National Disability Insurance Agency v Foster

Counsel for the Applicant: Mr M Gollan with Mr P Nolan

Solicitor for the Respondent: Legal Aid Queensland

3 March 2023 The reference to s 24(1)(c) in paragraph 18(b) has been replaced with s 24(1)(a)

3 March 2023 The reference to s 24(1)(c) in paragraph 18(c) has been replaced with s 24(1)(b)

BETWEEN: NATIONAL DISABILITY INSURANCE AGENCY Applicant

order made by: KATZMANN, PERRY AND SARAH C DERRINGTON JJ DATE OF ORDER: 17 FEBRUARY 2023

1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal dated 17 December 2021 be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal for determination according to law. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KATZMANN J: 1 I agree with Sarah C Derrington J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

PERRY J: 2 I agree with the orders proposed by Sarah C Derrington J and with her Honour's reasons which I have read in draft. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Perry.

INTRODUCTION 3 This appeal concerns whether Mr Foster meets the access criteria to become a participant in the National Disability Insurance Scheme (NDIS). Its resolution depends upon the proper construction of s 24(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in conjunction with the "deeming provision", being r 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Access Rules), and cl 8.3 of the Access to the NDIS Operational Guidelines (Guidelines). 4 The essential issues are twofold: (1) Whether r 5.8 of the Access Rules deems Mr Foster to be unable to participate effectively or completely in the activities of self-care or social interaction, or perform the task or actions required to undertake or participate effectively or completely in those activities, without assistive technology or equipment (other than commonly used items such as glasses); and (2) Whether Mr Foster is likely to require support under the NDIS for his lifetime pursuant to s 24(1)(e) of the NDIS Act. 5 In an Agreed Statement of Facts and Issues dated 16 June 2021 and filed in the proceedings before the Administrative Appeals Tribunal (Tribunal), the parties agreed: 22. The Applicant's impairment does not result in a substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management for the purposes of s 24(1)(c) of the Act, save for the issues of whether he is "deemed" to have such a reduction by virtue of rule 5.8(a) of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules). 6 On 17 December 2021, the Tribunal decided that Mr Foster met the access criteria under s 21 of the NDIS Act. 7 Under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the National Disability Insurance Agency (NDIA) appeals from the decision of the Tribunal on four questions of law: 1. Whether the Tribunal correctly construed the meaning of the word "self-care" in paragraph 24(1)(c) of the NDIS Act and rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Rules). 2. Whether the Tribunal correctly construed the meaning of the words "assistive technology, equipment" in paragraph 5.8(a) of the Rules. 3. Whether the Tribunal correctly construed the meaning of the words "effectively or completely" in paragraph 5.8(a) of the Rules. 4. Whether the Tribunal asked itself the correct questions in determining whether the Respondent was likely to require support under the National Disability Insurance Scheme for the Respondent's lifetime, pursuant to paragraph 24(1)(e) of the NDIS Act. 8 The answers to those questions, proffered by the NDIA, provide the grounds of appeal: Question 1: 1. The Tribunal erred by concluding that the Respondent's inability to void his bladder, a bodily function or impairment, was an activity of daily living, namely self-care, under para 24(1)(c) of the NDIS Act and rule 5.8 of the Access Rules. Question 2: 2. The Tribunal erred by concluding that the words "assistive technology, equipment" in para 5.8(a) of the Rules was extended to include the Respondent's use of a catheter for the primary purpose of voiding his bladder, that is to replace that lost functional ability when, on a proper construction, the "assistive technology, equipment" is limited to equipment that serves the primary purpose of assisting him in one of the relevant activities of daily living. Question 3: 3. The Tribunal erred by construing the words "effectively or completely" in paragraph 5.8(a) of the Rules as meaning that if there was any task or action that forms part of self-care (no matter how insignificant that task is in the overall concept of self-care) that the Respondent could not do without an aid, then he cannot perform the activity effectively or completely, when, on a proper construction, the task is to consider the activity of "self-care" as a whole, viewed in the context not only of what the Respondent cannot do but what he can do, even with limitations. Question 4: 4. When addressing the question in s 24(1)(e) of the NDIS Act, namely whether the Respondent is likely to require support under the NDIS for his lifetime, the Tribunal found that: a. the Respondent could be covered for a subsidy under the Continence Aids Payment Scheme (CAPS) and require support in the form of catheters under the NDIS; b. the Respondent requires catheters on a permanent basis for the purpose of improving functioning relating to his self-care; and c. by only providing a subsidy, the CAPS was not providing a comparable support for the catheters that the Respondent was, in fact, claiming. 5. By making the above findings, the Tribunal asked itself the wrong question, when the proper question to ask was whether the likely supports are more appropriately funded or provided through other systems of service delivery, such as health, as opposed to the NDIS. 9 For the reasons that follow, the appeal is allowed.

BACKGROUND FACTS 10 In February 2018, Mr Foster, then aged 55, was diagnosed with spinal encephalomyelitis and a resultant neurogenic overactive bladder with poor contractility and mild urinary retention. The parties agreed that this is an "impairment" within the meaning of s 24(1)(a) of the NDIS Act. Mr Foster was also diagnosed with peripheral neuropathy, bipolar affective disorder and asthma. 11 After a failed attempt at stimulator placement in January 2019, Mr Foster commenced receiving Botox injections into his bladder. This treatment placed his bladder into retention, stopping his overactive bladder symptoms. Mr Foster continues to require Botox injections every 6-12 months. He must now perform clean intermittent self-catheterisation approximately six times a day to empty his bladder, as he is unable to void his bladder without the assistance of catheters at all. 12 Mr Foster receives an annual payment from the Australian Government under the Continents Aids Payment Scheme (CAPS) to subsidise the cost of his catheters. The subsidy amounts to approximately 5% of the annual cost of the catheters. 13 With the exception of requiring the use of a catheter to void his bladder, Mr Foster is independent and capable of performing activities of communication, social interaction, learning, mobility, self-care, and self-management, as was agreed by the parties subject to the consequence of r 5.8(a) of the Access Rules.

PROCEDURAL HISTORY OF THE MATTER 14 On 27 March 2019, Mr Foster applied to become an NDIS participant. On 14 August 2019, his application was refused by a delegate of the NDIA on the basis that he did not meet the disability requirement nor the earlier intervention requirements necessary to access the NDIS. 15 On 28 October 2019, Mr Foster requested a review of the delegate's decision. On 24 November 2019, the NDIA affirmed its original decision (reviewable decision). The delegate was not satisfied that: (1) Mr Foster had substantially reduced functional capacity, or psychosocial function, to undertake communication, social interaction, learning, mobility, self-care and/or self-management pursuant to s 24(1)(c) of the NDIS Act; (2) Mr Foster would require lifetime support of the NDIS pursuant to s 24(1)(e) of the NDIS Act; (3) early intervention supports would likely reduce future supports for Mr Foster in relation to his disability pursuant to ss 25(1)(b) of the NDIS Act; (4) the provision of early intervention supports for Mr Foster would benefit him in any of the ways outlined in ss 25(c)(i) - (iv) of the NDIS Act; or (5) the NDIS is the most appropriate support system for Mr Foster and that early intervention supports are more appropriately funded through other systems of service delivery or support services pursuant to sub-s 25(3) of the NDIS Act. 16 On 11 December 2019, Mr Foster applied to the Tribunal to review the NDIA's reviewable decision pursuant to s 103 of the NDIS Act. 17 On 17 December 2021, the Tribunal set aside the reviewable decision of the NDIA (Tribunal's decision), finding that Mr Foster met the access criteria under s 21 of the NDIS Act and substituting for the reviewable decision a decision in those terms. 18 Before the Tribunal, the parties accepted, and the Tribunal found, that: (a) Mr Foster met the age and residence requirements pursuant to ss 22 and 23 of the NDIS Act (at [63]); (b) Mr Foster had a disability that is attributable to a neurological impairment, namely a neurogenic overactive bladder and inability to void his bladder (impairment), pursuant to s 24(1)(a) of the NDIS Act (at [64]); (c) Mr Foster's impairment was permanent for the purposes of s 24(1)(b) of the NDIS Act (at [65]); (d) Mr Foster's impairment affected his capacity for social or economic participation pursuant to s 24(1)(d) of the NDIS Act (at [67]); and (e) Mr Foster did not meet the early intervention requirements under s 25 of the NDIS Act (at [68]). 19 Further, the Tribunal appears to have adopted, at [66], the agreed position that Mr Foster's impairment did not result in a substantially reduced functional capacity to undertake self-care, omitting the reference to the words "save for whether he is 'deemed' to have such a reduction". The Tribunal acknowledged, however, that the question of whether Mr Foster is deemed to have such reduced capacity was the issue in dispute. 20 The intention of the Agreed Issues at [22] was to apply what Mortimer J held in Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201 at [77], namely, the non-satisfaction of r 5.8 of the Access Rules "is not necessarily the end of the exercise in terms of s.24(1)(c)", and that "[t]he statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas [in s 24(1)(c)]". 21 In effect, the parties agreed that unless r 5.8 operated to provide for a finding that the "impairment results in substantially reduced functional capacity of a person to undertake" "the activities" of "self-care" then the Tribunal need not consider the matter further. 22 The Tribunal found at [86]-[87] that Mr Foster was able to participate effectively or completely in the activity of social interaction without assistive technology or equipment, but not for the activity of self-care. It also found Mr Foster was likely to require support under the NDIS for his lifetime, and thus Mr Foster met the disability requirements under s 24(1) of the NDIS Act, at [103].

LEGISLATIVE PROVISIONS 23 The NDIS and NDIA are established pursuant to the NDIS Act. The NDIS Act sets out, inter alia, the objects and principles of the operation of the NDIS and the manner in which a person can become a participant of the NDIS. 24 Various supplementary legislative instruments (NDIS Rules) are made under the authority of s 209 of the NDIS Act to provide further detail about the operation of the NDIS Act. The NDIS Rules are to be read in conjunction with the NDIS Act. The NDIS Rules made by the Minister under s 209(1) of the NDIS Act can prescribe matters that are: (a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or (b) necessary or convenient to be prescribed in order to carry out or give effect to this Act. 25 Section 209(2A) of the NDIS Act provides that the NDIS Rules may provide for the CEO, inter alia, to specify assessment tools and the circumstances in which the CEO is to use such tools. 26 When making the rule, s 209(3) of the NDIS Act requires the Minister to have regard to: (a) The objects and principles of this Act; and (b) The need to ensure the financial sustainability of the National Disability Insurance Scheme. 27 Further, s 209(9)(e) of the NDIS Act specifies that the NDIS rules may not directly amend the text of the NDIS Act. 28 The Access Rules are established under the NDIS Act and are one several NDIS Rules. 29 In addition to the NDIS Act and NDIS Rules, Guidelines have been developed to guide decision makers in their assessment process.

The construction of Rule 5.8(a) 30 The principles applicable to questions of statutory construction, which require consideration of the text, content, and purpose, are well established: see, in particular, s 15AA of the Acts Interpretation Act 1901 (Cth); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [25]-[26]; SZTAL v Minister for Immigrations and Border Protection [2017] HCA 34; 262 CLR 362 at [14]; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1. 31 In The Bay Street Appeal, the Chief Justice expressed the approach in this way, at [4]: [4] … The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. [Citations omitted] [5] There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; 373 ALR 214 at 223-225 [31]-[37]. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985. [Citations omitted] 32 Section 3 of the NDIS Act specifies the objects of the Act. It relevantly provides: (1) The objects of this Act are to: … (c) support the independence and social and economic participation of people with disability; and… (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and … (2) These objects are to be achieved by: (a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme; and (b) adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and (c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme. (3) In giving effect to the objects of the Act, regard is to be had to: … (b) the need to ensure the financial stability of the National Insurance Disability Scheme; and (c) the broad context of disability reform provided for in: (i) the National Disability Strategy 2010-2020 as endorsed by COAG on 13 February 2011; and (ii) the Carer Recognition Act 2010; and (d) the provision of services by other agencies, Departments or organisations and the need for interaction between mainstream services and the provision of supports under the National Disability Insurance Scheme. 33 Section 4 of the Act sets out general principles guiding actions under the NDIS Act. Most relevantly for present purposes, these include: … (2) People with disability should be supported to participate in and contribute to social and economic life. (3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime; … (14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme. … (17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme. 34 The background to the NDIS Act was described by Mortimer J in Mulligan at [12]: The revised Explanatory Memorandum (at p 1) described the process which led to the Act in the following way: In August 2011, the Prime Minister released the Productivity Commission Inquiry Report, Disability Care and Support, which identified that disability care and support in Australia was 'underfunded, unfair, fragmented and inefficient', and that major reform was needed. Since the release of this report, the Commonwealth and all state and territory governments have agreed on the need for major reform in the form of a National Disability Insurance Scheme, which: • will take an insurance approach that shares the costs of disability services and supports across the community; • will fund reasonable and necessary services and supports directly related to an eligible person's individual ongoing disability support needs; and • will enable people with disability to exercise more choice and control in their lives, through a person-centred, self-directed approach, with individualised funding. The Bill establishes a scheme that gives effect to these critical principles, and gives effect in part to Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities. 35 Section 18 of the NDIS Act permits a person to make a request to the NDIA to become a participant in the NDIS. Sub-section 20(1)(a) requires the CEO (decision-maker) to decide whether the person meets the "access criteria". 36 Section 21(1) of the NDIS Act sets out the access criteria a person must meet to access the NDIS: A person meets the access criteria if: (a) the CEO is satisfied that the person meets the age requirements (see section 22); and (b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and (c) the CEO is satisfied that, at the time of considering the request: (i) the person meets the disability requirements (see section 24); or (ii) the person meets the early intervention requirements (see section 25). (Emphasis added) 37 Section 24 of the NDIS Act provides that: (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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, one or more of the following activities: (i) communication; (ii) social interaction; (iii) learning; (iv) mobility; (v) self-care; (vi) self-management; and (d) the impairment or impairments affect the person's capacity for social or economic participation; and (e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime. (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation. (Emphasis added) 38 In assessing whether a person meets the disability requirements, s 27(b) of the NDIS Act relevantly provides, inter alia, that the Access Rules may prescribe circumstances in which, or criteria to be applied, in assessing whether an impairment (or impairments) result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of s 24(1)(c). 39 Rule 5.8 of the Access Rules outlines when an impairment results in "substantially reduced functional capacity" to undertake relevant activities: 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. (Emphasis added) 40 "Assistive technology" is not defined in the Access Rules of the NDIS Act, nor is "equipment". 41 "Assistive technology" is defined in the Assistive Technology Operational Guideline, issued by the NDIA on 20 June 2022, in the following way: The World Health Organisation has a universal definition of assistive technology. Assistive technology is equipment or devices that help you do things you can't do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time. This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment. Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food. Assistive technology is only the equipment you need because it helps you do things that you normally can't do because of your disability. It includes items that: • mean you need less help from others • help you do things more safely or easily • help you to keep doing the things you need to do • allow you to do tasks independently • are personalised for you. (Emphasis added) 42 The definition is clearly broad enough to include catheters. 43 Rule 7.1 of the Access Rules is concerned with the process of assessing whether a person meets, inter alia, the disability requirements. 7.1 In deciding whether a prospective participant meets the disability requirements or the early intervention requirements, the CEO may, if the CEO considers it appropriate, conduct an assessment, which is to be done using an assessment tool specified in operational guidelines in accordance with this Part from time to time. Specification of assessment tools in guidelines 7.2 The CEO may specify, in operational guidelines, assessment tools that may be used for the purpose of deciding whether a person meets the disability requirements or the early intervention requirements. … 7.5 A tool must: (a) be designed to ensure the fair and transparent assessment of whether a person meets the disability requirements or the early intervention requirements; and (b) have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Functions, Disability and Health as in force from time to time. 44 The most recent Guidelines (Our Guidelines - Applying to the NDIS) were updated on 1 July 2022 and were not before the Tribunal. Relevant to the question of whether an impairment substantially reduces a person's functional capacity, the Guidelines in force at the time of the Tribunal hearing stated, at cl 8.3: The NDIA must be satisfied that an impairment results in substantially reduced functional capacity of a prospective participant to undertake one or more relevant activities (section 24(1)(c)). The NDIA is required to consider whether any permanent impairment, or permanent impairments when considered together, result in substantially reduced functional capacity to undertake one or more of the following activities: • Communication: includes being understood in spoken, written, or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age; • Social interaction: includes making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context; • Learning: includes understanding and remembering information, learning new things, practicing and using new skills; • Mobility: this means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs; • Self-care: means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs; or • Self-management: means the cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself, including completing daily tasks, making decision, problem solving and managing finances. … The NDIA does not need to be satisfied that a person's impairment is 'serious', or more serious than another person's. Rather, access to the NDIS is based on a functional, practical assessment of what a person can and cannot do (see Mulligan and NDIA [2015] FCA 44 at [56]). … It is sufficient for a prospective participant to have substantially reduced functional capacity in relation to one activity (see Mulligan and NDIA [2015] FCA 44 at 67). Which activity the NDIA will need to consider will depend on the circumstances and the evidence presented by the prospective participant. For example, if a prospective participant has an impairment which results in substantially reduced functional capacity to undertake mobility, but otherwise has full cognitive capacity, it may not be necessary for the NDIA to consider whether the impairment results in substantially reduced functional capacity to undertake activities related to cognition. (Emphasis added) 45 Clause 8.3.1 of the Guidelines provided: The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity: By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids. In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant's impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment. Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist. When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person's need for assistance is consistent with normal expectations of a person of a similar age. For example, children under the age of 2 will not necessarily have a substantially reduced functional capacity because they need assistance to provide for self-care needs. A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity. (Emphasis added) 46 In Mulligan at [52]-[56] , Mortimer J discussed the purpose and context within which s 24 was enacted: [52] Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the "reasonable and necessary supports" to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act. [53] At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described: Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person's daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report. [54] Recommendation 3.2 of the Productivity Commission Inquiry Report, "Disability Care and Support" (31 July 2011), stated: Individuals receiving individually tailored, funded supports through the NDIS: • should have a disability that is, or is likely to be, permanent, and • would meet one of the following conditions: • have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support • be in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effective In exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs. (Emphasis added) 47 The Productivity Commission Report to which her Honour referred identified "three different populations of customers" of the scheme that was subsequently implemented, described in terms of "tiers". Tier 1 was "all Australians". Tier 2 was "anyone with a disability and their primary careers". Tier 3 was described as "a much smaller group of people with significant care and support needs". At page 13 of the Report, in discussing the scope of support for people in Tier 3, the Commission said: The NDIS would also not cover people whose requirements for support would most appropriately be met by other systems. Accordingly, the NDIS would not cover people: • … with certain health conditions for which the publicly-funded healthcare system was best suited. For example, the care needs of people with terminal cancer would be best addressed in a palliative care setting. People with less severe musculoskeletal and psychological conditions would also typically receive assistance from the health system … In addition to the above requirements, people would have to meet at least one of the following conditions. They would: • have significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing support. For example, this would include people who need support in toileting, who require significant support for mobility and/or communication or who require supports in self-management and planning to live successfully in the community (such as those with intellectual disabilities or those with significant and enduring psychiatric disabilities)… 48 In its Report the Commission said that the scheme would cover the full range of disability supports set out in Box 2. Relevantly, Box 2 specified that in relation to personal care, these would include: … help with showering, bathing, dressing, grooming, personal hygiene including bowel and bladder care/toileting, assistance with eating and/or drinking, mobility and transfers; health maintenance, such as oral hygiene, medication use or regular and routine exercises and stretches. This would also include nursing care when this was an inextricable element of the care of the individual (for example meeting the care and support needs of a ventilated quadriplegic). (Emphasis added) 49 It is within this context, and having regard to the general purpose and policy of the NDIA legislative scheme, that the questions of construction of r 5.8(a) must be approached. Whether r 5.8(a) deems Mr Foster to have substantially reduced functional capacity to undertake self-care depends on: (1) whether "activity" includes a task or action within the activity which is the impairment itself, in this case the inability to urinate; (2) whether the need for "assistive technology, equipment" is directed at that equipment's use in managing the impairment itself, or is directed at assisting a person in one of the relevant daily activities specified in s 24(1)(c), being self-care; (3) whether the phrase "effectively or completely" means that if there is any task or action that forms part of a relevant activity, no matter how insignificant it is in the overall concept of the activity, which cannot be performed without an aid, a person is deemed to be unable to participate effectively or completely.

Ground One 50 Ground One is concerned with the first issue of construction. The NDIA submits the Tribunal erred by concluding that Mr Foster's inability to void his bladder, a bodily function or impairment, was an activity of daily living, namely "self-care", under para 24(1)(c) of the NDIS Act and r 5.8 of the Access Rules. 51 After referring to the definition of self-care in the Guidelines, the Tribunal found that voiding one's bladder, and specifically toileting, is part of the activity of self-care (at [80]), and accepted Mr Foster's submission that "to draw a distinction between voiding one's bladder and toileting" was artificial. The Tribunal also accepted that catheters are "equipment" within the meaning of r 5.8(a), consistent with the usage of "equipment" within the Appendix to the Guidelines (at [81]). 52 The NDIA submits that the Tribunal's finding is erroneous on the basis that the concepts of "impairment" and "activity" were conflated, when they were intended to be separate and distinct. 53 In arriving at its conclusion that Mr Foster was not able to participate effectively or completely in the activity of self-care, the Tribunal relied on the definition of "self-care" in cl 8.3 of the Guidelines: "self-care: means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs". In light of that definition, the Tribunal held (at [79]): The Tribunal considers that voiding one's bladder is part of the activity of self-care, and specifically toileting. The Tribunal accepts the Applicant's submissions that to draw a distinction between voiding one's bladder and toileting is artificial. 54 As to what informs the content of the word "activity" in r 5.8(a), the text is clear that if an "impairment" results in an inability to participate in the "activity" without assistive technology or equipment, the person is deemed to have substantially reduced functional capacity to undertake that activity. 55 The distinction between the concepts of "impairment" and "activity" was discussed by Mortimer J in Mulligan: [50] The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities - but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1). [51] Some general observations should be made about these matters. The term "disability" is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person's impairments on that person's abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function. … [55] Using the concept of impairment enables assessment of the severity and permanency of a person's condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted. (Emphasis added) 56 As Mortimer J has explained, the focus of attention is on the activity specified in s 24(1), in this case that in s 24(1)(c)(v), "self-care". Rule 5.8(a) prescribes circumstances or criteria to be applied in assessing whether Mr Foster's impairment results in substantially reduced functional capacity to undertake self-care. 57 Importantly, r 5.1 states that "the Act sets out when a person meets the disability requirements" and re-states the provisions of s 24(1) of the NDIS Act. Consequently, it is made pellucid that the Access Rules do not derogate from the provisions of the Act. 58 In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J said that "a rule prescribing circumstances in which an impairment is, or is likely to be, permanent may well be a rule whose effect is to control, or at least affect, the outcome of an exercise of power in s 21, read with s 24 (original emphasis)". Her Honour went on to say that s 27(a) authorises the executive to make rules about the circumstances in which an impairment will be permanent for the purposes of s 24(1)(b). Mortimer J observed at [73]: [O]n its face, s 27(a) authorises inclusionary rather than exclusionary ones. That would be compatible with the usual restrictions on delegated legislation. Otherwise, a rule purportedly made pursuant to s 27 could control (and alter) the meaning of the word "permanent" in s 24(1)(b), and the executive could substantively alter the operation of the legislative scheme created by Parliament. Consistently with those well-established principles, such an operation would also be contrary to the prohibition in s 209(9)(e) of the NDIS Act, which provides that rule may not: "directly amend the text of this Act." 59 As was the case in Davis [2022] FCA 1002, the validity of r 5.8 is not in issue in the current proceedings so it is appropriate to proceed, as did Mortimer J at [75], on the basis that r 5.8 prescribes circumstances where, if the repository of the power is satisfied on the evidence of the applicability of the rule, the person is deemed to meet the disability requirement if the impairment results in substantially reduced functional capacity to undertake one or more of the activities prescribed in s 24(1)(c). 60 Guidelines made under Part 7 of the Access Rules are different. They do not prescribe circumstances that give content to the legislative criteria. To be valid, they must not be inconsistent with the statute. As per Brennan J in Re Drake and the Minister for Immigration for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640: Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute… 61 It was not submitted by either party that the Guidelines were inconsistent with the NDIS Act or the Access Rules. 62 As such, the Guidelines are merely administrative "tools". They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase "substantially reduced functional capacity". Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner: Australian Prudential Regulation Authority v TMEffect Pty Ltd [2018] FCA 508; 76 AAR 540 at [59] per Perry J. Rather, they provide non-exclusive content to the range of "tasks and actions" (as referred to in r 5.8) that comprise the "activities" the NDIA is required to consider, consistent with the legislative history, context, and purpose. 63 As has already been observed above, cl 8.3 of the Guidelines proffers the following definition of the relevant activity: "self-care: means activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs. The definition, however, is circular. An activity cannot usefully be defined by reference to an activity. It is noteworthy that none of the other definitions of the relevant activity in the Guidelines rely on similar circuity. (I interpolate that the definition in the current Guidelines has been amended to read: "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".) 64 In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do. 65 Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of "self-care", the Tribunal applied the Guidelines in such a way as to equate Mr Foster's impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error. 66 The question to which the Tribunal should have directed itself was whether Mr Foster's impairment, about which there was no dispute, resulted in Mr Foster's having substantially reduced functional capacity (s 27(b)) to undertake the activity of self-care (s 24(1)(c)). For the purposes of the NDIS, the activity is not "toileting"; the activity is "self-care". In considering that question, the Access Rules directed the Tribunal to consider whether Mr Foster was unable to participate "effectively or completely" in self-care "without assistive technology". The "assessment tools" set out in the Guidelines cannot dictate the answer to that question. 67 Self-evidently Mr Foster is able to toilet himself. His impairment inhibits his ability to urinate; he is able to void his bowels. He remains capable of voiding his bladder independently as and when required, albeit with the use of a catheter. This was an agreed fact. As the Guidelines explain, consistently with a multi-faceted, functional assessment, "[u]ndertaking a task … differently to others will not necessarily mean a person cannot participate effectively or completely in an activity". 68 Ground One is upheld.

Ground Two 69 Ground Two is concerned with the second question of construction; namely, whether the words "assistive technology, equipment" in r 5.8(a) are directed at the "impairment" or to "activity". The NDIA contends the Tribunal erred by concluding that the words "assistive technology, equipment" in r 5.8(a) included Mr Foster's use of a catheter, the primary purpose of which is to replace his lost functional ability to urinate. The NDIA contends that, for the purposes of r 5.8(a), "assistive technology, equipment" is limited to equipment that serves the primary purpose of assisting him in one of the relevant activities of daily living as prescribed in s 24(1)(c). 70 The Tribunal concluded, at [83]: Taking all of the above into consideration, and having regard to the guidance with respect to the application of rule 5.8(a) of the NDIS Access Rules of Mortimer J in Mulligan, the Tribunal considers that the outcome or effect on the Applicant without the equipment (catheters) is that he is unable to participate effectively or completely in the activity (self-care) or perform tasks or actions (toileting) required to be undertake or participate effectively or completely in the activity, and hence the deeming effect of rule 5.8(a) of the NDIS Access Rules operates. 71 In the preceding paragraph, the Tribunal had placed emphasis on Mortimer J's observation in Mulligan, at [56] that, "[c]ritically, the scheme makes detailed provision for [a functional practical assessment of what a person can and cannot do], and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity" (Tribunal's emphasis). The activities to which Mortimer J refers are those in s 24(1)(c) - communication, social interaction, learning, mobility, self-care, and self-management. 72 The Guidelines draw attention to the need to consider a person's "specific needs arising from the prospective participant's impairment and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment". The Guidelines provide further that, "Such items would generally be specially designed to assist in increasing the functional capacity and participation … and be formally prescribed by a medical practitioner…". 73 There is no dispute that Mr Foster's catheters are prescribed by a medical practitioner in direct response to his medical needs arising from his impairment. The NDIA submitted that, in this case, the equipment serves the primary purpose of addressing Mr Foster's impairment, and not that of the consequences of his daily living and social and economic participation. 74 On a plain reading of r 5.8, the NDIA's submission must be accepted. The rule provides: An impairment results in substantially reduced functional capacity of a person to undertake one or more relevant activities…if its result [that is the result of the impairment] is that (a) a person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to participate effectively or completely in the activity, without assistive technology or equipment. 75 The Tribunal directed its attention to the fact that Mr Foster needs assistive technology or equipment to urinate, rather than to whether he needs the equipment to perform tasks or actions required to undertake or participate effectively or completely in the activity. This error flows from that discussed in relation to Ground One, being the equating of the single task of toileting with the activity of self-care. 76 The Tribunal ought to have directed itself to the question of whether Mr Foster required assistive technology to undertake or participate effectively or completely in the activity of self-care. When considering that question, the Tribunal was required to be satisfied that Mr Foster met the disability requirements having regard to the objects and principles including when giving effect to the objects, the provision of services by other agencies and the need for interaction between mainstream services and the provision of supports under the NDIS (s 3(d)) - in this case by CAPS, and the need to ensure the financial sustainability of the NDIS (ss 3(b) and 4(17)). 77 As has already been explained, in relation to Ground One, Mr Foster is able to participate in the activity of self-care. As such, the overall effect of his impairment on his ability to participate in the relevant activities is what the Tribunal was required to consider for the purposes of r 5.8. Mr Foster's inability to urinate is his impairment; the assistive technology required is directed at remedying that impairment. The assistive technology is not required to assist him with the elements of self-care such as taking himself to the toilet when he is required to empty his bladder or his bowels. 78 Ground Two is upheld.

Ground Three 79 Ground 3 concerns the construction of the phrase "effectively or completely" in r 5.8(a). The NDIA contends that the Tribunal erred by construing the words "effectively or completely" as meaning that if there were any task or action that forms part of self-care, no matter how insignificant that task is in the overall concept of self-care, that Mr Foster could not do without an aid, then he is deemed to be unable to perform the activity effectively or completely. 80 As has already been observed, the Tribunal found, at [83], that without the equipment (catheters), Mr Foster was unable to participate "effectively or completely" in self-care or to perform toileting, being a task or action required to participate "effectively or completely" in self-care. 81 Mr Foster submitted the phrase should be given its "ordinary meaning" and, the issue of whether regard should be had to extrinsic material, in particular the Productivity Commission Report, had already been ventilated in Re Mulligan and National Disability Insurance Agency (2015) 149 ALD 408 at [51] where the Tribunal rejected resort to extrinsic material to inform the application of the access criteria. Mr Foster also relied on Mortimer J's observations in Mulligan at [56] set out above. To the extent that those observations are said to support this particular issue of construction, the submission cannot be accepted. Similarly, the Tribunal's reliance on the passage in Mulligan at [56] ("[c]ritically [the legislative scheme is based on a functional practical assessment of what person can and cannot do] …, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity") led it to focus on Mr Foster's impairment, rather than the activity of self-care. 82 The Macquarie Dictionary (8th ed, Macquarie, 2020) at p 493 defines "effectively" to mean "serving to effect the purpose; producing the intended or expected result". "Completely" is defined in the Macquarie Dictionary at p 323 to mean "wholly, entirely, fully" or "perfectly". On a proper grammatical construction of r 5.8(a), the adverbial phrase qualifies the verb "to participate". The use of the disjunctive "or" means that only one standard need be reached, not both. 83 In the overall legislative scheme, the adverb "completely" appears to be redundant, and in any event, unachievable. If "completely" is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person's impairment results in substantially reduced functional capacity to participate "wholly" or "perfectly" in the activities of communication, social interaction, learning, mobility, self-care and self-management - an impossible bar for almost everyone. That would be an absurd construction. It also casts doubt on what work is to be done, if any, by cl 8.3.1 of the Guidelines, which provides that "[u]ndertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity". 84 The NDIA submitted the proper interpretation of each of the words "must yield to the clear objective to provide for participation in the scheme for those persons only who experience a substantial reduction in functional capacity by reason of their participating impairment". That submission is not gainsaid by Mr Foster's submission that r 5.8 is an example of the Minister's "perfectly rational and lawful use" of the s 27 power to prescribe circumstances in which an impairment results in a substantially reduced functional capacity and leaves considerable decisional freedom for a decision-maker. 85 The proper construction of the phrase "effectively and completely" in r 5.8 is informed first by the NDIS Act, pursuant to which it was made. As the Full Court said in National Disability Insurance Agency v WRMF [2020] FCAFC 79; 276 FCR 415 at [138]: In dealing with legislation such as the Act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non existent. In its structure, it does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaken paying sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision: see R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [32] [34] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ). In the case of the Act, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important. (Emphasis added) 86 A close examination of the Objects and Principles of the NDIS Act reveal that "perfection" cannot be the standard contemplated by "completely". Section 3(1)(c) posits "support" for the independence and social and economic participation of people with disability; s 3(1)(d) "reasonable and necessary" supports; s 3(1)(g) "high quality and innovative supports" to maximise independent lifestyles; s 3(3)(b) whilst having regard to the need to ensure financial sustainability. The Principles in s 4, to which the CEO is required to have regard (set out in s 17A) include: (5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports. … (11) Reasonable and necessary supports for people with disability should: (a) support people with disability to pursue their goals and maximise their independence; and (b) support people with disability to live independently and to be included in the community as fully participating citizens; and (c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment. … 87 Importantly, they also include an explicit statement of the legislative intention: (17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to: (a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme. 88 Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity. 89 The Tribunal's error was to conflate Mr Foster's requirement to use a catheter to urinate with an inability to toilet himself and thereby an inability to participate effectively or completely in the activity of self-care. 90 Mr Foster is able to toilet himself; his impairment requires him to use a catheter to urinate. Consequently, the Tribunal erred in construing the phrase "effectively or completely" as meaning that his need for equipment to urinate meant that he was unable to participate effectively or completely in the activity of self-care. 91 For this reason, Ground Three must also succeed.

Ground Four 92 The NDIA contends that the Tribunal asked itself the wrong question when addressing s 24(1)(e) of the NDIS Act, whether the person is likely to require support under the NDIS for the person's lifetime, namely whether "there is an agency, department or service providing comparable mainstream support" (at [98], emphasis added). 93 The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems. The Productivity Commission included "bowel and bladder care" within the range of supports that the NDIS was envisaged to cover, but that does not displace the legislative requirement to consider whether, in a particular case, the support is likely to be required under the NDIS. The answer to that question depends on whether the support is required in respect of substantially reduced functional capacity to participate in an "activity", as assessed in accordance with s 24(1)(c). In the present case, there is another system that provides support to Mr Foster, albeit that it does not cover the full costs of his catheters. 94 Mr Foster submitted that question was not to be approached by asking what supports he was presently requiring but also what supports he might need to be funded through the NDIS once he was a participant in the scheme. That submission cannot be accepted. Section 24 is the gateway provision. The "likely" support referred to in s 24(1)(e) can only be referable to the result of the impairment the subject of the application to gain access to the NDIS. It was agreed before the Tribunal that Mr Foster's peripheral neuropathy, bipolar affective disorder and asthma are not claimed for the purposes of gaining access to the NDIS in this application and that his disability, for the purposes of s 24(1)(a), was his neurogenic overactive bladder and inability to void his bladder (Agreed Statement of Facts and Issues at [19] and [20]). 95 It was also agreed that the only support that Mr Foster presently requires for the purposes of the NDIS is sufficient funding for Coloplast Speedicath Flex catheters. As has already been noted, he presently receives an annual payment from the Australian Government under the CAPS to subsidise the costs of his catheters. To the extent that the Tribunal asked whether that support was comparable to what would be available under the NDIS, it asked itself the wrong question. 96 The Tribunal found, (at [97]): The Tribunal does not consider that it follows from the existence of a subsidy scheme for catheters, to which the Applicant has had access, that the Applicant should be confined to obtaining support from that scheme only. While the Applicant is clearly eligible under the CAPS, he also falls within the category of people to whom the Appendix to the NDIS Access Guidelines is directed - he requires catheters on a permanent basis for the purpose of improving functioning related to his self-care. Furthermore, his use of catheters is not in the context of undergoing treatment within a hospital setting which is the circumstance in which catheters are excluded under the Access Guidelines. 97 This passage is premised on the Tribunal's erroneous conflation of the specific tasks or actions as described in the Guidelines with the activities prescribed in s 24(1)(c) of the NDIS Act. Further, it reveals a more fundamental error of approach in the Tribunal's reasoning in identifying Mr Foster's requirement for catheters as being "for the purpose of improving functioning relating to his self-care". The statutory task, rather, was to determine whether Mr Foster is likely to require support for his lifetime under the NDIS once it determined that his inability to urinate without a catheter substantially reduced his functional capacity to undertake self-care. Only once that question was answered in the affirmative would the power to provide support under the NDIS be enlivened. 98 The passage also contemplates that Mr Foster should not "be confined" to obtaining support from the CAPS scheme only, implying that he could be funded under both schemes. To the extent that the Tribunal made such a finding, it was in error. There is no scope for support to be partially funded under the NDIS. Once the CEO has formed a state of satisfaction about whether a support is "reasonable and necessary", and not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body" (s 34(1)(f)), it must be fully funded: McGarrigle v National Disability Insurance Agency [2017] FCA 308; 252 FCR 121 at [94] per Mortimer J. 99 Ground Four must be upheld.

DISPOSITION 100 For these reasons, the appeal must be allowed and the Tribunal's decision must be set aside. The matter should be remitted to the Tribunal for determination according to law. The NDIA did not seek an order for costs in the event that it was successful. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.