Pursuant to section 114 of the Administrative Review Tribunal Act 2024, the following alterations are made to the decision:

1. At paragraph 9, 'Maddox' has been corrected to 'Maddocks'.

1. On page 30, the appearances for the Respondent have been corrected from 'Mr Paul D'Assumcao' to 'Mr Paul D'Assumpcao'.

...................................................................

Respondent: NATIONAL DISABILITY INSURANCE AGENCY

The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act 2024

NATIONAL DISABILITY INSURANCE SCHEME - reviewable decision of Chief Executive Officer - becoming a participant- access request- whether applicant meets the access criteria -- whether applicant meets the disability requirement - impairments - whether applicant has impairments which are, or likely to be permanent - whether impairment or impairments result in substantially reduced functional capacity - early intervention requirements - decision affirmed

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.

National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth); rr 5.4, 5.8

Re Becker and Minister for Immigration and Ethnic Affairs (1977) ALD 158

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Davis v National Disability Insurance Agency [2022] FCA 1002

Foster and National Disability Insurance Agency [2025] ARTA 718

Fuad and Telstra Corporation Limited [2004] AATA 1182 per Downes J as referred to in FSQQ and National Disability Insurance Agency [2019] AATA 186

_Madelaine and the N_ational _D_isability _I_nsurance _A_gency [2020] AATA 4025

_Mulligan v N_ational _D_isability _I_nsurance _A_gency [2015] FCA 544

National Disability Insurance Agency v Lampard [2025] FCAFC 139

Applying to the NDIS Guideline and Appendices dated 10 December 2024

1. This is a review of a decision by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) to reject an application by Mr Meschino to access the National Disability Insurance Scheme (the Scheme).
2. Mr Meschino is a 67-year-old man living in his own home with his adult son.
3. Relying on the Agency's Statement of Facts, Issues and Contentions (SFIC) Mr Meschino applied for access to the Scheme on 2 August 2021 on the basis of impairments attributable to a right wrist fusion, migraine headaches, obstructive sleep apnoea and daytime fatigue.
4. On 28 March 2023 a delegate of the CEO decided Mr Meschino did not meet the access requirements in subsection 21(1)(c) of the National Disability Insurance Scheme Act 2013 (the NDIS Act).
5. On 3 July 2023 Mr Meschino applied for an internal review of this decision and on 1 November 2023 another delegate of the CEO affirmed the decision (the decision under review).
6. On 4 January 2024 Mr Meschino applied to the Administrative Appeals Tribunal (the AAT) for review of this decision.
7. From 14 October 2024 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 applications 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.[1] This decision and statement of reasons is made by the Tribunal.
8. A hearing was held over two days on 18 October 2025 and 9 November 2025 and was conducted partly in person (Mr Meschino attending in person) and partly by MS Teams video conference.
9. At the hearing the applicant did not have legal representation. The Agency was represented by Mr D'Assumpcao of Counsel instructed by Maddocks Lawyers.
10. Documents considered included:
    1. Joint tender hearing Bundle - Exhibit 1
    2. Respondent's bundle of documents - Exhibit 2
    3. New carer payment application - Exhibit 3
    4. Email chain (Sutton) - Exhibit 4
    5. X-ray received from Mr Meschino - Exhibit 5
11. The Tribunal heard oral evidence from:
    • Mr Meschino, the applicant
    • Ms Ploszaj, occupational therapist,
12. For the reasons set out below the Tribunal affirms the decision under review.

1. The development of the Scheme proceeded on the basis of a report of the Productivity Commission inquiry into disability care and support in Australia.[2]
2. In instituting the recommendations from the Productivity Commission's report, parliament sought to provide a Scheme which recognised the rights of persons with a disability to self-determination, dignity and the opportunity to live independently as fully participating citizens. This goal was to be balanced by the need to maintain the financial sustainability of the Scheme.[3]
3. The NDIS Act provided for the Agency whose role was to manage the Scheme and to:
   1. Provide general services in the form of co-ordination, strategic or referral services or activities for people with a disability generally;[4]
   2. Provide funding for persons or entities to enable them to assist people with a disability generally by way of information, building community capacity or by helping people to participate in economic or social life;[5]
   3. Assist in developing the disability sector by facilitating innovation, research and best practice standards and to assist in building community awareness about disabilities;[6] and
   4. Create individual plans providing funding for reasonable and necessary supports for those persons who meet the access criteria to become full participants in the Scheme.[7]
4. The Scheme was not intended to provide individualised plans and reasonable and necessary supports to all persons with a disability. Instead, prospective participants must make an access request. Only if the CEO was satisfied the prospective participant met the access requirements in sections 21 to 25 of the NDIS Act, would they become a Scheme participant.
5. The statutory provisions relevant to this review are:
   1. the National Disability Insurance Scheme Act 2013 ('the NDIS Act') (as in place prior to 3 October 2024); and
   2. the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Sections 27 and 209 of the NDIS Act for the purposes of section 24 and 25 of the NDIS Act**.**
6. The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines ('the Access Guidelines').
7. The Tribunal is not bound to follow the Access Guidelines and will not do so where they are inconsistent with the NDIS Act.
8. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[8] Brennan J held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation and does not lead to an unjust decision in the circumstances of a particular case. Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.
9. With the passage of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 amendments were made to the NDIS Act, including to sections 24 and 25 of the NDIS Act which address access issues_._ This amending act commenced on 3 October 2024 and included transitional provisions applying to matters already on foot. Item 126 of Schedule 1 provided that amendments made to sections 24 and 25 of the NDIS Act only apply to applications made after 3 October 2024.
10. As Mr Meschino's application was made before 3 October 2024 the amendments will not apply to this application.
11. Subitem 126(3) also provides that the Access Rules as in force prior to the amendments will continue to apply to this application.

1. A decision that a person does not meet the access criteria is a reviewable decision.[9]
2. I am satisfied Mr Meschino made a request to the Agency for internal review within time.[10]
3. An internal review was conducted by a different delegate of the CEO and the original decision was affirmed. Section 103(1) provides that an application may be made to the Tribunal for review of an internally reviewed, reviewable decision of the CEO.
4. An application to the Tribunal on behalf of Mr Meschino was made on 4 January 2024.[11]
5. I am satisfied the Tribunal has jurisdiction to review this decision.[12] In doing so the Tribunal will 'stand in the shoes' of the original decision maker to make the correct or preferable decision.[13]

1. Once a person makes an access request to the Agency, the NDIS Act provides that the CEO (or their delegate) must decide whether or not the applicant meets the access criteria.[14]
2. Section 21 of the NDIS Act provides that a person meets the access criteria if:
   • The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application)[15];
   • The person meets the residence requirements set out in section 23 (eg. that at the time of consideration, the person was a resident of Australia holding citizenship, a permanent visa or protected special category visa)[16]; and
   • The person meets the 'disability requirements', the 'early intervention requirements' or both.[17]
3. Sections 24 and 25 of the NDIS Act (respectively) set out the disability requirements and early intervention requirements to be met.

1. As the amendments to access criteria made on 3 October 2024 only apply to applications made after that date[18] the relevant wording of Section 24 is as follows:

(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.

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

41. The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.

1. Section 25 deals with access to the scheme on the basis of the 'early intervention requirements' as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The Access Rules set out further matters to be considered in determining when an impairment might be permanent and in deciding the significance of any reduction in functional capacity. I will discuss those later.

1. The decision under review advised Mr Meschino that his access request was denied on the basis that in his situation, the disability and early intervention requirements were not met.
2. There was no dispute that Mr Meschino met the age and residence requirements in section 21(1)(a) and (b) of the NDIS Act. I accept and find that those criteria are met.
3. However, access may only be granted if the CEO is satisfied that all the access requirements are met.
4. Section 21(1)(c) requires that in order to become a participant, an applicant must meet either the disability or the early intervention requirements (or both).
5. In relation to the disability requirements the CEO's delegate accepted that Mr Meschino had physical impairments attributable to the conditions of right wrist bone fusion, migraine/headaches and obstructive sleep apnoea and therefore met the criterion in section 24(1)(a).
6. However the delegate was not satisfied Mr Meschino's impairments could be considered permanent as there appeared to be other interventions available that may reduce the impact of his impairments on his function. The respondent subsequently revised this position, accepting that the evidence establishes Mr Meschino's physical impairment attributable to his right wrist bone fusion is permanent.
7. The delegate was also not satisfied Mr Meschino's impairments substantially reduced his functional capacity to undertake any of the nominated activities in section 24(1)(c) in the manner contemplated by the NDIS Act. This position reflects the respondent's current contention also.
8. The lack of permanence in relation to Mr Meschino's impairments was also considered a bar to Mr Meschino meeting the early intervention requirements.
9. In his reply to the Agency's Statement of Facts, Issues and Contentions, Mr Meschino conceded he no longer relied on impairments attributable to the condition of obstructive sleep apnoea. He advised the blockage to the right leg artery had been resolved through surgery but he did ask the Tribunal to consider impairments attributable to the conditions of:
   1. Right iliac artery occlusion;
   2. Sciatica;
   3. Sensorimotor neuropathy/type II diabetes;
   4. Migraines; and
   5. Psychosocial issues, namely a likely hoarding issue.
10. I am satisfied I have jurisdiction to consider the additional asserted impairments/conditions notwithstanding they were not subject to previous consideration by the Agency.[19] Indeed, the Agency takes no issue with this except to note the paucity of evidence available in relation to each additional condition.
11. The issues before the Tribunal then include to determine:
    1. What the relevant impairments are (s24(1)(a));
    2. Whether they are permanent or not (s24(1)(b));
    3. Whether any permanent impairments result in substantially reduced functional capacity to undertake relevant activities (s24(1)(c)); and
    4. Whether Mr Meschino is likely to require support under the NDIS for his lifetime (s24(1)(e)).
    5. I note the Agency concedes that physical impairments attributable to Mr Meschino's fused right wrist affect his capacity for economic participation as required by (s24(1)(d).

1. The NDIS Act speaks of 'disabilities' and 'impairments' but neither are defined in the Act.
2. Section 24 of the NDIS Act and Rule 5.1 of the Access Rules refers to a person 'having a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to impairments attributable to a psychosocial disability'.
3. In Mulligan v NDIA [215] FCA 544 (Mulligan), a matter on appeal from the Tribunal, Mortimer J (as she then was) observed that the access criteria in Ch 3 of the NDIS Act were an essential component of the NDIS, as they imposed a number of thresholds which must be met before access to the NDIS would be granted. The purpose of these thresholds was to identify the 'subcategory of persons with a disability intended to be beneficiaries of the Scheme'.[20] The Scheme was not ever intended to provide funded supports to all persons with a disability, only those whose impairments meet the threshold requirements.
4. Mortimer J said:

The term 'disability' is used in the Act, and in s24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.[21]

5. The primary consideration for access requests, therefore, is the concept of 'impairment'. It is:
   1. the prospective participant's impairment which must be permanent (not the underlying medical condition); and
   2. the severity of the impairment's impact on function which will determine whether the prospective participant may be eligible for access to the Scheme or not.
6. The primary task before the Tribunal is therefore to identify Mr Meschino's relevant impairments and then to determine whether these meet the other qualifying criteria in section 24 or 25.
7. In making a finding in relation to any particular matter before it, the Tribunal must reach the necessary degree of satisfaction on the basis of the evidence before it. While neither party bears any formal onus of proof in such a matter, each realistically does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it of that party's position.[22]
8. If there is insufficient evidence available about a particular issue, this will limit the Tribunal's ability to be satisfied to the requisite degree.

Subsections 24(1)(a) and (b) - is there an impairment and is it permanent?

1. As discussed previously, an impairment is generally understood to involve 'the loss of or damage to a physical, sensory or mental function'.[23] This concept has been included in the Access Guidelines in this form.
2. Rule 5.4 of the Access Rules sets out matters to be considered in determining whether an identified impairment is permanent. Rule 5.4 provides that an impairment is likely to be permanent 'only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.'
3. In the matter of Davis v National Disability Insurance Agency (Davis)[24] Mortimer J considered that 'permanent', as used in the Act, should be understood to mean 'enduring', rather than irreversible or longstanding. In that context, to 'remedy' an impairment, should be understood to mean something approaching a removal or cure of the impairment, not just to relieve or improve it.[25]
4. I will consider each of Mr Meschino's medical conditions with a view to addressing the nature and permanency of any resulting impairment on his function.

Major blockage of the iliac artery of the right leg

1. Mr Meschino's evidence to the Tribunal was that surgical intervention for this condition has been successful in resolving the blockage in his leg. Prior to surgery this condition had impacted Mr Meschino's mobility because of pain experienced in his buttock on walking. He has some concerns that since the successful surgery his left leg sciatic pain had increased.
2. The letter of Dr Crompton, GP, dated 23 July 2024,[26] confirmed the diagnosis of right sided iliac artery occlusion and that this caused right buttock pain after walking 50m, resolving after rest. Dr Crompton was of the view this condition would completely resolve after planned surgery. Mr Meschino confirmed to the Tribunal that his symptoms had indeed resolved after surgery.
3. No further medical evidence was available in relation to this condition or the impact of the surgery.
4. On the basis of Mr Meschino's evidence before the Tribunal, however, I find that Mr Meschino no longer has any impairment arising from his right sided iliac artery occlusion.
5. To the extent Mr Meschino relates an exacerbation of his left leg pain to the surgery, I will consider that when I consider the condition of sciatica.

1. It is Mr Meschino's evidence to the Tribunal that he has sciatica affecting his left leg which his GP has been investigating. Mr Meschino provided to the Tribunal an MRI report dated 9 January 2025 which indicated multilevel disc protrusion and bulging, with nerve impingement at isolated levels, most notably the L4/5 level. The report noted a history of lower limb pain with significant left sided pain radiating to the thigh and shin. This pain radiated to the left toes and was rated by Mr Meschino as 7/10 intensity.[27]
2. Commentary from the radiologist suggested that a trial of epidural steroid injections may be clinically indicated at the L4/5 level if symptoms continued.
3. Mr Meschino's evidence to the Tribunal was that the sciatica affected his left leg and impacted on his mobility. He felt it had worsened after the surgery to his right leg artery blockage, perhaps because he was no longer limited in mobility by his right buttock pain.
4. Mr Meschino advised that he had not proceeded with any steroid injections as his GP had suggested better pain management through medication would be less risky and should be his first option. Mr Meschino agreed he had not consulted with an orthopaedic surgeon or neurosurgeon as he thought a surgical option was not reasonable at his age.
5. Mr Meschino indicated to the Tribunal that he doesn't like to take medications much but will if he really needed to. It did not appear that any specific medication regime to address Mr Meschino's sciatic pain had been commenced by his GP. Mr Meschino has not attended a pain clinic but has been to a physiotherapist and has consulted with a chiropractor once. For financial reasons he states he was limited in the services he could obtain to those available under a GP Health care plan. Mr Meschino has not been back to the chiropractor.
6. No other medical information was provided to the Tribunal in relation to this condition.
7. The Tribunal has considered the medical information before it and is satisfied Mr Meschino meets the criterion in section 24(1)(a) of the NDIS Act in that he has a physical impairment arising from his degenerative back condition which impairs the function of his left leg.
8. However, there is insufficient evidence before the Tribunal for it to be satisfied that all known, available and appropriate, evidenced based clinical, medical or other treatments which might address the impact of Mr Meschino's impairment have been exhausted.
9. I find that in relation to physical impairments arising from his degenerative back condition and resulting sciatica Mr Meschino does not meet the criterion in section 24(1)(b) of the NDIS Act.
10. As all the criteria in section 24(1) must be cumulatively met, Mr Meschino's sciatica does not meet the disability requirements and cannot be considered further.

1. The medical evidence establishes that Mr Meschino underwent a right wrist fusion in 1987.[28]
2. A letter from Dr K Mugford, dated 10 April 1987, indicated that Mr Meschino had undergone the fusion as a result of scapho-lumate dissociation. Although he made steady progress with rehabilitation, Dr Mugford did not expect that Mr Meschino would be able to return to his former work as a mechanic. He noted significant reduction in Mr Meschino's range of motion in the right wrist. Mr Meschino was assessed as having a permanent impairment comprising 50% reduction in function in his right (dominant) wrist.
3. Dr Crompton, Mr Meschino's current General Practitioner, had been treating Mr Meschino since 2002 and had no other details to provide in relation to this right wrist condition. Dr Crompton was satisfied the condition had been optimally treated and that no further intervention was required. He was not aware of any impairment attributable to this condition as had not ever been asked by Mr Meschino to examine the right wrist.
4. Mr Meschino gave evidence under affirmation about the impact of his right wrist impairments. He noted that he feels he has lost the major use of his dextrous right hand and strength in his right arm. He was unable to return to his career as a mechanic. His range of motion is limited in his wrist. He experiences fatigue and discomfort in his left arm as a result of overcompensating for the loss of use of his right arm. He tends to lift more with his left arm than his right.
5. I am satisfied the evidence before the Tribunal confirms that Mr Meschino has a physical impairment as a result of his right wrist fusion and that this impairment is permanent. As such I find he meets the criteria in section 24(1)(a) and (b) of the NDIS Act in relation to this condition.

1. The Tribunal has before it a letter from Dr Crompton, GP,[29] which confirms the presence of sensorimotor neuropathy, diagnosed following nerve conduction studies performed in May 2021 by a neurologist.[30] Dr Crompton states that his records indicate this condition has improved following better diabetic control (advised of this by Mr Meschino in a consult dated 4 June 2021). Dr Crompton advises there is therefore no further treatment required at this stage. Dr Crompton has not been consulted in relation to the sensorimotor neuropathy since June 2021 and was unaware of any impairment in function arising from this condition.
2. Having regard to the evidence before the Tribunal I am satisfied Mr Meschino does experience symptoms as a result of the condition of sensorimotor neuropathy (described previously as burning sensation on the soles of his feet). It appears that Mr Meschino continues to be bothered by this condition but has not raised the issue recently with his GP. I acknowledge that this may be more a reflection of the somewhat stoic approach Mr Meschino takes to his various difficulties rather than any diminution of impact experienced.
3. Nevertheless, on the basis of the limited evidence before the Tribunal in relation to the sensorimotor neuropathy condition, I am unable to make a finding about the existence of any functional impairment attributable to this condition.
4. I find Mr Meschino does not meet the criterion in section 24(1)(a) of the NDIS Act in relation to this condition.

1. Mr Meschino's evidence was that he had experienced migraines for much of his life. He reported that his mother had also had frequent migraines, and he suspected there was a familial connection. Mr Meschino had consulted with a neurologist and was on a medication regime including Sandomigraine and Deralin (as a preventative) and panadeine forte (to address the pain involved with any migraine).
2. It was Mr Meschino's evidence that these days he could usually catch the migraine before it really got hold of him and that they seem to occur less than they used to. He stated that if he did not manage to interrupt the progress of a migraine, however, he could be unwell for some days and be 'put out of action' for that duration.
3. I have considered the access request medical report completed by Dr Compton[31] in which Dr Compton considers the impairment experienced by Mr Meschino as a result of his migraines is likely to be lifelong. He confirmed the condition was being managed through appropriate medication. There is no other medical information before the Tribunal in relation to this condition.
4. Rule 5.5 of the Access Rules provides that an impairment may be permanent notwithstanding the severity of its impact may fluctuate.
5. On the basis of the medical evidence before the Tribunal I find that Mr Meschino has a physical impairment attributable to the condition of migraine headaches. I am satisfied that this impairment (although intermittent) is likely to be permanent in that there are no known, available and appropriate evidence-based treatments that would be likely to remedy the impairment.[32]
6. I find Mr Meschino meets the disability criteria in section 24(1)(a) and (b) with respect to his migraine headaches.

Psychosocial disability - possible hoarding disorder

1. Ms Ploszaj, occupational therapist, was commissioned by the Agency to undertake a functional capacity assessment of Mr Meschino. She attended at his home to complete the assessment on 11 February 2024. Throughout her report Ms Ploszaj referred to the significant number of items stored throughout the home and the yard, noting that some rooms could not be accessed due to congestion, and that all surfaces were covered with items.
2. Mr Meschino stated to Ms Ploszaj that his habit of collecting items commenced after the trauma of family breakdown. He had sought to fill the space left by the breakdown with objects to which he formed an attachment and did not wish to lose. He advised he did not want assistance to remove items, even if this would increase his safety in the home.[33]
3. At hearing Mr Meschino advised the Tribunal that before Ms Ploszaj's assessment he had not realised that he had a possible hoarding problem. It was only in discussing the matter with Ms Ploszaj that he had given serious thought to this possibility. Mr Meschino's evidence to the Tribunal was that since then he had reached out to Medicare, who he believed had services to assist him in addressing this issue. He agreed he has not discussed the possibility with his GP and did not have a formal diagnosis, nor a treatment program in place yet.
4. Mr Meschino advised that he had also recently reached agreement with the local council in relation to their request that he clean up and remove items from outside of the property. He stated he now realised he did not wish to leave his home in its current state for his children to have to deal with.
5. I accept that Mr Meschino may well have a psychosocial disability in the form of a hoarding disorder. The images in Ms Ploszaj's assessment report would suggest this may be the case. However, there is otherwise no other medical or other evidence before the Tribunal on which a finding a hoarding diagnosis applies could be based.
6. In any event, it is clear Mr Meschino has not yet undergone any intervention which might address any impairment arising from such a diagnosis.
7. As such I find there is insufficient evidence before the Tribunal to support a finding Mr Meschino has an impairment to which a psychosocial disability is attributable (in relation to hoarding), or that such impairment is or is likely to be permanent.
8. I find that in relation to the possible hoarding disorder Mr Meschino does not yet meet the disability criteria in sections 24(1)(a) or (b).

Subsections 24(1)(c) - do any permanent impairments result in substantially reduced functional capacity to undertake one or more relevant activities?

1. Section 24(1)(c) requires that a prospective participant's permanent impairments must result in substantially reduced functional capacity to undertake one or more of six identified activities in order to meet the access criteria. There is no definition in the NDIS Act in relation to the activities, but the Access Guidelines suggest the following:
   1. Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
   2. Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
   3. Learning - how you learn, understand and remember new things, and practise and use new skills.
   4. Mobility, or moving around - how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
   5. Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
   6. Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[34]
2. In Mulligan v NDIA (Mulligan),[35] Mortimer J stated that:

Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s24(1)(c)) in assessing what a person can and cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

1. The necessary assessment was not considered to be a comparative exercise, assessing what one person could do against another, but rather a 'functional, practical assessment of what a person can and cannot do'. It is sufficient, for the purposes of the Act, for a person to have substantially reduced functional capacity in relation to one on the identified activities.[36]
2. In Davis Mortimer J clarified that her use of the term 'high degree of precision' was not intended to imply that there was a higher standard of proof or satisfaction required of the decision-maker, rather that the task was specific and required the decision-maker to consider all the matters set out in the NDIS Act.[37]
3. In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the Full Court held that it was not sufficient that a person had difficulty with only one or two tasks that comprise a part of the activity, but rather the focus should be on whether they were unable to manage the whole or majority of the activity. The fact that a person may undertake an activity in a different manner to others did not constitute an inability.[38]
4. In Garcia Albiol and NDIA (Albiol)[39] Senior Member Collins reflected that 'substantially reduced function' had a high threshold in the context of the Scheme given the NDIS was not intended to provide customised supports to everyone with a disability.[40]
5. Rule 5.8 of the Access Rules specifically addresses the issue of when an impairment may result in substantially reduced functional capacity to undertake relevant activities. In Mulligan, these were considered 'deeming provisions', such that if a prospective participant met the criteria in Rules 5.8(a), (b) or (c), the effect would be to mandatorily include them in the category of persons with substantially reduced functional capacity.[41] A shortcut to entitlement if you will.
6. However, that is not the end of the task. Consideration of the section 24(1)(c) criterion must be completed in two stages:
   1. Firstly the Tribunal must consider whether the prospective participant's circumstances are captured by the deeming provisions in the Access Rules; and
   2. Secondly, if the deeming provisions do not apply, the Tribunal must consider if the prospective participant has a substantially reduced functional capacity outside of those provisions. [42]
7. Rule 5.8 provides that:

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 ...if its result is that:

1. 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
2. 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
3. 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. I have found that the evidence establishes that Mr Meschino only has permanent physical impairments attributable to his right wrist fusion and his migraine headaches. It is the impact of only these impairments which I must consider in determining whether Mr Meschino's functional capacity is significantly reduced in the manner contemplated by the NDIS Act.

1. In relation to fluctuating conditions, the Tribunal will consider an applicant's functional capacity by taking into account a balance of their function over both good and bad days. Where the bad days comprise a significant minority of an applicant's days, the emphasis will be instead, on what the applicant can do on a 'typical' day. [43]
2. This reflects the scheme of the NDIS Act and is reflected in the Access Guidelines at 8.3.1 which states:

When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

1. I accept that on days in which Mr Meschino might experience a migraine headache his ability to function (including in all aspects of the relevant activities) might be impaired, even substantially so, for a short period. Given their rarity, however, I do not consider that days affected by migraines constitute 'typical' days for Mr Meschino.
2. As a result I find that any reduction in Mr Meschino's functional capacity as a result of his migraine related impairments cannot be considered substantial enough to meet the threshold contemplated in section 24(1)(c) of the NDIS Act.
3. I will otherwise consider the impact of physical impairments attributable to Mr Meschino's right arm fusion. Although I do not consider Mr Meschino's right arm affects many of these activities, I have nevertheless given consideration to all of them.

1. The Guidelines provide that the activity of communication encompasses 'how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you'.
2. I have considered all the evidence before the Tribunal, including evidence provided by Mr Meschino in oral and documentary form. On balance I find that Mr Meschino's circumstances are not captured by the deeming provisions, nor does he demonstrate substantial reduction in functional capacity outside those provisions. I make these findings on the following basis:
   1. Mr Meschino attended at Tribunal and gave oral evidence on his own behalf in a clear and easily understandable fashion. He demonstrated the ability to understand and respond to questions appropriately and had also submitted typed statements and submissions which were legible and fluent;[44]
   2. Mr Meschino has demonstrated the ability to maintain appropriate conversations in other settings, including in the Environment, Resources and Development Court where he was able to successfully represent himself in an action brought by the local council;[45]
   3. Although Mr Meschino advised he had difficulty in writing and typing as a result of his right arm fusion, this did not substantially impair his ability to communicate in the written form.

1. The Access Guidelines characterise this activity as including 'how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.'
2. In the matter of Madelaine and the NDIA [2020] AATA 4025 (Madelaine), Deputy President Humphries held that the criteria referred to in the Guidelines were directed principally at personal skills for social interaction, and only marginally towards taking the opportunity to exercise those skills.[46] In the more recent matter of NDIA v Lampard [2025] FCAFC 139 (Lampard) the Full Court approved this reasoning, deeming that functional capacity was the relevant consideration, not functional performance.[47]
3. Having regard to the evidence I do not consider that Mr Meschino's circumstances are captured by the deeming provisions. I accept that Mr Meschino's opportunities for social interaction are limited, in part due to impairments which have not been found to be permanent, and in part due to his caring responsibilities for his son. However I am satisfied, the evidence supports a finding Mr Meschino is able to manage social interaction without the need for assistive technology, or the assistance of other people.
4. It was Mr Meschino's evidence to the Tribunal that he had recently formed a romantic relationship with someone and that they would occasionally meet for coffee or other social occasions. He also keeps in contact with his daughter, who resides in London and maintains a good relationship with the son with whom he resides.
5. Mr Meschino's interactions with the Tribunal and the other parties to the hearing were entirely appropriate and managed without assistance.
6. I am satisfied that Mr Meschino does not have a substantially reduced functional capacity in the activity of social interaction.

1. Mr Meschino did not contend that he had a significantly reduced functional capacity in the activity of learning. It is difficult to conceive his right wrist function would impair this in any event.
2. I note that he had been able to manage the processes of the Environment, Resources and Development Court to negotiate an agreement with his local Council on his own.
3. Having considered Mr Meschino's evident intelligence and his ability to manage the Tribunal's procedures, including appropriately adapting his questioning of Ms Ploszaj at hearing, I find Mr Meschino does not have a substantially reduced functional capacity for the activity of learning.

1. I accept that Mr Meschino has impaired mobility in relation to his left leg sciatica. He has been granted a disabled parking permit in relation to this reduced mobility so that he does not need to walk so far when he is in the community.
2. However, I have found impairments attributable to Mr Meschino's left leg sciatica cannot yet be said to be permanent for the purposes of the Act. As a result, their impact on his mobility cannot be taken into account for the purpose of access to the Scheme.
3. There is no evidence impairments attributable to Mr Meschino's right arm fusion impact his mobility at all.
4. As a result I find that Mr Meschino's functional capacity is not substantially reduced in the activity of mobility.

1. Ms Ploszaj's assessment of Mr Meschino's capacity for self-care concluded that he was independent with all aspects.[48] She acknowledged that he would benefit from provision of some commonly used aids, such as an over-toilet frame and an appropriate shower chair, but these recommendations were aimed at reducing Mr Meschino's risk of falls rather than being 'required' to enable the activity to be completed.
2. I find that Mr Meschino's functional capacity is not substantially reduced in the self-care activity.

1. The Access Guideline provides that self-management incorporates:

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

1. There is no evidence before the Tribunal on which a finding could be made that Mr Meschino is substantially impaired in his ability to complete the activity of self-management. He manages all aspects of his life independently, including finances, making appointments, seeking out assistance for his hoarding, acting as the guardian and administrator for his adult son, and managing home care activities (albeit sometimes in a limited fashion).
2. Ms Ploszaj noted that Mr Meschino had some difficulties with heavy domestic tasks. She was of the view Mr Meschino would benefit from some low-cost assistive technology but did not identify any requirement that would fit within the deeming provisions or otherwise. These technologies were to assist with tasks involving prolonged standing, bending and reaching, and did not appear to be related to any impairment attributable to the right wrist fusion.

1. As I have found that Mr Meschino's permanent impairments do not result in substantially reduced functional capacity in the nominated activities in section 24(1)(c), I must find that Mr Meschino does not meet the disability requirements in section 24 of the NDIS Act.
2. Section 21(1)(c) requires that I now consider whether Mr Meschino meets the early intervention requirements.

1. Rules 6.4 to 6.7 of the Access Rules provide that the same considerations as to permanency apply for the early intervention requirements as for the disability requirements.
2. On that basis Mr Meschino's relevant permanent impairments are those attributable to his right wrist fusion and his migraine headaches.
3. Rule 6.9 of the Access Rules notes that in deciding whether early intervention supports may assist a prospective participant, it is expected the decision maker would consider the likely trajectory and impact of the person's impairment over time and the potential benefits of early intervention in relation to functional capacity and reducing the future need for supports.

1. I am satisfied on the basis of Dr Mugford's report that Mr Meschino's impairment attributable to his right wrist fusion is permanent and stable and unlikely to improve with or without additional intervention.[49] It was Mr Meschino's evidence to the Tribunal that he spent a long time with the Commonwealth Rehabilitation Service after his surgery to ensure the best function he could. I find that there is insufficient evidence before the Tribunal for a finding that early intervention supports are likely to improve the wrist impairment, or to reduce the need for future supports.

1. It was Dr Crompton's evidence that Mr Meschino has a lifelong impairment as a result of his migraine headaches. I have found these have been optimally treated and produce only intermittent impaairment. There is insufficient evidence before the Tribunal for a finding that early intervention would mitigate or alleviate the impact of impairments arising from the condition, or result in an improvement or reduction in need for future supports.

1. I find that Mr Meschino does not meet the early intervention requirements in section 25 of the NDIS Act in relation to his permanent impairments.

1. I find that Mr Meschino does not meet the access requirement in section 21(1)(c) of the NDIS Act to enable him to become a participant in the Scheme at this stage.
2. As I have reached the same conclusion as the decision under review, I will affirm the decision.

The Tribunal affirms the decision under review pursuant to section 105(a) of the Administrative Review Tribunal Act 2024

[1] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24

[2] Productivity Commission Report, Disability Care and Support

[8] (1979) 2 ALD 634

[13] Re Becker and Minister for Immigration and Ethnic Affairs (1977) ALD 158

[17] Sections 24 and 25 (respectively) NDIS Act

[18] Item 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024

[19] Fuad and Telstra Corporation Limited [2004] AATA 1182 per Downes J as referred to in FSQQ and National Disability Insurance Agency [2019] AATA 186

[22] Foster and National Disability Insurance Agency [2025] ARTA 718 (Foster 2) [21]

[24] [2022] FCA 1002 at [85]

[34] NDIS Access Guidelines October 2024

[35] Mulligan [2015] FCA 544 at [55]

[39] [2024] AATA 496 at [68] to [69]

[40] Albiol and Section 3(3) and section 4(17) of the NDIS Act

[43] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [76]