Decision: The Tribunal sets aside the reviewable decision and determines that Ms Bond meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme.

NATIONAL DISABILITY INSURANCE SCHEME - access - substantially reduced functional capacity criteria not met - whether applicant meets disability requirements - NDIS Act s24(1)(c) - whether applicant meets early intervention requirements - decision under review set aside.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Becoming a Participant) Rules 2016

James v NDIA [2019] AATA 4248

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Mulligan v NDIA [2015] FCA 544

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

Rooney and National Disability Insurance Agency [2021] AATA 3523

Van Hout and National Disability Insurance Agency [2023] AATA 2771

National Disability Insurance Scheme - Operational Guidelines - Becoming a Participant - Access, https://ourguidelines.ndis.gov.au/home/becoming-participant/applying-ndis

1. Ms Samantha Bond (the Applicant) is a 41 year old female who seeks access to the National Disability Insurance Scheme (the NDIS).
2. Ms Bond has a genetic condition CACNA1A related Familial Hemiplegic Migraine, Type 1 (FHM1) is not currently employed and is in receipt of the disability support pension (DSP).
3. Ms Bond lives in a NSW suburb with her husband and three children. Her two oldest children are NDIS participants and share the same genetic condition FHM1. Her youngest child was born recently in 2024. Ms Bond is supported informally by her husband who works fulltime.
4. FHM1 is a form of severe episodic migraine headaches that for Ms Bond also cause neurological symptoms such as right side hemiparesis, right arm numbness, tongue numbness, nausea, vomiting and lower limb numbness. These are unpredictable attacks that once symptoms commence will render Ms Bond unable to stand and mobilise.
5. On 3 December 2021, Ms Bond made an NDIS access request to become a participant in the NDIS. The Access Request Form stated FHM1 as her primary disability with mild intellectual disability and slipped disc as secondary disabilities. Ms Bond has since clarified that she is only seeking NDIS access on the basis of impairments attributable to her FHM1.
6. On 9 December 2021, the National Disability Insurance Agency (the Respondent) determined Ms Bond did not meet the access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act).[1]
7. An internal reviewer confirmed this decision on 27 April 2022.[2] On 24 May 2022 Ms Bond applied to the Administrative Appeals Tribunal (AAT) for a review of this internal decision.[3] This is the Reviewable Decision before me.
8. The hearing was conducted on 27 and 28 March 2025. In determining this matter, I have considered the material filed by the parties, including the documents filed in the agreed Joint Tender Bundle (the JTB) and I will refer to the materials that are directly relevant to my determination.

1. On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
2. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As Ms Bond's request for access was made before 3 October 2024, the Act, Rules and Guidelines apply as they existed before the commencement of the Back on Track Act.

1. Before turning to the issues, I note the following aspects of the statutory regime regarding access to the NDIS. To become a participant, the following access criteria in subsection 21(1) of the Act must be satisfied:

(1) A person meets the access criteria if:

(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. The parties agree that Ms Bond satisfies the age requirements and the residence requirements. The main questions before me are whether Ms Bond satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the Act.
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:

(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.

1. If I find that Ms Bond does not meet the above disability requirements, I will then consider whether she meets the early intervention requirements set out in section 25 of the Act. This section states that:

1. A person meets the early intervention requirements if:

(a) the person: > > > (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 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 > > > > (iii) improving 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. > > (d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.

2. The relevant rules to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Access Rules), which form part of the legislation.
3. As held by the Federal Court in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577, relevant government policy should be applied by the Tribunal unless there is good reason not to do so. The relevant policy to this matter are the NDIS Operational Guidelines - Access.[4]

1. To meet the disability requirements, I must satisfy myself that Ms Bond meets all the criteria set out in section 24 of the Act.
2. The issue that the parties disagree on is whether Ms Bond's impairments result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. I rely on the explanation provided in Rooney and National Disability Insurance Agency [2021] AATA 3523_[5]_ that 'substantially' takes its ordinary meaning.

1. In support of her NDIS access request, Ms Bond provided evidence of medical records and reports dated between June 1998 and 2024.[6]
2. Also before me is the following material:
   • Ms Bond's Statement of Lived Experience dated 3 February 2022, prepared with assistance from her advocate.
   • Mr Bond's Carer Impact Statement dated 3 March 2022.[7]

1. Dr Wellings is Ms Bond's Neurologist. He gave oral evidence on the first morning of the hearing, his oral evidence is summarised below:
   • Ms Bond's FHM1 is permanent and lifelong and cannot be remedied, only managed pharmalogically to try and deal with frequency and severity of attacks.
   • The first part of the FHM1 are these migraines, second part of FHM1 is the ataxia.
   • Cerebella ataxia is the associated movement disorder characterised as impaired coordination and balance due to the damage in Ms Bond's brain that coordinates her voluntary movements.
   • Ms Bond's presentation is reflective of this with slurred speech, impaired coordination, experiences of falls and 'near misses' with tripping, and her affected walking style.
   • Ms Bond's condition may become more problematic as she ages from a balance and coordination perspective, conversely menopause may cause a decrease in symptomology due to hormones dropping.
   • Recommends for the ataxia, allied health such as physiotherapy, occupational therapy and speech therapy to assist in building endurance and strength, learning to fall safely, utilising mobility aids and equipment that can keep her safer and as active as possible.
2. Dr Wellings also provided letters dated 8 May 2023 and 4 December 2024 in support of the above points.

1. Ms Bond gave oral evidence on the first morning of the hearing. Her evidence can be summarised as:
   • She is a Mum of three children, two oldest children are school age.
   • Looks after the children, getting them to and from school, grocery shopping, cooking and household duties.
   • Her husband is the income earner, undertakes both day and night shifts during the week.
   • She experiences migraines every week and 'pushes through' these where possible.
   • Does take migraine medications, and has strong pain relief she can take as needed, preferring not to as she needs to be responsive to look after the children.
   • Once a month the migraines take the severe form of the hemiparesis with nausea and vomiting, during these she is rendered unable to function.
   • When the severe migraines occur, her husband must take time off work to undertake looking after her and the children.
   • Her speech is affected causing a slurred, slowing speech effect that worsens with the severe attacks.
   • Her short-term memory is affected, with a fogginess in recalling some words, events and circumstances.
   • She described her balance and walking as affected, that she trips at least once a week and experiences falls.
   • Explains she uses her daughters pram as a way of steadying her mobility when needing to be out in the community.
   • Has been recommended to use a four wheel walker and a single point stick.
   • The most severe migraine attacks will put her in hospital approximately 1-3 times a year.
   • Described an attack in February 2024 where she collapsed at home and the teachers at the children's school ended up finding her, as she did not arrive to school pickup.
   • This attack put her in ICU for a week, with the entire hospital stay lasting over 3 weeks.
   • No other family members or informal supports live close-by or can provide support.

Evidence of Daniel Buck, Neurological Physiotherapist

1. Mr Buck is a Neurological Physiotherapist engaged by the Applicant. He gave oral evidence on the afternoon of the first day of the hearing, as summarised below:
   • Practice area of expertise is in genetic and non-genetic neurological conditions.
   • The two components of the FHM1 are the fluctuating nature of the hemiparesis migraines and the underlying baseline dysfunction of the cerebral ataxia.
   • Because of the cerebral ataxia Ms Bond is overall physically deconditioned.
   • Her neurological impairment caused by her FHM1 is permanent, but her physical deconditioning can be worked on and can be improved.
   • Recommends strength and reflexes training, adaptive strategies, balance exercises and walking endurance as these could all assist in reversing some of the secondary deconditioning.
   • Recommends an adaptive exercise program both in-home and in the therapy practice, repeating standardised outcomes measures so that a baseline to compare against can be established.
   • States a program that is appropriately scaled, intense and task specific involving exercises daily or every second day, will improve Ms Bond's stamina, functional capacity to walk, stand and transfer both at home and in the community.
   • Recommends a specific program tailored to improving Ms Bond's overall functional capacity, also positively impact on her family, allowing that support to become more sustainable over time.
   • Early intervention therapy program of 3-9 months in intensity is proposed, scaled for function.
2. Mr Buck also provided a physiotherapy assessment dated 14 January 2025 based on his in-person assessment with Ms Bond. Mr Buck's clinical recommendations are that Ms Bond undertake and receive:

(a) 40 hours of physiotherapy to address her gait and balance dysfunction;

(b) 30 hours of occupational therapy assessment and intervention for

(c) Speech pathology for assessment and intervention in relation to her speech

(d) A budget of $1,500 for low cost low risk adaptive aides until further occupational therapy assessment has been undertaken.

Evidence of Ms Jessica Harper, Occupational Therapist

1. Ms Harper is an Occupational Therapist engaged by the Respondent. She gave oral evidence on the second morning of the hearing, as summarised below:
   • Attended an in-home assessment with Ms Bond at her home 9 February 2024.
   • Ms Bond was experiencing a bad day as she had a migraine event the day before.
   • Ms Bond was seated in a lounge chair for entirety of assessment, unable to demonstrate any functional tasks due to her symptomology.
   • Ms Bond answered questions asked, providing a self-report about her function in specific tasks and activity areas.
2. Ms Harper provided her functional capacity assessment dated 1 March 2024 to the Tribunal.

1. The Respondent accepts in its Statements of Facts, Issues and Contentions that Ms Bond meets the disability criteria under paragraph 24(1)(a) of the Act on the basis of her neurological and physical impairments attributable to FHM1.[8]
2. Ms Bond was diagnosed by Dr Graham Wise, Paediatric Neurologist, when she presented aged 2.5 years with episodes of epilepsy and hemiplegic migraine.[9]
3. On the evidence before me, I am also satisfied that Ms Bond has a disability attributable to a neurological and physical impairment resulting from her FHM1 and that paragraph 24(1)(a) of the Act has been met.

1. To meet the disability requirements under paragraph 24(1)(b) of the Act the impairment or impairments are required to be permanent. Fluctuations in intensity or impairments that are variable can still be considered permanent as subsection 24(2) of the Act provides that impairments that vary in intensity may be permanent, and the person may be considered likely to require support under the NDIS for the person's lifetime, despite this variation.
2. Permanency is established under rule 5.4 of the Access Rules if there is no known, available and appropriate evidence-based clinical, medical or other treatments that are likely to remedy the impairment. The definitions of 'known, available and appropriate

evidence-based clinical, medical or other treatments likely to remedy' have been clarified in National Disability Insurance Agency v Davis [2022] FCA 1002.[10] 3. The Respondent accepts in its Statement of Facts, Issues and Contentions that Ms Bond meets the disability requirements under paragraph 24(1)(b) of the Act that her impairments are permanent. 4. Ms Bond in her oral evidence and her Statement of Lived Experience outlined how her condition fluctuates and she experiences bad days and average days. She explained her baseline is the experience of migraines each week, the associated poor coordination, balance, affected speech and walking style. 5. Having regard to Ms Bond's treatment history including pharmaceutical interventions, and reviews by neurology, I accept on the evidence before me that there are no further medical or evidence-based treatments that may remedy her impairment.[11] 6. I am satisfied that the requirement in paragraph 24(1)(b) of the Act in relation to Ms Bond's neurological and physical impairment is met.

1. I turn to rule 5.8 of the Access Rules, a deeming provision[12] for substantially reduced functional capacity. I will need to consider whether Ms Bond's circumstances are captured in this provision. Rule 5.8 states that:

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

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

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

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

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

1. Considering Ms Bond's circumstances under the deeming rule is only part of the statutory task. If this provision is not met, I will progress to consider whether her functional capacity is substantially reduced in any of the six domains.[13]
2. As I've stated, the term 'substantially' in the context of 'reduced functional capacity' carries a significant threshold provided for by the Act that will need to be met.[14] Paragraph 24(1)(c) calls for more than 'to simply show that functioning in the relevant area is affected'.[15]
3. It is undisputed on the evidence before me that during a severe attack, occurring on the self-report of Ms Bond, approximately once a month she is rendered unable to function. During these severe attacks she experiences hemiparesis, severe pain, vomiting, and nausea along with severe balance issues. During these circumstances she would undoubtably meet the deeming rule 5.8(b) under each of the below domains.
4. The Tribunal notes however that the test before it is whether on balance Ms Bond is usually assisted by another person per 5.8(b) or in 5.8(a) assistive technology. Having regard to the totality of evidence before me, I find on balance that the deeming rule is not enlivened in any of the domains.

1. The functional assessment with Ms Harper in February 2024 was undertaken on a self-reported bad day. Ms Harper noting it as a bad day said, 'she presented with mild dysarthria however she was capable of answering questions relating to her condition and the impact of this on her function'.[16]
2. Ms Harper also added in her report that' 'she occasionally required OT to repeat and reword questions to be understood, however for the majority of the assessment she was able to understand and respond to questions appropriately'.[17]
3. In his Carer Impact Statement Mr Bond states 'on a bad day Sam's ability to interact with others is severely impacted. She does not have the mental energy to talk with people or communicate clearly. The severity of Sam's headaches makes it difficult to be around people or to communicate her needs. After an attack her speech is slurred and slow, like she is drunk. This has lasted from 1 day to 8 weeks'.[18]
4. I accept on the totality of the evidence presented that Ms Bond has intermittent difficulty with communication depending on her symptomology on any given day. I accept her oral communication can be slow and slurred at times.
5. To meet substantially reduced functional capacity is a high bar and I find on the totality of her days that Ms Bond can usually communicate and express her wants and needs.
6. I am satisfied on the totality of evidence that Ms Bond is able to express herself, and on an average day she is able to understand people, and be understood. Accordingly, I find Ms Bond does not have a substantially reduced functional capacity to undertake communication activities.

1. In her Statement of Lived Experience Ms Bond said 'my disability impacts on my ability to make and keep friendships...I do not like to let people know I have an intellectual disability. I do not have friends that I ring or have a coffee and chat with, I do not socialise. I have been like this most of my life and believe this is because of my disability. I feel embarrassed when I lose my balance in front of other people...I would love to ae friends and talk to people I do not know, but it is too hard for me'.[19]
2. This social isolation concern was echoed by Mr Buck who states in his report that Ms Bond 'is highly embarrassed by how these impairments that relate to her CACNA1A gene mutation, and how they impact her function in public. For example, Samantha will often fall over in public, and this has a negative impact on her self-confidence and self-esteem'.[20]
3. Mr Bond in his Carers Impact Statement said 'Sam is very family orientated. She had not maintained any long-term friendships and has not made any new friends. As a family we do not have any other support. We do not socialise. Sam is anxious and nervous around people she does not know. She is not confident and is embarrassed by her lack of balance and coordination. She does not tell people and her disability unless necessary'.[21]
4. The Tribunal has described the socialisation domain as being 'about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills'.[22]
5. In her independent functional capacity assessment, Ms Harper reported 'community-based interactions are limited by Mrs Bond's bad days. Once Mrs Bond has recovered from her episode, she does not have a reduction in her functional capacity for social interaction'.[23]
6. Having considered the evidence before me I have formed the view that Ms Bond does not have substantially reduced functional capacity in the socialising domain.

1. Various reports and letters were provided outlining Ms Bond's schooling history. She attended the support unit for her primary and high schooling, and she required support for her further learning and educational pursuits. She finished school at year 10 and has undertaken some TAFE courses. She has a diagnosed mild intellectual disability, and her early employment opportunities were supported via disability employment programs.
2. Mr Bond in his Carers Impact Statement indicates that Ms Bond's 'genetic condition has resulted in her mild intellectual disability. She struggles with maths but is okay with reading and writing. She has completed a couple of TAFE courses with additional funding for support for her disability. Due to Samantha's poor memory she needs to be reminded more often with repetitive learning and given information in simple steps'.[24]
3. The evidence shows Ms Bond holds a driver's licence and is able to drive when her symptomology allows. She gave evidence she cannot drive when experiencing her severe attacks. I am of the view that to hold a driver's licence and be able to drive on an average day and follow road rules and directions shows she does not have a substantially reduced capacity in the domain of learning.
4. It is my view that it follows therefore that paragraph 24(1)(c) is not met in relation to the domain of learning.

1. The NDIS Operational Guideline refers to self-management as: 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.
2. Ms Bond described that she 'pushes through' as best she can with her weekly migraines, as she is committed to getting the children to school and to undertake the daily routine for the household.
3. In her Statement of Lived Experience Ms Bond details that 'I use my phone calendar to remember appointments. Without this I would forget. I use the calendar for remembering to update prescriptions and other things that need to be done. My husband manages the finances. I am not great at maths and find managing a budget difficult. I would forget to pay bills on time if it were left to me. I have double booked myself on several occasions with appointments'.[25]
4. This is consistent with Mr Bond in his Carers Impact Statement who said 'I manage our budget and pay our bills as Samantha does not feel confident in budgeting and managing money. I sometimes need to help Samantha take her medication. She has days when she is struggling that she doesn't seem to have the energy or motivation to take care of herself. She uses an alarm in her phone to remember her doctor's appointments'.[26]
5. The weight of evidence indicates in my view Ms Bond has the cognitive capacity to organise her life, plan and make decisions and take responsibility for herself, notwithstanding energy and motivation issues that do arise.
6. I am therefore satisfied that Ms Bond does not have substantially reduced functional capacity in the domain of self-management.

1. I turn next to the issue of whether Ms Bond has substantially reduced functional capacity within the self-care domain.
2. Mr Bond in his Carers Impact Statement said 'When Samantha has an attack or a migraine, she struggles with taking care of her personal needs. She will not have the energy or motivation to shower or change her clothes. I have had to take significant time off work to help Sam at these times...at these times she is unable to prepare food and struggles to provide care for our children'.[27]
3. Showering was not directly observed by Ms Harper, however as Ms Bond explains in her evidence she is generally independent and during severe attacks she will not undertake showering or self-care activities as she is rendered unable to do these.
4. In relation to toileting Ms Harper reports Ms Bond is independent with toileting, noting during severe attacks and in the immediate aftermath she requires the assistance of another person due to balance, dizziness, vomiting and overall mobility issues.
5. Overall, I accept there are some self-care tasks that Ms Bond finds difficult to complete, however I am of the view from the evidence provided that Ms Bond does not usually require assistance from other people to perform self-care tasks.
6. I am satisfied that Ms Bond is able to care for herself without assistive technology, equipment (other than commonly used items) or home modifications by undertaking some tasks more slowly using techniques she has modified or adopted to suit her individual needs.
7. On the evidence she is able to participate independently in appointments with her medical professionals, using alarms and reminders to prompt her memory of appointment dates. I am satisfied she is usually able to perform the tasks associated with maintaining her health needs.
8. I am satisfied Ms Bond is able to independently perform the tasks of personal care, hygiene, grooming, eating and drinking. I accept there are limitations in Ms Bond's capacity due to balance, coordination and range of movement however I am not satisfied on the evidence that her impairments result in a substantially reduced functional capacity in relation to the self-care activities.

1. All the professionals who have provided reports along with oral evidence agree that Ms Bond has permanently impaired coordination and balance, ataxic gait and a history of falls and tripping or near misses. The totality of evidence shows that during severe attacks Ms Bond is rendered unable to function, only able to get to the toilet with the help of her husband, and is otherwise confined to lying down.
2. Ms Harper was not able to observe Ms Bond mobilising or demonstrating activities during her functional assessment, as she was recovering from an attack. Her report was limited to Ms Bond's self-reporting around mobility.[28]
3. Dr Wellings states Ms Bond has impaired balance, is slow and ataxic on her feet and has cerebellar eye signs. Mr Buck agrees stating Ms Bond's baseline level of mobility is permanently impaired by her physical impairments, namely ataxia, incoordination, muscle weakness and impaired standing balance and debilitating fatigue.
4. Mr Buck states Ms Bond due to her reduced level of mobility is therefore at a higher risk of falls when walking. Mr Buck also says that Ms Bond has further reduced standing tolerance during the hours and days after a migraine attack. He recommends at a baseline level she uses a walking aide to function safely in the community.[29]
5. Mr Bond in his Carers Impact Statement stated 'Samantha has suffered from episodes causing stroke like symptoms all her life. These attacks cannot be predicted or stopped. When they happen, she is left paralysed on one side of her body, her speech is impacted, and she is often hospitalised. The impact on each attack leaves a lasting deficit in her mobility. Most noticeably in her coordination, where she will fall backwards or trip randomly. Samantha will usually suffer from chronic headaches for at least 2 weeks after an attack. When this happens, Samantha needs more help at home. Samantha needs help going downstairs. I usually stand in front of her and she leans on my shoulder. When walking Samantha does not walk in a straight line, she tends to sway from side to side'.[30]
6. Overall on the evidence before me about mobility, while I am satisfied Ms Bond is unsteady and unbalanced, I am not satisfied that she meets the threshold required for substantially reduced functional capacity in the mobility domain. Ms Bond's impairments on balance do not meet the high threshold required to satisfy a substantial reduction in functional capacity for the purposes of the NDIS.
7. Because the criteria in s 24(1) are cumulative, it is not necessary for me to consider whether the further mandatory criteria under ss 24(1)(d) or 24(1)(e) of the NDIS Act are met. Therefore, I turn now to consider whether Ms Bond meets the early intervention requirements under s 25 of the NDIS Act.

1. As I have determined that Ms Bond has a disability attributable to permanent impairments arising from FHM1, as per s 24(1)(b) of the NDIS Act and the NDIS Rules, she meets the early intervention requirement under s 25(1)(a) of the NDIS Act. The objectives of early intervention support are to lower the costs and impacts associated with the disability for individuals and their informal supports along with the wider community over the long term. Accordingly, early intervention looks at the likely trajectory and impact of a person's impairment over time and the potential benefits the early intervention has on the person's functional capacity.
2. Rule 2.5(b) of the NDIS Rules relevantly states:

'...a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity'.

Whether the provision of early intervention supports is likely to benefit Ms Bond by reducing future needs for supports in relation to her disability?

1. The next question is whether the provision of early intervention supports is likely to benefit Ms Bond by reducing her future needs for supports in relation to her disability under s25(1)(b).
2. I accept these are not new impairments, as this is a condition was diagnosed when Ms Bond was young child. It does appear to me on the overall evidence presented that the impairments have begun to cause interruption to her daily functioning within the last 5 years.[31] On this point I refer to the evidence outlining Ms Bond was able to attend school, TAFE and up until 2 years ago was able to hold down a part-time job, which she is no longer able to do. I do note also that her Statement of Lived Experience outlines she enjoyed working, and that she would like support to be able to get back into employment.
3. Paragraph 6.9 of the Participant Rules sets out the issues to consider in relation to whether the provision of early intervention supports is likely to benefit a person under paragraphs 25(1)(b) and (c) of the Act:

(a) the likely trajectory and impact of the person's impairment over time; and

(b) the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports; and

(c) evidence from a range of sources, such as information provided by the person with disability or their family members or carers. The CEO may also in some cases seek expert opinion.

1. Section 25(1)(b) is concerned with timing of the interventions being early in the course of the impairment. The Respondent states that the timing cannot be satisfied positively, as Ms Bond has had her impairment since very early childhood. In my view, on the evidence it seems that her physical deconditioning, is still in its early stage of trajectory based on the totality of effects Ms Bond experiences in the domains discussed under the s24 requirements. Mr Buck noted that her current level of deconditioning could be positively impacted with a 3-9 month therapy program during his oral evidence.
2. The Applicant drew the Tribunal's attention to the decision of Van Hout and National Disability Insurance Agency [2023] AATA 2771 where the Tribunal was satisfied that there were potential benefits from physiotherapy and exercise physiology interventions as early intervention supports. In this matter the Applicant received her diagnosis at 11 years old and at the time of the decision was aged 38 years old.
3. Mr Buck gave an outline in his oral evidence identifying what precise early intervention supports would be relevant and how he would specifically design these supports into a tailored program to benefit Ms Bond's functional capacity over a 3 - 9 month period. He further gave evidence of how he would establish a baseline for measuring the effectiveness of these interventions over time.
4. All the professionals who have given evidence are in agreeance that Ms Bond's disability is a genetic degenerative condition. The Respondent raised the point that Ms Bond has required lengthy rehabilitation following a severe attack in 2024 and on other attacks historically. I agree that her progressive condition could proceed unpredictably. On this point, it is generally agreed that the trajectory and impact over Ms Bond's lifetime should worsen with age-related decline.
5. Where my viewpoint adjusts is on consideration of Mr Buck and Dr Wellings evidence where they have both described that the outcomes of her impairments can be separated. I am persuaded on their evidence that the ataxia and physical deconditioning aspect can be targeted and mitigated when separated from the migraine side of things. Of note in my view, is that Ms Bond does not currently experience substantially reduced functional capacity in any of the domains within the disability requirements in section 24 of the Act.
6. The decision of James v NDIA [2019] AATA 4248 unpacks the need to take into account the likely trajectory and impact of a person's impairment over time, along with the potential benefits of early intervention on the person's functional capacity.
7. Dr Wellings said in his report 'It is very clear that she has a permanent condition that is genetic that may become more problematic as she ages from a balance perspective. I think support for Samantha through NDIS would be very appropriate, primarily with a view to maintaining her balance and mobility moving forward'.[32] Dr Wellings further stated there was benefit in physiotherapy intervention both to strengthen her muscles and her stability, and to teach Ms Bond how to fall safely and prevent consequent injury.
8. The Respondent states that Dr Welling's evidence cannot support findings as to the potential benefit for Ms Bond, above a general proposition that they may be of benefit. I disagree and find on the evidence before me that Dr Wellings, both in his oral evidence and written evidence stated that support to maintain balance and mobility would build up her reserves while strengthening balance such that any deterioration in her condition over time and the consequent effect on function would be minimised. Mr Buck also asserts these interventions would assist in mitigating and improving her overall conditioning, strength, balance and coordination.
9. The Respondent stated that there was no medical research or literature submitted to the Tribunal on the likely benefits of early intervention support regarding Ms Bond's condition. I agree with this point, as no medical research or literature was provided to the Tribunal on the benefit of these therapy supports. Further the Respondent stated there were a number of factors which would influence the potential benefits that she might receive, such as her motivation and capacity to engage. In my view the fact that the Applicant has pursued this matter with the NDIS since 2021 and from 2022 at the Tribunal during migraine attacks and other life events, suggests to me Ms Bond is likely to have sufficient motivation and capacity to engage in therapy.
10. There is no evidence submitted before me that the allied health interventions stated would not be appropriate for Ms Bond. On the totality of the evidence, supports that can provide Ms Bond with better endurance, strength and overall fitness levels would likely be beneficial for her independence and stamina. While this does not detract from the fact that she will always experience migraines and she will have severe attacks, I am persuaded that these interventions will provide Ms Bond reserves and conditioning, that she does not currently possess to mitigate or relieve the impact on her functional capacity. As she does not meet the criteria for the disability requirements in any of the life domains, I agree with Mr Buck in that introducing early intervention supports now is likely to create positive impact on the course of her physical conditioning.
11. I have considered whether these supports are NDIS Supports under the new legislation and I'm satisfied that they fall under therapeutic supports for the purposes of s25(3) of the Act. Further I have turned my mind to whether these are available to Ms Bond under any other system. On balance, the continuity of the allied health interventions described, the targeted input needed, and the frequency that would be required, satisfies me that these are most appropriately funded under the NDIS versus the hospital system, which was refuted by the oral evidence of Dr Wellings, or chronic health management plan negated by the evidence of Mr Buck. On the evidence available, accessing these supports at the necessary continuity, frequency and intensity levels required would be unachievable through another system such as the hospital system or under a chronic disease management plan.
12. The evidence of Mr Buck and Dr Wellings both inform that allied health intervention would have likely positive impacts on the domain of Ms Bond's mobility. I agree with these views, though this is not to overlook the likely beneficial effect of allied health intervention via its flow-on effect in other areas, namely on her social interactions through improving her confidence, resilience and overall stamina.

Whether the provision of early intervention support 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

(iii) improving 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.

1. The above are expressed as alternatives, meaning only one of the four criteria need to be positively satisfied. The Applicant's main concerns were in her domain of mobility around her ability to function in daily life. The Applicant made the point that the provision of early intervention supports will strengthen the sustainability of her informal supports to be able to continue their caring role. The Applicant says that by Ms Bond being able to increase her function, the assistance that informal carers provide is likely to be sustained. In this way, the Applicant says that the early intervention will likely bolster the informal support network of Ms Bond.
2. The Applicant also says that Ms Bond would benefit as the therapy suggested is likely to increase her capacity to mobilise. On this point I refer to the evidence outlining Ms Bond was working up until 2 years ago, which she explained she is no longer able to do. I note Mr Buck made reference to standing tolerances, sitting and twisting positions that could be likely strengthened, which may be helpful in re-entering the workforce, along with the benefits associated in lessening her general fatigue.
3. I am satisfied on the evidence provided that s 25(1)(c)(i) of the NDIS Act is met. I find that the early intervention therapy is likely to benefit Ms Bond by mitigating impacts of her impairment on her functional capacity. I also find this support will be likely to sustain her informal supports and strengthen their ability to continue to provide informal care.

1. I find that Ms Bond's impairments do meet the early intervention requirements under section s 25(1)(a)(i), s 25(b), s 25(c)(i) & (iii) and s 25(3) of the NDIS Act.
2. I find also that Ms Bond has a disability attributable to permanent neurological and physical impairments from her FHM1. She meets the age requirements in s 22 of the NDIS Act and the residence requirements in s 23 of the NDIS Act.

1. The Tribunal sets aside the reviewable decision and determines that Ms Bond meets the early intervention requirements under s 25 of the NDIS Act to become a participant of the National Disability Insurance Scheme.

Solicitors for the Applicant: Ms G Kaufman, Legal Aid NSW

Counsel for the Respondent: Ms L Beange, of Counsel

[1] JTB, T20, Access Not Met letter, dated 9 December 2021, page 159.

[2] JTB, T1A, Internal Review Decision, dated 27 April 2022, page 50.

[3] JTB, T1, AAT Application for Review of Decision, 24 May 2022, page 45.

[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

[5] Rooney and National Disability Insurance Agency [2021] AATA 3523

[7] JTB, T22, Carer Impact Statement undated, page 170.

[8] JTB, A2, Respondent's Statement of Facts, Issues and Contentions dated 21 March 2025, p 22.

[9] JTB, D2, Report Dr Ross Mellick Consultant Neurologist, dated 21 June 2023, p 427.

[10] National Disability Insurance Agency v Davis [2022] FCA 1002 AT 137-139

[11] JTB, T7, Centrelink Form SU415 Dr Suresh Khirwadkar GP dated 16 June 2021 page 51.

[12] Madelaine and National Disability Insurance Agency (2020) AATA 4025.

[13] Mulligan and NDIA [2015] FCA 544 at 77.

[14] Rooney and National Disability Insurance Agency [2021] AATA 3523 at 22.

[15] Davis and National Disability Insurance Agency (2023) AATA 1437 at 65.

[16] JTB, D1, Functional Capacity Assessment Ms Harper, dated 1 March 2024, p 397.

[17] JTB, D1, Functional Capacity Assessment Ms Harper, dated 1 March 2024, p 419.

[18] JTB, C6, Carers Impact Statement, undated p 340.

[19] JTB, T21, Statement of Lived Experience, undated, p 167.

[20] JTB, C1, Report of Mr Buck, dated 15 January 2025, p 296.

[21] JTB, C6, Carers Impact Statement, undated p 341.

[22] Madelaine and National Disability Insurance Agency [2020] AATA 4025 at 87.

[23] JTB, D1, Functional Capacity Assessment, 1 March 2024, p 416.

[24] JTB, C6, Carers Impact Statement, undated p 341.

[25] JTB, T18, Statement of Lived Experience, dated 21 October 2021, p 144.

[26] JTB, C6, Carers Impact Statement, undated p 340.

[27] JTB, C6, Carers Impact Statement, undated p 340.

[28] JTB, D1, Functional Capacity Assessment dated 13 May 2024 p 139.

[29] JTB, C1, Physiotherapy Assessment Report dated 15 January 2025 p 299.

[30] JTB, C6, Carers Impact Statement, undated p 341.

[31] JTB, T21 and T22, Statement of Lived Experience and Carers Impact Statement, 3 March 2022 p165-172.

[32] JTB, C2, Letter Dr Wellings, dated 8 May 2023, p 311.