1. The Applicant then requested an Internal Review of the decision of July 2023. As a result of the Internal Review, the Delegate affirmed the initial decision finding that the disability and early intervention requirements were not met. In reaching that conclusion, the Delegate found that the Applicant met the age and residential requirements to join the scheme. However, like the earlier decision makers, the Delegate conducting the review found that there was insufficient evidence to establish that all available treatment options had been explored. The reviewer also found that as a result of this there was insufficient evidence to determine that the impairments were permanent or likely to be permanent, the criteria under s 25 (1) (b) had not been met. As a result of this decision the reviewer found that the access criteria had not been met. They also considered that the functional impact criteria (s 25 (1) (c) NDIS Act) had not been met by the Applicant.
2. The main issue impacting on the Applicant's request to join the NDIS concerns criteria (b), being that the impairments were not considered to be permanent. However, the cumulative findings that the Applicant did not meet the access criteria due to a combination of s 25 (1) (b) and s 25 (1) (c ) resulting in a position whereby the Delegate formed a view that as a participant, the Applicant was unlikely to have a permanent condition, and did not have substantially reduced functioning due to her diagnosed impairment, then she would not be likely to require lifetime support of the NDIS. Essentially a person whose impairments are not established as permanent would be unlikely to require lifetime support from the NDIS.

1. In respect of the s 25 Early Intervention criteria, the Delegate found that the Applicant did not meet this criteria. The initial criteria on impairments (s 25 (1) (a)) the Delegate was satisfied that this had been met because the condition was not likely to be permanent and did not involve a child who has developmental delay. The finding concerning lack of permanence arose in the same context as the s 24 consideration.
2. In respect of s 25 (1) (b) and (c) the Delegate was not satisfied that early intervention with NDIS support would reduce the Applicant's future needs for support. They based this finding on a lack of any evidence to support that aspect of the application.
3. In respect of the third Criteria, (c) concerning improving capacity, the Delegate was satisfied that early intervention supports would improve the communication, social interaction, learning, mobility, self care or self management or prevent the deterioration of existing functional capacity of the Applicant, and the Applicant agreed that those supports would assist her in that regard. However, the former s 25 (3) (repealed) provided that the Delegate could reject an application if they believed that supports were more appropriately funded through another system of service delivery of support services. In this instance the Delegate was of the view that the health system would be the more appropriate arm to provide early intervention supports for the Applicant.
4. However, in the final criteria concerning early intervention eligibility, the Delegate found that the supports necessary were reasonably and most appropriately funded through alternative avenues including the health sector.
5. As noted s 25 (3), has since been repealed. As the amendments which received assent on 5 September 2024 and commenced operation on 3 October 2024 post-date the application, the provisions brought about by the amending Act, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 do not apply retrospectively.
6. The s 25 (3) provision provides that:

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 NDIS 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 universal service obligation, or

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

1. The initial and reviewing Delegate found that the available evidence did not indicate that NDIS support was the most appropriate available early intervention support. They found that ... 'early intervention supports would be most appropriately provided through the Health System or other government services'. The Delegate referred to 'clinical treatment being a responsibility of the health system, not the NDIS'.
2. As the Delegate found that the Applicant did not meet the disability requirements under section 24 or the early intervention requirements under section 25 of the NDIS Act following Internal Review, the Applicant then sought review of the Internal Review decision by this Tribunal pursuant to section 103 of the NDIS Act on 16 December 2023.
3. The Tribunal held a hearing by video on 12 and 13 August 2025. The Applicant was not legally represented at hearing. The Agency was represented by Mr C Johnston of counsel instructed by Sparke Helmore Lawyers.
4. In arriving at the decision on Administrative Review, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB), which was accepted into evidence. The Applicant filed various documents including notes and letters from her treating professionals including G Serfontein, (Paediatric Neurologist), J Haddock (Speech Pathologist), T Campbell (Counsellor), B Canales (Counsellor) and material prepared by the Applicant herself including a Statement of Lived Experience and their response to the Respondent's Statement of Facts Issues and Contentions (SOFIC).
5. The Respondent's material in summary consisted of their SOFIC dated 27 June 2025, and an independent medical report of Gary Stretton Occupational Therapist (OT) dated 4 April 2025. The Tribunal was assisted by the opening and closing submissions of both parties, which were made orally at the hearing.

AMENDMENTS TO THE NDIS AND TRIBUNAL LEGISLATION

1. Applicable to these proceedings are the amendments to the background NDIS provisions and the Tribunal legislative provisions since the matter was commenced in December 2023. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). In accordance with the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceedings before 14 October 2024 is taken to have been done by the Tribunal.
2. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) commenced on 3 October 2024 and made amendments to the NDIS Act. As the Applicant's request for access to the NDIS was made before 3 October 2024, section 126 provides that the NDIS Act, Rules and Guidelines apply as they existed before commencement of the amending Act. Both parties agreed that the amendments to the NDIS of October 2024 did not apply to these proceedings being access proceedings.

1. As noted above, these proceedings concern a review of a decision to refuse access to the Scheme. As set out above, the Tribunal is required to apply the applicant's stated circumstances to the legislative criteria and policy provisions, which must be satisfactorily met on the available evidence in order to access the Scheme.
2. As the Tribunal has regularly observed from an examination of the Legislation, to become a participant of the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

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

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

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

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

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

1. As noted from the decision under review, there is no dispute that the Applicant satisfies the age and the residence requirements. What the Tribunal must decide is whether the Applicant satisfies the access criteria in section 24 ('the disability requirements') or section 25 ('the early intervention requirements').
2. Section 24 of the Act states:

(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:

(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.

1. If the Applicant does not meet the disability requirements, the Tribunal must consider whether they meet the early intervention requirements set out in section 25 of the Act which relevantly states:

(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 that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

(iii) is a child who has a 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.

1. Additionally, under subsection 209 (1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that NDIS rules may prescribe circumstances and criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules in the Applicant's case are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('the Access Rules'), which form part of the legislative framework.
2. In respect of the administrative review to be conducted, I note that the NDIS Operational Guidelines are relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[1] It is well established that in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: As per Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409. The relevant Operational Guideline at time of the decision under review are: Our Guidelines - Becoming a participant - Applying to the NDIS (1 February 2024) ('the Access Guideline').[2]
3. As previously noted by the Tribunal in the case of Mulligan[3], the Federal Court held that the legislation pertaining to the access criteria requires "a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted".[4] The Full Court of the Federal Court of Australia in Foster[5] also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[6] In this regard parties often rely on OT reports to determine what a prospective participant can and cannot do. In the current matter the independent medical expert (IME) report of Gary Stretton is relied upon by the Respondent,
4. For the Applicant to gain access to the Scheme, the Tribunal must be positively satisfied that all the access criteria in either the disability requirements or the early intervention requirements are met. The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[7] In accordance with Foster the Tribunal must consider a functional practical assessment of what the Applicant can and cannot do.

1. The parties filed a Joint Tender Bundle of 1535 pages (JTB) which comprised the written evidence in the proceedings.
2. The Applicant gave evidence and was subject to lengthy cross examination at hearing. The Applicant's Counsellor Ms B Canales also gave evidence. On the second day of the hearing, the IME Mr G Stretton Occupational Therapist (OT) gave evidence and was subject to cross examination.
3. The Respondent submitted in opening that the issue in dispute between the parties hinged on whether the Applicant had substantially reduced functional capacity as a result of the impact of her impairment. They submitted that entry into the scheme was not a low bar and not simply a question of would the Applicant benefit from the support of the Scheme.

1. In evidence in chief, the Applicant referred to her statement of lived experience at 386 of the JHB. The statement refers to the challenges of having two children with complex disabilities (both NDIS recipients). Reference is also made to support provided by the Applicant to her stepdaughter and elderly mother.
2. Reference was also made to the Applicant's husband's career involving interstate driving with four weeks on and two weeks off as his routine. When he is at home during his off shift periods he sleeps most of the time. The Applicant referred to having had a hip replacement with some complications impacting on her which resulted in an increase in her anxiety.
3. The Applicant also adopted her statements and letters contained within the JHB as true and correct.
4. In cross examination the Applicant confirmed that her application was based on ADHD, PTSD, Anxiety and Depression. The Applicant advised that she was on medication from a young age but went off it prior to starting school. The Applicant said that anxiety had been a problem for her whole life.
5. The Applicant advised that she was formally diagnosed with PTSD around 2015 or shortly thereafter. There was also reported by the Applicant an incident some years back whereby the husband had rolled his truck during an accident and was off work for two and a half years.
6. The Applicant was asked about her medication and the questions used Dr Bisht's response to the targeted questions document at page 379 of the JHB. The Applicant advised that her GP prescribes the general medication but Dr Bisht had also put her on a type of amphetamines. The Applicant engages in cognitive behavioural therapy (CBT) with her counsellor. She advised that she sees Dr Bisht every three months to review the medications.
7. The Applicant told the Tribunal that her ADHD diagnosis makes managing the household's varied needs quite difficult. She said that she has good and bad days and can be quite forgetful at times. She said that she is often distracted and has a lack of focus in respect of tasks. The Applicant said that she sometimes gets mixed up between the different children and also forgets what she is up to. The Applicant gave an example of a time when she was dressed to go to the Counsellor and just froze and was unable to proceed. The Applicant said that she then has to telephone the Counsellor. She also advised that the Counselling is not paid or subsidised by Medicare but the sessions are self-paid and fortnightly but that she would like to be able to afford to go weekly.
8. The Applicant confirmed that she visits Dr Bisht for her medical needs and sees her counsellor for other treatment. The Applicant said that she goes and sees the counsellor on Tuesday mornings after dropping the kids to school, the sessions being 50 minutes to one hour.
9. The Applicant described her motivation for wanting to join the NDIS and become a participant. She said that if she could make herself better then she can help the kids better. The Applicant's evidence was that she wished to be a more effective carer for her children but also to be able to impose social skills referring to a 'She Shed', women's group, which provides safe and supportive interactions for women.
10. The Applicant referred to some of the impacts of her impairments, noting that tasks take longer to complete than they used to. The Applicant said that she forgets to have breakfast and needs to get healthier through hydrotherapy and gym work. She said that whilst she only sees the counsellor fortnightly, she maintained that she should see her ever week.
11. The Applicant confirmed that she is not on the Disability Support Pension (DSP) but believed that this was the case because her husband's income would mean that she would not receive any payment (means tested) even if she qualified. The Applicant advised that her children had been on the NDIS since it began in NSW around 2015.The Applicant is funded through the children's plans for four hours respite from the children each week. The Applicant does not use any of her children's funding on household support, such as cleaning and cooking. The current set up is that the support workers do two to three hour blocks with the children. The Applicant gave evidence that the support worker cannot be there for both children at once and as a result each has a separate worker for one on one support. She said that she tried to keep the support workers consistent (as in the same staff). In reference to supporting her step daughter, who is now 21 years old, the Applicant confirmed that the step daughter no longer lives in their home.
12. The Applicant referred in her evidence to going into 'full survival mode'. She said that it was a reference to when she has the sole care of the children and needed to focus and try and control herself. The Applicant said that her mind 'drifts' and that she loses focus on the evening meal preparation. She said that she gets distracted and loses focus every evening but eventually the meal gets prepared. She said that when she sits down with her children, she often needs to redirect them. A further issue concerning the Applicant's coping relates to the children having their sleep disturbed overnight from time to time.
13. The Applicant was asked whether it was the case or not that the children's waking up and then her worrying about them going back to sleep, but then worrying about them waking up again, was the real deep seated issue. There was no clear opinion expressed on this point. The Applicant said that she takes the children to school each day and set out how carers assist with homework and after school support.
14. The Tribunal was advised that the male child has a particular NDIS male carer and the female child has a female carer. They undertake clinical sessions after school on Tuesdays as well as a fortnightly psychologist session on different weekdays. A support worker from a provider comes to the home weekly to focus on one child's listening and attention skills. The purpose of this evidence was to outline the limited instances outside of school hours when the Applicant is not responsible for and managing her two children with disabilities.
15. Counsel for the Respondent put the proposition to the Applicant that she was able to respond appropriately to all questions put to her by both Counsel and the Tribunal. The Applicant advised that the support person who was with her was assisting by helping her to understand the questions and writing her notes.
16. After being interposed for another witness, the Applicant was asked about her contact with friend 'R.H.' The Applicant said that she sends a text message to her friend and they talk on the telephone every couple of months and meet twice a year. The Applicant had known her friend for around 20 years but denied that she necessarily goes out socially with her but does visit her home.
17. It was put by the Applicant that if her friend was more available, she would ask to be taken in the friend's car to the 'She shed'. 'R.H.' lives on the Northern Beaches of Sydney and the 'She Shed' sessions start at 9:30am so the Applicant estimated that 'R.H.' would need to leave home at 5:30am in order to come and collect her to take her to the shed.
18. The Applicant was also asked about her enjoyment of the game of darts. She said that for six months she did not participate and 'just sat there and watched'. The Applicant referred to her quite withdrawn, and at times 'anti-social' behaviour in this context. The Applicant said that generally she is constantly focusing on what is going in around her and this becomes very draining on her. It was suggested to the Applicant that her lack of attendance at Darts was not due to anxiety or related impairments but due to her responsibilities at home.
19. It was also put to the Applicant that she was slow at learning but not incapable of learning things. The Applicant agreed with this proposition. When asked whether getting things done around the house essentially fell to the Applicant to action and achieve, the Applicant agreed in broad terms but also qualified her answer by stating that it was evolving and still a work in progress. She said that she can put washing in the machine but then forgets to turn the machine on. The Applicant said that she can put the washing out to dry but forgets to bring it in.
20. The Applicant was questioned about a NSW Carers support she had received. The Applicant said that this related to support she had qualified for and received following hip replacement surgery and rehabilitation. The Applicant said that the support was only for a two month period while she was on crutches and recovering.
21. At the end of cross examination, the Tribunal asked the Applicant about aspects of her husband's health referred to generally in the material before the Tribunal. The Applicant advised that her husband is prescribed ADHD medication. He is often too tired to look after the children when he returns home from his days away working.
22. The Applicant advised that she gets support from her mother in looking after the children and this is especially so when she wishes to attend Darts.

1. Ms Canales in evidence in chief was asked what she thought was the purpose of her counselling sessions with the Applicant. The witness advised that ideally the sessions were to be weekly but based on the limitations that the Applicant presents with, learning is of a slower pace, and she is working on that. When focusing on daily living skills the witness was asked how further sessions would improve these matters. The witness advised that with daily living skills, they improve when more sessions are conducted because learning is at a slower pace and there is a bit of trial and error, so the extra time helps.
2. The witness was asked what they thought about having a support person to assist her in social settings and particularly whether that would be beneficial The witness agreed with that proposition as due to the Applicant's psycho-social disabilities her ability to communicate socially is limited. When asked what other support needs are effective for the Applicant socially the Witness advised that she needed a lot of prompting.
3. In cross examination the witness was asked how the tests were administered. She advised that they were conducted one to one and involved asking the Applicant questions and that she documented the answers to. It was put to the witness that the Applicant was more than capable of communicating. The witness however noted that the support person had been with her at all times.
4. The witness was asked whether she had observed the Applicant in a social setting without a support person present. The witnesses said that she had as well as meeting the Applicant at her rooms. They also observed that the Applicant is a different person one on one as opposed to when she is in a social setting.
5. The witness was asked about her assessment contained at pages 324 to 331 of the JHB and specifically whether the Applicant's ability to perform in a quiet place or in a crowded setting changes. The witness said that the Applicant still struggles with social anxiety even in a crowded public space or place.
6. When asked whether the Applicant's capacity was affected by things around her, the witness answered that her capacity was impacted by her disability.

1. On day two of the hearing, Mr Stretton, the Occupational Therapist (OT) who was commissioned by the Respondent, gave evidence. In evidence in chief, the witness adopted his report of 3 April 2025 as true and correct with no alterations or corrections.
2. The witness was asked who was present when he conducted his assessment at the Applicant's home. The witness advised that only the Applicant was present but her husband was understood to be elsewhere in the house. The assessment took two and a half hours to complete.
3. In respect of mobility assessment as referenced at page 471 of the JTB, this was not the focus of the examination as the witness confirmed that the Applicant's impairments were psychosocial in nature. On this basis the witness did not have the Applicant perform any tasks. However, the witness observed the Applicant moving around the house.
4. In respect of communication, whilst the responses were said to be verbose and tangential at times, the witness was able to understand and report what the Applicant told her. The Applicant had advised the witness that she had difficulties making friends and referred to childhood bullying as contributing to this social interaction issue. The Applicant had confirmed to the witness that she had a small group of adult friends in addition to her spouse and mother but that her opportunities were limited for doing things outside of the home in part due to her carer responsibilities.
5. When asked whether the witness observed the Applicant to be anxious at all, the witness answered that the Applicant was not specifically anxious. He said that the Applicant had advised that she felt anxious when around new people and also when in big groups. The witness advised that he did not conduct any psychometric assessment as it was not in his remit. The witness advised that the Applicant was able to hold down employment and had obtained post high school qualifications, (working in the disability sector in a group home prior to parenting commitments). However, the witness noted that the Applicant required a lot of redirection and relied on electronic timers to stay on top of things.
6. The witness was asked what his impression of the Applicant's role as 'general manager' or 'person responsible' for the management of the household was. The witness said that from what he was able to observe and assess the Applicant did a reasonable job in that regard. The witness said that the Applicant did highlight that some tasks were not done perfectly and she said that she neglected her own self care to ensure that her children's needs are met. The witness conveyed that the Applicant said she would eat later in the day, and attend to her own needs later as she was ensuring that the children's needs were met first.
7. In cross examination the witness agreed with the Applicant that a two and a half hour assessment meant that there were some limitations on what he was able to assess.
8. On the issue around how long the Applicant might take to perform certain activities, the witness agreed that the report did not focus on or highlight this issue but agreed things took longer for the Applicant to complete.
9. In respect of the electronic reminders, the witness was asked whether they were specifically needed because of the Applicant's disability and whether she uses them more than others. The witness agreed that both of these matters were possible. The witness said that he did not utilise the Trauma Informed PTSD approach. He confirmed that activities and tasks take longer for the Applicant to complete because of the functional impact of her disabilities.
10. In response to questions from the Tribunal the witness noted and agreed that the issue of competing demands makes it difficult for the Applicant to effectively be a sole parent for at least five days a week.

1. The Respondent referred to their Statement of Facts Issues and Contentions as being their written submissions, which they relied upon. There was no change following the evidence adduced during the hearing. In oral submissions the Respondent referred to the applicable law being the law that was in force at the time of the decision prior to the October 2024 amendments.
2. The main thrust of the submissions was that in the Respondent's view the Applicant had not been able to demonstrate a significantly reduced functional capacity in at least one of the six domains referred to in s 24 (1) (c) of the NDIS Act.
3. The Respondent submitted that the real question in this case is what the Applicant can do and what can she not do. They submitted that the NDIS is not designed to be access by an individual that is 'struggling with life'. The Respondent submitted that the test as set out in the NDIS Becoming a Participant Rules 2016 under Rule 5.8 is that a participant is unable to participate fairly or completely without support. However, they submitted that for the NDIS to be sustainable there needs to be limits on who gets access in order to make it be sustainable in practice.
4. Reference was also made to the necessity to apply the evidence at a fairly high threshold when determining access matters. The Respondent noted that whilst the Applicant has particular impairments around going about the usual daily things, she does not usually require assistance. For example, there were no real issues around mobility and it was not really in question.
5. In respect of communication, the Respondent submitted that there was some impairment at times but on the whole the Applicant is able to express herself to others and others can understand her. The Respondent noted that the Applicant had worked with her Counsellor to develop her skills in respect of the social anxiety.
6. In respect of learning, the Respondent submitted that there was no evidence of reduced cognition due to the Applicant's impairments but there was some level of impairment concerning the time that it took to complete tasks or to learn new things and pick things up.
7. With respect to self care and self management, the Respondent submitted that the Applicant is living in a household as a very diligent mother operating as a sole parent for much of the week. The Respondent submitted that questions remain as to what the Applicant can and cannot do. Whilst she could not engage in a deep clean of the home, the Applicant was able to complete the vast majority of domestic tasks at a slower pace. It was also conceded that there may sometimes be issues around missing meals and medication but the Respondent submitted that in total there was no evidence that these matters were detrimental to the Applicant in the longer term.
8. The Respondent submitted that the WHODAS assessments can be useful as a tool but they are not to be preferred over direct evidence obtained by an OT questioning and observing and assessing an individual. They submitted that reports should be given weight over testing. The Respondent noted that the Applicant conceded that part of the benefit of getting onto the NDIS would be in order to provide better care for her children. The Tribunal notes that the relevant children are already NDIS participants.
9. Reference was made to the case of Jalaudin and NDIS [2023] AATA 448 at [55] whereby

55. The Tribunal accepts that to define the extent of the Applicant's reduction in mobility and self-care by including her caring responsibilities is not founded in the NDIS Act or Rules, which only identify the impact of an impairment on an Applicant's self-care and self-management. This is despite the difficulties the Applicant may face in her everyday life with a child with disability. Accordingly, the Tribunal finds that evidence relating to the Applicant's capacity to meet her caring responsibilities is irrelevant to determining whether there is a substantial reduction in her mobility or self-care. (The Tribunal also notes that the father is now the child's primary carer, that the Applicant works full time and the Applicant's daughter is also attending school, further reducing the significance of the Applicant's mothering efforts).

1. The Respondent noted that noted from the case of Jalaudin that carers responsibilities which create a reduction in functionality across any of the five domains is not a matter founded in the NDIS Act.

1. In brief submissions at the end of the hearing, the applicant clarified that her reference to 'my time' referred to when both children were at school. The Applicant also submitted that her diagnosis not her role as a mother is the basis of the application to the NDIS and the diagnosis is the reason for her reduced capacity.
2. The Applicant submitted that her reduced capacity impacts on how she lives her life and puts her and her family at risk. The Applicant concluded by reiterating that the Tribunal should not take into account her role as a mother but as a person with additional needs.

1. The Tribunal notes that the Respondent accepts that the Applicant meets disability requirements of a psychosocial disability of PTSD, ADHD, Anxiety and Depression in accordance with s 24 (1) (a) of the NDIS Act.
2. The Tribunal also notes that the Respondent does not accept that in respect of and s 24 (1) (b) and 25 (1) (a) of the NDIS Act, that the Psychosocial impairments are likely to be permanent and that they are likely to affect the Applicant's capacity for social and / or economic participation in accordance with s 24 (1) (d) criteria.
3. The issue in contest as set out in the evidence above is whether the Applicant has a substantially reduced functional capacity as a result of those impairments, which impact on the activities of communication, learning, social interaction, mobility, self care or self management.
4. A further issue not essentially addressed by the Applicant is that the Respondent submits that the evidence is insufficient to establish that the Applicant is likely to require NDIS support for her lifetime. The Respondent maintained that the evidence was insufficient to determine whether all know treatment options had been explored, and if not whether the health system was the appropriate alternate pathway for the applicant to be medically supported as a result of her disabilities and impairments.
5. In respect of the alternate pathway into the scheme under early intervention, the Respondent submitted that the evidence is insufficient to establish that the provision of support now in an early intervention context is likely to benefit the Applicant in the manner outlined in s 25 (b) and 25 (c) of the NDIS Act especially noting the apparent long term nature of the Applicant's diagnosis having arisen from childhood and pre-adult years.
6. As has previously been observed by the Tribunal, Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 sets out when an impairment results in substantially reduced functional capacity to undertake relevant activities. The Rule provides that they (the applicant) are unable to participate effectively or completely in the activity (including performing tasks), the person usually requires assistance, or the person is unable to complete the tasks or actions even with assistance.
7. Having considered the evidence closely, including all of the material not outlined in detail above, whilst I accept that the impairments equating to a disability were both present and permanent, and that they affect the Applicant's capacity for social and economic participation to some extent, I do not accept that the Applicant's functional capacity was likely to be substantially reduced across any of the six domains. This is a crucial finding which unless an early intervention issue arises, will result in the overall decision being affirmed.
8. Whilst the impairments arising from the diagnosis have resulted in some reduction in functional capacity in some of those domains, in the areas of Communication and Learning, in my view the evidence, as outlined above, does not demonstrate any meaningful reduction in functional capacity. Whilst learning might take longer than average, that delay does not, on the totality of the evidence, result in any substantially reduced functioning to the learning domain overall. Likewise for communication. The Applicant during the hearing was able to articulate and provide her own cogent evidence. Whilst her support person was assisting her and at times writing notes for her, Applicant was appropriately able to address all matters put to her both by the Respondent's Counsel and the Tribunal.
9. The OT observed that the Applicant appeared to understand everything he put to her and whilst there are references to needing to be redirected from both the OT and other clinicians, that matter did not in my view significantly impair the Applicant's communication and as a result substantially reduce her functioning in this domain.
10. In respect of the remaining domains of Mobility, Social Interaction, Self Care and Self Management, the impact of the impairments on the Applicant's functional capacity is not substantial.
11. In respect of Mobility the Applicant was observed by the OT to mobilise safely and independently around the home. These observations are consistent with the basis of the application not being focused on physical impairments but rather solely focused towards the impact of her psychosocial impairments on her functioning. Whilst there are clearly aspects of the majority of these domains that are somewhat reduced, such as in the mobility domain the inability to physically get in certain positions (such as not being able to deep clean), impacts on self management and possibly self care, nowhere is there evidence of substantially reduced functioning.
12. There is an absence of evidence that the Applicant cannot do certain things that she needs or wishes to do due to any mobility deficit, or things that she requires assistance with. The Tribunal heard evidence that as a full time parent of children with disabilities of school age, whereby she manages their education, skill development and support, interventions and therapies, and general lifestyle as a parent including taking them to and from school, it is difficult to see how the overall situation could be any different to that described by the OT Mr Stretton in his report.
13. I note that NDIS Guidelines refer to, when assessing mobility, how one moves around their home and accesses the community. Whilst the Applicant has some limitations these manifest in the slower performance of some actions and some tasks.
14. However, the impact does not, on the available evidence, allow me to be positively satisfied that the Applicant's functioning in those domains is substantially reduced because of her impairments.
15. The Tribunal notes that the Applicant's impairments do result in some reduced functional capacity. The issue concerning how the Applicant is able to physically get things done was noted in the evidence outlined in some detail above.
16. In respect of Self Care, it is taken to mean - personal care, hygiene, grooming, eating and drinking and health. It also includes how one gets dressed, showers, bathes and goes to the toilet. The OT reports that the Applicant was not observed conducting these activities of daily living. Again this was in part due to the nature of the impairments being psycho-social. I accept that due to some minor limitations on mobility, noting the OT's observations with some difficulty of the Applicant transferring to a couch, there may be some minor reduction in functional capacity in this area. Without speculating further, I conclude that some transfers involving self care may, and I emphasise that 'may' is based on a lack of direct evidence, impact the Applicant.
17. In addition I note that the Applicant did not claim any significant deficits in this domain in her evidence including what she reported to the OT.
18. In respect of Self-Management, whilst the capacity may vary on any given day, the Applicant is in effect a single mother to two children with disabilities for at least five days of the seven day week cycle. The support from her mother at times and her husband on weekends is not because the Applicant cannot parent to the children, but in practice as a way of respite including the general provision that where there is family there is an expectation of a reasonable level of support being given. I note that these proceedings concern the Applicant's impairments and impact rather than that of the two children who are already NDIS participants.
19. The Applicant engages in all household activities other than deep cleaning, with which she has some difficulty. Grocery shopping, clothes washing, general domestic cleaning, organising appointments, clinicians and other supports, and transportation are all managed adequately by the Applicant independently. She manages her finances and shares that responsibility with her husband.
20. In respect of the domain of Social Interaction, the evidence from the OT was that the Applicant reported that she had a limited social network. This is consistent with her evidence at Hearing. However, I note that the Applicant denied having any behavioural problems arising from her limits on socialisation or her childhood bullying other than difficulties with making friendships or interacting socially. These are not of themselves behavioural problems.
21. The OT observed the Applicant to engage in social conversation and interacted socially appropriately. Whilst the difficulty that the Applicant finds in respect of developing and maintaining new friendships understandably causes her concern, such matter are not matters on the available evidence whereby support would address the issue. If the situation was wholly different with an anti-social personality disorder or significant social phobia, the first port of call would be treatment though the allied and mainstream health system. In my view this is not such a case nor does the Applicant present it as such.
22. What the Applicant appears to require is a greater level of respite to enable her to spend more time socially with her current limited contacts and potentially through those channels attempt to broaden her social network and in doing so overcome some of her current difficulties.
23. I find on the totality of the evidence that the Applicant's functioning in the six domains outlined above and referred to at s 25 (1) (c) of the NDIS Act, are not substantially reduced by the accepted impairments arising from her disability diagnosis.
24. As the Tribunal has previously observed the deeming provisions of the Rules as clarified in National Disability Insurance Agency v Foster [2023] FCAFC 11 clarifies that the provision that an ability to undertake a single task effectively or completely does not mean that the provision applies to the entire activity to be assessed. The OT report does refer to the Applicant completing some tasks and taking longer than might be usual.
25. Whilst the Applicant receives informal support from her partner and her mother, these matters are factored into and addressed in the NDIS access criteria.
26. Whilst the disabilities clearly have some impact on the applicant's abilities and functioning in her life, the impacts of these impairments do not substantially reduce the Applicant's functionality in these domains.
27. Whilst the disabilities have some impact on the applicant's abilities, these impacts do not substantially reduce the Applicant's functionality in this area.

1. As noted, I have found that whilst the disabilities impact on the applicant's abilities, these impacts do not substantially reduce the Applicant's functionality in any of the listed six areas or domains.
2. As previously noted, s 24 is part of the conjunctive suite whereby if any matter under s 24 (1) is successfully discharged, in that in one or more of the six areas it were found on the evidence to substantially reduce a prospective participant's functional capacity to undertake the specific activity or activities, then the remaining subsections must also be enlivened to gain access to the scheme.
3. Because of the position that no impairment has sufficiently traversed s 24 (1) (c) concerning substantially reduced functional capacity, in the six domains, the Tribunal will deal with the remaining s 24 provisions in less detail.
4. Section 24 (1) (d) concerning the impairment affecting the person's capacity for social or economic participation and (e) the person is likely to require NDIS support for the rest of their lifetime are not enlivened or discharged in any positive manner if subsection (c) is not adequately traversed. However, for completeness I do address them.
5. I note that the Applicant is not in paid employment. She has full time carer responsibilities for which she receives a small carer allowance, but individually appears ineligible for further support due to the level of her spouse's income. The inability to return to work after the birth of her children appears bound up with a combination of parenting duties coupled with the need, at least initially, to care for her spouse whilst he recuperated from serious injuries. The disabilities of the children have now required greater support from when they were very young. This has added to the Applicant's responsibilities as carer as set out in the written and oral evidence before the Tribunal.
6. The Respondent at hearing submitted that their position is that it is the Applicant's responsibilities not her disabilities which prevent her from any means for engagement in employment and as a result social and economic activity. I agree with that submission on the available evidence.
7. In addition, if a proposed participant is unable to satisfactorily traverse the s 24 (1) (c) substantially reduced functional capacity criteria, then the position is that they are unable to meet the criteria in s 24 (1) (e) being whether they are likely to require NDIS support for the person's lifetime.
8. As I have observed, if an Applicant is not entitled to NDIS supports because they fail to traverse s 24 (1) (c), then the question concerning s 24 (1) (e) becomes moot in practice. This conclusion can also be drawn on a fair reading of the Section. If a proposed participant cannot get NDIS support under s 25 (1) (c), the argument then becomes that they are therefore unable to require NDIS supports as they are not eligible. Only if they were eligible would they be able to assessed as to how long the required supports might be necessary. The ability to require the supports turns on access to the supports.
9. Whether further treatments have or could or could not be explored, the evidence is such that the diagnosed conditions are chronic in that the psychosocial conditions will in all likelihood persist for the proposed participant's lifetime.
10. However, in respect of s 24 (1) (d), there is a different approach in play and the decision maker as a first step need only consider once their conceded impairments are met under s 24 (1) (a) and (b), as is the case with the Applicant, then passing over subsection (c) to (d) the language is of a much lower threshold. Whilst s 24 (1) (d) might be of a lower threshold than (c), it does not assist the Applicant in the absence of having substantially reduced functioning. In the current matter it is unclear in the evidence that the accepted impairments do affect the Applicant's capacity for social or economic participation, predominantly because the question around her engagement in an occupational context has nor been resolved due to competing domestic circumstances.
11. Since there is no positive finding in respect of the impairments causing a substantially reduced functioning in any of the six domains under s 24 (1) (c) of the NDIS Act, all other provisions other than s 25 fall away.

1. In respect of s 25 (1) (a), the Tribunal accepts that some of the Applicant's impairments are permanent and meet that criteria. The psychosocial impairments are permanent, and this has also been accepted by the Respondent. However, in respect of s 25 (1) (b), there is little evidence to indicate that early intervention will reduce the Applicant's need for future support arising from this disability. The OT report finds that in many areas this criteria is not applicable to the Applicant's circumstances due mainly to the nature of her disabilities and resultant impairments.

1. Whilst this is an alternative method of access to the Scheme, the Tribunal notes that the available evidence from the Applicant does not address this criteria and provide a position on whether the provision of supports now would reduce the Applicant's need for continued support in the future. The Applicant does however engage on the issue of a need for long term structed support in her Statement in Response to the Respondent's SOFIC, responding with her own self treatment and history of treatment examples.
2. The Respondent submits that the claimed supports (support worker assistance and increased psychology hours) are not supported by the available evidence as being able to mitigate or alleviate the impact of the Applicant's impairments.
3. However, in respect of the issues under the former s 25 (3) of the NDIS Act, the Applicant submits without supporting evidence that the supports are best delivered through the NDIS not the health system (Medicare) or short term carer services (Carers NSW). The Respondent submits that clinical support should be provided through the health system, and that the early intervention requirements cannot be funded by the NDIS as they would be unlikely to reduce future support. On the available evidence. I agree with this position.
4. In this regard, the Tribunal finds that the s 25 criteria are not met on the available evidence.
5. The substantive issue concerns whether any of the permanent impairments resulted in the Applicant having substantially reduced functioning in those areas across any of the six stated domains. In my view the Tribunal had sufficient material before it to determine whether the Applicant meets the necessary requirements of s 24 (1) (a) - (e ), inclusive, having regard to his evidence and material and that of the Respondent and the witnesses of both parties, Ms Canales and Mr Stretton.
6. In addition, I am satisfied that through the hearing and prehearing process, both parties had a reasonable opportunity to be heard.

1. In the current application, for the reasons outlined above the Tribunal is not satisfied that the Applicant meets the s 24 or section 25 criteria under the NDIS Act. In that regard, the Applicant does not satisfy the requirements of a person to become a participant in the NDIS.
2. The Tribunal therefore affirms the decision of the Respondent dated 17 November 2023 as the correct or preferable decision in accordance with s 105 (1) (a) of the Administrative Review Tribunal Act 2024.

1. G Johnson (Counsel)
2. Sparke Helmore Lawyers

[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[2] National Disability Insurance Agency, Our Guidelines - Becoming a participant - Applying to the NDIS, (1 February 2024).

[3] Mulligan v National Disability Insurance Agency [2015] FCA 544 ('Mulligan') at [55].

[5] National Disability Insurance Agency v Foster [2023] FCAFC 11 ('Foster').

[7] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).