1. The applicant lodged his application for review with the Administrative Appeals Tribunal (AAT) prior to 14 October 2024 when 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 (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.
2. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Back on Track Act) commenced on 3 October 2024 and made significant amendments to the Act. As the applicant's request for access to the NDIS was made before 3 October 2024, section 126 of the Back on Track Act provides that the Act, applies as it existed before the commencement of the Back on Track Act.
3. The following is an overview of the NDIS decision-making framework insofar as it relates to an applicant seeking to become a participant in the NDIS.[7]
4. To be granted access to the NDIS and so become a participant of the scheme, the applicant must satisfy the access criteria set down in section 21 of the Act, which provides:

(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. It is not in dispute, and the Tribunal so finds, that at the time of his application the applicant met the age and resident requirements set down in sections 22 and 23 of the Act. Therefore, the Tribunal must determine whether the applicant meets the access criteria as set down in section 24 (the disability requirements) or section 25 (the early intervention requirements) of the Act.
2. Section 24 of the Act states:

(1) A person meets the disability requirements if:

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

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

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

(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.

(4) Subsection (3) does not limit subsection (2).

1. If the applicant does not satisfy the disability requirements, the Tribunal must then consider whether he meets the early intervention requirements set down in section 25 of the Act:
2. Section 25 of the Act [as it was prior to 3/10/2024] 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.

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

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

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

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

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

1. Subsection 209(1) of the Act permits the Minister to make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may make provision for determining any matter for the purposes of section 24 and section 25 of the Act, including methods or criteria, or matters that may, must or must not be taken into account, or circumstances in which a matter can be taken to exist or not exist.
2. The rules relevant to this application are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), which form part of the legislation. Relevant to the issue of permanency of an impairment set down at paragraph 24(1)(b) of the Act, the Access Rules relevantly state:

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

1. As to the issue of substantially reduced functional capacity as set down in paragraph 24(1)(c) of the Act, the Access Rules state:

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

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

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

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

1. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. The NDIS Operational Guidelines represent government policy. The case law is well established; to the extent that policies are consistent with the legislation, decision-makers should have regard to them unless there are cogent reasons not to.[8] In assessing the applicant's claim, the relevant Operational Guideline is Applying to the NDIS[9] (the Guidelines).
2. The case law developed in this jurisdiction is also of assistance. In the matter of Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan) Mortimer J (as she then was) stated that the legislative regime:

contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

...No qualitative judgements in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do...[10]

1. This approach was endorsed by the Full Court in National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster) at [64].

1. On 19 February 2025, the day before the hearing was scheduled to commence, the applicant's representative made an application for an adjournment of the hearing on the basis that the applicant was still in the process of securing further evidence. The application was dismissed and reasons were issued to the parties on 19 February 2025.
2. The hearing proceeded on 20 and 21 February 2025 by Microsoft Teams video. The applicant was represented by Ms Deirdre Griffiths, an advocate from Disability Justice Australia. The respondent was represented by counsel, Ms Julie Buxton.
3. By consent, the Tribunal accepted into evidence the documents in the hearing bundle pages 1-1812. In addition, by consent, the Tribunal accepted into evidence a report from Dr Clayton Thomas, dated 6 February 2025 (H22A pages 213A-213B) and a document titled: 's24 & s25 Technical Advice (Access Requirements)' (pages 1813-1828).
4. At the hearing, oral evidence was given by the applicant and Mr Elliott Mate, Occupational Therapist.

1. The respondent accepts that the applicant has physical impairments resulting from T12 incomplete spinal injury; chronic neuropathic pain and brain/head injury. The respondent also accepts that the applicant has psychosocial impairments resulting from depression and anxiety.[11]
2. The concept of an impairment "is generally understood as involving the loss of or damage to a physical, sensory or mental function."[12] According to the Access Request - Supporting Evidence Form completed by Dr Merilyn Gates on 4 April 2022, the applicant's primary impairments are; incomplete paraplegia T12 and chronic neuropathic pain. His other significant impairments are head injury, depression and anxiety.[13] These impairments are confirmed in other medical reports in evidence. Accordingly, the Tribunal finds that the applicant has disabilities attributable to physical impairments resulting from T12 incomplete spinal injury, chronic neuropathic pain and brain/head injury. The Tribunal also finds that the applicant has a disability attributable to a psychosocial impairment resulting from depression and anxiety. Accordingly, paragraph 24(1)(a) is satisfied.

1. Paragraph 25(1)(b) requires the Tribunal to be satisfied that the impairment or impairments are, or are likely to be, permanent. The focus "is on whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme."[14]
2. The Tribunal must be satisfied that there are no known, available and appropriate evidence‑based clinical, medical or other treatments that would be likely to remedy the impairment.[15] The term "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment.[16] The term "available" should be understood as meaning available to a particular individual.[17] The term "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo.[18] The term "remedy" should be understood to mean something approaching a removal or cure of the impairment.[19]
3. In the respondent's Statement of Facts, Issues and Contentions the following impairments are identified:
   • Altered/antalgic gait resulting from chronic neuropathic pain and T12 incomplete paraplegia.
   • Sleeping difficulties resulting from chronic neuropathic pain.
   • Neurological impairments resulting from T12 incomplete paraplegia; including neurogenic bladder, post-micturition dribble, faecal loading and erectile dysfunction.
   • Cognitive impairments resulting from brain/head injury, including difficulty concentrating and poor memory.
   • Impairments resulting from anxiety and depression, including feelings of distress and hopelessness, damaged trust in institutions, irritability, emotional avoidance and suicidal ideation.
4. Dr Megan Eddy is a Specialist Pain Medicine Physician, and, in her report dated 28 September 2022, she says the applicant has persistent and severe bilateral neuropathic pain affecting his lower legs. His pain has not responded to an extensive array of neuropathic pain treatments, including oral medications (pregabalin, gabapentin, amitriptyline, and duloxetine), failed spinal cord stimulator trial and ketamine infusion. She describes his pain condition as permanent.[20]
5. Dr Eddy saw the applicant on 10 occasions for pain management treatment. She prepared a report dated 7 August 2023 in response to targeted questions from the solicitors acting for the respondent. In that report in response to question 9 she says:

It is difficult to assess what impairments [the applicant has] subsequent to pain. It appeared to mainly affect his ability to sleep and cause distress, especially at night.

I have not made assessment of physical limitations associated with his spinal cord injury.[21]

1. Dr Eddy reports that the applicant was not interested in looking at non-medication management options. He wanted to know what equivalent of alcohol he could take to relieve his pain. Dr Eddy trialled the applicant on a number of medications but she was concerned about him taking some medications given the significant amounts of alcohol he was continuing to consume on a very changeable basis.[22] Dr Eddy further reported that the applicant, "continues to have unrealistic expectations that a medication exists that can relieve his pain to the degree he believes alcohol does. His alcohol use disorder is significant and then further impacts on his overall wellbeing, cognition etc."[23]
2. Dr Eddy was seeing the applicant for central neuropathic pain secondary to his spinal cord injury. He consistently reported chronic pain. All treatment provided to date for his chronic pain has been unsuccessful. Dr Eddy formed the view that there was no medical treatment that would particularly assist with the applicant's pain.[24] Dr Eddy formed the opinion that for a number of reasons, the applicant was not a suitable candidate for a pain management program.[25]
3. According to Dr Eddy, chronic pain is not the same as an impairment. She says his impairments were difficult to assess and appeared to mainly affect his ability to sleep and caused distress, especially at night.[26]
4. The applicant told Dr Eddy that he did not like the pressure of sheets on his legs due to the pain it caused him. As stated in the respondent's closing submissions, the applicant gave evidence that for (approximately) the last 2 years he has been using a frame that keeps the sheet coverings off his legs. He stated that: "...in having that, like the device will keep the sheets off my legs. I think it has, like maybe improved what sleep I do have." The applicant went on to give evidence that he has been abstinent from alcohol since attending a residential rehabilitation facility at the beginning of this year. He stated that he had gone back to the prescribed medication, gabapentin, since being abstinent. He also reported taking sleeping tablets, diazepam and Topamax, during this period. He reported significant improvement in his sleep: "It's probably the first time in 21 years I've slept." Although he stated that he was not always sleeping through the night, he stated that the "majority of the time," he was.[27] The Tribunal accepts that this was the applicant's evidence.
5. Based on the evidence, the Tribunal finds that the applicant's impairment of altered/antalgic gait and his chronic neuropathic pain affecting both of his lower legs is permanent. However, the Tribunal finds that the applicant's sleeping difficulties are not permanent.
6. In relation to his erectile dysfunction, the applicant gave evidence that he did have some success with Viagra, he has considered getting an implant or device to help, but he has not pursued this because he has not been in an intimate relationship for 5 years.
7. In a report from Dr R Clements, Rehabilitation Physician, dated 30 May 2017 he says:

Regarding erectile dysfunction, [the applicant] does find if he uses Cialis or Viagra they are effective but he gets significant side effects including headache or indigestion. He is not really interested in trying Caverject penile injections or a vacuum pump device. He does have some interest in exploring a surgically implantable penile prosthesis.[28]

Dr Clements recommended 2 urologists in Melbourne to whom the applicant could be referred. The applicant has not pursued this course.

1. In relation to the applicant's faecal loading, Dr Clements felt it was due to the applicant not taking in enough fluid and his low-fibre diet. He said it would be reasonable for the applicant to take Senokot 1 to 2 tablets every night. He said that patients who experience neurogenic bowel after spinal cord injury do need a stimulant laxative like Senokot to help effectively empty their bowels and it has not been demonstrated that there is a risk of dependence in the long term.[29]
2. In relation to the applicant's complaint of a neurogenic bladder, Dr Clements says the applicant's renal tract imaging was unremarkable. His postvoid residual volume was acceptable. There had been no recent urinary tract infections and he had normal renal function. He did not have any urinary incontinence and there was no need to change bladder management of voiding on sensation.
3. The Tribunal finds that the applicant should undergo the identified treatment from a urologist before a determination can be made about whether the applicant's erectile dysfunction is permanent.[30] The Tribunal further finds that due to the availability of treatment that may remedy the applicant's erectile dysfunction, it cannot be said that this impairment is permanent. The Tribunal further finds that the applicant does not have any permanent impairment associated with neurogenic bladder, post-micturition dribble or faecal loading.
4. The respondent contends that the applicant does not suffer permanent cognitive impairments. The applicant was referred for a neuropsychological assessment to Ms L Tweedly, Clinical Neuropsychologist. In her report dated 8 December 2022, she says the applicant reported a number of cognitive, behavioural and emotional challenges, namely:
   • poor short-term memory skills (e.g. misplaces items, forgets tasks).
   • unreliable long-term memory.
   • reduced concentration.
   • difficulties focusing on tasks.
   • difficulty initiating and maintaining conversations.
   • word finding difficulties.
   • loss of interest in previously enjoyable activities.
   • social withdrawal.
   • increased irritability.
   • poor appetite - might only need 1 or 2 meals a day.
   • very poor sleep.
   • persistent feelings of unhappiness.
5. Ms Tweedly reports that the applicant presented with some processing speed and complex attention/working memory challenges. She says the cause of these challenges are likely multifactorial and are consistent with his psychological distress, chronic pain and long‑standing alcohol use.[31] She further states that the applicant's excessive use of alcohol is impacting his cognition. She opines that it would be advantageous for the applicant to engage in targeted psychiatric and psychological support in addition to (or combined with) alcohol and other drug counselling.
6. The applicant also gave evidence that since he has been abstaining from alcohol, in addition to sleeping better, his planning has also been better and he has gone back onto prescribed medication for his pain.
7. The Tribunal finds that there is treatment available for the applicant's cognitive functioning. His evidence is that his cognition has improved since he has been abstaining from alcohol. If the applicant engaged in the treatment recommended by Ms Tweedly, namely, targeted psychiatric and psychological support and alcohol counselling, his cognition problems may be remedied. Therefore, the Tribunal finds that the applicant's cognitive impairments are not permanent.
8. The respondent also contends that the applicant's psychosocial impairments arising from depression and anxiety are not permanent. The applicant gave evidence that he had seen a psychologist, Dr Plontz, over a period of 8 to 10 years on an as needs basis.
9. He said he found Dr Plontz to be "quite good" but he stopped seeing her when the TAC stopped paying her fees. He said he had not yet engaged with a psychiatrist.
10. In Ms Tweedly's report, dated 8 December 2022, she says:

...it is common for individuals with severe difficulties with anxiety, depression, and stress to experience inefficiencies in court mental processes... These experiences highlight the interrelationship between [the applicant's] mental health, chronic pain and cognitive functioning. [The applicant's] experience of chronic pain and his psychological distress are inextricably linked.[32]

1. As stated above, Ms Tweedly recommends that the applicant engage in targeted psychiatric and psychological support, in addition to (or combined with) alcohol and other drug counselling. Based on this evidence, the Tribunal finds that there is treatment available for the applicant's mental health including his depression and anxiety and, therefore, the Tribunal finds that the applicant's psychosocial impairments arising from depression and anxiety are not permanent.
2. In summary, the Tribunal finds that the only permanent impairment the applicant suffers from is his antalgic/altered gait resulting from his T12 incomplete paraplegia and severe bilateral neuropathic pain affecting his lower legs and that this impairment is permanent.
3. The Tribunal further finds that due to the availability of treatment that may remedy the applicant's other impairments it cannot be said that they are permanent.

Substantially reduced functional capacity - paragraph 25(1)(c)

1. The Tribunal accepts that the applicant's permanent impairments of antalgic/altered gait and bilateral neuropathic pain affecting his lower legs restrict his ability to perform some activities of daily living. These activities cause him pain and often exhaust him so that he has no energy left for social engagement, leisure participation and administrative tasks. The applicant has modified many of his activities of daily living to maintain his independence.[33] The applicant's evidence is that he often feels distressed and overwhelmed by the heavier activities of daily living such as lifting, moving items, heavy cleaning and house maintenance. He also complains of problems with his working memory, concentration and focus which causes him anxiety.
2. Ms Sexton, Occupational Therapist, conducted an assessment of the applicant's functional status. In her report dated 21 September 2022, she says that the applicant is independent in the following tasks: functional mobility (indoor/outdoor), transfers, showering, dressing/grooming, toileting/continence, medication, sleep patterns, meal preparation, cleaning, laundry, cognition, communication, home maintenance, finances, driving/public transport use, shopping, leisure and social interaction. The applicant has not worked since his motor vehicle accident in 2003. He has completed diplomas in architectural design but he has not worked in this field.[34] Ms Sexton used a Functional Independence Measure (FIM) to measure the applicant's disability. In relation to motor component, he achieved a score of 91 in a possible range of 13 and 91. In relation to cognitive component, he achieved a score of 29 in a possible range of 5 and 35. Overall, he achieved a score of 120 in a possible range of 18 and 126.[35] Ms Sexton noted that the applicant's ability to complete the motor components of a task are a relative strength of his but it should be noted that the applicant will often complete these tasks slowly and with considerable pain. He has spent many years since his accident modifying his activities and engagement to maintain his independence day to day.[36] In her report, Ms Sexton notes that the applicant's goals relate to increasing his leisure participation and social activities.[37]
3. Mr Mate, Occupational Therapist, also conducted an assessment of the applicant. In his report dated 4 April 2024, he noted that the applicant was independent in the activities of communication, social interaction, learning, mobility, self-care and self-management. He reported that there were some areas where the applicant utilises a modified technique to complete a task and maintain independence and/or where the applicant would benefit from support to acquire coping strategies and techniques to increase his independence.
4. Both Ms Sexton and Mr Mate noted that the applicant has some reduced functional capacities including the following:
   • doing the heavy domestic chores at his home.
   • heavy lifting and carrying.
   • reduced memory, concentration and focus and ability to complete administrative tasks.
   • regularly engaging in social and leisure activities.
   • walking longer distances in the community.
   • risk of falls.
5. The fact that the applicant has some reduced functional capacities and would benefit from some assistance is not sufficient to gain access to the NDIS. The Tribunal must determine whether the applicant has a permanent impairment that results in substantially reduced functional capacity to undertake one or more of the following activities:

a) communication > > b) social interaction > > c) learning > > d) self-care > > e) self-management.

6. The Tribunal is required to use the Rules and the Guidelines, to reach a conclusion as to whether or not the applicant has substantially reduced functional capacity to undertake one or more of the above activities. The Tribunal is required to assess the applicant's functional capacity with respect to the bundle of tasks and actions forming the concept of those activities.[38] A person will not necessarily be deemed to have substantially reduced functional capacity because one task is unable to be completed without assistive technologies. The fact that an applicant cannot perform a particular task does not mean he/she is unable to participate "effectively or completely" in the activity prescribed by s 24(1)(c).[39] The test is one of objectivity and not a subjective comparison.[40] The Tribunal must distinguish between what the person does not do, as opposed to what they cannot do.[41]

1. The Guideline with respect to communication currently states as follows:

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.

1. In the applicant's statement of lived experience (SOLE) dated 2 May 2023 he says:

I struggle with communication because my pain is intense. This makes it hard for me to engage with people because the pain distracts me from communicating or paying attention.[42]

1. This evidence is contrary to that given by the Occupational Therapists, Ms Sexton and Mr Mate. In Ms Sexton's report with respect to communication she states, "Nil concerns noted."[43] In Mr Mate's report, he says that the applicant "is independent in the domain of communication."[44]
2. In the respondent's closing submissions, it noted that in evidence the applicant said "that he agreed, 'to a degree' with the proposition that he has independence or functional capacity for communication. He agreed that he was capable of making a phone call and speaking to someone, making doctors' appointments or those things, talking to people who answer the phone. Among other examples, he stated that he communicated with prospective buyers of his restored furniture about the item and what he has done to restore it.[45] The Tribunal accepts that this was the applicant's evidence.
3. The Tribunal finds on the basis of the medical evidence and the applicant's presentation at hearing that his permanent impairments do not result in substantial reduced functional capacity to undertake communication activities. He is able to participate effectively and completely in communication activities without assistance from a person, assistive technology, equipment or home modifications.

1. The Guideline with respect to social interaction currently states as follows:

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.

1. The applicant gave evidence that because his ability to move around is limited he does not leave the house much, he has no social networks and he generally spends his time at home. He said he sees his mum about once a month. He sees his older brother who is living nearby irregularly. His brother suffers from kidney failure and is very unwell. He is trying to support him and he is his brother's primary helper. Sometimes he does not see him for months but more often than not he assists his brother a couple of times per week.
2. The applicant gave evidence that he got on well with his Exercise Physiologist, Sheree Wood, and stated "we did go out, like, to like a mustering sort of course together outside of Next Steps." He stated he had "a pretty good relationship" with his General Practitioner and that he "might take her in some vegetable plants and stuff. Like, I'd take her in some zucchini or tomatoes or whatever I'd grown. Some plants to say thank you." He also agreed that he got on pretty well with the shop attendants when he is out and about. Although he stated he had "less than a handful of friends" then "probably just one" and made reference to friend who he speaks to "maybe once every few weeks."[46]
3. In the applicant's SOLE, he says; "I feel like I have nobody to do social activities with and I have become content with that" and "I also find that if someone is talking about their own life and my 'basket is full', so to speak, it makes it hard for me to relate to others or to be sympathetic. This can make sustaining relationships with other people difficult because I feel I have nothing to give."[47]
4. The applicant reported to Ms Sexton that many of his friends have "moved on with their lives" and he has "limited social interaction" which impacts his ability to get physical assistance and the opportunity to meet new people.[48]
5. The applicant reported to Mr Mate that he feels "like he spends most of his energy on maintaining his home, and this exhausts his energy for social engagement". The applicant admitted to excessive alcohol consumption. Mr Mate believed this "in conjunction with his mental health symptoms and neuropathic pain, combined to reduce his social engagement" but that functionally the applicant has "the capacity to make and establish friendships."[49]
6. As submitted by the respondent in the decision of Madeleine at [87], the Tribunal considered that the Operational Guidelines are directed to the personal skills needed for social interaction and "only marginally about opportunities to exercise these skills". The Tribunal accepts that the applicant's social circle has diminished and that he only has a close relationship with his mother, his brother and possibly one friend. He has a few acquaintances. The Tribunal also accepts that due to his pain he can become angry and withdrawn and cannot see others' points of view and as a result he finds it difficult to socially interact. However, the Tribunal finds that the evidence does not demonstrate that the applicant reaches the threshold requirement to establish a substantially reduced functional capacity in the activity of social interaction. He possesses the personal skills needed for social interaction and he does not require assistance to participate in social activities.

1. The Guideline with respect to learning currently states as follows:

Learning - how you learn, understand and remember new things, and practise and use new skills.

1. The applicant gave evidence that he has problems with his working memory and concentration. In his SOLE he says: "I feel like there is stuff to do and it is hard to concentrate and sit down and do it. I sometimes miss bills and payments because I am unable to sit down and focus because of the pain. I either do not get it done or I make a note of needing to do it and then I do not do it."[50]
2. As a result of conducting a psychological assessment on the applicant, Ms Tweedly formed the opinion that:

Overall [the applicant] displays age-appropriate verbal and non-verbal intellectual capabilities, alongside a relative inefficiency in his cognitive proficiency and complex attention. Importantly, a slowing is evident across tasks which are more intentionally demanding. This significant reduction in processing speed demonstrates how much more effortful tasks are for [the applicant], and how his reduced ability to quickly take on and consider more complex information, has the potential to negatively impact many of his cognitive skills such as memory and executive functioning. [The applicant's] visual memory skills appear intact, and this relative strength can be utilised by [the applicant] and support services moving forwards. The pattern of results does not indicate a primary memory disorder, rather, it reflects the impact of reduced cognitive proficiency on higher order cognitive abilities. [The applicant's] fluctuating complex attentional skills and reduced processing speed suggest inefficiencies in his ability to access this cognitive resource.

1. Ms Tweedly noted that the applicant's excessive use of alcohol was impacting his cognition and she recommended he engage in targeted psychiatric and psychological support, in addition to (or combined with) alcohol and other drug counselling.
2. In his report, Mr Mate acknowledged that the applicant can have difficulty with his working memory, concentration and focus. However, the applicant "confirmed he is able to learn new skills and information, get to new places when required, remember appointments, and understand health information when it is presented to him.[51]
3. The respondent says in its closing submissions that in his evidence, the applicant agreed that he possesses age-appropriate verbal and non-verbal intellectual capabilities. He also gave evidence that he had taught himself about furniture restoration about 5 to 6 years ago stating: "I just watched a few YouTube videos and practise." Likewise, in relation to his hobby of gardening, the applicant stated that he developed his knowledge of gardening by "learning on YouTube or just - from just experience, just seeing what happens...". He also stated: "I have a friend who...a thing called an urban - Urban Gardening, and so - yes, basically they test the soil and then you grow some of the vegetables, and some of it you keep to yourself, and then some of it goes to the community".[52] The Tribunal agrees that this was the applicant's evidence.
4. According to the report from Ms Tweedly, the applicant reported he had completed diplomas in architectural design following his injury in 2003 but he did not work in this field.[53]
5. The evidence is that the applicant has age-appropriate intelligence, good visual memory skills and no primary memory disorder. He has the ability to learn, understand, remember, practise and use new skills with respect to the activities he engages in of furniture restoration and gardening. The applicant has demonstrated that he is able to participate effectively and completely in learning activities without assistance from others, assistive technology, equipment or home modifications. The Tribunal therefore concludes that his impairments do not result in substantial reduced functional capacity in activities involving learning.

1. The Guideline with respect to mobility currently states as follows:

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.

Getting around can be torturous for me, because of my pain. I use an electric mobility scooter when I am outside of the house, as I struggle majorly to walk long distances. My mobility scooter is too big to use in my house but I can use it in the yard.[54]

1. With respect to mobility, Mr Mate says in his report that the applicant was observed:
   • Mobilising independently throughout his home, yard, and garden.
   • Mobilising in his backyard unaided for up to 10-15 minutes at a time.
   • To have an altered and shuffling gait.
   • To be unsteady or wobbly, particularly when changing directions.
   • Using his mobility scooter throughout his back yard. (He reported that he used the scooter to carry his laundry from his home to the clothesline).
   • Simulating reaching his overhead clothesline.
   • To access high and low cupboards.
   • To complete mobility scooter, bed, chair, shower and toilet transfers independently.
   • Lifting a variety of smaller and larger items.

• He can complete car transfers independently.
• He has a lifting capacity of around 5-10 kg.
• He is able to drive an unmodified car independently.
• He is able to walk for up to 15 minutes in the community.

The only recommendation for mobility that Mr Mate recommended was an over toilet frame to support the applicant's safety and independence with toilet transfers.[55]

1. Mr Mate's observations and reporting in relation to the applicant's mobility are the same as those of Ms Sexton in her report.[56]
2. In a report dated 11 July 2024, Ms E Akar, Physiotherapist, says that the applicant was "significantly impaired high - level mobility activities in comparison to healthy adult males due to physical disability". However, she noted that the applicant "is able to physically shower, dress, toilet and prepare meals for himself." She says he experiences "difficulty with many household tasks such as cleaning, lifting, reaching or negotiating uneven surfaces." She noted that the applicant's activities of daily living often needed to be paced out or he needed to have breaks or days between tasks.[57]
3. The applicant gave evidence that he is able to drive independently. He drives to the gym to see an Exercise Physiologist, which is about half an hour from his home. When he does shopping, he parks close to where he needs to go, walks to that shop, buys what he needs takes it back to the car and then drives his car to the next place.
4. In terms of moving heavier items around, the applicant gave evidence that he uses a technique that he described as "the rug method". He places a heavy item on a rug and drags it along.
5. The applicant gave evidence that sometimes he looks after other people's dogs at his home. He agreed that this required him to walk and feed the dogs. He said that he assists his brother with tasks that he has difficulty doing on his own.[58]
6. Mr Mate says in his report that the applicant's reduced balance and altered gait present the risk of a fall but he seems to have insight into his full risk, and he moves around his home environment with caution.
7. At the hearing, Mr Mate gave evidence that the applicant reported to him he had suffered 3 falls over multiple years and had not suffered severe injuries as a result.[59] When this was put to the applicant he responded "I think it's probably a true statement".[60]
8. In contrast to this, Ms Wood, Exercise Physiologist, says in a report dated 27 May 2024 that in the last 2 months the applicant reported 4 to 5 significant falls which caused significant injury, e.g. fractured ribs, fractured coccyx and head blows whether without concussion. In the last 2 months the applicant has reported 10 to 20 small falls when he has fallen but not caused injury to himself. This number is significant and places him at extremely high risk of falls.[61]
9. There is no evidence to corroborate the alleged number of falls referred to in Ms Wood's report. In respect of the issue of mobility and the applicant's risk of falls, the Tribunal prefers the evidence of Mr Mate.
10. The Tribunal finds that there are some individual tasks where the applicant uses assistive technology or home modifications to assist with his mobility. However, as the Federal Court stated in Foster, the assessment of functional capacity needs to be with respect to the bundle of tasks and actions forming each activity rather than focusing on a single task within each activity.[62]
11. The Tribunal finds that even though the applicant uses assistive technology and home modifications for some individual tasks within the overall activity of mobility, when considering the bundle of tasks as a whole, the applicant does not have a substantially reduced functional capacity in respect of mobility.

1. The Guideline with respect to self-care currently states as follows:

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.

1. In the applicant's SOLE he says:
   1. At home, I struggle to do things like hanging up the washing on the line without assistance or going through and sorting out my belongings. The pain makes cooking and cleaning difficult. On a good day, I will have three meals but that is rare. If I am too tired to cook or eat properly, I will put a pie in the oven and that will be my only meal of the day. This can be frustrating though because I find that eating poorly really affects my gut and increases my pain.[63]
2. In Mr Mate's report, he says that the applicant is independent in all of the following areas of self-care: toileting, bath/showering, dressing, grooming, meals and nutrition, shopping and domestic activities. The only recommendations he makes is that the applicant would benefit from commercial assistance for heavy house cleaning tasks (bathroom scrubbing, vacuuming mopping floors etc.) and having preprepared frozen meals for days when he cannot manage the demands of preparing a meal due to high levels of fatigue.[64]
3. Ms Sexton substantially agrees with Mr Mate's assessment. She notes that the applicant had difficulty maintaining the domestic chores of his home and would benefit with some assistance for this.[65]
4. In a report dated 6 February 2025 prepared by Dr C Thomas, Consultant in Rehabilitation and Pain Medicine, he says that the applicant "cannot perform domestic tasks safely and independently without aggravating his pain and would require assistance in this regard".[66]
5. Mr Mate gave evidence that he had read the report of Dr Thomas and confirmed that nothing in that report changed his opinion about the applicant's functional capacity for self‑care. Dr Thomas' evidence was not tested at the hearing under cross examination. Further, unlike Mr Mate. he did not conduct an independent functional assessment of the applicant in his home environment. Accordingly, in relation to self-care, the Tribunal prefers the evidence of Mr Mate where it differs to that of Dr Thomas.
6. In previous cases, the Tribunal has observed that in relation to self-care, a substantially reduced functional capacity to care for oneself "imports the idea that there are significant gaps in one's capacity to maintain personal health, safety and wellbeing".[67] Further that, "undertaking self-care tasks slowly, or in stages, using pacing techniques, or doing a task differently to others does not necessarily mean that a person cannot participate effectively or completely in self-care tasks".[68]
7. Mr Mate recommends that the applicant would benefit from the provision of an over toilet frame to support the applicant's safety and independence with toilet transfers.[69] The Tribunal accepts that the applicant would benefit from this, however, the evidence is that he is unable to attend the activity of toileting completely and effectively without the benefit of an over toilet frame. Further, the Tribunal is satisfied that such a device falls within the category of 'commonly used items' as set down in Rule 5.8 and as considered in the case of Rooney and National Disability Insurance Agency [2021] AATA 3523 at [24] to [28].
8. The Tribunal accepts Mr Mate's view that in order to maximise the applicant's safety and independence in self-care he would benefit from commercial assistance for heavy house cleaning tasks (bathroom scrubbing, vacuuming/mopping floors, etc.). However, the fact that such assistance would maximise the applicant's safety and independence does not establish that his functional capacity is substantially reduced when performing activities of self-care. The Tribunal finds that the applicant does not have 'significant gaps' in his capacity to maintain his personal health, safety and wellbeing. Looking at the bundle of tasks as a whole in relation to self-care, the Tribunal finds that the applicant does not have a substantially reduced functional capacity in self-care.

1. The Guideline with respect to self-management relevantly states as follows:

Self-management - 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.

I sometimes miss bills and payments because I am unable to sit down and focus because of the pain. I either do not get it done or I make a note of needing to do it and then I do not do it.[70]

1. In Ms Sexton's report she says that the applicant manages his home independently but reports that due to his cognitive concerns and requirement to complete each task in small steps he finds it difficult to stay on top of the administrative tasks of his life. As a result, the applicant feels as though he is unable to get things done, resulting in tasks piling up which can cause him considerable stress.[71]
2. In Mr Mate's report he says the applicant is independent in regard to all self-management activities. Examples of his independence in this domain include: organising all of his own medical and therapy appointments, having his own bank account and managing his own finances, budgeting and managing his money and managing his own mobile phone bill. According to Mr Mate, the applicant has the capacity to plan, problem solve and make decisions without assistance and in his opinion the applicant does not have any requirements for assistance in the domain of self-management.[72]
3. At the hearing, the applicant gave evidence that further supports the contention that the applicant is independent in self-management. He said:
   • he recruits subtenants for his house via online platforms.
   • He manages his subtenants. He collects money from them to pay the bills, and then pays those bills from the house account he has set up.
   • He advertises the furniture he restores on Facebook marketplace.
4. During his evidence, the applicant agreed that he had noticed an improvement in his ability to do paperwork and things like that as a result of abstaining from alcohol since earlier this year.
5. The respondent acknowledges, and the Tribunal so finds, that the applicant experiences some reduction in his capacity for self-management. However, the respondent contends, and the Tribunal so finds, that the evidence of such reduction is not sufficient to reach the required threshold of substantially reduced functional capacity in self-management. The Tribunal finds that the applicant is able to participate effectively and completely in self‑management activities without assistance from a person, assistive technology and equipment or home modifications.

1. The evidence in this case goes no higher than establishing that the applicant would benefit from assistance in the areas of heavy domestic tasks and engaging in social groups/activities. There is no doubt that the applicant undertakes some tasks with pain and difficulty and it would be easier for him if he had some help. However, the evidence does not support a finding that the applicant has substantial functional impairment in any one of the activities set out in section 24 of the Act. The Tribunal finds that the applicant does not satisfy paragraph 24(1)(c). As the Tribunal has concluded that this requirement is not met, it does not need to make findings in relation to whether the applicant's impairments affect his capacity for social or economic participation and whether he is likely to require NDIS supports for his lifetime as set out in paragraphs 24(1)(d) and (e).

1. The Tribunal has found that the applicant has a physical impairment that is permanent, namely an antalgic/altered gait, and severe bilateral neuropathic pain affecting his lower legs. Accordingly, paragraph 25(1)(a) is satisfied.
2. The evidence of Dr Eddy is that the applicant has not responded to an extensive array of neuropathic pain treatments, including oral medications, failed spinal cord stimulator trial and ketamine infusion.[73] Dr Eddy noted that the applicant had not done a formal pain management program but thought he was not a suitable candidate for a number of reasons.[74] She did not think there was any medical treatment that would particularly assist with the applicant's pain.[75]
3. Dr Clayton is also of the opinion that the applicant has had full and appropriate treatment from a pain perspective.[76]
4. The applicant has received treatment since 2003 for his T12 incomplete paraplegia resulting in the permanent impairment of an antalgic/altered gait and chronic neuropathic pain affecting both legs. The Tribunal finds that no early intervention support is likely to benefit the applicant in respect of this permanent impairment by reducing his future needs for support. Accordingly, paragraph 25(1)(b) is not satisfied.
5. The early intervention requirements in section 25 are cumulative and the applicant's failure to meet one or more of those requirements must lead to the conclusion that he does not meet the early intervention requirements. Accordingly, as a result of the findings made by the Tribunal it is not necessary to consider the remaining criteria under subsection 25(1), nor does the Tribunal need to consider whether the circumstances set out in subsection 25(3) apply. However, the Tribunal does note that in Mr Mate's report he has identified various community-based support options that may be available to the applicant to support him for services that he is not eligible to receive through the NDIS.[77]

1. The Tribunal concludes that the applicant does not meet the early intervention requirements that would enable him to become a participant of the NDIS under section 25 of the Act.

1. Having found that the applicant does not meet the disability requirements set out in section 24 of the Act, nor does he meet the early intervention requirements in section 25, the Tribunal determines that the decision under review is correct and that decision is affirmed.

1. I certify that the preceding 111 (one-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Clues
2. ........................[SGD].........................
3. Associate
4. Dated: 22 April 2025

Ms Deidre Griffiths, Disability Justice Australia Inc

Mr Paul Arblaster, National Disability Insurance Agency

[7] See Goodwin and National Disability Insurance Agency [2025] ARTA 2 at [7]-[17].

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

[14] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis) at [86].

[27] See respondent's closing submissions p 2.

[40] Madelaine and National Disability Insurance Agency [2020] AATA 4025 (Madelaine) at [109].

[41] Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 at [96].

[45] Respondent's closing submissions p 3.

[46] See respondent's closing submissions pp 3-4.

[52] See respondent's closing submissions p 4.

[58] See respondent's closing submissions p 6.

[59] See respondent's closing submissions p 7.

[60] See respondent's closing submissions p 7.

[68] Williams v National Disability Insurance Agency [2021] AATA 3383 at [88].