC but he could not continue to apply to TAC because they are too hard to deal with. He agreed that he continued to receive funding from the TAC for 2 hours of home services a fortnight and that he used that funding for yard maintenance.
4. The evidence is that funding for the supports the Applicant seeks is available to the Applicant from the TAC but the TAC has determined to no longer pay for the physical therapies the Applicant seeks (the requested supports) because it has determined they are no longer reasonable medical and related expenses.

Are the requested supports reasonable and necessary supports? - s 34

1. Section 34(1) is cumulative and therefore all the criteria must be met.
2. The phrase 'reasonable and necessary' is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J (as she then was) stated at [91]:

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary." Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

1. The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 also considered the meaning of 'reasonable and necessary' supports, and stated at [149]-[151]:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; [2006] HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'

... Both adjectives qualify the noun "support," but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

1. Each of the requested supports must satisfy the criteria of s 34(1)(aa)-(f). Accordingly, if the Tribunal finds that any of the criteria in s 34(1) is not met there is no need to proceed to the other criteria.
2. As stated by Senior Member French in Brandon Trapezanidis by his Nominee George Trapezanidis and CEO, National Disability Insurance Agency [2025] ARTA 1674 at [73]:

Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:

(a) Are the supports that are in dispute NDIS Supports as defined?

If the answer to this question is "no" with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant's SOPS because it cannot meet the requirement of s 34(1)(f).

If the answer to (a) is "yes" with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant's SOPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which she meets the disability requirement. Therefore:

(b) What are the Applicant's permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect his capacity for social or economic participation?

(c) Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements?

If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which he meets the disability requirements then they cannot be considered for inclusion in his SOPS because they cannot meet the requirements of s 34(1)(aa).

(d) If the answer to (c) is "yes" then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the [Miscellaneous Transitional Rules].

Are the supports that are in dispute NDIS Supports as defined?

1. None of the requested supports are excluded pursuant to Schedule 2 of the Supports Transitional Rules. Schedule 1 of those Rules prescribes those supports that are NDIS Supports for the purposes of ss 10 and 34(1)(f) of the NDIS Act. With respect to the supports in dispute the following items are relevant:
   • Item 18 prescribes a "Exercise physiology and personal well-being activities" category which is defined to be "supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant's disability", which includes "(a) accessing services from an appropriately qualified professional; (b) assessment and development of a personalised exercise program which aims to increase or maintain a participant's functional capacity and (c) maintenance of muscle strength, range of motion, balance and mobility."
   • Item 23 prescribes a "Household tasks" category which is defined to be "supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability", which includes (a) meal preparation and delivery; (b) house or yard maintenance; (c) cleaning and laundry.
   • Item 34 prescribes a "Therapeutic supports" category which is defined to be "supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living". This includes "an assessment by allied health professionals for support planning and review as required."
2. The Tribunal is satisfied, having regard to the items referred to above, that the requested supports are NDIS supports for the purposes of s 34(1)(f) of the NDIS Act. The request for exercise physiology falls within the scope of item 18. The request for assistance with daily living falls within the scope of item 23. The request for osteopathy and physiotherapy falls within the scope of item 34.

What are the Applicant's permanent impairments?

1. After his motor vehicle accident, the Applicant was diagnosed with a TBI and the following conditions:
   • Closed head injury on right side.
   • Left chest injury and pulmonary contusion.
   • Winging of right scapula secondary to injury of long thoracic nerve and serratus anterior muscle.
   • Left sided weakness (paralysis).
   • Fatigue.
   • Development of persistent neuropathic pain.

There is also some evidence that the Applicant sustained a right biceps tear in October 2022.[23]

1. The Applicant submits he requires the requested supports arise from his following neurological and physical impairments which result from these from these conditions currently are:
   • Reduced range of movement and strength in right shoulder.
   • Reduced strength right arm.
   • Pain in right upper limb, lower back, neck, right hip, right shoulder.
   • Left sided weakness.
   • Reduced balance.
   • Muscle fatigue.[24]

1. As submitted by the Respondent, as a result of s 34(1)(aa), in order for each of the requested supports to be reasonable and necessary, the Tribunal needs to be satisfied that each supports is necessary to address the needs of the Applicant participant arising from an impairment in relation to which the Applicant meets the disability requirements (s 24) or the early intervention requirements (s 25).[25]
2. Based on the evidence, the Tribunal finds that these impairments are neurological and/or physical impairments and that they are permanent or are likely to be permanent. The Tribunal understands that this is not in issue between the parties. What is in issue is whether these impairments result in the Applicant experiencing substantially reduced functional capacity to undertake the tasks and actions involved in communication, social interaction, learning, self-care and self-management and whether they affect his capacity for social and economic participation.
3. The Applicant sought access to the NDIA for impairments arising from his TBI. Access was granted on 8 March 2022, on the basis that: "The available information confirms that they [the Applicant] have a traumatic brain injury, and this meets the disability requirements set out in Section 24 of the NDIS Act".[26] The specific evidence relied upon to support this conclusion was not referred to.
4. Pursuant to s 34(1)(aa) the requested supports must be necessary to address the needs of the Applicant arising from an impairment in relation to which the participant "meets" the disability requirements (s 24) or the early intervention requirements (s 25).
5. In TZQP and CEO, National Disability Insurance Agency [2025] ARTA 839 at [195]-[198] the Tribunal stated:

The term 'meet' is an irregular verb which is used to describe present or future tense, whereas the word 'met' is only ever used in the past tense. The Macquarie dictionary defines the term as 'to satisfy (needs, responsibilities, demands, expectations etc.)' It was clearly open to the Parliament of Australia to use the word 'met' when approving the legislative changes. This would have denoted that the relevant impairment(s) to be considered were at the time of access or entry to the scheme. It would have focused the decision-making task on whether a current request for support corresponds to or addresses a need arising from an impairment(s) at the time of access to the scheme.

However, the Act uses the word 'meets.' In the Tribunal's view, this necessitates a current temporal assessment as to whether the impairment 'continues to meet' the disability requirements or early intervention requirements, as the case may be. This interpretation is supported by the note accompanying section 34(1) which states:

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports;

In performing it's review function, the Tribunal has the power to affirm, vary or substitute the reviewable decision made by a delegate of the CEO to approve the Applicant's statement of participant supports. Accordingly, the time at which the Applicant needs to meet the disability requirements for the purpose of section 34(1)(aa), is at the time of the Tribunal's decision.

1. The Tribunal accepts this reasoning as correct. The question that must now be considered by the Tribunal is; do any of the Applicant's accepted permanent impairments result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management.

The evidence in relation to substantially reduced functional capacity

1. In his oral evidence the Applicant stated that his condition impacts his everyday activities. He is chronically fatigued; he has to be mindfully proactive to do his household tasks and life goals. His balance is impacted and he is in constant pain. If he does not undertake the physical therapies in his requested supports his quality of life goes backwards, his fatigue and pain increases and his ability to be independent will be impacted.
2. The Applicant said that he relied upon the contents of his Statement of Lived Experience.[27] In that statement he says:

• He can maintain mobility provided he keeps up with his Allied Services.
• He can walk to the local shop/park providing he is not in pain or fatigued.
• He can drive.
• He can move around the house.
• He can get in and out of bed and a chair, sometimes with difficulty if he misses treatment.

• He is able to communicate orally and in writing without any assistance.

• He finished school and a trade but now has difficulty learning new things as a result of poor memory and fatigue. He does not require any assistance to learn new things.

• He sees family and friends regularly, they go out for coffee and walks together. He spends two hours a month with a local community group that raises funds for local community groups with disability or challenges.

• He cooks his own meals, does his own washing and some light yard work, mostly planting vegetables in raised garden beds. He struggles with cleaning and gardening which is compounded if he does not have his allied treatment. He currently has his lawns mowed.

• He can manage his own money, bank account and medication, he can pay his own bills and is able to make decisions that affect his life.

1. The Applicant concludes his Statement of Lived Experience as follows:

Consistent weekly support from recommended allied services is what allows me to manage in most areas of my life including: pain management, mobility, communication, learning, social interaction, self-care and self-management. It is vital that I receive this treatment, if not maintained my reliance on others heavily increases as mentioned in my latest OT report.

I require regular support in the house and yard to maintain my current level of independence and quality of life.

My TBI and disability affect my use of computers and similar technology, some one-on-one support or training would be very helpful to maintain my current level of independence with these types of electronics.

My traumatic brain injury, nerve damage and whiplash result in a lot of unseen pain and discomfort that is often hard to see.

Evidence of Emily Stone, Occupational Therapist

1. Ms Stone gave oral evidence at the hearing and she prepared three reports that were before the Tribunal:
   • Access Request - Supporting Evidence Form dated 24 May 2021.[28]
   • Functional capacity assessment dated 24 May 2024.[29]
   • Report dated 8 October 2025.[30]
2. In the Access Request - Supporting Evidence Form, Ms Stone refers to cognitive and physical impairments resulting from the Applicant's TBI. She states:

• The Applicant is independent with respect to transfers and mobility but requires physiotherapy and osteopathy for muscular stability and imbalance and for pain in his shoulders, lower back and hip.

• The Applicant has reduced short-term memory, reduced attention and reduced ability to take in new information due to his fatigue which can be exacerbated with musculoskeletal flareups. He writes letters for his work but needs assistance with planning, grammar, keeping to the point and checking.
• The Applicant has been developing a product that he would like to sell. He needs support to write letters to promote his product.

• As a result of the Applicant's reduced short-term memory he uses notetaking, writes shopping lists and uses his computer. He would benefit from supports to participate any future learning and also use some applications on his existing phone and laptop.

• The Applicant needs assistance with household activities, including cleaning high/low cupboards, vacuuming, sweeping outdoors, cleaning bathrooms, washing windows, spring cleaning, some cooking, some gardening tasks.

1. In Ms Stone's functional capacity assessment, she reports:

• The Applicant can mobilise unaided both indoors and outdoors, he can ascend and descend a flight of steps with a handrail. He is independent in transferring from chairs, bed, the toilet and the shower. He can sit and stand independently. He has reduced lifting and reaching tolerances. He can exercise independently and completes a daily swim and exercise routine.

• The Applicant is independent with verbal communication, he requires minimal assistance with writing letters for his business. He sometimes requires extra time to process and comprehend information before he responds.

• The Applicant requires minimal assistance. He has developed strategies such as notetaking, writing notes and using his computer to compensate some issues he has with attention, short-term memory and information processing.

• The Applicant is independent in all areas of self-care.

• The Applicant is independent with respect to use of everyday devices and money management. He can do light cleaning and gardening tasks but requires assistance to do heavy household and gardening tasks.

1. Ms Stone states that the Applicant faces the following risks if he is not provided with the requested supports:

Risks to [the Applicant] if he is not provided supports:

• [The Applicant's] ability to maintain his home to a clean and tidy standard would be compromised, impacting his goal of living independently. Tasks such as cleaning, gardening, and other household chores would become increasingly difficult, leading to a decline in his living conditions.
• Tasks that [the Applicant] is not able to complete are likely to be left neglected, and or then pose tripping hazards for himself. [The Applicant] may attempt to complete heavier tasks himself that can result in further injury.
• Mood and Self-Worth: [The Applicant's] participation in society and daily activities is already limited, which affects his mood and self-worth. Without the necessary supports, his mental health could deteriorate further, leading to increased feelings of isolation and depression.

Risks if [the Applicant] does not access ongoing allied health supports:

• Increased muscle tightness in left side, back
• Increased muscle tightness around right shoulder
• Weakness on left side
• Risk of further injuries. The biceps tear that [the Applicant] sustained was likely due to no supraspinatus activation in his right shoulder, this creates a lack of instability at the shoulder and may have been a contributing factor to the biceps tear.
• Financial strain of self-funding allied health supports
• Reduced mood
• Reduced participation in daily tasks such as meal preparation, light cleaning, laundry and accessing the community due to increase pain and reduced active range of movement that is reduced due to muscle tightness.
• Pain and Mobility: Without regular physiotherapy, osteopathy, and exercise physiology, [the Applicant's] chronic pain and physical limitations are likely to worsen. This could lead to increased pain levels, reduced mobility, and further deterioration of his musculoskeletal health. Increased hip and back pain due to asymmetrical posture from right shoulder muscle and nerve impairment and left sided weakness.
• Risk of Further Injury: Lack of ongoing therapy increases the risk of further injuries, particularly in [the Applicant's] shoulders and back, due to his existing physical impairments and compensatory movements.
• If [the Applicant] is forced to self-fund his therapies, it would place a significant financial burden on him. This could lead to reduced frequency of therapy sessions, exacerbating his physical and mental health issues.

1. The Tribunal has found that the neurological and physical impairments that the Applicant contends for, are permanent. In most cases the question of whether an Applicant's impairments continue to meet the disability requirements may never arise. However, in this case, it does. The relevant question is not whether the Applicant's accepted impairments impact his life or makes some tasks or activities more difficult but rather, whether his impairments result in substantially reduced functional capacity, as required by s 24(1)(c) of the NDIS Act, in one or more of the relevant activity areas of communication, social interaction, learning, mobility, self-care and self-management.[31]
2. The relevant threshold for subsection 24(1)(c) is set out in the Tribunal's decision of Garcia Albiol and National Disability Insurance Agency [2024] AATA 496 at [68] (footnotes omitted):
   • The Agency [Respondent] also submits that the term 'substantially' in the context of reduced functional capacity carries a 'high threshold'. I am satisfied that this is the correct interpretation and my considerations are as follows:
   • The recommendation of the Productivity Commission was that the scheme provide supports only to a sub-category of persons within a much larger category of the persons who have a disability.
   • The Productivity Commission also recommended that the scheme provide these supports 'judiciously rather than routinely'. This recommendation is logical and central to the operation of the scheme and ensures its financial sustainability.
   • The scheme was never intended to provide support to 'every person with a disability'.
   • Rather, as part of one of its functions the scheme was intended to support persons with disability to receive supports outside of the scheme through mainstream services. This would of course include persons with a disability who do not fall within the sub-category of persons for whom the scheme was intended.
   • The scheme was not intended to respond to shortfalls in other mainstream services, including those provided by relevant State and Territory governments.
   • The intention of providing supports to only a subcategory of persons with a disability is reinforced by the ability of the legislature to prescribes rules in relation to access to the scheme. By way of example Rule 5.8 of the Access Rules operates to categorise certain persons 'into' the category of persons with a 'substantially' reduced functional capacity.
   • The concept of prescribing rules in relation to a category of certain persons who would be mandatorily 'excluded' from the category of persons with a 'substantially' reduced functional capacity is an unrealistic if not impossible task. Notwithstanding, the Access Guidelines assist the decision maker with an informed approach by way of practical examples and circumstances in which access will not be granted.

I am satisfied that the Tribunal's satisfaction of what constitutes 'substantially' reduced functional capacity for an applicant seeking access to the NDIS scheme requires a high threshold. This decision will therefore be made on that basis.

1. Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) deals with the question of when an impairment results in a substantially reduced functional capacity to undertake a specified activity. That rule provides:

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

5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care or self-management ... - 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 participant 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. Rule 5.8 is not exhaustive of the circumstances in which it may be found that there is a substantially reduced functional capacity. The Tribunal must first determine if the Applicant falls into any of the categories of persons deemed by Rule 5.8 to have substantially reduced functional capacity having regard to the life activity area. If not, the Tribunal must then determine, in accordance with the NDIS Act, if the Applicant otherwise has substantially reduced functional capacity in any of these life activity areas.[32]
2. As stated by the Tribunal in Burrows and CEO, National Disability Insurance Agency (Burrows) [2025] ARTA 607 at [66], the three deeming provisions set out in Rule 5.8, paragraphs (a) to (c), are expressed disjunctively. That is, it is only necessary for one of those circumstances to be established for a prospective participant to be deemed to have substantially reduced function in an activity area.
3. As stated by the Tribunal in Burrows at [67], the Court in National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521 held:

the term "effectively or completely" in paragraph (a) is to be read as referring to the activity area as a whole and not as referring to isolated tasks within that activity area. It also observed that the use of the disjunctive "or" between those words means that only one standard need be reached, not both. It rejected a submission that the term "completely" as an adverb to "participate" is to be given a literal meaning consistent with the terms "wholly" or "perfectly," because it would result in an absurd outcome, being an impossible bar for anyone to achieve.

1. In Burrows the Tribunal stated the following all of which this Tribunal agrees with and adopts (footnotes omitted):
   • Section 24(1)(c) requires that [the Tribunal] assess with a relatively high degree of objective precision what, from a practical functional perspective, the Applicant can and cannot do. It is an objective test because it does not depend upon the Applicant's own assessment of what they can and cannot do, including what they could do before the onset of impairment as compared with what they can do after its onset, although that may be a relevant consideration. This calls for a distinction to be made between the Applicant's functional capacity (that is, objectively, what they can do) and the Applicant's functional performance (that is, what they do, including but not limited to what they choose to do).[33]
   • In determining whether the Applicant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range or bundle of tasks that fall within that activity area, rather than limit itself to consideration of a specific task that falls within that area.[34]
   • Domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance, as examples, do not fall within any of the s 24(1)(c) activity areas. That conclusion is reached on a straightforward reading of the statutory language of the section which does not refer to a domestic activity area, and the Respondent's Operational Guideline, which does not include any reference to the physical tasks associated with domestic activity. In this respect the tasks attributed to self-management by the Respondent's Operational Guideline include "day-to-day tasks at home," but limit those tasks to mental or cognitive tasks, not the physical ability to do these tasks.[35]
   • The Court in Foster made it clear that the statutory task is to determine if the Applicant experiences substantially reduced capacity in a s 24(1)(c) activity area considered as a whole, rather than in respect of any particular task within that activity area.[36]
   • Applying the principles of statutory interpretation, it is to be recognised that s 24(1)(c) is a component of a statutory test, the overall purpose of which is to determine if a prospective participant meets the requirements for access to the NDIS. In this regard, it is an express object of the NDIS Act to "facilitate the development of a nationally consistent approach to access to... supports for people with disability." Fulfilment of this purpose requires that the test operate normatively rather than arbitrarily. It can only do so if the tasks that fall within each activity area for the purposes of s 24(1)(c) are designated and determinate rather than infinitely variate and elastic.[37]
   • What is meant by the terms: "communication," "social interaction," "learning," "mobility," "self-care," and "self-management" is not defined in the Act or Rules. These are ordinary English words, but this is not a case where a literal approach to ascertaining their meaning is appropriate in my opinion. That is because, in the context of the statute, they have a determinate meaning which is necessary for the application of the test of which they are part. This is not to say that these words have a meaning in the statute that is inconsistent with their ordinary meaning, merely that they have a determinate meaning.[38]
   • The Respondent has issued an Operational Guideline - Applying to the NDIS.[39] Unlike the NDIS Act and Rules this is a policy document and it is not binding upon the Tribunal. Nevertheless, it is long-established principle that the Tribunal should apply government policy relevant to an issue before it for consideration unless there is good reason not to do so.[40]
   • The Respondent's Operational Guideline does give content to these terms by describing each life activity area 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.

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.

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

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.

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.

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.[41]

1. Adopting the reasoning in Burrows the Tribunal determines that the bundle of tasks within the six activity areas referred to above are limited to the tasks referred to in the Operational Guideline.

1. The bundle of tasks within the communication activity area is limited to tasks associated with expressive and receptive language.[42]
2. The Applicant's evidence is that he is able to communicate orally and in writing without any assistance. Ms Stone's evidence is that the Applicant is independent with verbal communication, he requires minimal assistance with writing letters for his business. He sometimes requires extra time to process and comprehend information before he responds.
3. At the hearing the Applicant demonstrated that his expressive and receptive language was typical of a person without his impairments. The Tribunal finds that he does not have a substantially reduced functional capacity for communication.

1. The bundle of tasks within the social interaction activity area is limited to tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context.[43]
2. The Applicant's evidence is that he sees family and friends regularly, they go out for coffee and walks together. He spends two hours a month with a local community group that raises funds for local community groups with disability or challenges. Ms Stone's evidence is that The Applicant does not need assistance and is independent in the domain of social interaction.
3. The Tribunal finds that he does not have a substantially reduced functional capacity for social interaction.

1. The bundle of tasks within the learning activity area is limited to tasks associated with acquiring knowledge, skills or understanding and memory.[44]
2. The Applicant's evidence is that he finished school and a trade. He now has difficulty learning new things as a result of poor memory and fatigue but does not require any assistance to learn new things. Ms Stone's evidence is that the Applicant requires minimal assistance with acquiring knowledge and skills. He has developed strategies such as notetaking, writing notes and using his computer to compensate for some issues he has with attention, short-term memory and information processing. She is of the view that he would benefit from supports to participate in future learning and also use some applications on his existing phone and laptop.
3. The evidence is that the Applicant is able to acquire knowledge, skills or understanding, or remember things, without assistive technology, equipment or home modifications. He has developed adaptive techniques to record and remember information, including the use of notes and lists, but this does not amount to the use of "assistive technology" or "equipment," for the purpose of Rule 5.8(a). The Applicant uses adaptive strategies to mitigate a reduction in functional capacity due to impairment, but these are memory aides that might be used by anyone who does not have learning related impairments. They are not specialised disability or impairment related assistive technologies or equipment.[45]
4. The evidence is that the Applicant would benefit from supports to participate in future learning and also use some applications on his existing phone and laptop. However, this is not evidence that the Applicant is unable to learn without support. Nor is it evidence that he usually requires assistance to acquire knowledge, skills or understanding or remember things in his activities of daily living taken as a whole. Rule 5.8 has no application in this case.
5. The Applicant is an intelligent person. He has previously worked as a carpenter, glazier, estimator and a personal trainer[46] and would have acquired knowledge, skills and understanding in relation to activities of daily living as a result of his experience. There is no evidence that he is unable to retain previously learned information. He is described by Ms Stone as an "innovator" who is developing a product he would like to sell.[47] He has been persistent with realising his dream to commercialise his product but this business is currently on hold.[48]
6. The Tribunal is satisfied on the evidence that the Applicant experiences mild difficulty with respect to discrete new learning challenges but that he does not experience substantially reduced functioning in relation to learning.

1. The bundle of tasks within the mobility activity area is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and a chair.[49]
2. The Applicant's evidence is that he can move around his house and he can drive and he can walk to the local shop/park providing he is not in pain or fatigued. He can get in and out of bed and a chair, sometimes with difficulty if he misses treatment.
3. Ms Stone's evidence is that the Applicant can mobilise unaided both indoors and outdoors, he can ascend and descend a flight of steps with a handrail. He is independent in transferring from chairs and bed. He can exercise independently and complete a daily swim and exercise routine.
4. The Applicant does not contend that he requires assistive technology, equipment, or home modifications to move around within his home or the community or to get in and out of bed or a chair. Rule 5.8 therefore has no application in this case.
5. The Applicant says that he can maintain his mobility provided he keeps up his allied health services. These physical therapies assist his muscular stability and imbalance as well as the pain in his shoulders, lower back and hip. There is no evidence that without these therapies the Applicant would not be able to move around within his home or the community or to get in and out of bed or a chair. Whilst the Tribunal accepts that these therapies may assist the Applicant's functional performance they do not relate to his functional capacity.
6. The Applicant's primary concerns in relation to mobility relate to his capacity to do heavy domestic tasks and gardening. The Tribunal accepts the Applicant may have reduced functional capacity to perform heavy domestic tasks and gardening, in terms of increased effort, slowness and experience of discomfort and pain. However, for the reasons stated above those tasks are not incorporated into any of the s 24(1)(c) activity areas relating to substantially reduced functional capacity.
7. The Tribunal concludes that whilst the Applicant may experience pain and discomfort whilst performing some of the tasks associated with mobility, which may be worse when he does not have physical therapies, he does not experience substantially reduced functional capacity associated with mobility.

1. The bundle of tasks within the self-care activity area are limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care.[50]
2. The Applicant's evidence is that he is independent with all tasks associated with his personal care. He cooks his own meals. He diligently attends to his personal health care by attending regular sessions with his allied health care providers. He does a daily swim and exercise routine. He does his own washing and some light yard work.
3. His evidence is that he struggles with heavy cleaning and gardening which is compounded if he does not have his allied treatment and he currently has his lawns mowed (funded by TAC). As stated, those tasks are not incorporated into any of the s 24(1)(c) activity areas relating to substantially reduced functional capacity.
4. It is not contended that the Applicant is unable, generally, to undertake personal care, eat and drink or attend to his health care, without assistive technology, equipment or home modifications. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to perform the designated self-care tasks or that he is unable perform the designated selfcare task, even with such support. Rule 5.8 therefore has no application in this case. The Applicant may suffer pain and discomfort at times when attending to some tasks of self-care but any impact this may have on his functional capacity does not amount to substantially reduced capacity for self-care when that activity area is considered as a whole.

1. The bundle of tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem-solving and financial management.[51]
2. The Applicant's evidence is that he can manage his own money, bank account and medication, he can pay his own bills and is able to make decisions that affect his life. Ms Stone's evidence is that the Applicant is independent with respect to use of everyday devices and money management. He can do light cleaning and gardening tasks but requires assistance to do heavy household and gardening tasks.
3. The Tribunal repeats that household activities, including cleaning high/low cupboards, vacuuming, sweeping outdoors, cleaning bathrooms, washing windows, spring cleaning, some cooking and gardening tasks are not incorporated into any of the s 24(1)(c) activity areas relating to substantially reduced functional capacity.
4. It is not contended that the Applicant is unable to make personal plans, make decisions, problem-solve or manage his self-care financial affairs without assistive technology, equipment or home modifications. As noted, the Applicant does use some adaptive techniques, such as making notes and writing lists to manage short-term memory problems, but these strategies do not amount to the use of assistive technology. Nor is it contended that the Applicant usually requires assistance in the form of physical assistance, guidance, supervision or prompting to perform self-care tasks. Rule 5.8 therefore has no application in this case.
5. At its highest the evidence is that the Applicant would benefit from supports to participate in future learning and also use some applications on his existing phone and laptop. The Tribunal determines that the evidence does not lead to the conclusion that the Applicant experiences substantially reduced function in relation to the cognitive tasks associated with self-management.

1. For the reasons stated the Tribunal finds that the Applicant does not have any permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management. As a result of this finding none of the requested supports meet the needs of the Applicant arising from an impairment in relation to which he meets these disability requirements and therefore s34(1)(aa) is not satisfied.
2. It follows from this that the Tribunal does not need to go on to consider whether the requested supports meet the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Transitional Rules. In fact, to do so may prejudice any future claim the Applicant may wish to make to the TAC.

1. In this matter the Respondent addressed the early intervention criteria in s 25 of the NDIS Act. However, no part of the evidence was indicative that the early intervention requirements were met. Each of the Applicant's permanent impairments are long-standing. They have been present since 2001. It cannot be said that the requested supports amount to early intervention.[52]

1. While there is no doubt that the Applicant lives with permanent impairments that do to some extent reduce his functional capacity to perform certain life activities, at the time of this review, he does not have any impairments for which he meets the disability requirements (s 24) or the early intervention requirements (s 25) and therefore, none of the requested supports are necessary to address his needs arising from such an impairment. Accordingly, s 34(1)(aa) of the NDIS Act is not met and the Tribunal does not need to go further to consider whether the requested supports meet the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Transitional Rules.

1. Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration with the order that none of the Applicant's impairments satisfy the criteria under ss 24 and 25 of the NDIS Act, and therefore they do not satisfy s 34(1)(aa). Therefore, none of the requested supports are reasonable and necessary and should not be approved for inclusion in the Applicant's SOPS.

[5] Interaction notes 8/3/22 and letter to Applicant dated 8/3/22

[8] RHTB p74 and Applicant's response to the RSOFIC p1.

[10] Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39; 24 ALR 577 (Drake) at 589.

[11] Shi v Migration Agent's Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [45] - [46].

[12] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [60].

[13] Beezley v Repatriation Commission [2015] FCAFC 165 (2015); 150 ALD 11 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].

[14] Mizzi and National Disability Insurance Agency [2025] ARTA 2155 (Mizzi) at [11].

[19] Interaction notes 8/3/22 and letter to Applicant dated 8/3/22.

[24] Applicant's response to RSOFIC pp3-4.

[31] TZQP and CEO, National Disability Insurance Agency [2025] ARTA 839 at [201]-[202].

[40] Re Drake and Minister for Immigration and Ethnic Affairs (no. 2) (1979) 2 ALD 634.