1. CTXR must meet the access criteria in s 21(1) to become a participant of the NDIS. In summary, s 21(1) provides that a person meets the access criteria if they meet the age requirements in s 22; the residence requirements in s 23; and either the disability requirements in s 24 or the early intervention requirements in s 25.
2. There is no dispute between the parties, and the Tribunal is similarly satisfied, that CTXR meets the age and residence requirements in ss 22 and 23.[10] The issue for determination by the Tribunal is whether CTXR meets the disability requirements in s 24 or the early intervention requirements in s 25.
3. Section 24 provides:

(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.

(1) A person meets the early intervention requirements if:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) (has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) (mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

(ii) preventing the deterioration of such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

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

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

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

(a) as part of a universal service obligation; or

(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

1. Under s 209(1) the Minister may make rules prescribing certain matters. Relevant to this application, the Minister has issued the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules), which form part of the legislation.
2. Operational Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the legislative framework. These are essentially policy documents. The Operational Guideline 'Applying to the NDIS' (Access Guideline) is relevant to this application. The Tribunal will take this into account unless there are cogent reasons not to.[11]

1. A joint tender bundle was filed with the Tribunal. That joint tender bundle included the T-Documents filed by the Respondent in accordance with s 37 of the AAT Act, and evidence filed by CTXR and the Respondent during the review. The joint tender bundle was received into evidence at the hearing, marked 'Exhibit 1'.
2. A hearing was held by Microsoft Teams on 16, 17 and 24 July 2025. A resumed hearing was held on 19 August 2025 to accommodate the availability of Ms KN, who was being called by CTXR to give oral evidence; and to hear oral closing submissions. Mr B Flavell appeared for CTXR and Mr P D'Assumpcao appeared as Counsel for the Respondent. CTXR, Dr AC, Ms MP, Mr SB and Ms KN gave oral evidence at the hearing.
3. CTXR filed a Statement of Facts, Issues and Contentions (CTXR's SFIC) dated 10 October 2024. The Respondent filed a Statement of Facts, Issues and Contentions (Respondent's SFIC) dated 8 November 2024. Both CTXR and the Respondent made oral opening and closing submissions at the hearing.
4. After the hearing of this matter concluded, the Full Court of the Federal Court delivered judgment in National Disability Insurance Agency v Lampard [2025] FCAFC 139. On 20 October 2025 the Tribunal provided the parties with a copy of that judgment, identified observations and rulings made in Lampard regarding the proper construction of s 24(1), and directed that any submissions either party wished to make in relation to the application of those rulings to this matter must be filed by 30 October 2025. Submissions were filed in response to that direction by both CTXR and the Respondent.
5. The Tribunal has considered the written evidence, oral evidence, and submissions referred to above in paragraphs [12] to [15].
6. Before proceeding further, it must be acknowledged that CTXR found the review process, and indeed the hearing, very difficult. Throughout the hearing, CTXR was afforded breaks to accommodate overwhelm. During the afternoon on 17 July 2025, the Tribunal formed the view CTXR was unable to meaningfully engage in the hearing for the rest of that day, and in those circumstances adjourned the hearing to 24 July 2025, and limited the time each representative had on 24 July 2025 to ask CTXR questions to 30 minutes in circumstances where there were limits to what could reasonably be expected of CTXR and protracting his evidence further was arguably inconsistent with the Tribunal's objective in s 9 of the ART Act. CTXR's oral evidence on 24 July 2025 was in fact concluded in less than the allocated 60 minutes. These circumstances, together with the need to accommodate the limited availability of expert witnesses, resulted in CTXR's oral evidence being given over 3 days around expert oral evidence. CTXR was only present within the hearing whilst he was giving evidence, electing not to be present during the hearing even after his oral evidence had concluded.

1. The issue for determination by the Tribunal is whether CTXR meets the disability requirements in s 24 or the early intervention requirements in s 25.

1. CTXR is seeking access to the NDIS based on impairments arising from bladder exstrophy.[12] Those impairments were particularised in CTXR's SFIC as PTSD, anxiety, depression, constant UTI infections, severe/chronic neuropathic pain, and sexual dysfunction.[13]
2. In closing submission, it was contended on CTXR's behalf he has a disability that is attributable to physical impairments, and one or more impairments to which a psychosocial disability is attributable. Those impairments were identified in closing submissions as a need to self-catheterize through a Mitrofanoff; chronic pelvic pain; penis deformity; and impairments arising from PTSD, depression and anxiety. It was also contended in closing submissions that each of those impairments are permanent for the purposes of s 24(1)(b).
3. The Respondent's SFIC indicated no issue was taken with the requirements in ss 24(1)(a) and 24(1)(b) and identified the requirement in s 24(1)(c) as the main issue arising on review.[14] However, what was not particularised in the Respondent's SFIC was the basis on which the Respondent accepted the requirements in ss 24(1)(a) and 24(1)(b) were met.
4. At the commencement of the hearing, the Tribunal queried with the Respondent the basis on which it was accepted the requirements in ss 24(1)(a) and 24(1)(b) were met. Counsel for the Respondent clarified that any concession in the Respondent's SFIC with respect to permanence for the purposes of s 24(1)(b) was confined to 'a congenital condition in relation to the urinary tract issue'; and it was not accepted that the mental health components -PTSD, anxiety and depression - were established by way of expert evidence. Specifically, Counsel for the Respondent stated the Respondent was not conceding the permanence of those conditions, let alone that they have in fact been diagnosed. The Respondent's position with respect to the other claimed impairments remained unclear prior to the commencement of oral evidence.
5. In closing submissions, Counsel for the Respondent confirmed:
   • The Respondent accepts there is evidence demonstrating that CTXR suffers from PTSD, depression and anxiety; and that those impairments are permanent. The Tribunal raised with the Respondent that those labels could be considered the diagnosis or condition, and the impairments that flow from those might be identified differently or more broadly. Counsel for the Respondent agreed with this, and clarified it is accepted that those diagnosis are permanent and that which flows from them in terms of impairment are permanent, for example socially avoidant behaviour.
   • The Respondent accepts that from time-to-time CTXR suffers from urinary tract infections (UTI), however it is not accepted that those UTIs are 'constant'. It could not be said this is a matter which is permanent in the sense that CTXR has a permanent condition involving the need to catheterise and history has shown that he continues to have a UTI from time-to-time. In this way, it was contended, this is an 'intermittent experience'.
   • The Respondent contends pain is not an impairment; accordingly severe/chronic neuropathic pain is not an impairment; and there is no evidence to support the proposition pain is relevantly an impairment.
   • Whilst the Respondent accepts CTXR is unable to engage in certain sexual activities as his genitals are not sexually functioning, the Respondent does not accept sexual dysfunction 'as a broad label is attributable to CTXR'.
6. Whilst it is not in contest between the parties that the requirements in ss 24(1)(a) and 24(1)(b) are met, as is clear from paragraphs [19] to [23] the basis on which they each contend these requirements are met differs. Noting that the requirements in s 24(1) are cumulative, and the impairments considered for the purposes of s 24(1) must be clearly identified, the Tribunal will begin by setting out pertinent evidence relevant to the Tribunal's consideration of the requirements in ss 24(1)(a) and 24(1)(b).[15]

1. Dr AC is a urological surgeon, and she has been CTXR's treating urologist since 2016.[16] There are letters in evidence prepared by Dr AC, and Dr AC gave oral evidence at the hearing.
2. In a letter dated March 2023 Dr AC confirmed CTXR's background of bladder exstrophy; the only access to his bladder is through the Mitrofanoff which requires intermittent catheterisation; and if he cannot intermittently catheterise there is a high risk of incontinence or worse bladder rupture resulting in a 30 percent risk of death in the community if left untreated immediately.[17]
3. In a letter dated September 2024, Dr AC reported CTXR has historically used unlubricated catheters which has resulted in recurrent UTIs and emergency presentations when he cannot catheterise his Mitrofanoff.[18] Dr AC opined the benefits of pre-lubricated catheters include reduction in recurrent UTI, reduction in traumatic catheterisation, reduction of pain associated with catheterisation, and long-term reduction in surgical interventions.[19] Dr AC reported CTXR has experienced a dramatic change in the rate of recurrent UTI and hospital admission, loss of workdays, and antibiotic exposure following the instigation of a careful regimen of Coloplast Luja catheters in conjunction with antibiotics into the bladder and intermittent use of the SpeediCath Flex catheters.[20] Dr AC stated she could not underestimate the power of preventative measures in improving long term outcomes for CTXR.[21]
4. In September 2024, Dr AC also reported that the congenital anomaly directly affects the formation and function of the penis. The penile anatomy is not normal which results in a bend on erection if erection is possible; and this can make penetrative intercourse difficult or impossible. Multiple reconstructive procedures have had a direct effect on CTXR's penile sensation; and in keeping with the background of multiple surgical interventions and repeated reconstructive intervention, there is penile scarring and urethral scarring which precludes ejaculation and catheterisation; ejaculation is impossible and painful.[22]
5. Dr AC gave the following oral evidence:
   • CTXR has had periods of time where there have been intense and repeated UTIs with multiple organisms and they have been hard to treat. These infections have been based in either the bladder or the Mitrofanoff. He has required multiple antibiotics and usually presents with significant amounts of pain. His pain is either abdominal or where he catheterises his Mitrofanoff.
   • CTRX's infections are 'very, very frequent'. He is 1 of only 4 patients that has Dr AC's phone number; and he will message her when he has symptoms so she can get him on an antibiotic as quickly as possible. He has had extraordinary amounts of infection. Her concerns for CTXR around antibiotics exposure include antibiotic resistance, fungal infection, and impairment of associated organ.
   • Switching CTXR over to a pre-lubricated catheter was a game changer because it did cause a significant break in his antibiotic recurrence rate. The pre-lubricated catheters are formulated so that lubrication remains lubricious in and out and this makes it safer and minimises micro-trauma of the channel. In CTXR's case the type of catheter that he has found most useful in traversing his Mitrofanoff and minimising trauma has been the SpeediCath Flex catheter. It has made a dramatic difference in how he can get the catheter in and his infection rate. Using pre-lubricated catheters will reduce the risk of infection but will not remove it.
   • CTXR's pain has always been multi-factorial. The urological component of his pain would be better managed with pre-lubricated catheters as they minimise trauma, reduce ulceration, and reduce infection. This reduces the bladder and Mitrofanoff pain. Dr AC could not comment on the deep pelvic pain as this was outside her area of expertise.
   • The likelihood is that CTXR will need a Mitrofanoff revision at some point. That should be delayed for as long as possible.
   • Urologists are the peak body that deal with sexual dysfunction, particularly in the male, so Dr CA considered she was more than qualified to comment on this. A normal penis has 2 corpora i.e. 2 cylinders that keep it erect; in exstrophy those corpora are more pyramidal, and the penis which has been reconstructed at birth often has a penile bend which makes it difficult to undertake penetrative intercourse. In CTXR's case there is significant sexual dysphoria, sexual confusion and real low self-worth when it comes to genital visualisation. There is an anatomical functional abnormality in erectile function and sensation. This is compounded by multiple urethral operations which have scarred the penis further. Whilst this is a significant part of CTXR's health, the focus has been on his acute UTIs because unfortunately there is no easy or quick answer for his sexual dysfunction or correction.

1. Ms MP has practised as a clinical psychologist for 27 years and she has been CTXR's treating psychologist since March 2023.[23]
2. In August 2023, Ms MP reported that as a result of his bladder exstrophy and the impact of that on his daily life, CTXR presents with severe levels of anxiety and severely depressed mood and meets the DSM-5 criteria for PTSD.[24] CTXR describes a number of daily avoidant behaviours, social withdrawal, mood disturbance and negative cognitions due to his trauma history, and emotional and physical discomfort around his bladder and toileting; significant personal relationship complexities due to his disability which causes sexual dysfunction and pain on ejaculation; and few points of social contact.[25] Ms MP reported that due to his bladder exstrophy, CTXR's trauma history is significant, and he suffers long term ongoing psychosocial debilitation because of this. She also reported that a recent operation left CTXR with permanent and complete sexual dysfunction and significant pain on sexual contact to the genitals and on ejaculation; and opined the psychosocial impact of CTXR's sexual dysfunction is permanent, and significantly impacts on his identity and his ability to develop and maintain personal intimate relationships.[26]
3. In August 2024, Ms MP provided an updated report.[27] Ms MP reported CTXR identifies his current main concern is having regular access to contained quality catheters; he cannot afford access to these himself with his current financial circumstances; and since he has had access to the higher quality catheters whilst on the current short-term program, he has experienced a reduction in psychological stress and an increase in social confidence. Despite his perceived increase in confidence, Ms MP reported CTXR's depression and anxiety levels had increased over the past year.[28]
4. Ms MP gave the following oral evidence:
   • A combination of clinical interview (including presentation and self-report), what is reported by the treating general practitioner, sometimes some psychometric questionnaires, and the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) are used when diagnosing depression, anxiety and/or PTSD.
   • Based on questionnaires previously completed by CTXR and when she has recently seen him, his anxiety is severe, and his depression is extreme. With respect to his PTSD, she would say he has gone into the realm of complex PTSD. Elaborating on this, she explained that this means he has PTSD, which is a series of symptoms that you meet the criteria for following a very traumatic event or a chronic series of traumatic events, and you have those for a period of at least a month and beyond; and they impact your life and your perspective, and you have flashbacks and things like that; but complex PTSD has added to that, your view of yourself is greatly affected by what you have been through, so your self-concept and identity.
   • She would say CTXR has severe anxiety, and so he is more fearful than we may consider realistic given a situation; he has accentuated and dysregulated emotions of fear.
   • Within the context of a hearing, she would expect CTXR to have freezing moments going into overwhelm and shutdown, and that would be part of his PTSD diagnosis. In her clinical and professional opinion, in what she has seen and what she would predict for him based on how she has diagnosed him, he goes into a dorsal vagal response, so his limbic system in the brain goes into a shutdown mode, you conserve energy, you lock out your environment. She opined this would certainly impact on his ability to communicate his needs, whether it is at work or in relationships. He gets triggered a lot, that is activated in trauma and stress responses, which means he is not particularly resilient, so if something else stressful happens it can very quickly overload him resulting in a shutdown response.
   • Her experience of CTXR freezing during therapy arises in the context of her bringing up sensitive matters that he is asked to engage with. The problem for CTXR is that he is sensitive about a lot of things; he often has a lot of internal pain or thought systems, thought loops, going on that means how he functions in society is very difficult. In the last times she has seen CTXR he's been more agitated; he's getting more overwhelmed; his mental presentation, his cognitive processes are less adaptive; he seems more distressed; coping mechanisms are lower. In her opinion, even once the Tribunal process is resolved, it would just allow space for the other stuff to ramp up in terms of how he feels about himself living at home, how he feels about himself as a man; she thinks he feels very empty in other areas of his life.
   • CTXR's avoidant behaviours are quite wide-spread across his life. He will avoid talking about different topics; he avoids places and locations, public toilets, socialising, exercising or going or joining any clubs or gyms because he fears he is going to have pain, or that he won't have access to the hygienic situation required for toileting.
   • Ms MP opined a psychiatrist would be helpful, intermittently, to monitor his medication and his mental state.
   • When asked whether in her opinion there are treatments CTXR could undergo that would remedy the way in which his anxiety, depression and PTSD present for him she stated her best professional clinical opinion is that unfortunately, he is stuck with a level of that psychologically because he does have his condition and all of the reminders. She thinks that every time he gets a UTI, he experiences a ramping of his PTSD. And every time he has certain sensitive things happen or is under extra pressure, he's not particularly resilient.

Dr SK, spinal rehabilitation and pain medicine physician

1. Dr SK is a spinal rehabilitation and pain medicine physician.[29] In December 2023 Dr SK reported CTXR has a history of chronic pelvic pain which has worsened significantly over the past year; CTXR describes the pain as constant, with varying intensity, and likened to a 'razor blade in the bladder'; and the pain is exacerbated by physical activity, stress, lack of sleep and certain foods.[30] Dr SK reported previous treatments have included oral antibiotics, intravesical gentamicin, and intermittent use of oxybutynin; and amitriptyline 25 mg was initiated 2 months ago, which has resulted in a reduction of pain intensity.[31]
2. In December 2023, Dr SK opined CTXR has chronic pelvic pain on the background of bladder exstrophy with multiple pelvic surgeries and recurrent UTIs, contributing to further sensitization and potential pelvic floor dysfunction.[32] Dr SK further opined currently, amitriptyline appears to be providing some pain relief and reduction in bladder frequency; and recommended there may be potential benefit from a further increase in the amitriptyline dose to a maximum dose of 75 mg, if required and well tolerated. If an increased dose of amitriptyline is not well tolerated, Dr SK recommended considering rotation to another neuropathic agent, such as duloxetine; and if there are any symptoms suggestive of pelvic floor dysfunction consider PRN diazepam suppositories. Dr SK also recommended a referral to a pelvic physiotherapist for assessment and treatment and a consultation with a dietitian for advice on an anti-inflammatory diet. A 3 month follow up consultation was suggested to assess the response to these treatment changes.[33]
3. In February 2024 Dr SK reported CTXR developed chronic (pelvic) pain from multiple surgeries (contributing to nerve damage), years of pain sensitization from recurrent UTIs and trauma from the use of inappropriate catheters and potentially, pelvic floor muscle spasms.[34] Dr SK opined there is no cure for a chronic pain condition and therefore the long-term goal for managing CTXR's pain is to minimise exposure to further nociceptive triggers such as long-term opioid use, and bladder/pelvic organ irritation from infection or trauma i.e. procedures or inappropriate catheterisation, and addressing the pelvic floor spasms.
4. Upon reviewing CTXR on 29 February 2024 Dr SK opined his chronic pelvic pain had been reasonably well managed with the combination of amitriptyline (for pelvic pain) and intravesical gentamicin (to address recurrent infection); however, gentamicin is not a long-term solution as it can lead to complications such as renal failure and permanent hearing loss.[35] Dr SK reported CTXR's pain affects his sleep and mood; and his current medication, including amitriptyline, is causing fatigue, cognitive dampening, and constipation.[36]

Dr RN, consultant physician in infectious diseases

1. Dr RN is a consultant physician in infectious diseases.[37] In February 2024 Dr RN reported he had been looking after CTXR for nearly 1 year; and he suffers recurrent UTIs as a result of a combination of anatomical abnormality of the urinary bladder, the reconstructed bladder and the need for self-catheterisation for his lifetime; and this has led to the consumption of multiple courses of often broad spectrum antibiotic.[38] Dr RN reported that CTXR's day to day activity is limited by frequent to constant pelvic pain, need for recurrent self-catheterisation and frequent UTIs.[39]

1. In April 2023, Ms NB reported CTXR is highly susceptible to UTIs which cause fever, nausea, pain, and discomfort; and due to the lifelong frequency of these infections, he requires antibiotic therapy and, on many occasions, has been hospitalised for intravenous therapy as the bacteria is not able to be treated with oral medication.[40] Ms NB further reported that in the last 12 months, CTXR has been required to take antibiotics constantly due to UTI and has been hospitalised twice due to complications with his Mitrofanoff that can be directly linked to non-lubricated catheters.[41]

1. In May 2024, a continence nurse consultant Ms JJ opined that CTXR has been receiving access to the required catheters from Coloplast through their NDIS pathway Gap Fill program; and since accessing that support CTXR has not had a UTI and reports decreased levels of pain.[42] Ms JJ opined that without ongoing and continued access to this support, it is highly likely CTXR will return to suffering recurrent UTIs.[43]

1. A discharge report dated 25 December 2022 records CTXR presented with suprapubic pain, urgency and frequency and was diagnosed with chronic cystitis.[44] It was noted he had had multiple recurrent UTIs in 2022 requiring prolonged antibiotic courses. He was at the time of admission taking a course of Trimethoprim prescribed by his urologist for UTI symptoms; and he was instead prescribed a 7-day course of Nitrofurantoin.[45] On 8 February 2023, CTXR was admitted to hospital for a mitrofanoffscopy and bladder washout.[46] On 29 June 2023, CTXR was admitted to hospital for a bladder washout.[47]

1. Ms KN holds a Master in Occupational Therapy and has practised as an occupational therapist for 13 years.[48] Ms KN was engaged by CTXR to conduct a functional capacity assessment.[49] She has not otherwise treated CTXR on an ongoing basis.[50]
2. Ms KN assessed CTXR on 1 May 2024, and prepared a report dated 23 May 2024.[51] Ms KN reported CTXR's difficulties related to bladder exstrophy include pelvic pain, hyper sensitisation, pelvic floor muscle spasms, fatigue, impaired sleep, frequent UTIs, severe anxiety, severely depressed mood, PTSD, social withdrawal, socially avoidant behaviours, negative thought patterns and mood disturbances, and a significant sense of panic and hyper fixation.[52]

1. CTXR's written evidence is to the effect that catheters available to him under the stomal appliance scheme are not recommended by his treating team, and because of using inappropriate catheters to manage his bladder he suffers severe side effects including increased UTIs, hospitalisation, damage and deterioration of stoma and significantly decreased quality of life. This also feeds into his strong anxiety, as well as having no sick leave from work and fear of losing his job due to requiring extensive time off due to his condition.[53] He is required to void approximately every 3 hours; he usually doesn't get much notice at times when he needs to void; and if he doesn't drink enough water, he experiences severe pain.[54]
2. CTXR gave the following oral evidence:
   • He has pain that just doesn't go away. There is a lot of scar tissue around the bladder augmentation which causes a lot of pain. There is always a consistent level of pain, but it fluctuates. He has periods where he has one bladder infection after another.
   • There was a period last November where he had an ulcer that developed within the stoma, he was in persistent pain and required an indwelling catheter to be inserted and had to let that sit for weeks for swelling to go down. The other week, he was suffering and should have called in sick, but he went to work and ended up having to go down to the emergency department because he was in so much pain. They had to start him on antibiotics. Yesterday, he didn't drink enough in the morning and then in the afternoon when he was catheterising it was like a sharp pain. Sometimes he needs to curl up into a ball because it is like he has a knife in his bladder.
   • He is doing everything within his power to prevent UTIs. The only way he can sustain his health and reduce the risk of surgery is to get the recommended catheters. He explained you are not touching any of the key areas with the catheters that are recommended so the risk of infection drops. Since trialling the recommended catheter, he would say there was a reduction in infections; and it reduced his anxiety.
   • He has had multiple surgeries, including to reconstruct his penis, because of the bladder exstrophy and he attributes a mental health component to that trauma. He attributes his PTSD to medical procedures when he was younger. In terms of depression, in terms of relationships, he feels his body is broken. He has seen several psychologists. Earlier on he saw a psychiatrist; he is trying to see a psychiatrist now.
   • He has been seeing Ms MP for approximately a few years. It costs $270 to see her, and then you get up to 10 sessions subsidised by Medicare via a mental health plan. He can't recall how many mental health plans he has had overtime. Over the past 12 months he has seen her at least once a month. He doesn't know if he is getting anything out of it. There was another psychologist he saw before Ms MP. In his early 20s he did not want to think or speak about these things; but over time there are issues there that need to be resolved.
   • With respect to medication, he has been prescribed amitriptyline and duloxetine which are used to treat anxiety and depression but the primary use of those for him is trying to manage his pain. With respect to reducing bladder infections and trauma, that is where the lubricated catheters come in.
   • He is seeing a pain specialist, and she is putting him on other medications which also treat anxiety and depression, but they are used to treat neuropathic pain. It's difficult trying to get a psychiatrist. He has made various attempts to try and book in with a psychiatrist; there needs to be some sort of management there, but he would need his pain specialist and psychiatrist to work together to get something that is going to work. He previously saw a psychiatrist when he was a child.
   • He was referred to Dr SK as he can't be going to emergency and living off opioids to manage pain. Currently his pain is being managed with slow release palexia, amitriptyline, duloxetine, Panadol and ibuprofen.

Does CTXR have a disability attributable to an impairment?

1. In National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis), Mortimer J (as Her Honour then was) observed:

'What the legislative scheme focuses on is not the name of a person's disability, nor the diagnosis given to a person - but rather what are the impairments experienced by the person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the "functional capacity" of a person'.[55]

1. The importance of this conceptual distinction was similarly emphasised by the Full Court of the Federal Court in National Disability Insurance Agency v Lampard [2025] FCAFC 139, in which it was noted:

'Assessing the access criteria by reference to anything other than an impairment carries a real risk of error as it diverges from the approach required by the statute. ... a failure to maintain a proper distinction between a disability or a condition and an impairment for the purposes of s 24(1)(a) can easily have adverse flow on effects on the assessment process.'[56]

1. The concept of 'impairment' is generally understood as involving the loss or damage to a physical, sensory or mental function.[57] The term 'disability' is used in s 24 as 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.[58]
2. The indisputable evidence is that CTXR is unable to discharge urine from his bladder without inserting a catheter into the Mitrofanoff. The Tribunal finds this inability to discharge urine from his bladder is a physical impairment; and is satisfied CTXR has a disability attributable to this physical impairment. This is not in issue between the parties.
3. Based on Ms MP's evidence, the Tribunal accepts CTXR has been diagnosed with PTSD; and he has severe anxiety, depressed mood, avoidant behaviours, and negative cognitions. The Tribunal finds CTXR's severe anxiety, depressed mood, avoidant behaviours and negative cognitions are impairments; and based on Ms MP's and CTXR's evidence the Tribunal accepts those impairments impact CTXR's ability to engage in daily life. In these circumstances, the Tribunal is satisfied CTXR has one or more impairments to which a psychosocial disability is attributable. From the Respondent's closing submissions, the Tribunal understands this is not contentious.
4. In closing submissions, the Respondent confirmed it accepted CTXR's genitals are not sexually functioning, and he therefore cannot engage in certain sexual activities, but it did not accept 'sexual dysfunction as a broad label is attributable to CTXR'. The Tribunal does not consider that submission answers the question asked by s 24(1)(a). CTXR gave evidence of having undergone multiple surgeries to reconstruct his penis; and based on Ms MP's evidence it is clear CTXR has reported to her he experiences sexual dysfunction and pain on ejaculation. Dr AC's evidence is to the effect CTXR has an anatomical and physiological abnormality of the penis involving erectile dysfunction, altered sensation, and impossible/painful ejaculation. As a urological surgeon and CTXR's treating urologist, the Tribunal accepts it is within Dr AC's expertise to give evidence regarding the affect of bladder exstrophy on the formation and function of CTXR's penis. The Tribunal accepts Dr AC's evidence with respect to this and finds CTXR has anatomical and physiological abnormalities of the penis; these are physical impairments, the collective effect of which is sexual disfunction; and on this basis the Tribunal is satisfied CTXR has a disability attributable to these physical impairments.
5. In CTXR's SFIC and closing submissions it is contended he has 'constant' UTIs, and these are construed as an impairment. The Tribunal understands from the Respondent's closing submissions that whilst it does not accept CTXR has 'constant' UTIs, it does accept he has intermittent UTIs. Dr AC's evidence is that CTXR has had recurrent infections in both his bladder and his Mitrofanoff; and Dr AC describes these infections as UTIs. CTXR's history of recurrent UTIs is similarly reported by Dr SK, Dr RN, Ms NB, Ms JJ and CTXR. Based on this evidence, the Tribunal accepts CTXR experiences recurrent UTIs.
6. Dr AC's evidence is that for CTXR, his recurrent UTIs present as pain in his abdomen, bladder and Mitrofanoff. Dr SK's evidence is to the effect that CTXR's recurrent UTIs are a contributory factor with respect to his chronic pelvic pain; and Ms NB similarly reported CTXR's UTIs cause pain. The Tribunal broadly accepts this evidence and finds that for CTXR, his UTIs manifest as pain in his abdomen, bladder and Mitrofanoff.
7. In closing submissions, the Respondent contended that pain is not an impairment. A similar submission was made by the Respondent in Burrows and the CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (Burrows).[59] In Burrows, Senior Member French rejected the contention that pain is not an impairment, reasoning:

'I do not accept the CEO's submission that pain is not to be regarded as an impairment for the purposes of s 24(1)(a). Pain constitutes a loss or variation to typical body function (typical body function does not involve persistent experience of pain). Pain is sensory experience produced by the nervous system usually in response to damage to body structure. Within the framework of the ICF pain is categorised with other sensory functions, including sight and hearing. I adopt that categorisation here even though the Agency's operational guideline appears to limit sensory impairment to sight and hearing impairment. The alternative would be to find at least in this case, that the Applicant's experience of pain is a neurological impairment because it is produced by her nervous system. In either case it is an impairment for the purposes of s 24(1)(a).'[60]

1. The Tribunal raised with the Respondent that there are Tribunal decisions in which the Tribunal has accepted pain is an impairment; however, the Respondent did not make any substantive submission with respect to this. The Tribunal considers the reasoning in Burrows as outlined in paragraph [54] is sound; and concurs that pain is an impairment.
2. For the reasons outlined above, the Tribunal considers that CTRX's recurrent UTIs are a recurrent condition or diagnosis, the impairment arising from those recurrent UTIs is pain in CTXR's abdomen, bladder and Mitrofanoff; and that impairment is properly described as a sensory impairment. On this basis the Tribunal is satisfied CTXR has a disability attributable to a sensory impairment.
3. Dr AC's evidence is that CTXR's pain has always been multi-factorial, and separate to pain arising from his UTIs, she could not comment on his deep pelvic pain. Dr SK, who is a pain physician, opined CTXR has chronic pelvic pain from multiple surgeries (contributing to nerve damage), years of pain sensitisation from recurrent UTI's and trauma from the use of inappropriate catheters, and potentially pelvic floor spasms. Based on Dr SK's evidence, which is corroborated by Dr AC's evidence, the Tribunal finds CTXR's chronic pelvic pain is multi-factorial, and an aspect of that is neuropathic pain resulting from multiple surgeries. The Tribunal considers that CTXR's neuropathic pain is most appropriately described as a neurological impairment; and on that basis is satisfied CTXR has a disability attributable to a neurological impairment.
4. To summarise, the Tribunal is satisfied the requirement in s 24(1)(a) is met on the basis of an inability to discharge urine from the bladder, and anatomical and physiological abnormalities of the penis (physical impairments); severe anxiety, depressed mood, avoidant behaviours and negative cognitions (psychosocial impairments); pain arising from recurrent UTIs (sensory impairment); and neuropathic pain resulting from multiple surgeries (neurological impairment).
5. Having accepted that s 24(1)(a) is met based on physical, psychosocial, sensory and neurological impairments, the Tribunal must next consider whether those impairments are, or are likely to be, permanent.

Are CTXR's impairments, or are they likely to be, permanent?

1. For the purposes of s 24(1)(b), the Tribunal must be satisfied that CTXR's impairment or impairments are, or are likely to be, permanent. Within the context of s 24(1)(b), a permanent impairment is an impairment which is of an enduring nature.[61]
2. Rules 5.4 to 5.7 of the Access Rules provide that:

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

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. In Davis, Mortimer J confirmed that within the context of Rule 5.4, the word 'known' means a treatment which can be identified by an Australian medical professional as suitable for a person's particular impairment; the word 'appropriate' means a treatment which has a capacity to 'remedy' the impairment and is suitable for the particular individual to undergo; and the word 'available' means available to a particular individual.[62] The word 'remedy' in Rule 5.4 means something approaching a removal or cure.[63]
2. The indisputable evidence is that because of bladder exstrophy, CTXR's bladder formation was incomplete at birth and open to his abdomen; a new composite bladder was formed, along with a Mitrofanoff; and he cannot discharge urine from his bladder without inserting a catheter into the Mitrofanoff. Dr AC's evidence, which the Tribunal accepts, is that the likelihood is that CTXR will need a Mitrofanoff revision at some point, which should be delayed as long as possible. There is however no corrective surgery that would remove CTXR's need to self-catheterise. In these circumstances, the Tribunal finds there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy CTXR's inability to discharge urine from his bladder; and further finds that physical impairment does not require medical treatment or review in order for its permanency or likely permanency to be demonstrated. The Tribunal is satisfied this physical impairment is permanent for the purposes of s 24(1)(b).
3. In closing submissions, the Respondent stated it accepted the diagnosis of PTSD, depression and anxiety are permanent; and that which flows from them in terms of impairment are permanent. CTXR's evidence is that he has seen several psychologists and has been seeing Ms MP for approximately a few years; he consulted with a psychiatrist when he is younger and is currently trying to see a psychiatrist; and his pain physician has prescribed amitriptyline and duloxetine primarily to manage his pain, but these medications also treat anxiety and depression.
4. Ms MP reported that due to bladder exstrophy, CTXR's trauma history is significant, and he suffers long-term psychosocial debilitation because of this. Ms MP opined the psychosocial impact of CTXR's sexual dysfunction is permanent. Further, in oral evidence Ms MP opined that whilst a psychiatrist would be helpful, intermittently, to monitor CTXR's medication and mental state, her best professional clinical opinion is that because CTXR has this congenital condition (that being bladder exstrophy) and all the reminders of that, he is to some extent stuck with his psychosocial impairments at some level. By this the Tribunal understood Ms MP's evidence to be that even with treatment, CTXR will continue to experience some degree of anxiety, depressed mood, avoidant behaviours and negative cognitions.
5. Ms MP has practised as a clinical psychologist for almost 3 decades; and has been providing therapeutic support to CTXR for approximately 2.5 years. Ms MP gave evidence at the hearing in a measured and impartial manner; and provided clear clinical reasoning for the opinions she expressed. Based on Ms MP's evidence, the Tribunal accepts that in circumstances where CTXR's psychosocial impairments arise from or are related to his bladder exstrophy - a congenital condition CXTR has, along with all of the reminders of that - there is no known, available and appropriate evidence-based clinical, medical or other treatment that would be likely to remedy those impairments; and they will at some level remain enduring. The Tribunal is in these circumstances satisfied CTXR's psychosocial impairments are, or are likely to be, permanent for the purposes of s 24(1)(b).
6. CTXR's evidence is that he has undergone multiple surgeries, including penile reconstructive surgery, because of bladder exstrophy. Despite having undergone penile reconstructive surgery, CTXR has anatomical and physiological abnormalities of the penis. With respect to those physical impairments, Dr AC's evidence is to the effect that they result from bladder exstrophy and multiple urethral operations; and there is unfortunately no easy or quick answer for his sexual dysfunction or correction. The Tribunal is persuaded by Dr AC's evidence there is no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy - meaning something approaching a removal or cure - CTXR's anatomical and physiological abnormalities; and that those physical impairments do not require further medical treatment or review in order for their permanency or likely permanency to be demonstrated.[64] The Tribunal is in these circumstances satisfied CTXR's anatomical and physiological abnormalities are, or are likely to be, permanent for the purposes of s 24(1)(b).
7. In closing submissions, with respect to CTXR's sensory impairment, the Respondent stated CTXR has a permanent condition involving the need to catheterise; history has shown he continues to have a UTI from time-to-time; and in this way, it was contended, this is an 'intermittent experience'. For the purposes of s 24(1)(b), the question the Tribunal must answer is whether CTXR's sensory impairment is, or is likely to be, permanent. CTXR's sensory impairment arises from recurrent UTIs. Dr AC's evidence is that using pre-lubricated catheters reduced CTXR's infection rate; and opined the urological component of CTXR's pain would be better managed with pre-lubricated catheters. However, Dr AC's evidence, which the Tribunal accepts, is that whilst using pre-lubricated catheters will reduce the risk of UTIs, this will not remove the risk of UTIs.
8. Based on Dr AC's evidence, the Tribunal finds that whilst the frequency of CTXR's recurrent UTIs will likely be reduced if pre-lubricated catheters are available to him, he will nonetheless continue to experience recurrent UTIs and the pain arising from those. In these circumstances, the Tribunal is persuaded there is no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy CTXR's sensory impairment; and the Tribunal is satisfied CTXR's sensory impairment is, or is likely to be, permanent for the purposes of s 24(1)(b).
9. With respect to CTXR's neurological impairment, Dr SK's evidence is that there is no cure for a chronic pain condition, and so the long-term goal for managing CTXR's pain is to minimise exposure to further nociceptive triggers such as long-term opioid use, and bladder/pelvic organ irritation from infection or trauma, i.e. procedures or inappropriate catheterisation, and addressing the pelvic floor spasms. Based on this evidence, the Tribunal accepts there is no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy CTXR's neurological impairment; and finds his neurological impairment is, or is likely to be, permanent for the purposes of s 24(1)(b).
10. In circumstances where the Tribunal has accepted that CTXR's physical, psychosocial, sensory and neurological impairments are, or are likely to be, permanent; the Tribunal next needs to consider whether CTXR's permanent impairments result in substantially reduced functional capacity to undertake one or more of the 6 activities prescribed in s 24(1)(c).

Do CTXR's impairments result in substantially reduced functional capacity?

1. Section 24(1)(c) requires that CTXR's impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and/or self-management.
2. Rule 5.8 of the Access Rules provides that:

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 Tribunal must first consider whether CTXR's circumstances are within those set out in r 5.8 of the Access Rules. If they are, he will be deemed to have a substantially reduced functional capacity.[65] If they are not, the Tribunal must consider whether CTXR's functional capacity is nevertheless substantially reduced in any of the prescribed activities.[66]
2. When considering whether it is satisfied the requirement in s 24(1)(c) is met, the Tribunal must make a functional, practical assessment of what CTXR can and cannot do.[67] The Tribunal must maintain a distinction between a person's functional capacity to carry out a task or action and their functional performance of that task; functional performance is not relevant to the s 24(1)(c) enquiry as to capacity.[68]
3. The assessment required by s 24(1)(c) involves consideration of the full range of tasks or actions that comprise each of the prescribed activities.[69]
4. The Access Guideline provides the following guidance regarding the content of each the activities prescribed in s 24(1)(c):
   • 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, 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.[70]
5. In CTXR's SFIC it was contended his impairments result in substantially reduced functional capacity to undertake self-care, self-management, social interaction and mobility.[71] In CTXR's closing submissions, Mr Flavell clarified CTXR contends his impairments result in substantially reduced functional capacity to undertake the activities of social interaction and mobility; and he does not contend his impairments result in substantially reduced functional capacity to undertake any of the other 4 activities prescribed in s 24(1)(c). Consistent with this, CTXR's closing submissions, and the submissions filed on his behalf referred to in paragraph [15], only addressed the activities of social interaction and mobility for the purposes of s 24(1)(c).
6. In the Respondent's SFIC it was contended CTXR's impairments do not substantially reduce his functional capacity to undertake any of the activities prescribed in s 24(1)(c).[72] Based on concessions made by CTXR in closing, the Respondent only addressed the activities of social interaction and mobility in closing and maintained their position that the requirement in s 24(1)(c) is not met.
7. On the evidence before the Tribunal relevant to CTXR's functional capacity to undertake the activities of communication, learning, self-care and self-management, the Tribunal considers CTXR's concession in closing was appropriate. In circumstances where CTXR does not put the activities of communication, learning, self-care or self-management in contest for the purposes of s 24(1)(c), the Tribunal finds CTXR's impairments do not result in substantially reduced functional capacity to undertake the activities of communication, learning, self-care or self-management.

1. There is evidence before the Tribunal regarding CTXR's functional capacity to make and maintain intimate relationships. Submissions made in CTXR's SFIC and closing submissions were to the effect that the very real difficulties CTXR has with respect to making and maintaining intimate relationships form part of his reduced functional capacity to undertake the activity of social interaction for the purposes of s 24(1)(c). A preliminary issue arising is whether tasks or actions associated with making and maintaining intimate relationships are included within the activity of social interaction for the purposes of s 24(1)(c).
2. In CTXR's SFIC, reference was made to National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) in which the Full Court of the Federal Court stated:

'We see no reason why sexual activity and sexual relationships would not be regarded as included within the activities listed in s 24(1)(c) (in particular sub-para (ii)); nor why the way an impairment may affect a person's ability to engage in sexual activity and sexual relationships would not be within the concept of 'social ... participation' in s 24(1)(d).'[73]

1. In WRMF the Full Court of the Federal Court was judicially reviewing a decision made by the former AAT that set aside a reviewable decision made by the Respondent declining WRMF's request for funding for services of a person described as a sex worker.[74] The Court was considering a question of law, specifically whether the Tribunal erred in construing and applying various provisions of the Act.[75] In considering this question, the Court made several observations regarding features of the legislative scheme, including that it operates only in respect of individuals who can meet the threshold requirements set out in the NDIS Act to qualify as a participant, which include the disability requirements set out in s 24(1).[76] The Court proceeded to note the Act does not expressly exclude activities involving sexual intimacy from being funded supports, and nor had such an exclusion been made under the NDIS Rules.[77] In these circumstances, the Court opined it is clear the legislative scheme intends no such limits or exclusions, and no such lines to be drawn.[78]
2. The Court's statement reproduced at [82] and referred to in CTXR's SFIC was made in the context described at paragraph [83]. It was not made in the context of judicial consideration of s 24(1); the parameters of what falls to be considered within the activity of social interaction for the purposes of s 24(1)(c)(ii) was not directly related to a matter in issue in the proceedings; and the Court did not give express consideration to that issue.[79] The Court's statement reproduced at [82] is in this way, respectfully, not binding upon the Tribunal within the context of its consideration of whether the requirement in s 24(1)(c)(ii) is met.
3. In Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (Burrows) Senior Member French considered what bundle of tasks falls within each of the activities prescribed in s 24(1)(c).[80] With respect to social participation, Senior Member French concluded those tasks based on what is set out in the Access Guideline include:
   • tasks associated with making and keeping friends;
   • tasks associated with interacting with other people in the community (who are not friends); and
   • tasks associated with behavioural and emotional regulation in a social context.[81]
4. In Foster and National Disability Insurance Agency [2025] ARTA 718 (Foster) Senior Member French, for the reasons he discussed in detail in Burrows, reiterated that the tasks that fall to be considered within the context of social interaction for the purposes of s 24(1)(c) were limited to those referred to in paragraph [85]; and opined they do not include tasks and actions related to familial or intimate relationships.[82] In Lampard the Full Court of the Federal Court approved Senior Member French's reasoning in Foster as it related to functional capacity to undertake social interaction.[83]
5. On Day 2 and Day 4 of the hearing, the Tribunal referred the parties to the Tribunal's decision in Foster and invited them to address that in closing submissions to the extent it is relevant to these proceedings. On Day 4 of the hearing, the Tribunal noted that decision raised issues this Tribunal would need to consider within the context of this matter, including what the tasks are that comprise the activities prescribed in s 24(1)(c); and suggested it would be helpful to have the parties address this in closing submissions. Whilst submissions were made on CTXR's behalf to the effect that the material facts in this matter can be distinguished from those in Foster; neither party made submissions with respect to conclusions drawn by the Tribunal in Foster regarding the tasks that do and do not fall to be considered under social interaction for the purposes of s 24(1)(c).
6. This Tribunal has considered the Tribunal's reasoning and conclusions in Burrows regarding the bundle of tasks that fall within each of the activities prescribed in s 24(1)(c), and respectfully agrees with the Tribunal, for the reasons stated at paragraphs [73] to [95] of that decision, that those are limited to tasks as outlined in paragraph [87] of that decision.[84]
7. This Tribunal agrees with Senior Member French's conclusion in Burrows and Foster that the tasks that make up social interaction for the purposes of s 24(1)(c) based on what is set out in the Access Guideline include tasks associated with making and keeping friends, tasks associated with interacting with other people in the community (who are not friends), and tasks associated with behavioural and emotional regulation in a social context.[85] What follows from this is that the Tribunal considers tasks or actions associated with intimate relationships fall outside those interactions and relationships that make up social interactions for the purposes of s 24(1)(c).
8. The Tribunal will proceed on the basis that tasks or actions associated with intimate relationships fall outside those interactions and relationships that make up social interaction for the purposes of s 24(1)(c), however in so doing it does not intend to diminish the very real challenges CTXR has with making and keeping intimate relationships and the impact this has had upon him.
9. Dr AC reported CTXR's social interactions and interactions in the community are limited by his need to catheterise at least every 3 hours and the need to have a closed cubicle to undertake this in a sterile manner so that he does not increase his risk of recurrent UTIs.[86] Dr AC also reported CTXR's use of unlubricated catheters has resulted in recurrent UTIs, emergency presentations when he cannot catheterise his Mitrofanoff, and the resultant reluctance to engage in social activity, relationships at work.[87]
10. Ms MP reported that due to the impact of his physical disability, CTXR reports a limited social network with 1 or 2 close friends and no consistent social hobbies, activities or groups.[88] Ms MP also reported that as a result of his trauma history from the impact of his disability and his concerns about hygiene, CTXR only goes to certain shops or locations or feels unable to attend events usual for his age such as the Fringe, a concert or festival event and won't attend certain shopping centres or locations with public toilets that may not have adequate hygiene.[89] With respect to social interaction, Ms MP opined CTXR has significant impairment; and reports social isolation, no community-based hobbies, and restricted ability to go out and do normal social activities for age due to anxiety about toilet access and hygiene and dealing with physical pain.[90]
11. In August 2023 Mr SB reported:
    • CTXR can initiate, respond and hold conversations in social interactions. Despite this, he feels socially isolated and withdrawn from making and sustaining friendships attributable to low confidence and anxiety. He avoids social contact to prevent the feeling of unacceptance, rejection and embarrassment. He experiences stress around explaining his condition to new people, due to how they will respond and how he will be accepted; and has concerns around self-catharising in a public social setting. These psychological barriers have prevented CTXR from forming new relationships and engaging in social interactions in the community.
    • He can interact in online communication with no problems. He can interact with others in a familiar environment where he is aware of the accessible facilities. However, he avoids interacting in group or community settings, particularly when the environment is unfamiliar.[91]
    • He is self-limiting his social and community interaction due to heightened anxiety around emptying his bladder; this is severely impacting his ability to form positive relationships and participate in society as any normal 30-year-old would.[92]
    • CTXR would benefit from having ready access to Coloplast catheters, as this would allow him to easily and hygienically empty his bladder in any bathroom. This is the only support he needs access to.[93]
12. Mr SB's oral evidence was the effect:
    • CTXR reported he takes a significant amount of time off work for UTIs. With respect to pain, the majority of the issues CTXR mentioned to Mr SB were when he does have an infection. CTXR said when he doesn't have infections, he's pretty much living his life as normal, apart from his need to catharise.
    • He was asked by the Respondent to consider CTXR's bladder exstrophy condition, and his report was confined to CTXR's physical impairments. He did discuss anxiety in his report as that comes through with CTXR's need to use the sterilising equipment when he is out and about.
    • When he prepared his report, he had no material before him that made mention of depression or PTSD. He did not receive a copy of Ms MP's letter dated May 2023 with the Respondent's briefing letter. The conclusions he came to in his report were based on the evidence he was provided - so with new evidence, obviously the conclusions would be different.
13. In May 2024 Ms KN reported:
    • CTXR was visibly anxious interacting with her during the assessment; frequently apologised unnecessarily, lost his train of thought, and had racing thoughts; and required a lot of assurance to assist with reducing his perceived level of anxiety.[94]
    • He avoids social contact and self-isolates due to lack of confidence, anxiety, feeling socially isolated, feeling mis-understood, fear of rejection and embarrassment, which is directly related to his bladder exstrophy. He reported having few close friends that he meets in pre-planned, 'safe' environments to assist with reducing his anxiety around emptying his bladder in a hygienic, appropriate location.[95]
    • He does not place himself in social situations where he can meet new people due to anxiety and fear of being socially rejected; and because of this he is socially isolated and withdrawn.[96]
    • He requires support to encourage intervention (encouragement, advice, positive reinforcement) to limit his social withdrawal and support his high levels of anxiety. His emotional status fluctuates depending on the frequency of his pain and dysfunction related to his bladder exstrophy.[97]
    • He is currently employed as a nurse. He feels working in this field may not be feasible if his pain symptoms and frequency of UTIs continue to occur.[98]
    • He reported a long history of being unable to engage in recreational activities as he is concerned about his infection risk, accessible and hygienic toilets, social judgement, risk of UTI.[99]
    • CTXR's WHODAS 2.0 score with respect to 'getting along with other people' and 'participation in society' were 55 percent and 78.13 percent indicating severe disability and extreme disability respectively.[100]
14. Ms KH gave the following oral evidence:
    • CTXR has significant anxiety around talking about his self-catheterization and his condition in the workplace and how it affects his work.
    • She does not know exactly how many friends CTXR has, or the frequency of which he meets his friends. What she wrote in her report with respect to this was what CTXR reported to her.
    • In cross-examination Ms KN was asked to assume CTXR takes steps to avoid unnecessary social interaction outside the work environment; he has a good bedside manner and gets along with his patients; he has colleagues or acquaintances at work who he gets along with but they are not friends outside of work; he communicates well; at work he will sometimes sit down at the cafeteria socially with colleagues; he has a couple of close friends; and will sometimes catch up with his sister. It was put to Ms KH that with those assumed facts, she wouldn't express a view CTXR has a reduced functional capacity in terms of social interaction. Ms KN gave evidence she thinks that when CTXR is not in pain, then he will work and he can maintain social interactions; but he does not want to put himself in situations where he may be at risk of not being able to self-catheterize safely or hygienically. She thinks that if CTXR is confident in the environment, he can self-catheterize and he has the right equipment to be able to do that, and he's not experiencing pain or his pain levels are managed, then he can engage socially.
15. Relevant to social interaction, CTXR's written evidence is to the effect:
    • He suffers anxiety about going outside the house due to not having a clean environment to catheterise.[101] He will shy away from social activities as he must worry about whether he can empty his bladder, or he is in extreme pain.[102]
    • Very rarely does he speak with friends on the phone or on social media. He has a few friends he will catch-up with on rare occasions. Interactions with friends must be planned (e.g. he needs to know where toilets are and if they are clean), and anxiety around hygiene when out limits him from doing things.[103]
16. CTXR gave the following oral evidence:
    • His capacity for social interaction is affected by anxiety, PTSD, depression and pain. He doesn't really have a social life; it is just home and work. He feels like he does and has avoided various things because of concerns around how he will attend to his catheter needs in a hygienic way.
    • He as 1 or 2 friends. One friend is a lady named "C" (Ms C) he met in 2011; she is the same age as his mum; he met her through a TAFE course. He will catch up with her every 6 months or so; and will sometimes talk to her on the phone. His other friend is named "A" (Ms A); he met Ms A through a school friend when he was at high school; she is like a long-term friend who he will catch up with occasionally for a meal; he hasn't seen her for approximately 4 months. When asked in cross-examination whether other than Ms C and Ms A he had 1 or 2 other friends, he gave evidence 'I mean, my sisters, like they are friends'.
    • In his work environment there isn't too much socializing, but he interacts with the patients. His work is what keeps him sane. His leave is taken up by his condition. His employer is understanding. He got a printout regarding leave from his boss, and he thinks he had 57 days off during the last 12 months. In cross-examination he said he could not recall with certainty exactly how much time he has taken off work each month; and that the time he takes off work varies with pain levels. He broadly agreed that over the past 12 months, he took between 5 and zero days off each month because of issues arising from bladder exstrophy.
    • From his experience of using the recommended catheters he did notice it eased his anxiety and stress which impact social interaction.
    • In cross-examination, he agreed he gets along with nursing colleagues he works with, has a pleasant personality and gets along with people; he has developed a good bedside manner with patients; and has a good relationship with work colleagues, both nurses and doctors. He clarified that in the work environment, there is a break room and people will sit there for lunch breaks and the like; he'll chat to colleagues there but he doesn't have friendships outside of work with colleagues, he does not see them in social settings. He will talk to anyone and everyone that he works with; he will help nurses less familiar with the ward.
17. In closing, it was submitted for CTXR that Mr SB's functional capacity assessment report dated August 2023 was not informed by Dr AC's letters dated May 2024 and September 2024, Ms MP's letters dated August 2023 and August 2024, or the functional capacity assessment report prepared by Mr KN dated May 2024; and the Tribunal therefore should find little utility in Mr SB's report. In oral evidence, Mr SB confirmed he was asked by the Respondent to consider CTXR's bladder exstrophy and was not given material relevant to CTXR's psychosocial impairments. In these circumstances, the Tribunal agrees with CTXR's submission that the briefing letter and materials given to Mr SB were incomplete; and in those circumstances Mr SB did not have a fulsome understanding of the impairments with which CTXR lives, and his recommendations were informed by that incomplete understanding of CTXR's impairments. This does impact the weight the Tribunal can give Mr SB's evidence. Nevertheless, Mr SB's assessment of CTXR's functional capacity is in several ways consistent with Ms KN's; and to the extent he reports direct observations of CTXR and what CTXR self-reported to him, it is still of assistance to the Tribunal. It is not the case therefore that no weight can be given to Mr SB's evidence.
18. Dr AC's evidence is that CTXR must self-catheterise every few hours and requires a sterile environment to catheterise. Ms MP's, Mr SB's, Ms KN's and CTXR's evidence is to the effect CTXR will only attend specific venues where he will have access to hygienic facilities to accommodate sterile self-catheterisation, for fear of UTIs and the pain arising from those; and Ms MP's evidence is to the effect this avoidant behaviour is in part a choice and in part an intrinsic aspect of his PTSD. Consistent across evidence provided by Dr AC, Ms MP, Ms KN and CTXR is that CTXR's pain arising from recurrent UTIs limits his ability to go out and engage in social activities; and both Mr SB and KN reported CTXR lacks confidence and avoids social contact to prevent feeling misunderstood, unaccepted, rejected and embarrassed. The Tribunal broadly accepts this evidence and finds CTXR's permanent impairments do impact where, when and how often he can complete tasks or actions associated with making and keeping friends; and in this way, his opportunity to perform such tasks and actions is limited.
19. However, consistent with the ruling in Lampard, a distinction must be drawn between CTXR's functional capacity to carry out a task or action and his functional performance of that task for the purposes of assessing whether s 24(1)(c) has been met.[104]
20. CTXR's evidence, which the Tribunal accepts, is that despite having a good collegiate relationship with those he works with, he has not developed a friendship per se with anyone he works with and does not have any engagement with his work colleagues outside of work. Based on CTXR's evidence, which is consistent with what he reported to Ms MP and Ms KN, the Tribunal accepts he has 2 close friends, specifically Ms C and Ms A; he occasionally catches up with them in-person; and he will also infrequently speak with them on the phone. In circumstances where he has known Ms C since 2011 and Ms A since some point in high school, these are by any measure well-established, enduring friendships.
21. When asked whether he has friends other than Ms C and Ms A, CTXR referred to his sisters whom he considers friends. However, for reasons outlined above, the Tribunal considers familial relationships, like intimate relationships, fall outside tasks associated with making and keeping friends, and for this reason the Tribunal will not include CTXR's relationship with his sisters within its consideration of whether CTXR can or cannot make and keep friends. Whilst CTXR has very few friends, he does have enduring friendships, and in these circumstances, the Tribunal finds he can make and keep friends.
22. Whilst the Tribunal accepts CTXR's evidence that a recent letter from his employer confirmed he has had 57 days off work in the last 12 months, and that his inability to work on those days was related to pain arising from UTIs, he has otherwise maintained his position as a nurse in a busy hospital on an 0.8 FTE basis. On his own evidence, CTXR gets along with nurses and doctors at the hospital; relates well to patients and has a good bedside manner; will talk to colleagues in the lunchroom; will talk to everyone he works with; and will help nurses less familiar with the ward. CTXR also gave evidence he will occasionally catch up with Ms C in the community, if he knows he has access to hygienic facilities where he can self-catheterise. This evidence demonstrates to the Tribunal that CTXR can interact with other people in the community (who are not friends); and he can regulate his behaviour and emotions in a social context. The Tribunal finds accordingly.
23. It is clear on the evidence, and indeed expressly stated by CTXR, that his primary motivation for applying to become a participant of the NDIS is that he hopes this will enable him to have an NDIS plan that includes funding for the pre-lubricated catheters which his urologist has recommended; which when trialled resulted in a reduction in his UTIs; and which will cost in the vicinity of $15,000 per annum, an amount he claims he cannot afford. Based on Dr AC's evidence, and CTXR's lived experience, the Tribunal accepts that pre-lubricated catheters will reduce trauma to CTXR's Mitrofanoff when catheterising and reduce his risk of recurrent UTIs. In this way, self-lubricated catheters will better manage CTXR's physical and sensory impairments, and this will improve his quality of life.
24. With respect to the activity of social interaction, Mr SB opined CTXR would benefit from ready access to Coloplast catheters as this would allow him to easily and hygienically empty his bladder in any bathroom; and Ms KN recommended CTXR would benefit from ongoing psychological support.[105] Whilst the Tribunal accepts self-lubricated catheters will better manage CTXR's physical and sensory impairments, and CTXR's opportunity to participate in the activity of social interaction may be increased if he can easily and hygienically empty his bladder in any bathroom, it is not persuaded on the evidence that he usually needs self-lubricated catheters to participate in or complete the bundle of tasks that falls within the activity of social interaction for the purposes of s 24(1)(c). Nor does the evidence suggest he usually needs support from other people to participate in or complete the bundle of tasks that fall within the activity of social interaction for the purposes of s 24(1)(c). In these circumstances, the Tribunal finds CTXR's impairments are not deemed to result in substantially reduced functional capacity to undertake the activity of social interaction by operation of r. 5.8 of the Access Rules.
25. Having found CTXR's circumstances do not fall within those set out in r 5.8 of the Access Rules, the Tribunal must consider whether CTXR's functional capacity to undertake the activity of social interaction is nevertheless substantially reduced.[106] Based on a functional, practical assessment of what CTXR can and cannot do of the range of tasks that comprise the activity of social interaction for the purposes of s 24(1)(c), the Tribunal has found he can make and keep friends; interact with others in the community (who are not friends); and behave and regulate his emotions in a social context. In those circumstances, the Tribunal is not satisfied that CTXR's impairments result in substantially reduced functional capacity to undertake the activity of social interaction.

1. The activity of mobility includes tasks associated with moving around within the home and community; and getting in and out of bed or a chair.[107]
2. Dr AC reported CTXR's ability to move around the home remains unchanged by his bladder dysfunction however in the community there are limitations in where he can utilise the toilet to empty his bladder due to the need to have a clean, safe and private environment to do so.[108]
3. Ms MP reported CTXR can have good mobility however reports frequent bouts of intense pain, recurrent UTIs, and repeated antibiotic use which leads to his physical system being run down, physical depletion and exhaustion. Ms MP also reported CTXR avoids attending certain locations or being too far away from toilets; and will avoid certain toilets considered unhygienic and then not attend to his physical needs as a result.[109]
4. Relevant to CTXR's ability to mobilise, Mr SB reported:
   • He mobilises independently in his home environment and the community. He does not require any assistance or assistive technology to support his mobility.[110]
   • He can mobilise independently, unassisted.[111] When his bladder is at capacity, he experiences physical discomfort. When he has an infection, bladder spasms or skeletal pain mobility is difficult. He performs movement slower and is less likely to engage in tasks that increase pain.[112] His walking tolerance varies and is dependent on how full his bladder is and if he has ready access to a bathroom.[113]
   • He can mobilise up and down stairs independently and does not require a handrail.[114]
   • He is employed as a nurse, which requires frequent mobility on the ward. A typical shift is 8 hours. The physical demands involved in his role are walking over a long period of time, transferring and lifting patients, push/pull objects and performing manual handling.[115]
   • He can independently drive a vehicle. He can drive short distance to familiar environments with no issues. He has difficulty and experiences anxiety driving long distances due to his immediate and unpredictable need to empty his bladder. He lives approximately 45 minutes from work and prepares for the long drive by ensuring he empties his bladder beforehand to reduce the likelihood of needing to self-catheterise again. This method is not always reliable.[116]
   • He has no issues with transfers on and off surfaces, however if the stoma is at full capacity and he cannot self-catharise, the resultant pain impacts his ability to complete transfers. Whilst slower to complete transfers in those circumstances, he does not need additional support with transfers.[117]
   • CTXR does not require any assistive technology aids/devices to enable independent mobility.[118] Access to the recommended catheters do make self-catheterising easier, reducing the probability of pain; and as a result, CTXR will be able to actively engage in more activities both at home and in the community.[119]
5. Relevant to CTXR's ability to mobilise, Ms KN reported:
   • He was observed to mobilise independently internally and externally unaided on all terrains when his pain levels are controlled. He mobilises at a slower pace and is more reluctant to mobilise when he experiences stomach spasms and abdominal pain.[120]
   • He was observed to be independent with all transfers on the day of the assessment. He reported undertaking sit to stand transfers more slowly and methodically when experiencing abdominal pain associated with a full bladder.[121]
   • He is independent with ascending and descending stairs without use of a handrail.[122]
   • He drives with no restrictions and has access to his own vehicle. When in pain he does not drive.[123]
   • CTXR's WHODAS 2.0 score with respect to 'getting around' was 40 percent, which suggests moderate disability.[124]
   • In future, Ms KN does not expect CTXR will require equipment to support his mobility.[125]
6. Ms KN gave oral evidence CTXR can mobilise, however his mobility is impaired when he has increased pain.
7. CTXR's written evidence relevant to mobility is as follows:
   • He can walk up to 15 minutes without a break; the displacement of the hip due to bladder reconstruction will create pain where he can't walk long distances without breaks.
   • He can drive with no restrictions. His car has no modifications. He avoids public transport in case he needs to make a toilet stop urgently when his bladders is full; and cannot travel on public transport without support and extensive planning.[126]
   • He strives to go for walks or food once a fortnight with friends and family.[127]
   • He is independent with mobility.[128]
8. CTXR's oral evidence relevant to mobility was as follows:
   • He works early shifts as a nurse. Those shifts start at 6:45am and finish at 2:45pm. There is a part of the job where you are documenting things; and parts of the job where you are answering call bells, doing medication rounds, setting up IV antibiotics.
   • In cross-examination he agreed he is mobilising quite a lot throughout the ward and rooms during his shifts. On days which are full-on, he may not be drinking enough and then, the pain sort of worsens and he has a horrible night; by the time he gets home he is curled up in a ball because of the pain, he just needs to lie down
   • There are times when nursing gets difficult, but he tries to manage it.
   • Towards the end of last year, he had to put an indwelling catheter in and leave that in because the appendix was inflamed and he was literally just called up in a ball suffering for weeks, hoping for the inflammation of the appendix to go down in order to catheterise again and be able to return to work.
   • It's hard to say how often he has days off work. There is always a consistent level of pain; but the pain fluctuates; and sometimes the pain gets really bad. The other week, he was suffering and should have called in sick, but he went to work and ended up having to go down to the emergency department because he was in so much pain. They had to start him on antibiotics. Yesterday, he didn't drink enough in the morning and then in the afternoon when he was catheterising it was like a sharp pain. Sometimes he needs to curl up into a ball because it is like he has a knife in his bladder.
   • He had his boss print out a report the other day, and over the last 12 months it was like 57 days he had taken off.
9. The activity of mobility includes tasks associated with moving around within the home and community; and getting in and out of bed or a chair.[129]
10. Dr AC reported CTXR can move around the home. Mr SB reported CTXR mobilises in his home environment independently, unassisted; and Ms KN directly observed CTXR mobilise independently internally and externally, unaided on all terrains when his pain levels are controlled. Based on this collective evidence, the Tribunal finds that when CTXR's pain levels are controlled, he can independently mobilise around home.
11. CTXR reported to Ms KN that when he is experiencing spasm and abdominal pain he moves at a slower pace and is reluctant to mobilise longer distances; and gave oral evidence CTXR can mobilise, but his mobility is impaired when he has increased pain. Mr SB similarly reported that when CTXR is experiencing abdominal discomfort, an infection, bladder spasms or skeletal pain, mobility is more difficult, he will move more slowly, and he is less likely to engage in tasks that increase pain. Both Mr SB and Ms KN reported that CTXR can independently use stairs without a handrail, and neither qualified this in any way. CTXR gave oral evidence that on workdays that are 'full-on' and he hasn't drunk enough water his pain will worsen, and by the time he gets home he is 'curled up in a ball because of the pain' and 'just needs to lie down'.
12. Based on what CTXR's consistent self-reporting to both Ms KN and Mr SB, the Tribunal finds that during periods when CTXR's pain levels are not controlled, such as acute episodes of pain arising from UTIs, he can mobilise within the home, albeit with difficulty and in a modified way (that being slowly); and whilst CTXR will sometimes curl up in a ball and be reluctant to mobilise during those periods, he can nevertheless mobilise within the home, albeit with difficulty and in a modified way.
13. Mr SB, Ms KN and CTXR each gave evidence to the effect CTXR can independently drive with no restrictions; and Ms KN reported CTXR does not drive when in pain. Based on this evidence, the Tribunal finds that CTXR can drive to move around within the community but will avoid driving when in pain.
14. CTXR works as a nurse in a hospital 0.8 FTE. Consistent with Mr SB's evidence, CTXR confirmed in oral evidence that a typical shift is 8 hours and involves frequent mobility on the ward. CTXR confirmed part of his role as a nurse involves answering call bells, doing medication rounds, and setting up IV antibiotics. CTXR's written evidence is that he can walk up to 15 minutes without a break. This evidence suggest to the Tribunal CTXR can, and does, mobilise within the community.
15. The Tribunal has already accepted CTXR's evidence that a recent letter from his employer confirmed he has had around 57 days off work in the last 12 months, and that his inability to work on those days was related to pain arising from UTIs. However, whilst the Tribunal broadly accepts that when CTXR is experiencing pain arising from UTIs, he may be unable to perform his role as a nurse in a hospital and will in those circumstances take time off work, this does not mean he cannot mobilise within the community during such periods. Tasks associated with mobilising within the community for the purposes of s 24(1)(c) are simply not akin to those tasks associated with working as a nurse in a hospital.
16. In Madelaine v National Disability Insurance Agency [2020] AATA 4025, Deputy President Humphries considered the threshold requirement to achieve functional capacity in the domain of mobility when moving around within the community, and opined the relevant question is whether a person can move about in shops or a park once they reach them.[130] Consistent with the Tribunal's finding at paragraph [119], whilst the Tribunal accepts CTXR will sometimes curl up in a ball and be reluctant to mobilise when he is experiencing pain, the Tribunal is not persuaded on the evidence before it that he cannot during those periods mobilise within the community, albeit with difficulty and in a modified way; and finds accordingly.
17. Mr SB reported CTXR had no issues with transfers on and off surfaces, although he will complete transfers more slowly when he is experiencing pain. Ms KN directly observed CTXR to be independent with all transfers on the day of the assessment; and CTXR reported to her he will undertake sit to stand transfers more slowly and methodically when experiencing abdominal pain associated with a full bladder. Based on Mr SB's and Ms KN's evidence, which is consistent, the Tribunal finds CTXR can complete all transfers, including getting in and out of bed or a chair, albeit that he will complete transfers more slowly and carefully when he is experiencing pain.
18. In Mr SB's report, in the section addressing the activity of mobility, he broadly opined access to pre-lubricated catheters will make self-catheterising easier, reducing the probability of pain, resulting in CTXR being able to engage in more activities in the community. Based on Dr AC's and CTXR's lived experience, the Tribunal has already accepted at paragraph pre-lubricated catheters will better manage CTXR's physical and sensory impairments. The Tribunal broadly accepts better management of CTXR's impairments may increase CTRX's opportunity to participate in more activities in the community. However, Ms KN opined it is not expected CTXR will require equipment to support his mobility; Mr SB similarly opined CTXR does not require any assistive technology aids/devices to enable independent mobility. There is no suggestion in the evidence CTXR requires any support from another person to participate in or complete the bundle of tasks that falls within the activity of mobility. On the evidence before it, the Tribunal is not persuaded CTXR's circumstances are captured by those described in r 5.8(a) or 5.8(b) of the Access Rules; and it finds accordingly.
19. In closing submissions, it was contended CTXR is unable to participate in the activity of mobility or to perform tasks or actions required to undertake or participate in the activity of mobility, even with assistive technology (identified as pre-lubricated catheters); and that he is therefore deemed to have substantially reduced functional capacity to undertake the activity of mobility pursuant to r 5.8(c) of the Access Rules. In support of this, it was submitted, in effect, CTXR lives with chronic pelvic pain for the reasons described by Dr SK in February 2024; he strives to maintain his independence by working on average 3 days a week; at the end of the working day he is in such pain he can only cope with curling his body into a ball; and his functional capacity is therefore substantially reduced.
20. This above contention cannot be accepted. Firstly, there is an inherent contradiction between submitting CTXR can mobilise whilst working as a nurse on average 3 days each week, but is unable to participate in the activity of mobility or to perform tasks or actions, required to undertake or participate in the activity of mobility, even with assistive technology, equipment, home modifications or assistance from another person as described in r 5.8(c) of the Access Rules. Further, in circumstances where the Tribunal has found CTXR can move around his home and within the community, and complete all transfers independently, his circumstances are not captured by r 5.8(c) of the Access Rules. The Tribunal finds accordingly.
21. For the reasons in paragraphs [125] to [127], the Tribunal finds CTXR's impairments are not deemed to result in substantially reduced functional capacity to undertake the activity of mobility by operation of r 5.8 of the Access Rules. Based on a functional, practical assessment of what CTXR can and cannot do of the range of tasks that comprise the activity of mobility for the purposes of s 24(1)(c), the Tribunal has found he can move around his home and community, and complete all transfers independently. In those circumstances, the Tribunal is not satisfied that CTXR's impairments result in substantially reduced functional capacity to undertake the activity of mobility
22. In circumstances where the Tribunal has found CTXR's impairments do not result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), the Tribunal finds the requirement in s 24(1)(c) is not met. It follows that CTXR does not meet the disability requirements in s 24.

Does CTXR meet the early intervention requirements?

1. For the reasons outlined above in relation to ss 24(1)(a) and 24(1)(b), the Tribunal accepts that CTXR has one or more identified physical, neurological and sensory impairments that are, or are likely to be, permanent; and one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be permanent. Accordingly, the requirement in s 25(1)(a) is met.
2. Section 25(1)(b) requires that the Tribunal is satisfied that provision of early intervention supports for CTXR is likely to benefit him by reducing his future needs for supports in relation to disability. Rule 6.9 of the Access Rules provides that in deciding whether provision of early intervention supports is likely to benefit CTXR in that way, it is expected the Tribunal will consider:

a) the likely trajectory and impact of his impairments over time. > > b) the potential benefits of early intervention on the impact of the impairments on his functional capacity and in reducing his future needs for supports. > > c) evidence from a range of sources, such as information provided by him or his family members or carers.

3. In CTXR's SFIC it is contended appropriate catheter management and psychological therapy are necessary to prevent further deterioration in CTXR's physical and mental health; and that the importance of early intervention is to reduce or prevent the escalation of disability-related support or the Applicant's need for future psychological support.[131] In closing, it was broadly submitted that the provision of early intervention will avoid CTXR's future needs for supports if CTXR's continuing condition is to significantly deteriorate.
4. In the Respondent's SFIC, with respect to the early intervention requirements, it is stated:

'The nature of the Applicant's condition is not one that is suited to the early intervention requirements for the simple reason that he will always have to use a catheter to empty his bladder. There is nothing in the early intervention requirements that would change that. As such, this is clearly not a case to which the early intervention requirements logically apply.'[132]

1. In closing, the Respondent submitted this is not a case where early intervention arises for the simple reason that improving the mode of catheterization and reducing the frequency of infection will not provide a reduction of support in other areas. It was further submitted that even if the mode of catheterisation is changed and the frequency of risks of infection is reduced, CTXR will still have pain, the risk of infection will not be eradicated.
2. In the Access Request form dated June 2022, Dr AC opined early intervention supports are likely to reduce CTXR's future support needs; pre-lubricated catheters were the only early intervention support recommended; and the expected outcome of providing pre-lubricated catheters was identified as reduced UTIs, contamination, and stomal deterioration.[133] Dr AC's subsequent evidence is to the effect intermittent catheterisation undertaken but with a pre-lubricated catheter reduces the trauma of the Mitrofanoff; and if CTXR can safely and effectively empty his bladder without increasing recurrent UTI risk and/or injury to his Mitrofanoff, the need for further more aggressive surgical intervention can be prevented; as can the risk of stone formation, deterioration of renal function, subsequent need for dialysis and/or death be reduced.[134]
3. Dr SK similarly opined CTXR's access to the catheters recommended by Dr AC will reduce the risk of further trauma to his Mitrofanoff and reduce the risk of infection.[135] Ms JJ reported that during a trial of the recommended catheters CTXR had not had a UTI and reported decreased levels of pain; and without ongoing continued access to these catheters it is likely CTXR with return to suffering with recurrent UTIs requiring antibiotics and resulting in CTXR needing to take time off work.[136]
4. In May 2024, Ms KN opined the provision of early intervention support (such as hydrophilic catheters) is likely to benefit CTXR by reducing future needs for supports related to his impairments.[137] Ms KN referred to recommendations made by CTXR's treating practitioners that CTXR use pre-lubricated catheters to reduce the risk of further trauma to his Mitrofanoff stoma and reduce the risk of infection.[138] Ms KN stated from an occupational therapy clinical perspective, if CTXR does not gain access to long-term use of the recommended Coloplast SpeediCath Flex catheters, he will continue to experience UTIs and pain, and will require ongoing and more invasive interventions.[139] In addition to pre-lubricated catheters, supports recommended by Ms KN for CTXR included clinical psychosexual therapy, a clinical nurse consultant, and psychological support.[140] In cross-examination Ms KN agreed that in expressing her written opinion about the need for early intervention she heavily relied on the medical reports which were available to her because her role as an OT is to express a view about CTXR's functionality.
5. In August 2024, Ms MP reported that since CTXR has had access to higher quality contained catheters via short term program, he has reported feeling a reduction in physical stress and an increase in social confidence.[141] Ms MP recommended ongoing access to high quality contained catheters which from a psychological perspective will enable him to reduce anxiety, depression and the chance of his PTSD being triggered; and funding for 12 more sessions of psychology per year to support CTXR with his ongoing mental health and wellbeing and daily function.[142]
6. Based on the evidence outlined in paragraphs [135] to [138], the supports that have been recommended for CTXR include pre-lubricated catheters, psychology, psychosexual therapy, and a clinical nurse consultant.
7. CTXR was born with bladder exstrophy, and the indisputable evidence is that he has lived with his physical, sensory, neurological and psychosocial impairments for much, and in some circumstances, his whole life. Whilst the Tribunal has not been satisfied that CTXR's permanent impairments result in substantially reduced functional capacity to undertake any of the activities prescribed in s 24(1)(c), there is no question those impairments have impacted, and continue to impact, CTXR's functional capacity to undertake activities of daily living.
8. The overwhelming evidence is that irrespective of which catheter CTXR uses, he will always need to self-catheterise. Dr AC's evidence, which the Tribunal has accepted, is that the recommended catheters will reduce the frequency of CTRX's recurrent UTIs, but will not remove the risk of UTIs, and in this way it can reasonably be expected CTXR will at some level or frequency continue to experience pain arising from them. Dr SK's evidence, which the Tribunal has accepted, is to the effect CTXR will always live with his chronic pain condition, the neurological component of which has in part arisen due to CTXR's multiple surgeries over many years, and pain management will be ongoing. Ms MP's evidence, which the Tribunal has accepted, is that her best professional clinical opinion is that because CTXR has this congenital condition (that being bladder exstrophy) and all the reminders of that, he is to some extent stuck with his psychosocial impairments at some level. The Tribunal considers that in all these circumstances, whilst the impact of CTXR's impairments on his functional capacity to undertake activities of daily living may fluctuate and evolve with time, that impact will nevertheless be ongoing.
9. The Tribunal accepts that access to pre-lubricated catheters will reduce trauma to CTXR's Mitrofanoff and reduce the risk of UTIs; and based on Dr AC's evidence accepts this may delay or avoid the need for more aggressive surgical intervention. By reducing UTIs, the Tribunal accepts CTXR's sensory impairment will likely be better managed, and this will in turn reduce the frequency or extent to which this impacts his functional capacity. However, in circumstances where CTXR will always need to self-catheterise, the Tribunal finds that access to the recommended catheters will not reduce his future need for catheters. The nature of CTXR's congenital condition and his physical impairment is that he will always need to use a catheter to empty his bladder.
10. The Tribunal has considered whether access to pre-lubricated catheters now will nevertheless reduce CTXR's future needs for supports other than catheters. Relevant to this, Ms MP has opined that access to the recommended catheters will enable CTXR to reduce his depression, anxiety, and the chance of his PTSD being triggered. The Tribunal broadly accepts this may be so. However, it is unclear from Ms MP's evidence whether in her view this would in turn reduce the functional impacts of CTXR's psychosocial impairments and his future needs for supports. The Tribunal is not persuaded on the evidence before it that access to pre-lubricated catheters would have this affect.
11. Whilst Ms MP has recommended psychology, and Ms KN has recommended psychosexual therapy, a clinical nurse consultant, and psychological support, neither Ms MP or Ms KN have explained whether, and if so how, these supports will reduce the functional impacts of CTXR's impairment or impairments or his needs for supports into the future. The Tribunal is not persuaded on the evidence before it that early access to psychology, psychosexual therapy and a clinical nurse consultant would reduce the functional impacts of CTXR's impairments and reduce CTXR's future needs for supports.
12. For the above reasons, the Tribunal is not satisfied the provision of early intervention supports for CTXR is likely to benefit him by reducing his future needs for supports in relation to disability, and the requirement in s 25(1)(b) is not met. It follows that CTXR does not meet the early intervention requirements in s 25.
13. In circumstances where CTXR does not meet the disability requirements in s 24 or the early intervention requirements in s 25, he does not meet the access criteria to become a participant of the NDIS.

1. The Tribunal affirms the decision under review.

[7] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (NDIS Act) unless otherwise stated.

[8] s 8 of the Administrative Review Tribunal Act 2024.

[9] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.

[10] Respondent's Statement of Facts, Issues and Contentions (Respondent's SFIC), [13].

[11] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.

[12] CTXR's Statement of Facts, Issues and Contentions (CTXR's SFIC), [20], [24].

[14] Respondent's Statement of Facts, Issues and Contentions (Respondent's SFIC), [6], [13].

[15] National Disability Insurance Agency v Lampard [2025] FCAFC 139 (Lampard), [76].

[23] Ms MP's oral evidence. It is noted that whilst the date of the letter at E1, 213 is 30 May 2023, Ms MP confirmed in oral evidence this was an error and the correct date of this letter is 10 August 2023.

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

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

[59] Burrows and the CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (Burrows), [40].

[64] rr 5.4 and 5.6 of the Access Rules; Davis, [136].

[69] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), [64].

[71] CTXR's SFIC, [77], [91], [92].

[72] Respondent's SFIC, [20]; Respondent's closing submissions.

[73] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF), [141

[79] Garcia v National Australia Bank Limited [1998] HCA 48, [56].

[82] Foster and CEO, National Disability Insurance Agency [2025] ARTA 718, [64], [85].

[107] Access Guideline, 9; Burrows, [87].

[129] Access Guideline, 9; Burrows, [87].

[130] Madelaine v National Disability Insurance Agency [2020] AATA 4025, [105].