1. The reports note that the Applicant was homeless, estranged from his family and relying on friends to assist with accommodation which was becoming increasingly untenable. He was also experiencing difficulties in managing his disability support pension on a fortnightly basis.

Maitland Mental Health Community Clinic report - dated 11 May 2010

1. The Applicant presented with a long history of impulsive anger outbursts, impulsivity in spending, sensitivity to rejection and abandonment, mood swings, interpersonal difficulties, recurrent thoughts of dying, and paranoid thoughts of "people talking about me, watching me." He also has vulnerability to depressive episodes related to lack of employment, frustration with the "system" and interpersonal difficulties. Under the heading 'Impression' the assessor records; borderline personality disorder with vulnerability to mood disorder, cannabis dependence and chronic back pain. The assessor noted the Applicant needed some input with drug and alcohol services, engagement in therapy to deal with anger management, interpersonal effectiveness and distress tolerance.[30]

Referral to Dr Hardeep Salaria - orthopaedic surgeon - dated 7 February 2014

1. This referral records the Applicant as having a past history (16 February 2009) of bipolar spectrum disorder and borderline personality disorder and refers to the Applicant taking medication for schizophrenia (Seroquel).[31]

The Maitland hospital - discharge referral - orthopaedics (surgical)

1. The Applicant was admitted to hospital for lower back surgery (laminectomy) on 29 April 2015. He was discharged on 1 May 2015.[32]

The Maitland hospital - discharge referral - orthopaedics (surgical)

1. The Applicant was admitted to hospital for L4-5, L5-S1 disks herniation revision on 15 August 2018. He was discharged on 16 August 2018.[33]

Subpoenaed medical records from Rutherford Doctors from 8/4/24 to 27/8/25

1. A patient health summary from Rutherford Medical Centre[34] refers to the following Active Past History:

04/05/2015 right L4/5 discectomy and L5 nerve root rhizolysis

2016 ADHD (attention deficit-hyperactivity disorder)

1. The medical records from Rutherford Doctors indicate that the Applicant first saw Dr Ali Dckrama on 8 April 2024 and the history recorded was 'Disc prolapse; Bipolar Spectrum Disorder'. A prescription for Seroquel 100mg tablet twice a day was provided.[35]
2. On 11 September 2024, the history recorded is: 'Reports taking Seroquel for sleep: history of ADHD (not formally diagnosed); no history of bipolar disorder.' It was noted that the Applicant had sleep issues for which he was prescribed Seroquel. In relation to ADHD, it is recorded that he was not formally diagnosed and there was no current treatment. In relation to Bipolar, it is recorded that there is no diagnosis.[36]

1. At the hearing the Applicant gave evidence that he had a chronic back condition for which he had undergone two operations performed by Dr Salaria, orthopaedic surgeon. Further surgery has been recommended for him in the form of disc replacement but he cannot afford it. He said that he received a $100,000 payment in respect of his workers compensation claim for his back injury and a $7,000 payment in respect of his motor vehicle accident claim. He said that he now suffers depression as a result of his pain. He said he had ADHD when he was a child. He is not seeing a psychiatrist or taking any medication for any mental health issues. He said he had no problems with communication. With respect to social interaction, he said that he has got some mates that he goes out with on the weekend but no women like him because he does not have a house. He said he had no learning problems. In relation to mobility, he said he could walk and move around with no problems but he did have difficulty putting his shoes on because of back pain he had no problems with self-care except that he could not cut his toenails. In relation to self-management, he said he was managing his disability support pension at the moment and was able to go to the bank. He said he wanted and wanted some help with tasks such as shopping. In closing he said that he had chronic back pain and it was getting worse.

Does the Applicant have a disability attributable to impairment? - s24(1)(a)

1. For the purposes of s 24(1)(a) the Tribunal must be satisfied that the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or has one or more impairments to which a psychosocial disability is attributable. The Tribunal is required to determine what impairments, if any, are associated with the Applicant's health conditions.
2. The term 'disability' in the NDIS Act, and in s 24, is a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. An 'impairment' is generally understood as involving the loss of, or damage to, a physical, sensory, or mental function.[37] Section 24 focuses on a person's impairments, rather than the name of a person's disability or the diagnosis given to a person.[38] Using the concept of impairment enables an assessment of the severity and permanency of the person's condition, and of the effects of that condition.[39]
3. The Respondent accepts that the Applicant meets the criterion in s 24(1)(a) with respect to the diagnosis of two ruptured and desiccated discs.[40] The Tribunal accepts the Applicant has a back injury that causes him pain and restricts him in some movement. However, the specific impairments resulting from that back injury are not readily identifiable. Dr Ghabrial says in his report dated 24 October 2000 that the Applicant was "indefinitely unfit for any activities involving any lifting over 10kg, excessive bending and twisting."[41] He said that the Applicant's spinal movements were reduced as a result of pain. The report from Dr Thiruchelvam dated 10 June 2001 indicates that at that time the Applicant was suffering pain in his back radiating down the right leg to the ankle. He was referred to a pain management clinic. On 29 April 2015 and 15 August 2018, the Applicant underwent back surgery, but there is no evidence in relation to the success or otherwise of that surgery. The Applicant told the Tribunal that he has chronic back pain and that he wants to undergo further surgery in the form of a disc replacement. The Tribunal accepts this evidence and finds that the Applicant experiences impairments, namely pain and restricted spinal movement and that he has a disability attributable to those impairments. Accordingly, the Tribunal is satisfied that the Applicant has suffered a significant change and loss of some movement in his back which results in physical impairments caused by restriction of movement and pain in his back. Accordingly, the Tribunal finds that the Applicant has a disability attributable to physical impairments and that he meets the requirements of s 24(1)(a) with respect to his back condition (two ruptured and desiccated discs).
4. The Respondent does not accept that the Applicant has a disability attributable to an impairment resulting from depression, ADHD or bipolar disorder.[42] There is no evidence that supports a firm diagnosis for any of these conditions. The patient health summary from Rutherford Medical Centre refers to a past history of bipolar affective disorder in 2010 and ADHD in 2016. In his evidence the Applicant made no mention of currently suffering from these conditions. He did refer to suffering from depression but there is no formal diagnosis of that in any of the medical evidence. As of 11 September 2024, the Applicant's medical records state that there is no diagnosis for ADHD or bipolar and he was not receiving treatment for either of those conditions. The Seroquel medication prescribed for the Applicant was for sleep issues.[43] The Respondent accepts and the Tribunal agrees that the Applicant is not required to establish a specific diagnosis for the purposes of s 24(1)(a) of the NDIS Act. However, as stated, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the access criteria are met.[44] The Tribunal finds that there is no evidence that the Applicant has suffered an impairment as a result of depression, ADHD or bipolar disorder. There is no evidence that he has a reduced capacity to do daily life activities and tasks due to any mental health condition. Accordingly, the Tribunal is not satisfied that the applicant suffers from one or more impairment to which a psychosocial disability is attributable. Therefore, the requirements of s 24(1)(a) are not met in relation to any mental health condition that the Applicant may suffer from, including depression, ADHD or bipolar disorder.

Are the physical impairments permanent? - s 24(1)(b)

1. In order to satisfy s 24(1)(b) the Tribunal must find that the Applicant's impairments are, or are likely to be, permanent.
2. Having regard to s 24(1)(b) of the Act, and Rules 5.4 -5.7 of the Becoming a Participant Rules, the questions that the Tribunal must ask and answer to determine if the Applicant's impairments are, or likely to be, permanent, are:

(i) Are there any known, available and appropriate evidence-based medical or other treatments that would be likely to remedy the impairments? And; > > (ii) Do any of the Applicant's impairments require medical treatment or review before a determination can be made about whether the impairments are permanent or likely to be permanent?

3. Mortimer J (as she then was) in Davis[45] considered the meaning of the word 'remedy' in r 5.4 and the concept of 'permanent impairment' drawn from the statutory phrase "the impairment or impairments are, or are likely to be, permanent" in s 24(1)(b):

The chosen descriptors must also be construed consistently with the other language used in this section of the rules, and in r 5.4 in particular, including the requirement that the treatment "would be likely to remedy the impairment." In this context, "remedy" should be understood to mean more than just relieve or improve. That is because r 5.5 recognises that an impairment may be permanent notwithstanding the severity of its impact on a person may fluctuate, or there are prospects for improvement. These changes in the impacts of an impairment may occur because of, amongst other matters, treatment. Therefore, in r 5.4 the word "remedy" should be understood to mean something approaching a removal or cure of the impairment. That is consistent with the meaning I consider should be given to the statutory phrase "permanent impairment," as an impairment which is enduring and, while its impacts on a person from time to time might fluctuate, is not an impairment which is likely to be removed or cured.

1. In Davis, Mortimer J also considered the meaning of the phrase 'known, available and appropriate.' She said:

In r 5.4, the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo. She further stated: 'The word "available" should be understood as meaning available to a particular individual' and 'what treatments an individual can, in reality, access.[46]

2. Applying Davis to the facts in this case, the evidence indicates that the Applicant's physical impairments resulting from an injury to his back have existed since he first reported symptoms of pain, discomfort and reduced mobility on 25 November 1998 whilst working as a bricklayer. These symptoms and impairments were aggravated in a car accident that occurred on 12 August 1999. He underwent two back surgeries, the first on 29 April 2015 and the second on 15 August 2018. At the hearing the Applicant's evidence was that he had a chronic back condition and he wanted further surgery in the form of a disc replacement but he could not afford it.
3. The evidence is that the Applicant has suffered chronic back pain since 1998 and despite undergoing two back surgeries there has been no improvement. Dr Isaacs, orthopaedic surgeon in his report dated 25 August 2000 and Prof Ghabrial, orthopaedic and spinal surgeon in his report dated 24 October 2000 both provided assessments in relation to the permanence of the Applicant's impairment caused by his back condition. The Tribunal accepts that the test of permanence in s 24(1)(b) is different to the assessment of permanence conducted by those medical practitioners. However, neither medical practitioner identified that any further evidence was necessary before being able to make their assessments with respect to permanence.
4. Dr Thiruchelvam says in his report dated 10 June 2001 that he referred the Applicant to a pain management unit because he could not do anything further for him. The Applicant's evidence is that he wants to undergo further back surgery but cannot afford it. He said he is on a disability support pension. Mortimer J in Davis stated that the adjective 'available' should be understood as directed at what treatments an individual can, in reality, access.[47] The Tribunal is satisfied that the option of further surgery is not, in reality, available to the Applicant. Further, given that he has already undergone two back surgeries that have not remedied his physical impairments and the fact that he has suffered from his physical impairments since 1998, the Tribunal is satisfied that there are no known, available and appropriate evidence based medical or other treatments that would be likely to remedy the Applicant's physical impairments resulting from his back condition.[48] Further, the Tribunal is not satisfied that the Applicant's impairments require medical treatment or review before a determination can be made about whether those impairments are permanent or are likely to be permanent.[49]
5. Accordingly, the Tribunal finds that the Applicant's physical impairments are permanent within the meaning of s24(1)(b).

Do the Applicant's physical impairments result in substantially reduced functional capacity? - s 24(1)(c)

1. The Tribunal has found that the Applicant's physical impairments are permanent. The gate therefore opens to consideration of the question of whether these physical impairments result in substantially reduced functional capacity to perform the bundles of tasks and actions that make up the s 24(1)(c) life activities.[50] Unlike the overall structure of s 24(1), the internal structure of s 24(1)(c) is disjunctive. That is, it is only necessary for the Applicant to establish that he experiences substantially reduced functional capacity in one life activity area to satisfy this disability requirement.[51]
2. The Tribunal must now determine whether the Applicant's impairments result in substantially reduced functional capacity to perform the bundles of tasks and actions that make up the following s 24(1)(c) life activities:
   1. Communication;
   2. Social interaction;
   3. Learning;
   4. Mobility;
   5. Self-care; or
   6. Self-management.
3. In the case of National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521 the Full Court held at [62] that in determining whether a prospective participant experiences substantially reduced functional capacity in a life activity area, the Tribunal must consider the range of 'tasks and actions' (as referred to in Rule 5.8) that comprise the 'activities' the decision-maker is required to consider, consistent with the legislative history, context, and purpose. It further held at [64] that a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
4. None of the life activities referred to in s 24(1)(c) are defined in the NDIS Act or the Becoming a Participant Rules. The Guidelines describe each life activity 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.

Socialising - how you make and keep friends, or interact with the community, ... We also look at your behaviour, and how you cope with feelings and emotions in social situations.

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

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.

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.

Self-management (if older than 6) - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day to day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

1. In the case of Burrows, Senior Member French concludes that "domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance as examples, do not fall within any of the s 24(1)(c) activity areas." Senior Member French reaches this conclusion based on a "straightforward reading of the statutory language of the section which does not refer to a domestic activity area, and the [Respondent's] operational policy [the Guidelines], which does not include any reference to the physical tasks associated with domestic activity." In this respect, the tasks attributed to self-management by the Respondent's operational policy include 'day to day tasks at home,' but limit those tasks to mental or cognitive tasks, not physical ability to do these tasks.[52]
2. The Tribunal agrees with this reasoning and determines that physical tasks associated with domestic activities such as laundry, cleaning, gardening and maintenance do not fall within the mobility or self-management activity areas.
3. In Burrows at [145] Senior Member French said:

With respect to 'shopping for food,' while the tasks of eating and drinking presuppose the existence of food and drink, I consider tasks associated with shopping to be materially different and I cannot see how they can be assimilated into the self-care activity area under that guise.

The Tribunal agrees with this statement and determines that shopping does not fall within the self-care activity area.

1. In Burrows at [78] Senior Member French also said:

... it is to be recognised that s 24(1)(c) is a component of a statutory test, the overall purpose of which is to determine if a prospective participant meets the requirements for access to the NDIS. In this regard, it is an express object of the NDIS Act to "facilitate the development of a nationally consistent approach to access to ... supports for people with disability." In my opinion, fulfilment of this purpose requires that the test operate normatively rather than arbitrarily. It can only do so if the tasks that fall within each activity area for the purposes of s 24(1)(c) are designated and determinate rather than infinitely variate and elastic.

1. The Tribunal accepts this is a correct with respect to s 24(1)(c) activity areas and should be followed. The Tribunal will now consider the s 24(1)(c) life activity areas and how they apply in this case.
2. There is no evidence that the Applicant has any functional impairment as a result of his physical impairments in the life activity areas of communication, social interaction, learning or self-management. The only life activity areas that may be impacted by the Applicant's physical impairments are potentially mobility, and self-care.
3. In the Applicant's Access Request - Supporting Evidence Form,[53] it states that the Applicant:
   • Would benefit from some help with stability and assistance with basic tasks around home.
   • Could benefit from having someone help him with tasks/communicating when grocery shopping.
   • Patient has some difficulty getting dressed with lower extremities e.g. putting on shoes.
   • Requires assistance with daily tasks e.g. cleaning, shopping, transport.

As indicated above, in Burrows, Senior Member French determined that the following tasks do not fall within any of the s 24(1)(c) activity areas:

• domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance;[54]
• day to day tasks at home relating to a person's physical ability to do these tasks;[55]
• shopping.[56]

1. The bundle of tasks within the mobility area is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and a chair. There is no evidence that the Applicant has any difficulty performing any of these tasks. His evidence was that he could walk and move around with no problems. The Applicant does not require any assistive technology, equipment, or home modifications to move around within his home or the community or to get out of bed or a chair. The Tribunal accepts that as a result of his physical impairments, the Applicant may be unstable on occasions. However, occasional instability does not amount to evidence that the Applicant is unable to mobilise effectively from a functional point of view. The assertion that the Applicant requires assistance with transport, without more, is not evidence that he is unable to perform these activities without any assistive technology, equipment or assistance. Rule 5.8 does not apply.
2. The Tribunal accepts it is possible that the Applicant may experience some difficulty with stability and transport. However, the Tribunal is unable to find on the evidence available that the Applicant experiences a substantially reduced functional capacity as a result of his physical impairments in the domain of mobility.
3. The bundle of tasks within the self-care activity area are limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care.
4. The Tribunal accepts that the Applicant may have some difficulty getting dressed with his lower extremities and cutting his toenails, but there is no evidence that he is unable to get dressed and put on shoes. Further, there is no evidence that the applicant is unable to perform the tasks associated with self-care without any assistive technology, equipment or assistance. Rule 5.8 does not apply. The Applicant may have difficulty dressing his lower extremities and putting his shoes on and he may not be able to cut his toenails, but when determining the Applicant's capacity for self-care, when that activity is considered as a whole, the Tribunal finds that there is no evidence to support a finding that the Applicant has a substantially reduced functional capacity to perform the bundle of tasks associated with self-care.

1. For the reasons stated the Tribunal has found that the Applicant does not experience substantially reduced functional capacity as a result of his physical impairments in any of the activity areas specified in s 24(1)(c). This finding does not mean that the Applicant does not have reduced functional capacity to perform some tasks associated with daily living. However, to the extent that these tasks fall within the s 24(1)(c) activity areas, his reduced function is not sufficiently acute to constitute substantially reduced function as compared with a person who does not have his impairments.[57]

1. As the Tribunal has concluded that the Applicant does not meet the substantially reduced functional capacity requirement for access to the NDIS, it is unnecessary for the Tribunal to consider the requirements of ss 24(1)(d) and (e).

1. The Tribunal has found that the Applicant has physical impairments attributable to his back condition and that they are permanent.
2. In order to meet the early intervention requirements in s 25 the Tribunal also needs to be satisfied that provision of early intervention supports is likely to benefit the Applicant by reducing his need for future supports and either mitigating the impact of his permanent impairments on his functional capacity, preventing deterioration of such capacity, improving such capacity or strengthening the sustainability of his informal supports.
3. A person does not meet the early intervention requirements if supports they require are more appropriately funded or provided through another service system rather than the NDIS.
4. In the Applicant's Access Request - Supporting Evidence Form,[58] it states that the provision of early supports will:
   • alleviate the impact on functional capacity
   • prevent deterioration of functional capacity
   • improve functional capacity
   • strengthen the sustainability of available or existing supports.

With respect to details of recommended early intervention supports, the response is "prevention of worsening of symptoms/condition."[59]

1. Rule 6.9 provides that in deciding whether the provision of early intervention supports is likely to benefit the person the Tribunal must consider:
   • The likely trajectory and impact of the person's impairment over time; and
   • The potential benefits of early intervention on the impact of the impairment on functional capacity and in reducing the future needs for supports; and
   • Evidence from a range of sources, such as information provided by the prospective participant, family members, carers and experts.
2. There is no evidence available in relation to the trajectory of the Applicant's physical impairments. The Tribunal finds that as a matter of common sense it is unlikely early intervention supports will affect the trajectory of those impairments in any way. On the facts of this case, the Tribunal is not satisfied that the Applicant would benefit from early intervention supports. The Applicant's physical impairments are longstanding. They have existed since 1998. The Tribunal is satisfied that there is no form of early intervention support that is likely to have a positive impact upon his physical impairments. Accordingly, the Tribunal finds that he does not meet the early intervention requirements of s 25 of the NDIS.

1. The Tribunal affirms the decision under review.

Solicitors for the Respondent: Maddocks Lawyers

[8] [2025] ARTA 718 at [17] - [18].

[9] The NDIS also provides time limited early intervention to persons with disability who experience intellectual, cognitive, neurological, or physical impairments or impairments to which a psychosocial disability is attributable, all which are permanent or likely to be permanent, who will benefit from such support in specified ways. Again, this is a limited subcategory of the total population of persons with disability Australia.

[10] [2015] FCA 544; (2015) 233 FCR 201 at [50]

[12] National Disability Insurance Agency v Davis (Davis) [2022] FCA 1002 at [82].

[13] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (Drake) [1979] FCAFC 39 at [644]- [655].

[18] Shi v Migration Agent's Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [45]- [46].

[20] Beezley v Repatriation Commission [2015] FCAFC 165 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85].