Decision: The Tribunal decides not to dismiss this application pursuant to s 101 of the Administrative Review Tribunal Act 2024.

......................[sgd].........................

NATIONAL DISABILITY INSURANCE SCHEME - access request - whether application has no reasonable prospects of success - applicant in receipt of Level 4 Aged Care Package - whether applicant likely to require support under the Scheme for her lifetime pursuant of s 24(1)(e) - proper interpretation and application of that provision- issue currently before the Federal Court - interpretation of s 24(1)(e) not settled - not clear the substantive application has no prospect of success - decision not to dismiss at this stage.

National Disability Insurance Scheme Act 2013 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Brickhill and National Disability Insurance Agency [2025] ARTA 707

National Disability Insurance Agency v Foster [2023] FCAFC 11

Sutherland and National Disability Insurance Scheme [2024] AATA 411

Explanatory Memorandum, National Disability Scheme Bill 2012 (Cth)

Productivity Commission, Disability Care and Support: Inquiry Report, 10 August 2011

Commonwealth, Parliamentary Debates, House of Representatives, 29 November 2012

Supplementary Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth)

1. The issue currently before me is whether this application should be dismissed pursuant to s 101(1)(b) of the Administrative Review Tribunal Act 2024 (ART Act) on the basis it has no reasonable prospect of success.
2. Ms Shanahan's application relates to a decision made on 2 January 2025, affirming an earlier decision that she did not meet the requirements for access to the National Disability Insurance Scheme (NDIS), in part due to the availability of other services and supports.
3. Ms Shanahan is currently 62 and resides in Queensland. She applied for access to the NDIS on the basis of impairments arising from a number of conditions including chronic pain, cervical spondylosis, spinal stenosis, disc degeneration, bursitis, depression, anxiety and agoraphobia. On 13 January 2025, she applied to this Tribunal for review of the decision of the Respondent that she did not meet the NDIS access requirements.
4. On 15 August 2025, the Respondent requested an interlocutory hearing be listed to consider its contention that Ms Shanahan's application should be dismissed as having no reasonable prospect of success. An interlocutory hearing directed to this issue was ultimately held on 17 November 2025, and both parties have also filed written submissions in support of their respective positions.
5. In order to explain the basis of the Respondent's dismissal application, it is necessary to first set out the relevant aspects of the legislative framework.

1. To become a participant of the NDIS, an applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

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

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

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

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

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

1. It is not disputed that Ms Shannahan satisfies the age and the residence requirements. However, what is in contention is whether she has any prospect of satisfying the requirements of section 24 ('the disability requirements') or section 25 ('the early intervention requirements').
2. I should note that although sections 24 and 25 have since been amended, those amendments only apply to access requests made to the Agency after 3 October 2024.[1] Accordingly, I am required to apply the Act as in effect prior to 3 October 2024.
3. At the relevant time, section 24 of the Act stated:

(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 NDIS supports 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 Ms Shanahan does not meet the disability requirements, in determining her application the Tribunal must also consider whether she meets the early intervention requirements set out in section 25 of the Act, which relevantly stated:

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

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

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

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

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

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

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

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

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

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

1. The Respondent's dismissal application is based squarely on one particular provision of s 24, namely s 24(1)(e), which at the relevant time required that a person was "likely to require support under the National Disability Insurance Scheme for the person's lifetime". The Respondent points to the fact Ms Shanahan has been in receipt of a My Aged Care Home Care Package since she was 50 (which is not disputed) and contends that in these circumstances, she has no prospect of satisfying s 24(1)(e).
2. The Respondent also relies on the decision of Senior Member French in Brickhill and National Disability Insurance Agency [2025] ARTA 707, which involved very similar factual circumstances.

3. In Brickhill, the Tribunal dismissed the application for review under s 101(1)(b) on the basis the Applicant was already in receipt of a My Aged Care Level 4 Home Care Package, and therefore had no prospect of satisfying s 24(1)(e). The Tribunal considered this had the effect of rendering the application untenable and futile such that it should be dismissed. SM French reasoned as follows (at [43]):

"The fundamental difficulty for the Applicant in relation to that contention is that the temporal focus for s 24(1)(e) is the date of the Tribunal's decision. On that date the Applicant has a Level 4 Home Care Package that potentially provides her with access to all types of supports required by her including in relation to home modifications. The Tribunal is not entitled to determine that the Applicant is likely to require support under the NDIS for her lifetime because of her expressed intention to relinquish support she already has available to her if she obtains access to the NDIS. On the date the decision on review is made, and assuming it is favourable to the Applicant, this would involve the Tribunal determining that the Applicant is entitled to simultaneous access to both a Home Care Package and the NDIS. It this respect it must be observed that the Tribunal has no power under the NDIS Act or otherwise to revoke the Applicant's eligibility for the Australian Government's My Aged Care program." 4. The Respondent also relies on the decision of the Full Federal Court in National Disability Insurance Agency v Foster [2023] FCAFC 11 in which Justice Derrington stated as follows (at [93]-[98], Perry J and Katzman J agreeing):

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.

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]).

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.

"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."

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.

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).

1. The Respondent has also directed my attention to other Tribunal decisions which have adopted this construction of s 24(1)(e).[2]
2. However, this construction has not been universally adopted by Tribunal members. In Sutherland and National Disability Insurance Scheme [2024] AATA 411, Senior Member Parker arrived at a different interpretation. She observed as follows (at [119]):

"In relation to the NDIA's contention as set out in paragraph [117] above and the section of the Access Guidelines underlined in paragraph [116] above, the Tribunal notes that the NDIA appears to have imported into this criterion a further requirement that the supports required by Ms Sutherland are not more appropriately sourced, funded or provided under some other service system. The Tribunal considers that the wording of s 24(1)(e) of the NDIS Act does not support the interpretation contended for by the NDIA. The Tribunal is not bound to apply this section (as underlined in paragraph [116]) of the Access Guidelines, as it considers it to be inconsistent the s 24(1)(e) of the NDIS Act. The Tribunal does not consider that it would be a proper interpretation of s 24(1)(e) to undertake an assessment of whether the supports required by Ms Sutherland could be provided by other service systems in order to decide whether this criterion is met. Rather, the wording of s 24(1)(e) simply requires the Tribunal to satisfy itself as to whether Ms Sutherland will require support under the NDIS for her lifetime, as per the wording of this provision. The Tribunal interprets this to mean that the Tribunal must focus on whether Ms Sutherland will need those supports under the NDIS for her lifetime and that this does not depend upon whether she can acquire the supports themselves elsewhere."

1. With respect to the other Tribunal members who have reached a different view, I am inclined to agree with Senior Member Parker as to the likely proper interpretation of s 24(1)(e). However, more importantly, her decision is currently on appeal to the Federal Court, and I understand the correctness of her interpretation of s 24(1)(e) is an issue in the appeal.
2. I note the observations of the Full Court in Foster raise difficult questions as to whether the views there expressed were obiter, or should be followed in any event.[3] However, it is quite likely that the Court's decision in Sutherland will shed further light on these issues, and one possibility is that the Court upholds Senior Member Parker's interpretation of the provision.
3. I note that the Explanatory Memorandum which accompanied the enactment of the NDIS Act stated in relation to s 24:

"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."[4]

1. Recommendation 3.2 in the Productivity Commission report indicated:

"Individualised supports...would be targeted at people with ongoing support needs that would otherwise not be reasonably met without taxpayer-funded services".[5]

1. The Commission also stated at recommendation 3.5:

"Moreover, the Government has indicated that it intends for the scheme to cover those with long-term care and support needs. The terms of reference for the inquiry direct the Commission to assess an approach which 'provides long-term essential care and support for eligible people ......[and] includes a coordinated package of care services available for a person's lifetime'."[6]

1. In her second reading speech, the Prime Minister also referred to the disability requirements, noting they were intended to assess "whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments affecting their ongoing daily living and social and economic participation".[7]
2. I note the version of s 24(1)(e) contained in the National Disability Insurance Scheme Bill 2012 referred to whether a person's support needs were likely to continue for their lifetime. The Bill was amended to refer to whether a person is likely to required lifetime support under the NDIS.[8] However, it is by no means clear this was intended to require a consideration of whether supports were available under other systems.
3. With respect to the intersection between the NDIS and the aged care system, the Productivity Commission noted:

The aged care system is responsible for meeting the care and support needs of those who acquire disabilities later in life. And the Australian Government has made clear....that it intends for this arrangement to continue. The terms of reference state that the NDIS is 'intended to cover people with disability not acquired as part of the natural process of ageing."[9]

1. The Commission also recommended that, upon reaching Age Pension age, "a person with disability could elect either to stay with the NDIS or move to the aged care system"[10]. The Commission also proposed that for people with disabilities who are eligible under the NDIS and who are below Age Pension age but need to access aged care services, those costs would be met by the NDIS.[11]
2. This approach was also reflected in the Explanatory Memorandum, which stated with respect to clause 22 of the Bill:

Clause 22 sets out the age requirements a person must satisfy in order to become a participant .....The first age requirement is that a person is under the age of 65 on the date the access request is made.....This requirement implements part of recommendation 3.6 of the Productivity Commission report, and reflects that the NDIS is one part of a broader system of support in Australia with people over the age of 65 able to access the aged care system. Those people who are receiving support under the NDIS and turn 65 can choose either to remain in the NDIS or move to the aged care system.

1. In my view, it is strongly arguable based on the extrinsic materials that the purpose of s 24(1)(e) was simply to require that a prospective participant had impairments which were affecting their functional capacity on an "ongoing" basis, and they were likely to require supports of the kind provided under the NDIS for their lifetime. There is nothing in the extrinsic materials to suggest this provision was directed at the availability of supports under other systems. At the relevant time this issue was dealt with separately at the supports stage by s 34(1)(f), and is now dealt with by the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024. These Rules make specific reference to aged care, and contemplate that supports for a participant who enters residential aged care before the age of 65 will be funded by the Agency where there is an agreement in place between the Agency and the Department of Health and Aged Care.[12] This would appear to be consistent with the Agency retaining responsibility for provision of disability supports for those under 65, notwithstanding their entitlement to supports under the aged care system.
2. I also note that s 24(1)(e) was amended in 2024 so as to change the reference to a person requiring "support" under the NDIS to "NDIS supports". However, the purpose of this was explained as follows:

"This reflects the insertion of the new concept of an NDIS support, clarifying that a person must be likely to require NDIS supports for the rest of the person's lifetime".[13]

Again, there is no reference in the extrinsic materials to the need to consider the availability of support to the prospective participant under other systems in assessing whether they meet the disability requirements.

1. I note that in deciding whether to dismiss Ms Shanahan's application, I am required to assess her case "at its highest". Taking the case at its highest in my view involves allowing for the possibility that in Sutherland the Court will uphold Senior Member Parker's interpretation of s 24(1)(e), which I also favour. The application to the Court in Sutherland was filed in April 2024 and so it seems likely that a decision will be handed down in the coming months.
2. In circumstances where I am not persuaded the Respondent's interpretation of s 24(1)(e) is correct, and that this remains an issue before the Federal Court, I have ultimately concluded I am not in fact satisfied that Ms Shanahan's application is futile. If the Federal Court were to uphold SM Parker's interpretation of that provision in Sutherland, her prospects of success in her substantive application will dramatically improve.
3. Given I consider Ms Shanahan has some prospect of succeeding under s 24, it is unnecessary to consider her prospects with respect to the early intervention requirements.
4. I acknowledge the situation which has developed is unusual, and the competing considerations are finely poised. In the event however, for the reasons I have explained, I am not persuaded that Ms Shanahan's application has no reasonable prospect of succeeding.
5. I have therefore decided not to dismiss Ms Shanahan's application but to allow it to proceed to a substantive hearing at which further consideration can be given to the proper construction of s 24(1)(e) and its application in her case.

1. The Tribunal decides not to dismiss this application pursuant to s 101 of the ART Act.

[1] The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024, s 126.

[2] Respondent's Submissions, p10 at [41]; Warren and National Disability Insurance Agency (NDIS) [2025] ARTA 2412.

[3] See Klewer v National Disability Insurance Agency [2025] FCAFC 169, at [25].

[4] Explanatory Memorandum, National Disability Scheme Bill 2012 (Cth).

[5] Productivity Commission, Inquiry report - Disability Care and Support, (10 August 2011) p 159.

[7] Commonwealth, Parliamentary Debates, House of Representatives, 29 November 2012 (Julia Gillard, Prime Minister).

[8] Supplementary Explanatory Memorandum, National Disability Scheme Bill 2012 (Cth), Amendment 16.

[9] Productivity Commission, Inquiry report - Disability Care and Support, (10 August 2011) p 179_._

[12] National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024 Schedule 2, item 22.

[13] Explanatory Memorandum, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Bill 2024 (Cth).