National Disability Insurance Agency v Sutherland [2026] FCA 3

[3]

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

National Disability Insurance Agency v Sutherland [2026] FCA 3 | Case summary | Zoe

[35]

On 19 January 2021, Ms Sutherland made a request to the Agency under s 18 of the NDIS Act to become a participant in the NDIS: T [9].
At the time of her access request, Ms Sutherland was 64 years of age: T [4]. She ceased work in 1999, having previously worked as a nurse, and was in receipt of partial disability pensions from both the United States of America (where she had lived several decades ago) and Australia. At the time of the hearing before the Tribunal, Ms Sutherland was living alone in a detached home in rural Victoria: T [4]-[5]. She was on an "interim" My Aged Care package, Level 2, pending the determination by the Tribunal of her application for review: T [6].
In support of her access request, Ms Sutherland relied on a range of physical and neurological impairments (resulting from one or more of spinal stenosis, cardiovascular conditions and hypothyroidism), and psychosocial impairments (resulting from depression and anxiety): T [7].
Ms Sutherland provided a "Supporting Evidence Form" dated 12 May 2021 completed by her treating general practitioner, Dr Andrew Schon, together with a follow up medical letter from Dr Schon dated 17 May 2021: T [9]-[10]. Dr Schon relevantly stated that Ms Sutherland was suffering from severe degenerative disc disease of her entire spine, particularly at L5/S1 where he said there had been a "complete obliteration of the disc space, bone on bone contact and compression of S1 nerve root": T [10(b)]. Dr Schon stated that Ms Sutherland had other impairments, namely severe chronic obstructive airways disease (COAD) and hypothyroidism, as well as ischaemic heart disease and ulcerative colitis: T [9], [10(g), (h), (i)].
Dr Schon stated that Ms Sutherland's degenerative disc disease caused her to suffer from "severe burning lower back pain which radiates into both buttocks and down to her left foot", and that she was intermittently unable to move her left leg and to drive, causing her to become housebound: T [10(d), (e)]. Further, her sciatic exacerbations were associated with incontinence, as a result of which she rarely left the house and would only drive for medical appointments: T [10(f)]. Dr Schon stated that Ms Sutherland's severe COAD caused her to "experience shortness of breath if walking more than 50 metres": T [10(g)].
In a "Supporting Evidence Form" dated 20 September 2021 completed by her treating physiotherapist, Ms Emily McCarthy, Ms Sutherland's primary impairment was identified as "spinal injury - severe stenosis", which she had had since 1999 and which was likely to be a lifelong impairment, the symptoms of which were likely to worsen over time: T [11]. Ms McCarthy also identified various other lifelong impairments, namely heart disease, thyroid disease, ulcerative colitis and chronic pain: T [11].
In September 2021, pursuant to the "State-wide Equipment Program" administered by Ballarat Health Services, Ms Sutherland was provided with two mobility scooters, a "smart lifter" (i.e. a hoist in the back of her car), and a shower stool with arms: T [12].
Other material provided to the Agency in connection with the access request included an email from Dr Schon dated 24 October 2021 regarding Ms Sutherland's NDIS eligibility (T [13]-[18]), and an email from Ms Sutherland dated 26 October 2021 comprising a lived experience statement (T [19]-[20]).

[37]

With the assistance of an advocate from the Regional Disability Advocacy Service, Ms Sutherland applied to the Tribunal for review of the decision made by the reviewer.
Although the parties had indicated at a directions hearing that they consented to the application being heard and decided "on the papers", the Tribunal nevertheless considered it appropriate to list the matter for a hearing in order to provide "provide an opportunity for certain matters arising from the parties' evidence and submissions to be clarified": T [36]. The hearing was conducted by telephone on 20 September 2023 and 17 November 2023.
Ms Sutherland was the only witness to give oral evidence at the hearing before the Tribunal: T [37]. The parties otherwise relied on a range of statements and other documentary material, including expert evidence, together with the parties' statements of facts, issues and contentions.
The Agency accepted that Ms Sutherland met the age requirements and the residence requirements, but disputed whether she met the disability requirements or the early intervention requirements in respect of any of her impairments: T [47]-[48].
In relation to the disability requirements, the Agency accepted, and the Tribunal found, that ss 24(1)(a), (b) and (d) were satisfied in respect of her spinal stenosis and degenerative disc disease, her COAD and her hypothyroidism: T [50], [61]-[62], [77]-[78], [113]. Accordingly, it was not in dispute that Ms Sutherland had a disability that was attributable to one or more of the impairments associated with those conditions, and that those impairments affected her capacity for social or economic participation. However, the Agency contended that the impairments did not result in substantially reduced functional capacity to undertake any of the activities specified in s 24(1)(c), and that Ms Sutherland was not likely to require support under the NDIS for her lifetime as required by s 24(1)(e).
The Tribunal proceeded on the basis that it was required to assess Ms Sutherland's capacity to undertake each of the activities prescribed by s 24(1)(c), considered as a whole: T [81]-[83], referring to Mulligan at [55]-[56] (Mortimer J) and National Disability Insurance Agency v Foster [2023] FCAFC 11; (2023) 295 FCR 521 at [64]-[65] (S C Derrington J, with whom Katzmann and Perry JJ agreed). This called for a "functional, practical assessment of what a person can and cannot do", taking into account the evidence given by the proposed participant together with medical and clinical evidence: Mulligan at [56] (Mortimer J). The Tribunal accepted that it was erroneous to equate a person's inability to undertake a single task forming part of an activity (e.g. self-care) with a substantially reduced functional capacity to undertake that activity: T [82], referring to Foster at [64]-[65].
The Tribunal stated that it had considered the evidence of Ms Sutherland, including her statements of lived experience and her oral evidence; further supporting expert evidence, including reports by two occupational therapists, Ms Sue Barbuto and Mr Travis Kreek, who were respectively commissioned by the Agency and Ms Sutherland; and the observations of Ms Sutherland's treating doctors: T [88]. In particular, the Tribunal "found Ms Sutherland to be a forthright and credible witness and accepted the evidence she gave at the hearing relating to her various medical conditions, lived experience and the current level of her functional capacity": T [107].

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The Agency did not take issue with the Tribunal's summary of the applicable principles derived from cases such Mulligan and Foster. It is clear that the Tribunal was cognisant of the questions to be addressed in determining whether an impairment results in substantially reduced functional capacity to undertake one or more of the activities specified in s 24(1)(c) of the NDIS Act. The Tribunal acknowledged that the inquiry was focused on a practical examination or assessment of what the person can and cannot do (T [81]), and that an inability to undertake one task forming part of an activity (e.g. the task of toileting as part of the activity of self-care) cannot be treated as a substantially reduced functional capacity to undertake that activity (T [82]). The Tribunal accepted that it was necessary to assess the person's capacity to undertake the various tasks and actions comprising the specified activity as a whole, and referred (without demur) to the Agency's submission that "a person does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity": T [83].
The Agency's complaint is not that the Tribunal misstated the applicable principles, but that its findings and reasons demonstrate that it did not correctly apply those principles to the facts of this case. The Agency pointed to the emphasis given by the Tribunal to a single task within the activity of self-care, namely, Ms Sutherland's capacity to bathe or shower. In circumstances where the Tribunal found that Ms Sutherland was able to feed herself, brush her teeth, wash her body, groom her hair, get dressed, transfer in and out of the bath or shower, use the toilet, manage her medications, and drive herself to local medical and dental appointments, the Agency submitted that the Tribunal wrongly equated the difficulties faced by Ms Sutherland in bathing and showering with a substantially reduced capacity to undertake the activity of self-care. In the Agency's submission, the Tribunal effectively committed the same error that was identified in Foster, notwithstanding the self-direction earlier in its reasons for decision.
The decision in Foster turned on the construction and application of rule 5.8(a) of the Access Rules, by which a person's impairment was deemed to result in substantially reduced functional capacity of the person to undertake an activity specified in s 24(1)(c) if he or she "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". Mr Foster had an impairment that required him to use a catheter to void his bladder. It was common ground between the parties that, but for the application of rule 5.8(a), Mr Foster did not have substantially reduced functional capacity to undertake any of the activities specified in s 24(1)(c): Foster at [5], [13], [19]-[21]. On the basis that "voiding one's bladder is part of the activity of self-care, and specifically toileting", the Tribunal found that Mr Foster was unable to participate effectively or completely in the activity of self-care without the use of "equipment", so as to attract the "deeming effect" of rule 5.8(a) of the Access Rules: Foster at [51], [53], [70]. In reaching that conclusion, the Tribunal referred to the Operational Guidelines, which relevantly described "self-care" as meaning "activities related to personal care, hygiene, grooming and feeding oneself, including showering, bathing, dressing, eating, toileting, grooming, caring for own health care needs": cl 8.3, quoted in Foster at [44].
The Agency argued in Foster that the Tribunal had erred by conflating Mr Foster's impairment (his inability to void his bladder) with the activity of "self-care": Foster at [8], [52]. The Full Court accepted that submission. As S C Derrington J stated (at [65]-[66]):

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For similar reasons, the Court held that the Tribunal had wrongly directed its attention to whether Mr Foster needed assistive technology or equipment in order to urinate, rather than asking whether he needed such equipment in order to participate effectively or completely in the activity of self-care, or to perform tasks or actions that were required to participate effectively or completely in the activity of self-care: Foster at [75]-[76], [88]-[90]. Rule 5.8 of the Access Rules did not deem a person to have substantially reduced functional capacity to undertake an activity specified in s 24(1)(c) of the NDIS Act "simply because one task [that forms part of that activity] is unable to be completed without assistive technology": Foster at [79], [88]. It remained necessary to assess the degree to which the person was able to participate in the activity.
The reference in Foster at [65] to "the bundle of tasks and actions forming the concept of 'self-care'" may be regarded as referring to the list of "activities" that were set out in cl 8.3 of the Operational Guidelines in defining the activity of self-care. On one view, the problem in Foster arose because the Tribunal focused on the inability of Mr Foster to perform only one of the listed "activities" forming part of the concept of self-care under the Operational Guidelines, namely toileting, rather than addressing his capacity to undertake the activity of "self-care" as a whole by reference to "the bundle of tasks and actions" set out in the definition. In circumstances where the outcome turned on the "deeming" provision in rule 5.8(a) of the Access Rules, this amounted to legal error.
In contrast to Foster, the Tribunal in the present case did not need to rely on rule 5.8 of the Access Rules: T [111]. Rather, without assistance from any such deeming provision, the Tribunal found on the evidence that Ms Sutherland had substantially reduced functional capacity to undertake the activity of self-care within the meaning of s 24(1)(c) of the NDIS Act. Nevertheless, in reaching that conclusion, the Tribunal appears to have proceeded on the basis that a similar approach should be adopted to the application of s 24(1)(c), requiring an assessment of Ms Sutherland's capacity to undertake "the various tasks and actions" comprising the activity of "self-care" as a whole: T [83].
The Agency submitted that the Tribunal erred by having regard to issues relating to Ms Sutherland's mobility, and thereby conflated the activity of "mobility" with the activity of "self-care" under s 24(1)(c). In particular, the Agency referred to the findings made by the Tribunal in relation to the limitations on Ms Sutherland's ability to drive in the context of her ability to attend medical appointments or procedures: see T [97], [102]-[103]. The Agency argued that such findings suggest that the Tribunal "focussed on whether Ms Sutherland could (i) drive a car and (ii) attend the dentist or medical appointments/procedures both of which are elements of mobility, not self-care". As a consequence, the Agency submitted that:

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In my view, the Agency's submissions fail to take account of the context of the Tribunal's findings, and incorrectly assume that there is a dichotomy between the tasks or actions that may be relevant to the activities of mobility and self-care respectively.
The Tribunal accepted that Ms Sutherland was able to drive, albeit with some difficulty in getting into and out of her car, including when she needed to take herself to local dentist or doctor appointments: T [97], [108]. However, the Tribunal found that Ms Sutherland required "the assistance of another person to enable her to attend certain types of medical appointments or procedures in order to properly care for her health", particularly when she was required to travel longer distances for the purposes of such appointments or procedures: T [102]-[103]. This was against the background of the Tribunal's acceptance of evidence that Ms Sutherland suffered from regular falls (about eight times a year) upon which she would become incontinent and unable to get up (T [17]), and that such random falls had previously occurred at the supermarket and when she was visiting the dentist (T [20]). The Tribunal also had regard to the impact of Ms Sutherland's "limited mobility in terms of the use of her legs" and her "limitations when mobilising" on her ability "to attend to tasks of self-care": T [104]. This was due to the limitations on the use of her lower body and the risk of her legs collapsing, as well as her physical impairment attributable to COAD: T [109].
These findings were considered in the context of the Tribunal's concerns "about Ms Sutherland's ability to independently undertake tasks relating to her health", primarily arising from her fear of falling "due to her leg collapsing randomly from time to time due to the neurological impacts of her condition of spinal stenosis": T [98]. The Tribunal described this fear as "rational" (T [109]), which may be taken to mean that it was accepted by the Tribunal as being well-founded and based on her past experiences. In particular, there were limits on Ms Sutherland's ability to take a bath or shower independently, given the risk of her falling and the time taken to respond to the activation of her personal alarm: T [98]-[99], [110]. The Tribunal found that other means of cleaning herself were inadequate, including the use of her bidet, a sponge bath or baby wipes: T [100], [110]. In conjunction with her bowel and bladder incontinence, including as a result of a collapse, the Tribunal found that Ms Sutherland's inability adequately to clean herself potentially gave rise to "hygiene-related health issues", such as urinary tract infections: T [101], [110].
In assessing whether Ms Sutherland had substantially reduced functional capacity to undertake the activity of self-care, it was permissible for the Tribunal to have regard to the impact of her limited mobility on the bundle of tasks that comprise self-care, which include personal care, hygiene, showering or bathing, and going to the toilet (see, for example, the description set out in the Operational Guidelines extracted at T [90]). In order for a person to meet the disability requirements, it is necessary to establish that the impairments attributable to the person's disability result in substantially reduced capacity to undertake at least one of the activities listed in s 24(1)(c). For present purposes, it can be accepted that each of the listed activities should be considered separately, in that an insubstantial reduction in the person's functional capacity to undertake several different activities cannot be combined to produce a substantially reduced functional capacity for the purposes of s 24(1)(c). In this sense, it might be said that the activity of self-care cannot be "conflated" with another separate activity such as mobility or self-management. But that does not mean that the concepts encompassed by each activity are mutually exclusive, nor that they must be interpreted so as to exclude tasks or actions falling within one activity from being considered in relation to another activity.
Accordingly, the effect of an impairment on a person's mobility may be relevant to the ability to carry out tasks or actions that form part of the activity of self-care. The fact that the impairment does not result in a substantially reduced functional capacity to undertake the activity of "mobility" per se (which was described in the Operational Guidelines as encompassing "how easily you move around your home and community, and how you get in and out of bed or a chair" or "how you get out and about and use your arms and legs" (T [80])) does not mean that any such limitations on mobility must be ignored when considering whether the person has substantially reduced functional capacity to undertake "self-care".
Further, I note that there are indications in the Tribunal's reasons that it was conscious of the distinctions between the different activities in s 24(1)(c). For example, the Tribunal distinguished the task of "eating" in terms of preparing meals and transferring food into a person's mouth, from tasks such as planning meals and shopping for food which form part of the activity of "self-management": T [91].
It follows that I do not accept the Agency's submission that the Tribunal erred in the construction and application of s 24(1)(c) by conflating the activity of "mobility" with the activity of "self-care".
Nor do I consider that the Tribunal erred by conflating difficulties in completing certain tasks that form part of the activity of self-care, such as showering or bathing, with an inability or incapacity to undertake the activity of self-care. The decision in Foster does not stand for the proposition that s 24(1)(c) can only be met if the person has a substantially reduced functional capacity to undertake multiple tasks or actions forming part of the activity of self-care. While it is necessary to assess the person's functional capacity with respect to "the bundle of tasks and actions forming the concept of 'self-care'" (Foster at [65]), the fact that the person remains capable of carrying out some tasks and actions does not itself prevent him or her from meeting s 24(1)(c).
The Tribunal considered a wide range of tasks and actions forming part of the activity of "self-care". It did not limit its inquiry to a single task (such as showering or bathing, or toileting), nor did it equate Ms Sutherland's impairment with any such task and deem that to be the relevant activity for which functional capacity was to be assessed: cf. Foster at [65]. The Tribunal's reasons reveal that it carried out a "functional, practical assessment" of what Ms Sutherland could and could not do in relation to various tasks and actions within the concept of self-care. The issues arising from Ms Sutherland's involuntary falls and incontinence were regarded by the Tribunal as "extreme": T [118]. Taken together with the difficulties faced by Ms Sutherland in bathing or showering regularly without someone present to assist her, and the inadequacy of the interim methods used by Ms Sutherland to clean herself, the Tribunal found that this amounted to substantially reduced functional capacity to undertake the activity of self-care.
On the findings of fact made by the Tribunal, Ms Sutherland's inability or reduced capacity to shower or bathe involved far more than "voluntarily abstaining" from performing that task due to her fear of falling, or because of difficulties faced in completing that task. The Tribunal accepted the evidence in relation to Ms Sutherland's risk of collapsing and becoming incontinent, upon which it would take longer than an hour for her to obtain assistance in response to her personal alarm. The Tribunal relevantly found that Ms Sutherland was "either unable to, or has major challenges with" undertaking tasks forming part of the activity of self-care "arising from her rational fear of the unfortunate risk arising from her repeated experience of her legs collapsing" due to the permanent impairments attributable to her disability: T [109]. This cannot properly be characterised as a matter of convenience or voluntary abstinence from performing tasks involved in undertaking the activity of self-care: cf. National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [50]-[51], [91] (Bromwich, Neskovcin and Vandongen JJ).
In so far as the Tribunal had regard to Ms Sutherland's inability to attend some medical appointments or procedures without assistance, it appears that these were considered to be relevant as tasks "regarding her health" (T [97]), "relating to her health" (T [98]), or "in order to properly care for her health" (T [103]). While these limitations might also have been aspects of other activities such as "mobility" or "self-management" (in respect of which no findings of substantially reduced functional capacity were made by the Tribunal), it cannot be said that they were irrelevant to the activity of "self-care" in the sense that the Tribunal was bound not to take them into account in that context.
Ultimately, the Agency's submissions in relation to this question devolve into an argument that, on the proper construction of s 24(1)(c), it was not legally open to the Tribunal to find that Ms Sutherland had substantially reduced capacity to undertake the activity of self-care. For the reasons set out above, such an argument cannot be accepted.

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The Agency contends that, in finding that Ms Sutherland had substantially reduced functional capacity to undertake the activity of self-care for the purposes of s 24(1)(c)(v) of the NDIS Act, the Tribunal did not consider or "evaluate" the medical and clinical evidence, including in particular the reports of the occupational therapists, Ms Barbuto and Mr Kreeck. The Agency submits that the Tribunal failed to explain why the evidence of Ms Sutherland was "preferred" to the clinical evidence when assessing her functional capacity to undertake the activity of self-care, and failed to address or resolve the Agency's submissions in relation to s 24(1)(c) in the light of the clinical evidence. The Agency submits that the Tribunal thereby erred in law, whether by failing to perform its statutory task, failing to consider a submission of substance that was worthy of consideration, or failing to give adequate reasons for its decision.
As a starting point, the Tribunal was required to conduct a "functional, practical assessment" of what Ms Sutherland could and could not do in relation to the activity of self-care: Mulligan at [55]. That assessment was to be conducted not only through the evidence of Ms Sutherland, but also having regard to medical and clinical evidence: ibid. This was expressly acknowledged by the Tribunal in its reasons for decision: T [81].
To place the Agency's submissions in context, it is necessary to identify the material that was before the Tribunal. The evidence and submissions were comprehensively listed in the Tribunal's reasons at T [26]-[45]. In addition to the "T-Documents" lodged with the Tribunal under s 37 of the AAT Act and a joint hearing tender bundle lodged by the Agency, the Tribunal had regard to a further statement provided by Ms Sutherland along with several lay witness statements or letters of support, and entries from her diary between 18 May 2023 and 3 July 2023. The Tribunal received a report from Mr Kreeck dated 8 May 2023 (the Kreeck Report) and a report from Ms Barbuto dated 17 April 2023 (the Barbuto Report), each of which set out the results of a functional capacity assessment of Ms Sutherland.
In relation to submissions, the Agency relied on a statement of facts, issues and contentions (SFIC) dated 17 July 2023, and subsequently lodged written closing submissions dated 6 October 2023, accompanied by a supplementary bundle of documents. Ms Sutherland lodged a statement in reply to the SFIC dated 19 July 2023 and a written response to the Agency's closing submissions dated 11 October 2023.
Before embarking on its assessment of Ms Sutherland's functional capacity in relation to self-care, the Tribunal identified the evidence that it had considered about the impacts of Ms Sutherland's impairments on her functional capacity (T [88]), namely:

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The Tribunal stated at T [89] that such evidence would be "referred to as relevant" in the course of its consideration whether Ms Sutherland's impairments resulted in a substantially reduced functional capacity in one or more of the activities under s 24(1)(c).
In the light of these express references to the evidence, it is not open to infer that the Tribunal in fact overlooked or ignored the expert evidence, including the reports of Ms Barbuto and Mr Kreeck, or the Agency's submissions. That conclusion is strengthened by the fact that the Tribunal had reviewed the material lodged by the parties before deciding that it was appropriate to list the matter for a hearing (T [36]), and questioned Ms Sutherland about the expert reports in some detail during her evidence at the hearing. Further, the Tribunal's ultimate finding on s 24(1)(c)(v) was expressed to have been made after "[c]onsidering the evidence overall": T [111]. The Tribunal's reasons are also replete with specific references to the Agency's SFIC and closing submissions: see, for example, T [38], [52], [61], [68]-[69], [77], [85], [112], [115] and [117]. The effect of an apparent misquote of the Agency's contentions at T [87] will be considered further below.
The Agency's central complaint on this appeal is not that the Tribunal entirely overlooked the clinical evidence or its SFIC and closing submissions, but rather that the Tribunal made no reference to that material in the section of its reasons at T [90]-[111] in which Ms Sutherland's functional capacity to undertake the activity of self-care was assessed for the purposes of s 24(1)(c).
The applicable principles are not in dispute between the parties. It is accepted that the Tribunal is not required to refer in its reasons to every piece of evidence or every contention advanced by the parties: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ). Further, the Tribunal is not required to provide reasons of the kind that might be expected of a court of law, and its reasons are not to be scrutinized "with an eye keenly attuned to error": ibid.
Nevertheless, a failure to resolve a submission advanced before the Tribunal for resolution may give rise to a question of law within the meaning of s 44 of the AAT Act, and a "failure on the part of the tribunal to mention a submission or particular evidence advanced before it may give rise to an inference that the submission or the evidence has not been taken into account during the decision-making process": Australian Postal Corporation v Hughes [2009] FCA 1057; (2009) 111 ALD 579 at [65] (Flick J). Not every such failure will necessarily give rise to such a question of law: Hughes at [61] (Flick J), referring to Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 267 at 276-277; 14 ALD 794 at 795 (Jenkinson J). Usually, the submission must be "of substance" or "worthy of serious consideration" or a submission which would have affected the outcome: Hughes at [61] (Flick J), quoting Dennis Wilcox at 276-7 (Jenkinson J); see also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).
In determining whether or not the Tribunal has considered and resolved a submission made by a party, it is necessary to consider the substance of the Tribunal's reasons. As Flick J stated in Hughes at [65]:

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The principles were addressed by Robertson J in SZRKT, in considering an argument that the Refugee Review Tribunal had failed to have regard to relevant corroborative evidence in support of a review applicant's claims. His Honour accepted that a failure to consider relevant material could give rise to jurisdictional error, even if it did not involve a failure to consider a claim or an integer of a claim for refugee status that was required to be considered by the provisions of Migration Act 1958 (Cth). Justice Robertson considered that "[t]he fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error", that is, by failing to consider that material: SZRKT at [111].
Whether or not the Tribunal is required to consider particular material will depend on the circumstances of the particular case, including "the cogency of the evidentiary material and ... the place of that material in the assessment of the applicant's claims": SZRKT at [112] (Robertson J); see also SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 142 ALD 211 at [11] (Siopis, Perram and Davies JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ). In particular, the Tribunal is generally required to deal with "a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] (Black CJ, French and Selway JJ); see also WAEE at [47] (French, Sackville and Hely JJ); SZRKT at [113] (Robertson J).
In the present case, the Agency submitted that the Tribunal erred by relying solely on Ms Sutherland's written and oral evidence when assessing her functional capacity for the purposes of s 24(1)(c), and failing to balance or weigh that evidence against "competing" clinical evidence. Further, in contrast to the Tribunal's reasons in relation to other aspects of the disability requirements under ss 24(1)(a), (b), (d) and (e), the Tribunal's reasoning did not refer to the Agency's contentions or submissions as to whether Ms Sutherland had substantially reduced functional capacity for one or more of the prescribed activities in s 24(1)(c).
The Barbuto Report sets out the results of a functional assessment conducted at Ms Sutherland's home on 29 March 2023, which was described by Ms Sutherland as a "typical - good day". Ms Barbuto proceeded to set out her responses to a series of questions that had been posed by the Agency in relation to the impact of Ms Sutherland's impairments on her functional capacity. Both the results of the functional assessment and the responses to questions were broadly consistent with the limitations reported by Ms Sutherland and the medical evidence from her treating doctors.

[67]

Self-care

22. Does the Applicant have any reduction in their capacity to undertake self-care? If yes, what impairment is the cause of any reduction in capacity, and how does it affect the Applicant?

Yes, Ms Sutherland has reduced functional capacity for self-care resulting from her mobility impairments.

Consequent on these impairments, Ms Sutherland uses modified methods and commonly-used assistive technology to maintain her independence in most self-care tasks.

Ms Sutherland's main barrier to self-care is intermittent claudication reported to result in increased risk of falls. She is nervous to shower without someone else in the house so she only showers twice each week when her carer visits to provide domestic support.

Ms Sutherland also experiences bad days when she is confined to bed.

Please refer to the section of the report titled 'Self-Care' for more complete details.

23. Are there any activities of self-care which the Applicant is unable to perform without assistance or assistive technology? If yes, please provide details including the type of assistance or assistive technology needed and how often the technology is needed.

Ms Sutherland can perform all self-care tasks with commonly-used assistive technology such as a shower stool.

Ms Sutherland would like to take a bath for pain management; she can currently transfer (modified) to the bath independently sometimes, but this is difficult. She indicated that a walk-in bath would enable her to bathe for pain management. This is not self-care, per se, but bathing would enable her to manage her symptoms more effectively.

Please refer to the section of the report titled 'Self-Care' for more complete details.

24. Are there any activities of self-care which the Applicant performs more slowly or in a modified manner? If yes, please provide details, including how the Applicant has modified their task performance, how long it takes to perform the task, and the usual range of time within which you would expect the task to be undertaken otherwise.

Ms Sutherland modifies showering, dressing and grooming by sitting down. Ms Sutherland can complete these tasks within a reasonable timeframe, but her task performance is slower.

Ms Sutherland only showers when her carer is in the home, for safety - she therefore showers less often than she would like to.

Please refer to the section of the report titled 'Self-Care' for more complete details.

25. Are there any activities of self-care which the Applicant is able to undertake without restriction? If yes, please provide details.

Feeding (use of cutlery).

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The Agency placed less reliance on the Kreeck Report, having contended before the Tribunal that "Ms Barbuto's report is of greater assistance to understand [Ms Sutherland's] functional capacity as it provides detailed explanations regarding each activity, including capacity/limitations and observations on the day of the assessment".
Mr Kreeck completed a functional capacity assessment with Ms Sutherland on 19 April 2023. Among other things, the assessment addressed Ms Sutherland's concerns that she experienced incontinence at times "due to her spinal disorder and gastro intestinal disease". The Kreeck Report also identified and discussed a range of "Personal Activities of Daily Living". In relation to showering or bathing, Mr Kreeck reported that Ms Sutherland was not independent in performing all showering and bathing tasks, and noted that she had "advised that she does not shower five days per week as she is unable due to her pain, limited function and minimal available support". Mr Kreeck considered that Ms Sutherland was independent with activities such as eating, drinking and feeding, functional mobility (with the use of assistive technology such as a walking stick, wheeled walker and mobility scooter), and personal hygiene (such as grooming, applying cosmetics and oral hygiene).
In its SFIC, the Agency relevantly contended that Ms Sutherland's impairments did not result in substantially reduced functional capacity for the purposes of s 24(1)(c). It was not in issue that Ms Sutherland suffered from regular "neural claudication" events, although there was differing evidence as to the frequency of such events. While Dr Shon had stated in his medical report dated 24 October 2021 that the claudication events occurred eight times per annum, Ms Sutherland reported that she experienced such events as often as five to ten times per week. The Agency dismissed as speculative Ms Barbuto's suggestion that this could represent a deterioration in capacity, and submitted that Ms Sutherland's self-reported evidence had not been corroborated by an appropriately qualified medical practitioner. The Agency also contended that the evidence did not demonstrate how the claudication events impacted Ms Sutherland's functional capacity.
The Agency's contentions in relation to the activity of "self-care" were set out in paragraphs [92]-[103] of its SFIC. In particular, the Agency relevantly contended:

[69]

96. The Respondent acknowledges that the Applicant is anxious about falling in the shower but contends the question for the Tribunal is whether the Applicant has the capacity to undertake self-care, not whether she is free from fear or anxiety while doing certain self-care tasks. The Respondent contends the items referred to above are 'commonly used items' within the meaning of rule 5.8(a) because it is generally accessible, can be used without the need for complex or specialised customisation, is relatively simple to use and relatively inexpensive.

97. With respect to toileting, Mr Kreeck states that the Applicant is not independent in performing toileting and toilet hygiene and requires assistance with managing incontinence symptoms. Ms Barbuto states that the Applicant is independent with toilet transfers using modified methods, including installing a bidet and foot stool. The Applicant reported that she suffers bowel incontinence approximately once or twice per week. The Applicant further reported to Ms Barbuto that her urinary continence is generally good, aside from during claudication episodes, where she temporarily loses control of her bladder function.

98. With respect to dressing, Mr Kreeck states that the Applicant is not independent in performing dressing tasks and wears loose fitting clothes as a preference. Ms Barbuto states that the Applicant sits down with dressing herself and does not use assistive technology, she wears shoes without laces and, put on socks and wears a soft bra.

99. With respect to personal hygiene, Mr Kreeck and Ms Barbuto state that the Applicant is independent in all personal hygiene tasks.

100. With respect to eating and drinking, Mr Kreeck and Ms Barbuto state the Applicant is independent with all feeding.

101. With respect to domestic tasks, [t]he Applicant reported to Ms Barbuto that she performs the full range of domestic tasks herself including cooking, cleaning, laundry and online grocery shopping. Ms Barbuto observed the Applicant accessing the benchtop oven, dishwasher, sink, fridge, freezer and pantry, washing machine and making her bed. Mr Kreeck states the Applicant requires assistance with making bed and cleaning.

102. The Applicant's personal care assistant does one hour of cleaning and one hour of respite/meal preparation per week as well as half an hour of "other" work.

103. The Respondent contends rule 5.8(b) is not invoked because the Applicant does not usually require assistance from other people to participate in self-care or need assistive technology (other than commonly used items) to effectively or completely undertake or participate in the activity of self-care. The Applicant requires assistance with vacuuming, mopping, heavier bathroom cleaning, gardening, window cleaning and gutter cleaning, among other heavier tasks, but the Respondent contends these tasks are not daily and are at most weekly and exceed the very modest functional capacity expected of the activity of self-care. Further, the Respondent highlights that many people in the community rely on assistance for heavier household tasks, particularly those of a more advanced age.

[Emphasis added, footnotes omitted.]

[73]

The Agency did not cross-examine Ms Sutherland at the conclusion of her evidence. Rather, the Agency's representative stated that the Agency "doesn't seek to clarify anything in [Ms Sutherland's] evidence, however, we would seek to make closing written submissions".
In its closing submissions, the Agency addressed Ms Sutherland's oral evidence in relation to the activity of self-care, before submitting as follows:
1. The Respondent submits that the assistance with showering does not invoke in [sic] rule 5.8. The Respondent acknowledges that the Applicant is anxious about falling in the shower, however, the Applicant gave evidence that she can predict a claudication episode and can get to safety to prevent a fall. The Respondent submits that the assistance with showering is related to anxiety of falling, not participating in the task of self-care.
2. The Respondent submits that the Applicant does not have a substantially reduced functional capacity in relation to the task of showering or meal preparation, as the Applicant is still able to shower and clean herself when she is incontinent and any gaps in the Applicant's ability to undertake self-care does not significantly compromise the maintenance of her health, safety and well-being.
3. The Respondent maintains its position outlined in the [SFIC] at [92]-[103]. The Respondent submits that the Applicant's reduction in functional capacity does not meet the high threshold of a substantially reduced functional capacity in relation to self-care.
The submission that Ms Sutherland could "predict" a claudication episode was based on her oral evidence that she received "maybe 60 seconds warning" before such an event, and that she could avoid a fall if she was able to get seated in that time. This must be read in the context of Ms Sutherland's evidence that such events were "absolutely random", and that "[i]t comes on out of nowhere and for no apparent reason". Further, even if she was able to avoid a fall, she would nevertheless suffer bladder and bowel incontinence.
In her response to the Agency's closing submissions, Ms Sutherland submitted that 60 seconds was "not sufficient time to prevent a fall" and that "if this occurs in the bathroom, there is severe risk of injury caused due to a fall on the hard surface". Ms Sutherland also relevantly submitted in response to paragraph 21 of the Agency's closing submissions:

[75]

Against this background, it is necessary to address the question whether the Tribunal erred by failing properly to consider or evaluate the clinical evidence in relation to Ms Sutherland's functional capacity to undertake the activity of self-care, or failed to address and resolve a submission of substance made by the Agency in relation to that issue that was worthy of consideration.
Contrary to the Agency's submissions, the Tribunal did not rely solely on Ms Sutherland's "self-reported limitations". At the commencement of its reasons, the Tribunal canvassed the medical evidence in support of Ms Sutherland's request for access to the NDIS: T [9]-[21]. The Tribunal stated that it had considered the Barbuto Report and the Kreeck Report, together with other medical documents produced in answer to summonses issued by the Tribunal: T [28], [32]-[33], [88]. While the Tribunal did not directly refer to the Barbuto Report or the Kreeck Report in the section of its reasons that dealt with the assessment of Ms Sutherland's functional capacity to undertake the activity of self-care, the evidence given by Ms Sutherland at the hearing was elicited by reference to the matters set out in that report. The Agency's forensic decision not to cross-examine Ms Sutherland on any issues arising from the Barbuto Report indicates that there was no significant factual controversy about the nature and extent of Ms Sutherland's impairments. Rather, the Tribunal's decision turned on whether those impairments resulted in substantially reduced functional capacity to undertake the activity of self-care for the purposes of s 24(1)(c). As the Agency accepted in its SFIC (at [16]), this is ultimately an "evaluative exercise" for the tribunal of fact: see Mulligan at [101] (Mortimer J).
This is not a case in which it was necessary for the Tribunal to address competing, conflicting or contradictory evidence, or to disclose and explain its preference for some evidence over other evidence: cf. Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [50] (Kenny, Griffiths and Mortimer JJ); Hughes at [17] (Flick J). Both the Barbuto Report and the Kreeck Report were essentially consistent with both the evidence of Ms Sutherland and the Tribunal's findings on material questions of fact. In the particular passages of the Barbuto Report on which the Agency relied, Ms Barbuto opined that Ms Sutherland had reduced functional capacity for self-care and acknowledged that her main barrier to self-care was "intermittent claudication reported to result in increased risk of falls" with consequential limitations on her showering and bathing.
The statements in the Barbuto Report that Ms Sutherland could "perform all self-care tasks with commonly-used assistive technology such as a shower stool" and that she could complete the tasks of showering, dressing and grooming "within a reasonable timeframe, but her task performance is slower" do not detract from the opinion expressed by Ms Barbuto in relation to the impact of claudication events on Ms Sutherland's capacity to shower or bathe. Similarly, the Tribunal accepted that Ms Sutherland was able to undertake many tasks forming part of the activity of self-care, but nevertheless had significant concerns about her "ability to independently undertake tasks relating to her health" due to her neurological impairment: T [98]-[104]. Those findings did not require the rejection of any clinical evidence, including the Barbuto report. It was therefore unnecessary for the Tribunal in this context to deal specifically with anything contained in the Barbuto Report, nor to explain why it preferred the evidence of Ms Sutherland, which was in substance consistent with the Barbuto Report.
Further, it is readily apparent that the Agency's contentions and submissions on this issue were addressed and resolved by the Tribunal in its reasons for decision. The Tribunal was not required to refer expressly to the particular contentions and submissions advanced by the Agency: Hughes at [65] (Flick J).
Putting to one side that the SFIC and closing submissions were primarily directed to r 5.8 of the Access Rules, upon which the Tribunal did not ultimately rely, the thrust of the Agency's position was that Ms Sutherland had capacity to shower or bathe notwithstanding her anxiety about falling. The Agency did not dispute that Ms Sutherland suffered from urinary and bowel incontinence during claudication episodes. However, the Agency submitted that such claudication episodes could be predicted so as to prevent falls, and that Ms Sutherland could shower and clean herself when she was incontinent such that "any gaps in [her] ability to undertake self-care does not significantly compromise the maintenance of her health, safety and well-being".
These issues raised by the Agency's SFIC and closing submissions were directly considered and resolved by the Tribunal, which relevantly found that Ms Sutherland was "either unable to, or has major challenges with, undertaking other tasks forming part of the activity of self-care, due to the substantial limitations on the use of her lower body to perform some tasks of self-care, and arising from her rational fear of the unfortunate risk arising from her repeated experience of her legs collapsing, due to the Permanent Impairments": T [109]. The Tribunal made findings in relation to in relation to the basis of Ms Sutherland's fear of collapsing, including the associated risks and attendant consequences. It is necessarily implicit that the Tribunal did not accept that Ms Sutherland's inability "to bathe and shower properly on a regular basis due to the risk that she may fall" (T [110]) was attributable solely to her subjective anxiety about falling.
It also follows that, for the reasons set out above, the Agency has not established any failure by the Tribunal to comply with the statutory requirement to give reasons for its decision which include its findings on material questions of fact and refer to the evidence or other material on which those findings were based: AAT Act ss 43(2), (2B); cf. Wonson v Comcare [2020] FCAFC 76; (2020) 276 FCR 613 at [42], [93], [111] (Katzmann, Anastassiou and Abraham JJ); Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60; (2023) 297 FCR 39 at [100]-[101] (Perry, Meagher and Kennett JJ).
It remains to deal with the Tribunal's incorrect quotation of a passage purporting to be from the Agency's contentions. It is common ground that the paragraphs extracted in the Tribunal's reasons at T [87] were not contained in the Agency's SFIC or closing submissions, and they appear to have been erroneously reproduced from submissions made by the Agency in a different matter. It is not clear how such an error occurred. The extracted paragraphs are on their face unresponsive to the issues and evidence that were before the Tribunal in the present case. They refer to an expert report by a different occupational therapist, and identify the Agency's position in relation to different activities within s 24(1)(c) that were not live issues on Ms Sutherland's review application.
However, the Tribunal correctly referred elsewhere in its reasons to particular contentions or submissions set out in the Agency's SFIC and closing submissions, including several extracts from the SFIC: see T [38] (quoting SFIC at [109]-[114]), T [61] (quoting SFIC at [23]), T [68] (citing closing submissions at [4]-[7]), T [77] and [112] (quoting SFIC at [30]), T [115] (referring to SFIC at [106]), and T [117] (quoting SFIC at [107]-[108]). This is sufficient to rebut any inference that the Tribunal overlooked the submissions that were actually advanced by the Agency. The Agency does not otherwise contend that the erroneous quotation at T [87] affected the Tribunal's reasoning, or led the Tribunal into any error. The Tribunal correctly identified and addressed the issues that were raised in relation to whether Ms Sutherland met the access criteria for the purposes of becoming a participant in the NDIS under Part 1 of Chapter 3 of the NDIS Act.

[83]

The Tribunal considered that s 24(1)(e) did not require it to assess whether the supports required by Ms Sutherland could be provided by other service systems, or whether such supports were more appropriately sourced, funded or provided under some other service system: T [119]. The Tribunal took the view that such an interpretation was not supported by the wording of s 24(1)(e), which simply required the Tribunal to satisfy itself as to whether Ms Sutherland was likely to require support under the NDIS for her lifetime. That question was resolved in favour of Ms Sutherland: T [118], [120].
On this appeal, the Agency submitted that "[t]he text of s 24(1)(e) suggests consideration needs to be given to both whether the person is likely to require support under the NDIS and whether such support is likely to be required for the person's lifetime". The Agency submitted that "[i]f support can be more appropriately sourced, funded or provided under another service system, it is hard to see why it would be 'required' under the NDIS". In support of such a construction of s 24(1)(e), the Agency relied on statutory context, including the objects and general principles relating to the need to ensure the financial sustainability of the NDIS, and the interaction or coordination between the provision of supports under the NDIS and the provision of services and supports outside the NDIS: see NDIS Act, ss 3(2)-(3); 4(14), (17); 8.
Ms Sutherland submitted that the text of s 24(1)(e) does not support the Agency's interpretation that the paragraph imposes "two separate mandatory considerations" or criteria, i.e. that the person is likely to require support under the NDIS and that such support is likely to be required for the person's lifetime. Ms Sutherland submitted that there is no basis on which words can be read into s 24(1)(e) which are directed to an inquiry as to whether a support would be more appropriately sourced, funded or provided under some other system of service delivery, let alone the extension of any such inquiry for the entire period of a person's lifetime.
In construing s 24(1)(e), "[t]he language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention": DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16; (2025) 99 ALJR 806 at [23] (Gageler CJ, Gordon, Edelman and Gleeson JJ); see also SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]-[39] (Gageler J); XMBQ v Minister for Immigration and Multicultural Affairs [2025] FCA 553 at [67] (Horan J). The meaning of s 24(1)(e) must be ascertained in a manner that is consistent with the language and purpose of the provisions of the NDIS Act viewed as a whole. The legislative purpose must be ascertained from the statute, whether by express statement or inference from its text and structure, and not by making any "a priori assumption" about the desired reach or operation of the provisions: DZY at [23] (Gageler CJ, Gordon, Edelman and Gleeson JJ), citing Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [25]-[26] (French CJ and Hayne J).
Context and purpose may have a heightened role in the construction of the provisions of the NDIS Act. As Flick, Mortimer and Banks-Smith JJ observed in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [138]:

[85]

Section 24 of the NDIS prescribes the disability requirements that must be met by a person as part of the access criteria to become a participant in the NDIS. The determination whether or not the person meets the access criteria is anterior to the specification of the supports that will be provided or funded under the NDIS. The disability requirements are addressed to the impairment or impairments to which the person's disability is attributable: see e.g. Lampard at [21]-[23] (Bromwich, Neskovcin and Vandongen JJ), referring to Mulligan at [51]-[56] (Mortimer J). The impairment or impairments must be permanent, or likely to be permanent: s 24(1)(b). The reference to likelihood in s 24(1)(b) reflects the fact that the requirement of permanence is forward-looking, involving prognostication into the future, albeit that r 5.4 of the Access Rules directs attention to present circumstances, namely whether "there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment": see generally National Disability Insurance Agency v Davis [2022] FCA 1002 at [136] (Mortimer J). The requirements in s 24(1)(c) and (d) address the effects of the impairment or impairments on the person's functional capacity to undertake specified activities and capacity for social and economic participation. Section 24(1)(e) is also a forward-looking requirement, and is directed to the likelihood that the person will require support under the NDIS for the person's lifetime.
The temporal aspect of the requirements in ss 24(1)(b) and (e) respectively is reflected in ss 24(2) and (3), which provide that each of those requirements can still be met by an impairment or impairments that vary in intensity, or that are episodic or fluctuating. In other words, the variation in intensity or the episodic or fluctuating nature of an impairment does not prevent a finding that the impairment is or is likely to be permanent, or a finding that the person is likely to require support under the NDIS for the person's lifetime. This sheds light on the nature of the requirements under ss 24(1)(b) and (e), and is consistent with each of those requirements being primarily directed to temporal issues relating to the nature of the impairment and the support required as a result of the impairment. I note that there is a slight nuance in the language used in ss 24(2) and (3) respectively, in that the latter refers to an episodic or fluctuating impairment being "taken to be permanent", and the person being "taken to be likely to require support under the [NDIS] for the person's lifetime". However, this difference in wording does not appear to have any significance for the issues arising on this appeal.
The text of s 24(1)(e) does not expressly refer to whether the supports required by the person are, or are likely to be, more appropriately sourced, funded or provided by a system of service delivery other than the NDIS. This stands in contrast to other provisions of the NDIS Act, such as s 25(3) which, in prescribing when a person meets the early intervention requirements, provided as follows:

[90]

Such language is conspicuously absent in s 24(1)(e), which does not contain any indication or guidance as to what other types of service delivery systems might be relevant nor how to assess whether it is "more appropriate" for supports to be provided or funded by those other systems and not under the NDIS. On the Agency's preferred construction of s 24(1)(e), such matters would be left ambiguous and indeterminate. Further, it would be necessary for the decision-maker to conduct such an inquiry by reference to the future likelihood of supports becoming available under any other service systems for the person's lifetime. In my view, such a construction would give the words "under the National Disability Insurance Scheme" in s 24(1)(e) far too much work to do. It is more likely that, if the legislature had intended to impose as a criterion for access to the NDIS that the supports required by the person not be more appropriately provided under any other systems of service delivery, it would have done so more directly or explicitly.
As a textual matter, s 24(1)(e) is not framed as imposing two cumulative requirements: first, that the support must be required under the NDIS as opposed to being available under other service systems; and second, that it must be likely that the person will require such support for the person's lifetime. Rather, it imposes a composite requirement that the person is likely to require support under the NDIS for his or her lifetime. This requirement is directed to the ongoing nature of the support required to address the effects of the person's impairments on their functional capacity and capacity for social or economic participation. It may be noted that s 30 of the NDIS Act (as in force at the relevant time) confers a power to revoke a person's status as a participant in the NDIS if the CEO is satisfied that they do not meet at least one of the disability requirements or the early intervention requirements.
I do not accept that this construction renders superfluous the words "under the National Disability Insurance Scheme" in s 24(1)(e): cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ). That phrase serves to identify the nature of the supports to which the requirement is directed, and does not itself impose any limit on the scope of the NDIS by reference to other systems of service delivery that might be available to the person. The availability of supports outside the NDIS might potentially be relevant when assessing whether the person's impairments result in substantially reduced functional capacity to undertake one or more of the activities set out in s 24(1)(c). Any such support services outside the NDIS may also be taken into account when specifying the general supports that will be provided, and the reasonable and necessary supports that will be funded, in the statement of participant supports under s 34(1). But it is not itself a criterion of access to the NDIS, at least under the disability requirements, that the supports required by the person are not available under any other service system, or that it is more appropriate that such supports are provided or funded under the NDIS rather than another service system.
This does not mean that s 24(1)(e) is redundant in the light of the requirement under s 24(1)(b) that the person's impairment or impairments are permanent, or likely to be permanent. Section 24(1)(b) is directed to the nature of the person's impairment, while s 24(1)(e) addresses the supports that are necessary to address the effects of the impairment on the person's functional capacity to undertake specified activities and his or her capacity for social or economic participation. It remains possible that a person might have an impairment that is permanent or likely to be permanent, but not be likely to require support under the NDIS for their lifetime.
As Mortimer J observed in Davis at [82]-[83] and [85], in the course of considering the meaning of "permanent" in s 24(1)(b):

[91]

As I noted in Mulligan, the threshold access requirements are designed to impose some restrictions on who can access the funding for supports available under the NDIS. The objectives of the legislation in s 3, and the guiding principles in s 4, make it clear the scheme is focused on assisting people with disabilities to live their lives with dignity, with as much autonomy as possible, and with the ability to enjoy access to community and social engagement commensurate with people who do not live with disabilities. In other words, the scheme's objectives and purposes concern lifelong experiences. As some textual indications make clear (s 24(2) being a particularly relevant one), the scheme recognises that what prevents or hinders an individual from full participation in the community, and the fullest enjoyment of their life that is possible, might fluctuate over their lives, and over parts of their lives. Impairments may not be stable. They may not always have the same effects. But they endure, and the legislative scheme recognises that people who must live with them - provided the remainder of the threshold criteria are met - should receive support throughout their lives, at the level they reasonably require.

The guiding principles in s 4 make it abundantly clear that the scheme is directed at lifelong support, and lifelong benefits, in order to promote substantive equality between people with and without disabilities.

...

The constructional choices must take into account the purpose of the threshold provisions in the context of this legislation, which addresses the lifelong needs of people living with disability, in terms of practical support and assistance to fulfil the rights and interests set out in s 4 of the Act, and also in the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). In my opinion, the correct meaning of "permanent" in s 24(1)(b) is "enduring". This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.

[92]

In my view, s 24(1)(e) similarly reflects the statutory object of supporting people with disability to participate in and contribute to social and economic life over their lifetime: see NDIS Act, ss 3(1)(a) and (c), 4(2) and (3), and 17A(3)(c).
The legislative history of s 24(1)(e) does not greatly assist in its interpretation. When introduced into the Parliament, cl 24(1)(e) of the National Disability Insurance Scheme Bill 2012 (Cth) was worded differently, requiring that "the person's support needs in relation to his or her impairment or impairments are likely to continue for the person's lifetime". The Bill was later amended in the course of its passage to include s 24(1)(e) in its current form. The notes on the relevant amendment in the Supplementary Explanatory Memorandum stated that the new cl 24(1)(e) "focuses on whether the person with disability is likely to require lifetime support under the NDIS, rather than whether the person's support needs are likely to continue for their lifetime" (see also the Revised Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013 (Cth), pp 14, 20). The distinction thereby sought to be drawn is elusive. There was no mention of any need to consider the availability or appropriateness of supports under other systems of service delivery, whether in the form of mainstream services, families or carers, or otherwise.
Ultimately, while reliance can be placed on extrinsic material to inform the context or purpose of a statutory provision, such material cannot supplant or displace the plain meaning of the statute: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); see generally s 15AB of the Acts Interpretation Act 1901 (Cth).
The NDIS Act recognises both the need for financial sustainability and the interaction between the NDIS and other service systems. Thus, s 3(3) relevantly provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS (s 3(3)(b)) and "the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the [NDIS]". Further, the "[g]eneral principles guiding actions under the NDIS Act" set out in s 4 relevantly include:

[95]

Nevertheless, those general provisions are not capable of importing into s 24(1)(e) of the NDIS Act a condition that the supports required by a person with a disability are not more appropriately provided or funded outside the NDIS, and that this is not likely to be the case for the person's lifetime. The need for financial sustainability and interaction with other service systems is accommodated by other provisions in the NDIS Act, and other aspects of the NDIS.
The Agency relied on the Full Court's decision in Foster in support of its construction of s24(1)(e) as requiring the Tribunal to consider whether the support required by Ms Sutherland was more appropriately provided or funded by other service systems that were available outside the NDIS. In Foster, the Court concluded that the Tribunal erred in its application of s 24(1)(e) by asking whether there was "an agency, department or service providing comparable mainstream support" to meet Mr Foster's need for catheters to empty his bladder, in circumstances where part of the cost of such catheters was already covered under another Commonwealth scheme: Foster at [12], [92], [95]. In the course of reaching this conclusion, S C Derrington J (with whom Katzmann and Perry JJ agreed) observed (at [93]) that "[t]he 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". However, her Honour immediately went on to state that "[t]he answer to that question [of whether the support is likely to be required under the NDIS] 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)": Foster at [93].
Contrary to the submissions made on behalf of Ms Sutherland, I do not regard this passage in the reasons of S C Derrington J in Foster as simply recounting arguments that were advanced by the Agency in that case. Read in context, the comments may be taken to form part of her Honour's reasoning in response to the Agency's contentions. However, the observations do not provide unequivocal support for the Agency's position that s 24(1)(e) itself contains a requirement that the person's support needs are not more appropriately met by other service systems. Rather, it appears that her Honour contemplated that such matters would be relevant to the assessment of the person's functional capacity under s 24(1)(c). That is, the provision of supports outside the NDIS may be considered along with the person's particular circumstances in determining whether he or she has substantially reduced capacity to undertake one or more of the activities specified in s 24(1)(c).
This is consistent with a passage earlier in her Honour's reasons (at [76]), in relation to the Tribunal's application of r 5.8 of the Access Rules for the purposes of s 24(1)(c):

[97]

The error made by the Tribunal in Foster was in finding that s 24(1)(e) was met on the basis that, because the full cost of Mr Foster's catheters was not covered outside the NDIS, the support was not comparable to what would be available under the NDIS: Foster at [95]. The Tribunal's reasoning was also premised on its "erroneous conflation" of the specific task or action of toileting with the activity of self-care, and infected by a flawed approach of asking whether Mr Foster required catheters "for the purpose of improving functioning relating to his self-care": Foster at [97]. The Court implicitly accepted that ss 24(1)(c) and (e) impose separate and cumulative requirements and that, if it is determined that the person has a substantially reduced functional capacity to undertake self-care, it remains necessary to determine whether the person is likely to require support under the NDIS for their lifetime. However, that does not dictate that s 24(1)(e) must be construed as imposing an additional requirement that the person must be likely to require support under the NDIS, in the sense that the person's lifetime support needs are not likely to be met under any other service systems outside the NDIS.
Accordingly, I do not accept the Agency's submission that s 24(1)(e) "requires the further step of considering whether the support is one which ought to be provided under the NDIS or whether it [is] more appropriately sourced or funded through another system".
It follows that there was no error in the approach that was taken by the Tribunal at T [118]-[120] in applying the requirement under s 24(1)(e) of the NDIS Act. The degenerative nature of Ms Sutherland's impairment was not in dispute and, as the Tribunal noted, there was no evidence to suggest that her medical conditions were likely to improve or that there was a chance that they may resolve: T [118]. The Tribunal accepted that Ms Sutherland's impairment from "spinal injury - severe stenosis" was "degenerative and likely to be lifelong with the symptoms worsening over time": ibid. Having already found that Ms Sutherland had substantially reduced functional capacity to undertake the activity of self-care as a result of that permanent impairment, the Tribunal correctly proceeded on the basis that it was unnecessary to inquire into whether the supports required by Ms Sutherland could be provided by other service systems for the purpose of determining whether she was likely to require support under the NDIS for her lifetime within the meaning of s 24(1)(e): T [119].
In any event, the Agency's position before the Tribunal on the requirement in s 24(1)(e) appears to have been based on or entwined with its contention that s 24(1)(c) was not met. Thus, the Agency contended that the Tribunal could not be satisfied that Ms Sutherland met the requirement in s 24(1)(e) "in circumstances where her impairments do not result in substantially reduced functional capacity": T [115]; see also the Agency's SFIC at [106], [108]. Such a position may be regarded as consistent with the suggestion arising from Foster that the availability of supports outside the NDIS is relevant to the assessment of functional capacity for the purposes of s 24(1)(c), rather than whether the person is likely to require support under the NDIS for their lifetime within the meaning of s 24(1)(e).
Finally, I note that there was limited evidence before the Tribunal about the supports that were available to Ms Sutherland outside the NDIS at the time of its decision. The Agency relied on evidence that Ms Sutherland was receiving weekly home care support, that she had been supplied with equipment to assist her mobility, that she had been assessed by an aged care assessment service as eligible for a "level 2" home care package, and that she had completed a program and received assistance from Villa Maria Catholic Homes: see the Agency's SFIC at [107]. The Agency's contention was that Ms Sutherland was already receiving supports "to mitigate the impact of her impairments on her functional capacity": ibid. at [108]. This contention did not invite any broader inquiry into the supports that might be available under other service systems outside the NDIS, such that she was not likely to require lifetime support under the NDIS, nor does it appear that evidence to support an inquiry of that kind was placed before the Tribunal. The Tribunal addressed all of the matters that had been raised by the Agency, but rejected the premise that there was no substantial reduction in Ms Sutherland's functional capacity to undertake self-care: T [6], [12], [96], [117]. In such circumstances, it is difficult to see how the construction of s 24(1)(e) was critical to the Tribunal's ultimate decision on the facts of the present case.

At a glance

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Judgment (99 paragraphs)

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Legislation Cited (6)

Cases Cited (19)