Decision: The Tribunal affirms the decision under review.

.....................SGD.................................

NATIONAL DISABILITY INSURANCE SCHEME - access - adult participant - whether applicant meets disability requirements under section 24 of the NDIS Act - whether substantially reduced functional capacity in undertaking one or more of activities under paragraph 24(1)(c) of the NDIS Act

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

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

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)

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

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

National Disability Insurance Agency v Foster [2015] FCA 544

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Davis and National Disability Insurance Agency [2023] AATA 1437

Burrows and National Disability Insurance Agency 2025 [ARTA] 607

Foster and National Disability Insurance Agency 2025 [ARTA] 718

1. This review is about whether Ms Close should be granted access to the National Disability Insurance Scheme (NDIS). Ms Close is 41 years old and has two school-aged children. She seeks access to the NDIS based on impairments arising from major depressive disorder. Ms Close lives in her own home with her children. Her former partner also resides in the home. Ms Close does not undertake paid work and has not done so since about 2023 when she worked as a receptionist.
2. In April 2024 Ms Close applied to the National Disability Insurance Agency (Agency) to become a participant in the NDIS. On 17 July 2024 the Chief Executive Officer (the CEO) of the Agency decided that she did not meet the criteria to become a participant. A delegate of the CEO confirmed that decision on internal review on 14 August 2024. Ms Close applied to the Administrative Appeals Tribunal (AAT) on 27 August 2024 seeking review of that decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal).[1]
3. The matter was heard on the papers on 16 October 2025. The Respondent indicated in correspondence dated 30 July 2025 that it consented to the matter being determined on the papers. On 31 July 2025 Ms Close also requested by email that the Tribunal proceed to determine the matter on the papers. Both parties have therefore consented to this proceeding being determined in the absence of the parties. I am also satisfied for the purposes of subsection 106(2) of the Administrative Review Tribunal Act 2024 (Cth) that the issues can be adequately determined in the absence of the parties.
4. Documents available to the Tribunal included a hearing bundle (HB) comprised of 511 pages (Exhibit 1). The Respondent provided a Statement of Facts Issues and Contentions, contained within the hearing bundle.

1. To become a participant in the NDIS, a person must meet the requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). These are referred to as the 'access criteria'. A person meets the access criteria if the person meets three requirements: the age requirements,[2] the residence requirements,[3] and either, the requirements set out in section 24 (the disability requirements) or section 25 of the NDIS Act (the early intervention requirements).
2. It is not in contention, and I so find, that Ms Close meets the age and residence requirements in section 21 of the NDIS Act. The issue in the present case is whether Ms Close meets the disability requirements or early intervention requirements.

1. The statutory provisions relevant to this review are contained in the NDIS legislation, including:
   • the NDIS Act; and
   • the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
2. The NDIS Act was amended on 3 October 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Amending Act). Sections 21, 24 and 25 were amended but the amendments only apply to a person who makes an access request on or after 3 October 2024.[5] Ms Close's application was made prior to that date. Therefore, where those provisions are discussed below, it is the provisions in force prior to amendment on 3 October 2024.
3. The Agency also issues operational guidelines. The Tribunal is not bound to follow operational guidelines issued by the Agency. However, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to consider in performing its review task.[6] The relevant guidelines in this review are the NDIS - Applying to the NDIS Guidelines (Access Guidelines).
4. In determining whether the access criteria are met, neither party bears any formal onus of proof. However, an 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 access criteria are met.[7]

1. The disability requirements are set out in section 24 of the NDIS Act, as follows:[8]

(1) A person meets the disability requirements if:

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

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

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

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

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

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

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

(4) Subsection (3) does not limit subsection (2).

1. The first requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(a) that the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable.
2. The term 'disability' in the NDIS Act, and section 24, is a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life while an 'impairment' is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function.[9] Section 24 focuses on a person's impairments, rather than the name of a person's disability or the diagnosis given to a person.[10] Using the concept of impairment enables an assessment of the severity and permanency of the person's condition, and of the effects of that condition.[11]

The impairments are permanent or likely to be permanent

1. The second requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(b) that the person's impairments are, or are likely to be, permanent.
2. The Access Rules contain the following relevant provisions when determining whether an impairment is permanent or likely to be permanent:

When is an impairment permanent or likely to be permanent for the disability requirements?

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

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

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

1. 'Permanent' in the context of paragraph 24(1)(b) of the NDIS Act means 'enduring'; this reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[12] It is the person's impairments that must be permanent, rather than the cause of the impairments or the diagnoses that might apply to a medical condition. The focus of paragraph 24(1)(b) of the NDIS Act is on whether the impairments have an enduring quality so as to fit within the conceptual emphasis of the scheme.[13]
2. The NDIS Act expressly provides that impairments that 'vary in intensity' may be permanent[14] and that impairments that are 'episodic or fluctuating' may be taken to be permanent.[15] The Access Rules further provide that an impairment may be permanent notwithstanding that the severity of its impact on functional capacity may fluctuate or there are prospects this may improve.[16]
3. On the relevance of treatment, the Access Rules provide that an impairment is permanent only if there are no treatments that would be likely to remedy the impairment.[17] 'Remedy' in this context means something more than 'just relieve or improve' and instead means something approaching 'a removal or cure of the impairment'. That interpretation is consistent with interpreting 'permanent impairment' as meaning an impairment that is enduring; the impacts on a person might fluctuate from time to time, but the impairment is not likely to be removed or cured.[18]
4. In determining whether there are no treatments that would be likely to remedy an impairment, consideration is only given to treatments that are, among other things, 'available' and 'appropriate'.[19]
5. In this context, 'appropriate' connotes a treatment that has capacity to 'remedy' a person's impairment and is suitable for that particular individual to undergo; 'the capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them'.[20]
6. 'Available' means available to a particular individual. It should be understood as directed at what treatments an individual can, in reality, access: 'whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access'.[21]

1. The third requirement in subsection 24(1) of the NDIS Act is the requirement in paragraph 24(1)(c) that a person's impairments result in substantially reduced functional capacity to undertake one or more of six activities: communication; social interaction; learning; mobility; self-care; and self-management.
2. The test in paragraph 24(1)(c) is an objective assessment of functional capacity. The legislative scheme is based on a 'functional, practical assessment of what a person can and cannot do'.[22] No qualitative judgements are involved in assessing a person's impairments; the decision-maker does not need be satisfied, for example, that a person's impairment is 'serious', or more serious than another person's impairment.[23]
3. To satisfy paragraph 24(1)(c), an applicant need only experience substantially reduced functional capacity in one of the six activities in paragraph 24(1)(c). Each activity has a different focus and each must be examined individually rather than globally.[24] Decision-makers must exercise a relatively high degree of precision in assessing what a person can or cannot do.[25]

The two paths to satisfying paragraph 24(1)(c) of the NDIS Act

1. The Access Rules contain the following provisions relevant to paragraph 24(1)(c) of the NDIS Act:

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

5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. The effect of these provisions in the Access Rules is that there are two paths to satisfying paragraph 24(1)(c) of the NDIS Act. One path is to meet the terms of paragraph 24(1)(c) itself and the other path is to meet Rule 5.8 of the Access Rules.[26] Rule 5.8 is a deeming provision. It mandatorily includes some people in the category of persons with substantially reduced functional capacity if the requirements in Rule 5.8 (a),(b) or (c) are met.[27]
2. Rule 5.8(a) deals with circumstances where a person utilises assistive technology, equipment or home modifications. Rule 5.8(b) deals with circumstances where a person utilises assistance (including physical assistance, guidance, supervision or prompting). Rule 5.8(c) deals with circumstances where a person is unable to participate in an activity even with assistive technology, equipment, home modifications or assistance.
3. Although rule 5.8 provides a shortened path to meeting paragraph 24(1)(c) of the NDIS Act, it sets a high threshold and is intended for clear cases.[28]

1. In determining whether a person has substantially reduced functional capacity in an activity, the Tribunal must consider the range or bundle of tasks that fall within the relevant activity (such as self-care) rather than a specific task or action that falls within that activity (such as toileting).[29]
2. The Access Guidelines contain the following relevant provisions when assessing functional capacity_:_

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

• 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.
• Learning - how you learn, understand and remember new things, and practise 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.

Your impairment substantially reduces your functional capacity if you usually need disability specific supports to participate in or complete the above tasks.

• a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
• assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

1. In Burrows and CEO, National Disability Insurance Agency[30] the Tribunal regarded the scope of each of the six activities in paragraph 24(1)(c) of the NDIS Act to be as follows:
   • 'social interaction' in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with making and keeping friends, interacting with other people in the community (who are not friends), and maintaining behavioural and emotional regulation in a social context;[31]
   • 'learning' in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with acquiring knowledge, skills or understanding, and tasks associated with cognition, and memory;[32]
   • 'mobility' in paragraph 24(1)(c) of the NDIS Act 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;[33]
   • 'self-care' in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care,[34] and does not include domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance;[35]
   • communication' in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with expressive and receptive language;[36] and
   • 'self-management' in paragraph 24(1)(c) of the NDIS Act is limited to cognitive tasks associated with personal organisation, personal planning, personal decision-making, self-care, problem solving and personal financial management.[37]

1. Importantly, the disability requirement in paragraph 24(1)(c) is concerned with the prospective participant's 'functional capacity' to undertake one or more of the activities. This is distinct from and does not overlap with the disability requirement in paragraph 24(1)(d). There is a distinction between a person's functional capacity to undertake a task and their functional performance of the task which may be affected by personality, personal characteristics, and various extrinsic factors in the legal social and built environment. Functional performance is relevant to the enquiry in paragraph 24(1)(d) but not paragraph 24(1)(c).[38]

1. It has also been observed that the threshold requirements of functionality in mobility, in the Access Guidelines, are relatively modest.[39] Similarly, the functionality included in 'communication' is 'fairly basic', for example, telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, or asking for help to reach something.[40]

1. The early intervention requirements are set out in section 25 of the NDIS Act. Those requirements include the requirement that the person has certain impairment/s that are or are likely to be permanent or is a child who has developmental delay (paragraph 25(1)(a)), that the provision of 'early intervention supports' for the person is likely to benefit the person by reducing the person's future needs for supports in relation to their disability (paragraph 25(1)(b)) and that the provision of early intervention supports is likely to benefit the person in other specified ways (paragraph 25 (1)(c)).

1. Ms Close contended that she has impairments arising from major depressive disorder that meet the access criteria. She has other physical conditions but confirmed in an email dated 4 February 2025 that she does not seek access to the NDIS based on impairments from conditions other than major depressive disorder.[41]
2. The Respondent contended that Ms Close meets paragraphs 24(1)(a) and (b) of the NDIS Act but not paragraph 24(1)(c). It contended that she did not have substantially reduced functional capacity with respect to any of the relevant activities in paragraph 24(1)(c) of the NDIS Act.

1. Ms Close sought access to the NDIS in July 2023. It was determined that she did not meet the access requirements and she then sought internal review, followed by review at the AAT. Ultimately, in late 2023, she withdrew that application. Ms Close then applied again in April 2024 for access to the NDIS. It is that application that is the subject of the present review.
2. In her 2023 application, Ms Close sought access based on impairments from 'monoarthritis and osteoarthritis'.[42] In her current application, she sought access based only on impairments from major depressive disorder.[43] Ms Close made two applications in proximity, and although she sought access based on different impairments, there is material provided during the earlier application that is relevant to the current application.
3. Ms Close's psychologist, Mr Wopenka, provided a report dated 26 May 2023, described as an 'Initial Needs Assessment'. He recorded that she had chronic rheumatoid arthritis and major depressive disorder. He described her functional capacity in a range of domains and recommended that she be provided regular psychology and access to a physiotherapist and exercise physiologist.[44]
4. Ms Close's treating psychiatrist, Dr Sainani, provided a letter dated 26 September 2023 setting out Ms Close's diagnosis (of 'persistent depressive disorder, panic attacks') and treatment and the ongoing impacts on her functioning.[45]
5. Dr Sainani provided a further letter dated 23 October 2024 setting out Ms Close's diagnosis (again, 'persistent depressive disorder, panic attacks') and treatment, and the ongoing impacts on her functioning.[46]
6. Ms Close's GP, Dr Stone, completed a form dated 19 August 2024 entitled 'Evidence of psychosocial disability form'. She considered that Ms Close had treatment resistant major depressive disorder and had been diagnosed with that condition in 2005. Dr Stone provided details of Ms Close's medications and therapy since diagnosis and Ms Close's impairments.[47] Dr Stone completed the same form again on 24 October 2024, but this time referred to Ms Close's diagnosis as 'persistent depressive disorder, panic attacks'.[48]
7. Ms Close's occupational therapist, Mr Kabike, assessed Ms Close at home on 24 July 2023 and again on 11 January 2024, and had a telehealth appointment with Ms Close on 22 August 2024. He then provided a report dated 2 September 2024. He set out her functional capacity and recommended that Ms Close be provided with a range of supports. [49]
8. Ms Cummings, an independent occupational therapist, assessed Ms Close in person on 11 March 2025 and provided a report on Ms Close's functional capacity dated 27 March 2025.
9. Ms Close has also provided responses to questions in an undated, unsigned 3-page document. [50]
10. A community connections plan was developed with Ms Close and finalised in April 2024. It records her living arrangements and supports at that time.[51]

1. There are five criteria in subsection 24(1) of the NDIS Act and all of those must be satisfied for a person to meet the disability requirements.

1. The Respondent conceded in its SFIC that Ms Close has psychosocial impairments attributable to major depressive disorder, meeting the requirements of paragraph 24(1)(a) of the NDIS Act. It regarded those impairments as social withdrawal, low frustration tolerance, distress and deficits in attention and memory.
2. In October 2024, Dr Sainani said that he had been treating Ms Close since 2023 and that he had reviewed her regularly in an outpatient clinic. He considered that Ms Close had persistent depressive disorder with panic attacks. He noted she experienced mood symptoms and that her concentration and task completion were affected.
3. Dr Stone also described Ms Close, in October 2024, as having persistent depressive disorder with panic attacks. Dr Stone said Ms Close was experiencing complete social withdrawal, low frustration tolerance, and distress in social contexts. She also said that Ms Close was struggling with memory, multi-step tasks, and keeping her 'attention on track for decisions and problem-solving' and had difficulties with organisation and focus.[52]
4. In March 2025, Ms Cummings concluded that her analysis and interpretation of medical reports indicated that Ms Close had major depressive disorder that impacted her motivation, her ability to maintain an even demeanour around others, and her cognitive endurance, particularly regarding memory, concentration and attention.
5. During her assessment of Ms Close, Ms Cummings administered a cognitive screen. Ms Close scored 25/30 and Ms Cummings explained that scores below 26 indicated cognitive impairment. Ms Cummings described Ms Close's cognitive function as 'mildly impaired', particularly in the areas of short-term recall and fluency. Ms Cummings considered that Ms Close had made appropriate adaptations such as using external memory aids to compensate. [53]
6. Ms Close contended that she has major depressive disorder. I am satisfied based on the documents completed by Ms Close's GP and psychiatrist in October 2024 that Ms Close has a mental health condition. Based on her treating psychiatrist's opinion, that condition is best described as persistent depressive disorder with panic attacks. It is not necessary however for the purposes of paragraph 24(1)(a) of the NDIS Act to determine Ms Close's precise diagnosis.
7. I am satisfied based on the above evidence that, arising out of her persistent depressive disorder with panic attacks, Ms Close has impairment of her mood or emotional function. This includes depressed mood, panic attacks, distress and low frustration tolerance.
8. I am also satisfied based on the evidence above, that Ms Close has impaired motivation. She also has impaired cognition. This includes impaired memory, concentration, problem solving and organisation.
9. I am therefore satisfied that the requirement in paragraph 24(1)(a) of the NDIS Act is met. Ms Close has psychosocial impairment from persistent depressive disorder with panic attacks.

The impairments are permanent or likely to be permanent

1. The Respondent conceded that the requirements in paragraph 24(1)(b) of the NDIS Act were met.
2. In October 2024, Dr Sainani described the treatments that Ms Close had undergone since 2005, including engaging in various therapies with a psychologist or counsellor and trialling multiple psychotropic medications. Dr Sainani described her medication at the time as having only partial efficacy. He considered that, even with further reasonable treatment, Ms Close's mental state was unlikely to result in significant functional improvement in the next few years. In that regard, he noted the impact on Ms Close's mental state of her ongoing chronic medical comorbidities.
3. In October 2024, Dr Stone also outlined the history of Ms Close's treatment since 2005. Dr Stone said Ms Close's treatment had included regular psychiatric review, psychological therapy and medications. Dr Stone said that Ms Close had tried these treatments and continued to do so but continued to suffer with severe symptoms and disability. Dr Stone detailed the medications Ms Close had trialled. Dr Stone regarded Ms Close's medication at the time as only partially effective, and described previous medications as either not tolerated or not effective.
4. The evidence therefore is that Ms Close has been engaged over a long period with a psychiatrist, has tried multiple psychotropic medications without good effect, and has engaged in various psychological therapies since diagnosis. Her medication in late 2024 remained only partially effective. Dr Sainani did not directly address permanency of Ms Close's impairments but did state that further reasonable treatment was unlikely to result in significant functional improvement in the next few years.
5. I am satisfied on this evidence that the severity of Ms Close's impairments may fluctuate but that there is no available treatment that is likely to result in removal or cure of her impaired mood, impaired cognition and impaired motivation. I am therefore satisfied that the requirements in paragraph 24(1)(b) of the NDIS Act are met. Ms Close has permanent psychosocial impairments attributable to persistent depressive disorder with panic attacks.
6. Ms Close did not contend that the access requirements were met based on impairments from conditions other than major depressive disorder. For completeness however I have also reviewed the available material and the impairments Ms Close may have arising from conditions other than her mental health condition.
7. Ms Close's rheumatologist, Dr Landsberg, wrote on 27 June 2023 that Ms Close had been attending his clinic since June 2022 and prior to that had been seen by other rheumatologists. He said that technically she did not have rheumatoid disease and that she had recurrent inflammatory monoarthritis of the left knee and that this had been occurring since the age of 18. Dr Landsberg noted that Ms Close's autoimmune disease relapsed and remitted and was suppressed mostly with medication.
8. Dr Landsberg said that Ms Close had also developed osteoarthritis in the left knee and had significant degenerative osteoarthritis of her lumbar spine and that these conditions were permanent. Dr Landsberg said treatment had been successful in reducing the size of Ms Close's knee effusion and reducing inflammatory pain but it had not stopped damage to Ms Close's knee and had no effect on her spinal osteoarthritis.
9. Dr Landsberg thought that Ms Close would 'certainly benefit' from having a long-term exercise program and an exercise physiologist to improve her core strength and improve the strength around her thigh muscles. He said this would be 'very, very effective'. He noted that Ms Close had undergone several operations to the knee which had led to further stiffness and chronic disability in the knee and the time may come when she needed a knee replacement. He thought that she would 'certainly benefit' from supervised exercise therapy several times each week.[54]
10. Medical records indicate that Ms Close underwent spinal surgery on 19 July 2023 and she reported that her pain was gone.[55]
11. Mr Kabike provided a report dated 1 September 2023 regarding Ms Close's functional capacity, having regard to the impact of monoarthritis and osteoarthritis. He said she had persistent pain, that this caused difficulty standing and that, in turn she experienced difficulty cooking and shopping. He also said she had difficulty with endurance and balance, and experienced general stiffness.[56]
    1. Dr Stone noted in October 2024 that Ms Close had a very sore knee that limited her walking.
    2. Ms Cummings recorded in March 2025 that Ms Close reported having inflammatory arthritis, particularly in her left knee, and undergoing back surgery (an L5 discetomy) in July 2023 and knee surgery. Ms Cummings recorded that Ms Close reported that back surgery had resulted in difficulty bending. Ms Cummings also recorded that Ms Close walked with a slightly antalgic gait, that her spine appeared stiff, and that she showed pain behaviours such as grimacing while doing tasks. Ms Cummings assessed Ms Close's range of movement, grip strength, muscle strength, gross motor skills, fine motor skills, and movement patterns. She noted restricted range of movement in the thoracic and lumbar spine, and some restriction in functions such as bending, twisting and prolonged standing.
    3. The evidence therefore indicates that Ms Close has monoarthritis of the left knee as well as osteoarthritis in her left knee and spine. Dr Landsberg's letter in 2023 indicated that an exercise program would likely be very effective. The evidence is that Ms Close has since undergone surgery at L5 and was engaging regularly in exercise when assessed by Ms Cummings. There is evidence of Ms Close's functional capacity when assessed by Ms Cummings but there is no information addressing Ms Close's impairments related to her back and knee conditions and the treatment options now and expected outcomes of treatment on those impairments.
    4. I am therefore unable to conclude on the available evidence that the requirements in paragraph 24(1)(a) and (b) of the NDIS Act are met for impairments related to any conditions other than persistent depressive disorder with panic attacks.

1. The Respondent contended that the requirements in paragraph 24(1)(c) of the NDIS Act are not met.
2. Mr Kabike and Ms Cummings are occupational therapists and provided assessment of Ms Close's functional capacity in reports dated September 2024 and March 2025 respectively. Dr Stone also provided relevant comments in a form entitled 'Evidence of psychosocial disability form' completed in October 2024, as did Dr Sainani in a letter in October 2024. Ms Close's psychologist, Mr Wopenka also addressed each functional domain in his 'Initial Needs Assessment' completed in May 2023.
3. In weighing the evidence in these five documents, I am cognisant that Mr Wopenka's assessment is more than two years old and that Dr Sainani's and Dr Stone's opinions are significantly more recent. The opinions of Dr Sainani and Dr Stone are also informed by their observations of Ms Close over an extended period, and their knowledge, as her treating psychiatrist and GP respectively, of Ms Close's mental health condition.
4. I have also had regard to the fact that Ms Cummings and Mr Kabike are occupational therapists qualified to assess functional capacity. I have been provided with details of Ms Cummings' qualifications and experience. Ms Cummings' assessment is comprehensive and is also the most recent assessment of Ms Close's functional capacity. It is based on an in-person assessment at Ms Close's home in March 2025. In contrast, Mr Kabike's most recent consultation with Ms Close prior to completing his report was a telehealth appointment in August 2024. His last in-person consult at Ms Close's home prior to completing his report was in January 2024.
5. I have therefore had regard to the comments of Dr Sainani, Dr Stone, Mr Wopenka and Mr Kabike. However, to the extent that there is any conflict I have generally preferred Ms Cummings' assessment in determining Ms Close's functional capacity in each of the domains below, given that hers is the most recent assessment.

1. As set out earlier, 'communication' in paragraph 24(1)(c) of the NDIS Act is limited to tasks associated with expressive and receptive language.
2. Mr Wopenka reported that Ms Close's communication did not appear to be affected by her 'disability and mental health'.
3. Dr Stone reported in October 2024 that Ms Close had 'extreme difficulty' with initiating and responding to conversation, that she withdraws totally or nearly totally from social contact, and that she generally only shows 'slight warmth' to others. Specifically, regarding the domain of communication Dr Stone said:

Able to communicate clearly when absolutely necessary, however mostly keeping communication to a minimum due to depressed social withdrawal and low frustration tolerance.

1. Mr Kabike reported in September 2024 that Ms Close was independent with communication and had insight into her challenges. He noted that during occupational therapy consultations she independently discussed her background and areas where she needed assistance. She was also able to communicate her emotions and how arthritis and reduced support were impacting her and her children. He noted that Ms Close reported feeling irritable, that she had communicated in anger to friends and strangers, and that she worried about how she communicated.
2. Ms Cummings reported that Ms Close demonstrated independent receptive and expressive communication skills throughout her assessment, responding appropriately to questions asked of her and articulating her needs and wants. Ms Cummings noted that at times Ms Close required redirection back to her own needs rather than her children's. Ms Cummings recommended no supports or interventions.
3. Based on this evidence, I am satisfied that Ms Close does not utilise assistive technology or require assistance to communicate, and that Rule 5.8 is therefore not met. I am satisfied on this evidence that Ms Close withdraws in social contexts. However, based on Ms Cumming's report, I am not satisfied that Ms Close has reduced receptive and expressive communication skills. I am therefore not satisfied that Ms Close's impairments result in substantially reduced functional capacity in communication within the terms of paragraph 24(1)(c) of the NDIS Act.

1. 'Social interaction' encompasses tasks associated with making and keeping friends, interacting with other people in the community (who are not friends), and maintaining behavioural and emotional regulation in a social context.
2. Mr Wopenka recorded that Ms Close said that pain prevented her from engaging in social activities such as aerobic exercise and social outings. He said that withdrawal from activities and pain contributed to her reduced motivation and confidence to engage in social activities. He thought she would benefit from support workers to assist her to engage in social activities. He also recommended psychological intervention as well as physiotherapy and exercise physiology.
3. Dr Sainani considered that the severity of Ms Close's mood symptoms and panic attacks meant that she needed support to go out socially including to appointments.
4. As set out earlier, Dr Stone reported that Ms Close had 'extreme difficulty' with initiating and responding to conversation, that she withdrew totally or nearly totally from social contact, and that she generally only showed 'slight warmth' to others. Dr Stone recorded, in response to a question about whether the person generally made or kept up friendships, that no friendships were made and none kept. Dr Stone recorded, in response to specifical questions on the form that she completed, that Ms Close did not behave offensively and was rarely violent to others.
5. Specifically, regarding the domain of social interaction, Dr Stone said:

Completely withdrawn from voluntary social contact and from most required social contact. Does online grocery shopping to avoid contact with people in the shops.

Low frustration tolerance, distress can be severe in social contexts.

1. Mr Kabike recorded that Ms Close reported that her mental health conditions had impacted her social life. She was not able to go into the community to make connections and maintain relationships. She reported that she had lost her small circle of friends due to constantly having difficulty with emotional regulation.
2. Mr Kabike reported that depression and anxiety reduced Ms Close's chances to create opportunities to engage in meaningful social activities, increasing her risk of social isolation. He noted that she used to be employed full-time but was now unable to return to work due to her diagnoses. He considered that she was at risk of social isolation because she spent most of her time at home looking after her children. He noted that Ms Close reported minimal adult social contact and that she did not get the opportunity to go into the community. He recorded that she would like more social connection but did not have the spare time to meet people in the community or attend social activities and was feeling isolated.
3. Ms Cummings recorded Ms Close's description of her typical day. Ms Close described taking her children to school and then after she left the school, trying to get to the gym. In the afternoons, she collected the children from school or a friend picked them up. Sometimes her friend also took the children to school.
4. Ms Cummings recorded that Ms Close attended the gym independently and with a personal trainer up to 4 times/week. She said that Ms Close reported one good friend who supported her regularly with the children but otherwise had no regular social interactions. Ms Close stated that she would like to get involved in a group such as line dancing but that family responsibilities made this difficult.
5. Ms Cummings concluded that Ms Close can interact with others in the gym, and when going to appointments or running errands. She said that Ms Close described feeling angry trying to manage social situations, and described two recent examples of that occurring, but concluded that Ms Close appeared to adopt a strategy of leaving the situation before it escalated.
6. Ms Cummings did not recommend any assistance with social interaction. Ms Cummings did consider however that Ms Close would benefit from a psychologist to support management of symptoms of depression that were impacting her social engagement and ability to cope with emotions.
7. In considering whether Rule 5.8 is met I must have regard to the range of tasks that fall within social interaction, which includes making and keeping friends and interacting with other people in the community (who are not friends) and maintaining behavioural and emotional regulation in a social context. Rule 5.8 sets a high threshold and is intended for clear cases.
8. Although Mr Wopenka thought that Ms Close would benefit from support worker assistance in social interaction, I prefer the evidence of Ms Cummings for reasons set out earlier. I also note Mr Wopenka's recommendation was based in part on impairments from physical conditions. Further, the most recent evidence is that Ms Close attends appointments, the gym, and her children's school independently.
9. I accept that Ms Close would benefit from regular psychology sessions to improve her functional capacity in social interaction, but I am satisfied that she does not require assistance, assistive technology, equipment, or home modifications for the activity of social interaction. Rule 5.8 is therefore not met.
10. The evidence is that Ms Close experiences social isolation, but that for an extended period she has been prevented from taking up line dancing or engaging in social activities due to caring responsibilities and limited time. Paragraph 24(1)(c) is not focused on whether matters such as Ms Close's caring responsibilities and her children's health operate to limit her opportunity for social interaction. Paragraph 24(1)(c) is focussed on whether Ms Close can undertake tasks involved in social interaction.[57]
11. I accept on the above evidence that Ms Close's impairments from persistent depressive disorder with panic attacks operate to reduce her functional capacity in social interaction. Her capacity in social interaction is impacted by her impaired mood, including her difficulty regulating her emotions in social contexts. She struggles to manage her frustration and anger.
12. However, the evidence is that Ms Close is able to interact with other people in the community who are not friends, for example, in medical appointments, at the gym, or when running errands. She has also developed a strategy to avoid escalation in situations where she is frustrated and angry. Her impairments impact her ability to maintain friendships but the evidence is that she has a friend with whom she shares responsibility for taking children to school.
13. I am satisfied on this evidence that Ms Close has reduced functional capacity in social interaction. However, she does not have substantially reduced functional capacity for the purposes of paragraph 24(1)(c) of the NDIS Act, to undertake the bundle of tasks that fall within the activity of 'social interaction'.

1. 'Learning' for the purposes of paragraph 24(1)(c) encompasses tasks associated with acquiring knowledge, skills or understanding, and tasks associated with cognition, and memory.
2. Mr Wopenka stated in his assessment that Ms Close reported no difficulties with learning. He stated that if she was to engage in retraining or education, she may have difficulty when flare-ups of her condition occurred.
3. Dr Stone reported that Ms Close was capable of part-time work, although the form that Dr Stone completed did not require her to indicate the type of work. Specifically, regarding the domain of learning, Dr Stone said:

Has been trying to undertake study to get a new part time job, but unable to organise for learning or reliably attend classes. Unable to focus her attention or memory enough to retain new material.

1. Ms Cummings reported that Ms Close had difficulty when she attempted to study a Certificate IV in financial accounting and did not continue that study. However, Ms Cummings considered that, aside from formal learning, Ms Close appeared to have sufficient cognition for learning on a day-to-day basis. She noted that Ms Close reported researching health conditions and alternative treatments and was able to explain her medical conditions, medications and side-effects. Ms Cummings did not consider that formal support was required with learning new tasks or skills on a day-to-day basis. She recommended continued use of external memory aids, such as alarms and calendars.
2. Ms Close has impaired motivation and cognition. I accept that she experienced difficulties with learning in the context of formal study and may benefit from support if she was to undertake formal study again. However, that is not the test for the purposes of paragraph 24(1)(c).
3. Based on Ms Cummings' evidence, I am satisfied that Ms Close does not require equipment or assistance, other than commonly used items, to undertake tasks in the activity of learning. This means that Rule 5.8 is not met. Similarly, based on Ms Cummings' assessment, I am also not satisfied that Ms Close's impairments result in substantially reduced functional capacity in learning within the terms of paragraph 24(1)(c).

1. As set out earlier, 'mobility' for the purposes of paragraph 24(1)(c) of the NDIS Act 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.
2. Mr Wopenka reported that Ms Close stated that some days she was able to independently get around but most days her ability to get to appointments and move around the house to perform daily activities was limited due to pain. He considered that she would benefit from support workers to assist with transportation to appointments and in home assistance such as cleaners and someone to assist with meal preparation.
3. Dr Stone reported, specifically, regarding the domain of mobility:

One very sore knee that limits walking capacity, but most limited by depressed mental state from mobilising in the community.

1. Mr Kabike reported that Ms Close's motivation affected her ability to complete tasks. He also reported that physiotherapy had been beneficial for Ms Close in maintaining mobility but that she found it increasingly difficult to pay for this.
2. Ms Cummings reported that Ms Close was independent in transferring in and out of bed, and a chair, and could mobilise throughout her home without assistance or a mobility aid. She also recorded that Ms Close reported regularly driving her own car and having 'nil restrictions' mobilising in the community, and that she was able to ascend stairs using a handrail. She recommended no supports or interventions.
3. The domain of mobility is concerned with Ms Close's functional ability to mobilise. Ms Cummings did not recommend use of any assistive technology, equipment or home modifications to complete the bundle of tasks that fall within mobility. I prefer her evidence to the evidence of Mr Wopenka for the reasons set out earlier but also because Mr Wopenka's recommendation that Ms Close be provided support worker assistance for mobility is based on Ms Close's pain from physical conditions. This means that Rule 5.8 is not met.
4. I accept, based on Ms Cummings' report, that Ms Close has some impairment in mobility generally. Ms Cummings reports for example that Ms Close has an antalgic gait. However, that reduced functional capacity in mobility is not related to impairments from Ms Close's permanent impairments from persistent depressive disorder with panic attacks.
5. Further, based on Ms Cummings' evidence I am satisfied that in either case Ms Close can move around within her home, and in the community, and get in and out of bed and a chair, without assistance or aids. Ms Close therefore does not have substantially reduced functional capacity to undertake the bundle of tasks that fall within the activity of 'mobility' for the purposes of paragraph 24(1)(c) of the NDIS Act.

1. 'Self-care' in the present context is limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care, and does not include domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance.
2. Mr Wopenka recorded that Ms Close stated that her pain reduced her ability to tend to household duties and that some days she had difficulty getting out of bed and dressing herself. He considered that she would benefit from support services to maintain her household and undertake yard maintenance and preparation of meals.
3. Dr Sainani reported that, due to the impact of 'her mental state and medical conditions', Ms Close was unable to complete activities of daily living and home chores to her full potential.
4. Dr Stone reported that Ms Close was generally 'extremely poorly' groomed and had 'poor cleanliness of clothes'. She also said that Ms Close had an 'extreme problem' maintaining an adequate diet. However, regarding meals and grocery shopping, Dr Stone also reported that Ms Close bought groceries online and was 'able to buy groceries and prepare food for the children'.
5. Dr Stone also reported that Ms Close had 'moderate neglect' of physical problems, was 'slightly unreliable' taking prescribed medication without reminding but 'always' willing to take prescribed psychiatric medication and 'usually' cooperated with health services.
6. Specifically, regarding the domain of self-care Dr Stone said:

Very poor personal care, often not showering, wearing unwashed clothes, cutting out hair knots because she can't brush through them, poor nutrition.

1. Mr Kabike reported that Ms Close was independent with personal care with the aid of assistive technology, noting that she used a shower stool and grab rails.
2. Ms Cummings reported that Ms Close was independent with personal care, including showering, toileting, dressing and grooming. She recorded that Ms Close reported at one stage not brushing her hair due to symptoms of depression, resulting in a lot of knots that she then cut out, but that she now brushed her hair more regularly. Ms Close also reported that she showered every day but had noticed that she did not wash her hair as frequently as she used to due to her symptoms of depression.
3. Regarding meals and nutrition, Ms Cummings reported that Ms Close was 'moderately independent'. Ms Cummings observed Ms Close make a cup of tea independently and safely. Ms Close also reported typically having breakfast, lunch and dinner and that her personal trainer had set a menu plan for her to increase her protein intake but that she found this difficult. Ms Close reported often making herself rolled oats in the microwave for breakfast, having a protein shake or bar for lunch, and heating up a prepackaged meal for dinner or cooking something simple for her children. Ms Close reported reduced motivation for cooking due to her mood as well as the limited dietary options of her children. Ms Cummings reported that Ms Close presented as motivated to be fit and healthy and willing to take on advice.
4. Ms Cummings also reported that Ms Close organised her own medical and therapy appointments and her own medication.
5. Ms Cummings recommended assistance from a dietitian for a simple meal plan to compensate for Ms Close's low motivation. She recommended no other assistance or assistive technology.
6. In her undated and unsigned written response to questions, Ms Close stated that she required prompting with self-care needs. She said she barely washed her hair and did not shower as much as she should and might wear the same clothes. She said that she used a tablet dispenser for medication and put reminders in her phone to prompt her to take medication in the mornings and evenings. To the extent that there is discrepancy between these statements and the statements that Ms Cummings attributes to Ms Close, I prefer Ms Cummings' record given that Ms Close's written response to questions preceded Ms Cummings' report.
7. There is some discrepancy between the reports of Mr Wopenka, Dr Stone and Ms Cummings regarding Ms Close's functional capacity in self-care and the supports she requires. I am cognisant that Dr Stone has observed Ms Close over a longer period, and that Ms Close has a long-term illness with associated impaired motivation. I therefore accept based on Dr Stone's report that Ms Close likely has reduced functional capacity in self-care because of impairments related to her mental health condition.
8. However, Ms Cummings' report is significantly more recent and detailed and, as set out earlier, where there is discrepancy, I prefer the evidence in Ms Cummings' report to that of Dr Stone or Mr Wopenka. Further, the relevant details in Ms Cummings' report regarding Ms Close's capacity regarding meals, nutrition and personal care were largely provided by Ms Close.
9. If Ms Close uses a shower stool and grab rails, that is not related to permanent impairments from persistent depressive disorder with panic attacks. In addition, while Mr Wopenka recommended assistance with gardening and household tasks, 'self-care' does not include domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance.
10. I do not accept that Ms Close requires assistance with meal preparation, as Mr Wopenka recommended. I accept Ms Cumming's evidence that Ms Close's poor motivation means that she would benefit from a simple meal plan from a dietitian.
11. The evidence therefore is that Ms Close does not does usually require assistance, assistive technology, equipment (other than commonly used items) or home modifications to undertake tasks within the domain of self-care, related to permanent impairments from persistent depressive disorder and panic attacks. This means Rule 5.8 is not met.
12. The evidence is that Ms Close does not wash her hair as frequently as she once did and is slightly unreliable with prescribed medications. I also accept that there is likely some general reduction in Ms Close's self-care. However, based on Ms Cummings' assessment I am satisfied that Ms Close generally attends to personal care (including hygiene and grooming), eating and drinking, and health care. The evidence therefore does not establish that Ms Close has substantially reduced functional capacity to undertake the bundle of tasks that fall within the activity of 'self-care' for the purposes of paragraph 24(1)(c) of the NDIS Act.

1. 'Self-management' is limited to cognitive tasks associated with personal organisation, personal planning, personal decision-making, self-care, problem solving and personal financial management.
2. Mr Wopenka reported that Ms Close experienced significant difficulty engaging in day-to-day activities as a result of her depression and arthritis. He recommended psychological capacity building together with physiotherapy and exercise physiology.
3. Dr Stone reported, regarding the domain of self-management:

Able to buy groceries and prepare food for the children, however struggles to keep her attention on track for decisions and problem solving, causing everything to take longer than it needs to.

Struggling with memory about how to go places she has been before, or thinking more than one step ahead for a multi step task.(sic)

1. Ms Cummings recommended no supports or interventions with regard to self-management. She considered Ms Close to be independent in self-management, noting that she organised her own medical and therapy appointments and those of her children, managed her own finances, was able to budget, had initiated reaching out to organisations for assistance, and travelled internationally.
2. In her undated and unsigned response to questions, Ms Close stated that she had her own bank account that she managed without assistance. She also stated that she required no assistance with finances, budgeting and managing bills.
3. Based on Ms Cummings' assessment I find that Ms Close does not require assistance from others or assistive technology, other than commonly used items, to undertake tasks that comprise 'self-management'. Rule 5.8 is therefore not met.
4. Further, if there is any reduction in Ms Close's functional capacity to undertake the activity of 'self-management', it is not substantial. Ms Close is able to attend to personal organisation, personal planning, personal decision-making, self-care, problem solving and personal financial management.
5. For the reasons above, Ms Close's impairments do not result in substantially reduced functional capacity to undertake any of the activities in paragraph 24(1)(c) of the NDIS Act. This means that the disability criteria are not met.

1. The Respondent contended that the requirements in paragraphs 25(1)(b) and (c) were not met.
2. The evidence is that Ms Close would benefit from psychological support. However, Ms Close's mental health conditions are longstanding. The evidence is she has engaged in a wide range of therapies with psychologists and counsellors since 2005. Dr Sainani considered that further treatment was unlikely to result in significant functional improvement in the next few years.
3. I am not satisfied on this evidence that there is any early intervention support that is likely to benefit Ms Close in the ways specified in paragraphs 25(1)(b) and (c) of the NDIS Act. This means that the early intervention requirements are not met.
4. Having found that neither the disability requirements nor the early intervention requirements are met, Ms Close does not meet the access criteria in section 21 of the NDIS Act.

1. The Tribunal affirms the decision under review.

1. I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.

..................SGD................................

[1] Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT. See the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

[4] This largely adopts the statement of law in Ulrick and CEO, National Disability Insurance Agency [2025] ARTA 1957

[5] Items 125 and 126, Part 3 of the Amending Act

[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

[7] Foster and National Disability Insurance Agency [2025] ARTA 718 (Foster 2025) at [21]

[8] Section 24 as in force immediately prior to 3 October 2024

[9] Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), [51]

[10] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), [69]

[26] Davis and National Disability Insurance Agency [2023] AATA 1437 at [79] (DP Donovan)

[29] National Disability Insurance Agency v Foster [2015] FCA 544 (Foster) at [65] to [67]

[30] [ARTA] 607 at [73] (Burrows)

[31] Burrows at [87] and [108]-[109]

[39] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [104]-[105], when considering an earlier similar version of the Access Guidelines

[57] Foster 2025 at [82] and [83]