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

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

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

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

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

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

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

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

(1) A person meets the disability requirements if:

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

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

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

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

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

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

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

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

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

(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or

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

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

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

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

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

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

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

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

1. The Applicant gave evidence and was subject to lengthy cross examination at hearing. The IME) Ms Ploszaj, OT gave evidence and was subject to cross examination. The parties filed a Joint Tender Bundle of 503 pages (JTB) which comprised the written evidence in the proceedings.
2. The parties each gave a brief opening. The Applicant submitted that she struggled every day and was hoping for NDIS assistance to enable her to access physiotherapy and related allied health providers to make her physically stronger.
3. The Applicant also referred to how birds cause her anxiety, and that the NDIS process had gone on for a long time and that this had also caused her considerable anxiety. The Applicant said (in her opening) that every day is a struggle and that she had "no carer, husband or person to give advice". The Applicant submitted that she cannot cook three meals a day for her plus 80 year old parents, because her fingers are swollen. The Applicant referred to going to the local aquatic centre to swim and exercise and staff advised her that she needed a carer.
4. By way of opening, the Respondent said that paragraph [9] of their Statement of Facts Issues and Contentions (SOFIC) lists the clinical matters pressed by the Applicant. They submitted that section 24(1)(a) of the NDIS Act was met for PTSD, Major Depressive Disorder and Chronic Anxiety. However, they submitted that there was no evidence that these accepted conditions were permanent.
5. In respect of the other claimed conditions, Phobia, Neuropathic Pain, Functional Neurological Disorder, Acquired Brain Injury and Fibromyalgia, the Respondent submitted that section 24(1)(a) was not met. In addition, the Respondent submitted that the early intervention access criteria under section 25 of the NDIS act were not enlivened from their perspective however it was not clear whether the Applicant was relying on that provision for entry into the Scheme.
6. The Respondent submitted that they relied on Ms Ploszaj's evidence and the evidence of Professor Walterfang. In addition, they submitted that the Applicant has her own views on treatment and that on the current information available she had not engaged in appropriate treatment for her conditions. Whilst the Applicant said that she had not engaged in treatment because of a lack of existing support, the Respondent submits that without appropriate treatment exploration, matters as to permanency of impairments and the need for support for the rest of her life cannot be established. It was submitted that the Tribunal needed to balance the Applicant's presentation with the material in the reports.

1. In evidence in chief, the Applicant said that she had been living at her parents and that she was currently receiving the Disability Support Pension (DSP) as her source of income.
2. Under cross examination, the Applicant advised that her parents were assisting her with getting to her General practitioner (GP) appointments. The Applicant was currently taking Panadeine Forte and Meloxicam and said that she declined to take any other medications.
3. The Applicant's evidence was that she only required 'rehabilitation' and 'movement designed therapies' and questioned why she was being denied rehabilitation services. The Applicant said that she had been to a pain specialist and that a psychiatrist wanted her to take stronger medication. The Applicant added that she was now seeing a psychologist (Queensland based whereas the Applicant resides in South Australia) and speaks to them every four to six weeks. The treatments during these sessions include EMDR (Eye Movement Desensitisation Reprocessing) and talking therapy.
4. The Applicant was asked about references to 'tapping treatment' and advised that it involved tapping out the spelling of one's name and that she believed that it was quite effective using finger points to apply pressure to various parts of the body to relieve pain. The Applicant said that her whole spine is damaged.
5. The Applicant also said that the psychiatrist had recommended that she take anti-depressant medication, but the psychologist has counselled against that approach. The Applicant said that the psychologist said that they only recommend the treatments which are the appointments and treatment sessions that they have together.
6. The Applicant was asked about the anti-depressant proposal from the psychiatrist, and she advised that she would trial them again if they did not make her feel physically sick. The Applicant advised that she ceased taking the anti-depressant medication in April 2025. The Applicant advised that she remains under the care of a GP which she knows very well and had been with for 20 years.
7. When asked about other treatments the Applicant advised that she has physiotherapy booked for this month and is having strapping done to her back. The Applicant said that the physio is good for her but that the real difficulty is in getting to the appointments which need to be in person. She said that she last went to physio about four weeks prior and that even if someone helps her with transport, getting in and out of a car is difficult and she described her own mobility as 'poor'.
8. Counsel for the Respondent asked the Applicant whether she still drove, and the Applicant advised that she did continue to drive but said that she only drove short distances. The Applicant said that she could possibly drive for 20 minutes, then have a rest and then drive again. Her car is a 2015 model and has an automatic transmission.
9. The Applicant was asked about work and advised that she was last employed in 2015 when living in Queensland. She said that she was working for a solar company and that she had worked in one job for 20 years. Her solar work involved tele-sales re solar systems. The Applicant confirmed that she has a 31-year-old daughter. The Applicant said that her daughter works 90 hours a week. She worked as a hairdresser for eight and a half years, worked as a flight attendant for an airline also for eight and a half years and was now working in the mining industry. The applicant said that her daughter is a fly in/fly out worker and the Applicant is not able to see her a lot. The Applicant said that the daughter wants to get on with her own life.
10. The Applicant told the Tribunal that she goes to Church every four to five weeks and finds it supportive. She said that her friends from Church (the Church friends) do not take her to Church, but that she meets them there.
11. In respect of food, the Applicant said that she ate a lot of microwave food. Her main source of nutrition was reported as eggs and that in respect of cooking, she struggles with it as she has been struggling to stand up recently when she tried to cook a single egg. The Applicant said that she currently washing her hair every seven to 10 days which is all that she can manage, whereas she used to wash it every three days. The Applicant said that she also struggles to go to the toilet without a toilet chair.
12. The Applicant told the Tribunal that her friend 'Garth' came around and stayed for two weeks a while back and helped her with the cooking as well as mashing potatoes which the Applicant could not otherwise achieve. The Applicant said that she washes her clothes sparingly. She said that she can longer put jeans on by herself due to restricted mobility and pain. The Applicant said that dressing now involves slipping a dress over her head and putting shoes on.
13. Whilst on the DSP the Applicant said that her current income is around about $1,000.00 per fortnight and that she has no real budget but described her income sustainability as being in survival mode. The Applicant told the Tribunal in respect of her assets that she had savings and a car but no house. Her savings balance predominantly arises from a settlement sum following the separation and end of her marriage of 33 years to her former husband. The Applicant said that the settlement sum was essentially for her to buy her own house, but houses were too pricey and that the $400-500 thousand dollars would not be enough and she would have to buy a unit as a fallback.
14. Further, in respect of her finances and lifestyle matters, the Applicant confirmed that she has a phone. She also said that she pays all of her bills at the Post Office.
15. The Applicant confirmed that she had not been to University, or had tertiary studies other than a massage course, but had completed High School. The Applicant added that she struggles to put on a washing machine and do the washing. She said that referencing communication she tries to do email on her phone and is appreciative of the support from/though her Church.
16. In re-examination, the Tribunal clarified with the Applicant whether there was anything she wanted to readdress from her evidence or clarify anything. The Applicant said that if the overall question was whether she was doing ok, then then answer would be no and that she is not doing OK.
17. The Tribunal inquired of the Applicant about a minor number of matters arising from her evidence including whether her Church acquaintances had suggested any ideas for improvement. The Applicant said that her current circumstances are not conducive to significant changes and referred to living with her parents at times and her 82yearold mother's recent fall where she now walks with a walker and needs a knee operation.

Evidence of Ms Ploszaj Occupational Therapist (OT)

1. Ms Ploszaj the OT gave evidence by video on day two of the hearing. In evidence in chief, she adopted her report of 8 April 2025 as true and correct. She outlined in respect of her CV that she had moved to the United Kingdom in the past and that was when she had worked for the National Health Service (NHS). She said that she had developed a 'trauma informed care experience' approach to her work and that she was currently doing a Masters degree in Psychology.
2. The witness confirmed that she performed an assessment of the Applicant at the request of the Respondent agency. She said that she had regard to the material listed in the Table on page 3 of her report being: OT report K Hewitt, Functional report of BISA Connect, Report of Prof Walterfang, the T Documents, summonsed material And the ART Expert Evidence Practice Direction.
3. The witness referred to the Applicant referencing neuropathic pain, PTSD, Anxiety and Bird Phobia. The witness noted that the respondent accepted that the Applicant has chronic PTSD, anxiety and phobia and that are psycho-social conditions but that those and other claimed conditions are not accepted by the Respondent as permanent.
4. At section 4 of the report the witnesses identified that the matters were reported by the Applicant to her. The witness said that initial assessment was performed verbally face to face and she observed the Applicant leaning on the kitchen counter (bench) and then on a stool. This observation and assessment occurred over one hour. After the initial assessment, the functional assessment, was performed around the home. The witness said that many of the tasks were simulated such as the Applicant showering, The Applicant performed toilet transfers and light meal preparations. In respect of entry and exit to a spa bath, the Applicant was able to perform those transfers. The witness said that the Applicant had confirmed that she was a user of social media. During the assessment a friend of the Applicant's from the Church was in attendance.
5. The witness referred to utilising the World Health Organisation Disability Assessment Scale (WHODAS) and in response to a question confirmed that the assessment is based on self-reported data and could be considered highly subjective.
6. The witness gave evidence that in her opinion the Applicant avoids completing tasks because of her fear of experiencing pain. Reference was made to the Adaptive Behaviour Assessment (ABA) as set out on pages 9 and 10 of the OT assessment report. The witness said that following the Bartel Index arising from the ABA and WHODAS, the Applicant was 100% independent in respect of her activities of daily living (ADLs) including self-care and personal care. The witness was also asked about their reference in their report to the Lawton Instrumental Activities of Daily Living Scale and advised that unlike the Bartel the Lawton scale looks at the non-self-care matters such as matters relating to access to community and social measures, shopping, access to the community and friends.
7. In respect of practical assessments, the witness advised that demonstrations of cleaning was somewhat limited due to the Applicant's complaints around pain and referring to a fear of falls occurring during such an assessment. The witness said that the Applicant had 'fear avoidant' issues.
8. The witness stated that the assessment was carried out in what the Applicant described as an 'average day'. Counsel asked the witness whether in their opinion the Applicant was capable of using stairs. The witness confirmed that they were based on their limited observations of the Applicant. The witness said that it was probably more appropriate for a physiotherapist to perform such an assessment to give a definitive answer. The witness advised that some adaptive technology would probably assist the Applicant such as a kitchen stool, a shower chair, a dustpan grabber and bathroom rails etc. In addition, pacing and grading or goal setting techniques would also assist the Applicant. The witness suggested that an OT be engaged to perform four one-hour sessions along those lines to assist the Applicant. The witness confirmed that the pacing and grading technique sessions would appropriately be a one-off recommendation to see if they were effective.
9. The witness said that they were unsure as to what the Applicant's future living situation would be like but that they would recommend a single-story home with flat access. Reference was made to page 466 of the JTB (page 21 of the OT Report) where the recommended capacity building supports for the Applicant were listed and addressed. These included front loader washer dryers at waist level, robotic vacuum cleaner, lightweight spray mop, a top-drawer dishwasher, and a King Single bed to make linen changing independent.
10. There were a number of questions put to the witness concerning the Applicant's prospects for improvement (if any) in her functional capacity. The witness confirmed that the Applicant can walk, drive a car and conduct the necessary shopping independently. Her motor vehicle is a Volkswagen Golf, and the witness confirmed that she understood that the Applicant could drive the vehicle for a minimum of 20 minutes at a time. The witness confirmed that the Applicant's friend from the Church went and performed the shopping for the Applicant while the assessment continued.
11. Counsel put to the witness whether in their view if the Applicant engaged in the clinician's approved treatment that would assist her. The witness advised that medication could assist in improving a person's symptoms which is the major reason as to why such medication is prescribed.
12. The witness said that on their assessment there is no physical balance issue relating to the Applicant but that psychological issues could be playing a part in the Applicant's perception about her falls risk.
13. The witness confirmed that the assessment occurred over two to two and a half hours and she recommended that a Multidisciplinary Team (MDT) approach would work for an ongoing assessment and treatment of the Applicant.
14. In respect of the reference to the spa bath, the witness was asked whether she had ascertained whether it remained at the home when the Applicant was moving. The witness noted that this item was outside and referred to photo at page 482 of the JTB showing the covered spa outside. The witness understood that as it was not a fixture it could be taken with the Applicant.
15. The witness noted that the Church acquaintance ('Marley') appeared to be an informal carer for the Applicant. It was also noted that the Applicant received informal support through her connection to the Church.

1. The Respondent submitted that they relied upon Ms Ploszaj's functional capacity assessment report and the report of Professor Walterfang. Submissions noted that the Applicant's usual GP engaged in telehealth sessions with the Applicant but that sometimes a friend will take the Applicant to the appointment. The evidence was that the Applicant attended approximately monthly and was taking the codeine based strong painkiller (as referred to above) being prescription only. However, the Applicant submitted that she required further medications in addition to what she was prescribed. The Applicant had referred to a need for magnesium, movement therapy as well as hydro/aqua therapy.
2. It was submitted that the Applicant sees Mr Gamble, a psychologist every four to six months and they engage in EMDR therapies, tapping techniques, as well as affirmations around self-soothing and calming matters. Physiotherapy is limited at present because of the Applicant's difficulty in travelling to the physio, however the Applicant is seeing the physio every four to six weeks.
3. The Respondent also submitted that the Applicant had a history of employment in the areas off sales and marketing (tele-marketing) and there was evidence that she was able to handle up to 200 telephone calls a day. The Applicant has a 31-year-old daughter and friends Sonia and Marley from the Church. The Respondent submitted that the Applicant does not drive her car every day but does so every three to four days. The Applicant's impairments have some impact on her ability to cook but in the main she now purchases ready-made meals, has significant savings and accesses social media. In addition, it was submitted the Applicant engages in Internet Banking and uses her laptop at the library.
4. In addition, the Respondent submitted that there is no evidence of substantially reduced functional capacity across any of the six necessary domains as set out at paragraph [12] of the SOFIC (page 491 of the JTB).
5. The Respondent also submitted that the Applicant had not engaged in all treatments that were available and appropriate for her impairments (as set out at [18] of the SOFIC). Likewise in respect of the treatments referred to in Professor Walterfang's report of 5 April 2024 where he refers to the Applicant's 'abandonment of psychopharmacological treatments which has ultimately impeded the resolution of the Applicant's symptoms'.
6. The Respondent also observed in oral submissions that the OT assessment was done in the Applicant's home and with the preparatory material and the targeted questions. The OT was properly briefed. In addition, the historical evidence had been considered in the Applicant's previous applications to join the NDIS.
7. The Respondent concede that four conditions of the Applicant's cover off on section 24(1)(a) of the NDIS Act but not section 24(1)(b) in respect of this issue of permeance. However, if the Tribunal did accept that the conditions were permanent the Respondent submitted that there was a lack of evidence to meet the requirement of substantially reduced functioning across any of the six domains referred to in section 24(1)(c) of the NDIS Act. (as set out at pages 469 to page 478 of the JTB). The Applicant was reported to be able to walk 200 metres, stand unaided for 30 minutes, dress herself and generally engage in the ADL's notwithstanding her pain conditions. In respect of self-management, the Respondent noted that the applicant was currently single and as such was solely responsible for managing her person by way of self-management and management of her affairs.
8. In respect of social and economic participation under section 24(1)(b), the Respondent submitted that the Applicant has demonstrated that she could volunteer (at the Art Centre) up until December 2024 and hopes to return to those matters in the future.
9. The Respondent made submissions as to whether the NDIS was the appropriate scheme for supporting the Applicant. The OT had recommended three to four one-hour sessions / lessons to develop pacing techniques to allow the Applicant to develop these skills and then self-improve and further develop those skills.
10. The Respondent submitted, that the Applicant, on the available evidence does not meet the requirement that there be a lifetime need for NDIS support. Part of that argument was made on the basis that the disabilities and subsequent impairments were not considered permanent, but also on the basis that other mandatory section 24 criteria were not met.
11. In respect of the material produced under summons, the Respondent submitted that it also does not support the Applicant's entry into the scheme. Those documents provide evidence of historical lack of engagement in treatment options presented, a failure or a reluctance to take prescribed medication and also some evidence in respect of physical mobility (as set out at page 516 of the JTB) of matters responding positively to treatment.
12. Other summons material (pages 517, 519 and 522 of the JTB), demonstrate a prior lack of engagement in treatment and services,
13. In closing, the respondent submitted that the decision of the delegate on Internal Review should be affirmed.

1. At the conclusion of f the hearing the Applicant submitted the following matters:
   • She is disabled
   • She is not independent
   • She referred to the impact of seeing a dead body
   • That the provision of a carer would help and assist her and they could take her to the doctor
   • She is seeking rehabilitation
   • She does not wish to spend the rest of her life not going to the toilet independently
   • She is not independent and not coping with the pain or the severe disability.
   • She has PTSD
   • Previously she had normal balance now she has three head injuries from falls.
   • Her head is sore every day and she needs Marley (carer) to drive her around every day,

1. In order to access the NDIS a person is considered to meet the disability requirements if the matters in section 24(1)(a)-(e) of the NDIS Act are met (see [24] above). Section 24 (1)(a) deals with impairment and section 24(1)(a) deals with impairment and section 24(1)(b) deals with permanence. There are in fact five subparagraphs, and they are cumulative in that each criteria must be achieved in order to satisfy the section.
2. The Tribunal notes that the Respondent accepts that the Applicant has impairments in the nature of Chronic PTSD, Major Depressive Disorder and Chronic Anxiety. This discharges the requirements of the Applicant concerning section 24(1)(a).
3. Section 24 of the NDIS Act requires that the impairments are likely to be permanent, Rule 5.4 provides circumstances for considering whether an impairment is likely to be permanent, using language such as 'likely to be permanent if there are no known, available and appropriate evidence - based clinical, medical or other treatments that would be likely to remedy the impairment.'
4. In order to determine that the impairments are likely to be permanent the Tribunal must consider evidence that demonstrates that there are no known available and appropriate evidence based clinical medical or other treatments that would be likely to remedy the impairment. This position must apply the meaning of permanent as set out in the decision in National Disability Insurance Agency v Davis [2022] FCA 1022 in that permanent equates to enduring.
5. The Tribunal has had regard to the evidence outlined above, in particular the material in the JTB and the evidence adduced at hearing. There is a significant amount of evidence as outlined above that establishes that appropriate and recommended treatment has not been sufficiently engaged in by the Applicant. Whilst some aspects of this situation might be explained by cost or logistics, the summons material provides a history of disengagement from treatment services or at times non engagement or not taking up services to which the Applicant was medically referred.
6. The Applicant has had multiple attempts at accessing the NDIS. These appear to have arisen as a result of the progression of impairments which began many years ago when the Applicant was employed. The documents produced on summons establish that a South Australian Workers Compensation claim was made for a back injury some years prior to 2009 (JTB 552), with a psychological injury in Queensland arising from a threat which occurred in the workplace in 2009 (JTB 550).
7. In December 2016 the Applicant was struck by a magpie and suffered a facial fracture and apparently the onset of the bird phobia (JTB 502). In February 2018 in the workplace a chair collapsed or gave way and broke, causing a head strike and the commencement of chronic headaches (JTB 502).
8. In October 2020 C Little Psychologist reported that the Applicant did not return to treatment (JTB 518) and again in March 2022 (JTB 519). In April 2022 the Applicant was declined a referral for psychological support as she had already engaged in 31 months of treatment with that service (JTB 522). In April 2022 the Applicant declined psychiatry services on referral (apparently due to cost) (JTB 512) Whilst a Queensland Workcover IME occurred in March 2018 concerning the head strike incident it appears that in October 2023 further physio services were declined on referral (JTB 507).
9. Because of the lack of engagement with treatment with some of the Applicant's accepted disabilities and impairments being Chronic PTSD, Major Depressive Disorder and Chronic Anxiety, I am not satisfied that there is 'no known, available and appropriate evidence -based clinical, medical or other treatments that would be likely to remedy the impairment'.
10. On this basis I cannot be satisfied that the Applicant's impairments are permanent for the purpose of section 24(1)(b) of the NDIS Act. On the contrary the some of the evidence indicates that some conditions responded well to treatment. Other conditions are left in abeyance due to lack of further engagement and follow up.
11. Whilst I can understand with her medical history over the last 15 or so years in the workplace and elsewhere, further medical interventions might be causing further anxiety for the Applicant, the nature of the NDIS is that conditions and treatment options must be identified and quantified for the purpose of meeting the criteria for entry into the Scheme. The current evidence leads me to the conclusion that there are remaining effective known treatments likely to significantly improve the Applicant's overall physical capacity (including pain reduction) and psychological impairment.
12. In respect of the psychosocial aspects of her claim, there is evidence that the Applicant was currently engaged in treatment from her psychologist specifically EMDR. However, there was no evidence of sustained pharmacological treatment noting the discontinuing of the psychiatry sessions and the discontinuance of any medication prescribed for psychosocial matters by either the psychiatrist or GP.
13. The Respondent submitted in their statement of facts issues and contentions that given the clinician's report there are clearly available treatments for the Applicant. Accordingly, the Tribunal cannot be satisfied that in respect of psychosocial matters that there are no known available and appropriate evidence based clinical treatments available that would reduce the Applicant's reliance on support and treatment in future. They submitted that the Applicant does not meet the permanency criteria pursuant to section 24(1)(b), as there is insufficient evidence to demonstrate that psychopharmacological treatment for the psychosocial conditions has been sufficiently considered and explored (JTB 491 at 12.3). I agree with this finding on the available evidence.
14. I therefore find that section 24(1)(b) is not met in respect of the application.
15. It follows that other aspects of the administrative review fall away.
16. As the Applicant has not succeeded on section 24(1)(b) of the NDIS Act, having regard to the rules and other statutory provisions, it would have been open to the Tribunal to not address the other section 24 matters, and make findings in each of those section 24 areas and move on to the section 25 criteria.
17. Whilst the finding above prevents the Applicant accessing the Scheme, for completeness I will address the other section 24 matters and section 25. The conclusion reached from those matters is that (a) the Applicant does not have substantially reduced functioning in each of her domain areas and (b) there is little evidence that early intervention would reduce the Applicant's future needs for NDIS support.

1. In respect of the domain of mobility. Ms Ploszaj the OT provides an opinion that for many of her ADL's, the Applicant is independent. Whilst her capacity is somewhat reduced, any reduction in capacity does not appear to arise from the accepted disabilities. In this regard, her impairments do not result in a substantially reduced functioning across this domain. The Applicant, as noted above, can stand unsupported, walk relatively adequate distances and does not require the support of others to mobilise.
2. In respect of the domain of self-care. Ms Ploszaj reports that the Applicant is independent in self-care activities but requires grading and pacing strategies. Some activities require additional time, but ultimately the Applicant can manage her showering, bathing, dressing, grooming, toileting, feeding, meals, shopping, washing clothes and linen independently.
3. In respect of the domain of learning the OT repots no learning issues. Whilst her diagnosis does impact on her ability to concentrate and create difficulties with problem solving, these matters whilst requiring more time to complete, there was no evidence of cognitive limitations for the Applicant.
4. In respect of the domain of communication. Ms Ploszaj 's report identifies no concerns with the Applicant's abilities to communicate. No expressive or receptive language impairments were evident. During the two-day hearing the Applicant gave sound, cogent, oral testimony, asked questions of the witness and Tribunal and despite some technology challenges, was able to connect to the hearing remotely and fully participate.
5. In respect of the domain of social interaction. Whilst it is true that the Applicant has decreased ability to socialise due apparently to low mood and pain impacting on her motivation to engage in social activities, these matters do not amount to a substantially reduced functioning because of the impact of her impairments arising from her disabilities on these matters.
6. The evidence in Ms Ploszaj's report and the applicant's own evidence under cross examination indicates that she socialises at regular intervals a week or two apar, engages by telephone and social media from time to time with friends, as well as engaging with her friends through her Church. Again, whilst the paid issues and mood clearly impact on how the Applicant interacts and frequency of same and noting that at present she has no occupational functioning (being on the DSP), the evidence is insufficient to establish any substantially reduced functioning.
7. In respect of the domain of self-management. Ms Ploszaj provides evidence that the Applicant appears to present with insight into her decision-making abilities, is competent and responsible in her decision making and appears to be fully capable of managing her person and her own affairs. It is arguable as to what extent her functioning in this domain is reduced at all, but on the totality of the evidence it is clear that her functioning could not be characterised as substantially reduced due to her impairments arising from her disabilities.
8. Under section 24(1)(d), on administrative review standing in the shoes of the Agency, the Tribunal is required to determine whether the impairments affect the Applicant's capacity of social or economic participation.
9. The evidence before the Tribunal indicates that the Applicant worked as a volunteer whilst on the DSP ending that role in December 2024. She is able to drive independently and wishes to work again in the arts sector. Ms Ploszaj's report also details that the Applicant enjoys her time socialising and has made friends at Church, some of whom visit her at home fortnightly.
10. Whilst the Applicant's social or economic participation might be curtailed when compared to her married life raising children and running a household in the past, and the reliance on the DSP does limit economic participation to an extent, such matters do not of themselves open up access to the NDIS. Participants in the scheme need to have the person's capacity for social or economic participation impacted by the impairments in conjunction with the other criteria. Section 24 is conjunctive. The Tribunal does not doubt that these matters are lowered when contrasted with her life a decade or more prior. However the Applicant's affected capacity to participate socially and economically is but one consequence of hr accepted disabilities. The section 24(1)(d) criteria are an additional requirement once the other relevant thresholds that come earlier in the consideration have been established. Because the other thresholds have not been established (section 2(1)(b) and (c)), then it is not necessary to consider the law on how the provision and the term 'affect' should be applied in section 24(1)(d).
11. Section 24(1)(e). In applying for support and access to the Scheme under section 24, the Applicant by implication contends that her conditions would be lifelong, it would appear that under section 24(1)(e) of the NDIS Act, the Applicant is unlikely to require NDIS support for her lifetime, as her conditions have not in many areas been subject to a full exploration of treatment at this stage as set out above. Thus it would appear that the available evidence establishes that at least currently, it is not established that the conditions and impairments arising will be lifelong.
12. Section 25, early intervention requirements.
13. In respect of section 25(1)(a) the Tribunal has found that on the available evidence the accepted psychosocial impairments are not permanent or not likely to be permanent because of the treatment issues being unresolved as set out above. (section 24(1)(b)). Because of this position it is not possible to meet the section 25 (1)(a)(i) or (ii) criteria. The Applicant is not able to meet section 25(1)(a)(iii) as she is not a child.
14. Because the Applicant cannot meet s 25 (1) (a) and because s 25 is conjunctive, it is not possible for the Applicant to meet the necessary s 25 criteria. Even if the conditions were likely to be permanent, in respect of s 25 (1) (b) there is little evidence to indicate that early intervention will reduce the Applicant's need for future support arising from this disability. The OT report finds that in many areas this criteria is not applicable to the Applicant's circumstances due mainly to the nature of her disabilities and resultant impairments.
15. In this regard the Tribunal finds that the section 25 criteria are not met on the available evidence.
16. Whilst the Applicant may currently benefit from NDIS supports, which is the Applicant's main contention, that she requires a carer to assist her in living her life, it is uncontroversial that such assistance would be beneficial because it would potentially make her lifestyle easier and less debilitating. However, the NDIS is not designed to benefit all persons with disabilities, or indeed provide support to persons who might benefit but do not meet the substantial criteria. For these reasons, the Rules and Legislative provisions are constantly evolving. In some ways that is reported as being directed toward the sustainability of the Scheme and long term viability. But the Scheme was never intended to provide support for all persons with a disability.
17. The substantive issue concerns whether any of the impairments are permanent and all treatment options having been exhausted. I find for the reasons outline above that this is not the case and that the evidence indicates that I cannot be satisfied that section 24(1)(b) is met having regard to Rule 5.4. In addition, based on the evidence outlined briefly above, It follows that section 24(1)(c) is not met. If a person is not eligible for entry to the Scheme it is not possible to determine or make a finding that they would be likely to require NDIS support for the rest of their life (section 24(1)(e), even if in isolation section 24(1)(d) criteria are met.

1. In the current application, for the reasons outlined above the Tribunal is not satisfied that the Applicant meets the section 24 or 25 criteria under the NDIS Act. In that regard the Applicant does not satisfy the requirements of a person to become a participant in the NDIS.
2. The Tribunal therefore affirms the decision of the Respondent dated 15 August 2023 in accordance with section 105(1)(a) of the Administrative Review Tribunal Act 2024.

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

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

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

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