The big picture:
A recent Administrative Review Tribunal (Tribunal) decision in Sydney suggests that it’s getting harder for applicants to meet the disability access criteria to become an NDIS participant.
Context:
To get access to the NDIS, applicants must meet a number of disability-related tests under section 24 of the NDIS Act. Among other things, they must prove:
- they have a disability attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or one or more impairments to which a psychosocial disability is attributable;
- the impairment(s)are likely to be permanent; and
- the impairment(s) result in substantially reduced functional capacity to undertake one or more of the following activities: (i) communication; (ii) social interaction (iii) learning; (iv) mobility; (v) self-care; (vi) self-management (the “six activity areas”).
Case in Point:
- In a decision published on 26 May 2025, the Tribunal took a close look at the meaning of “substantially reduced functional capacity” in each of the six activity areas.
- There was no doubt that the applicant lived (and lives) with a permanent disability arising from impairments that reduce her capacity to perform life activities.
- But the Tribunal decided the applicant’s impairments did not result in substantially reduced functional capacity in any of the six activity areas. This means the applicant did not qualify for access.
Zoom in:
The Tribunal’s decision was striking for a number of reasons. The Tribunal decided that:
- Rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013* deems some applicants to have met the “substantially reduced functional capacity” test – but it is not exhaustive. If the applicant isn’t deemed to satisfy the test by Rule 5.8, the Tribunal must make the decision based on statutory interpretation;
- NDIS disability access requirements should be interpreted and applied in conformity with the World Health Organisation (WHO) International Classification of Functioning, Disability, and Health (the ICF);
- the WHO Disability Assessment Schedule (WHODAS 2.0), a standardised method for measuring health and disability under the ICF, is a helpful analytical framework to give meaning of “substantially reduced function”;
- “substantially” means more than “moderate”, and interpreted this to mean more than 50% reduced functional capacity to perform the activity;
- “reduced” should be understood as being one or more of four ways specified as difficulty factors under the WHODAS 2.0, namely (i) increased effort; (ii) discomfort or pain; (iii) slowness; and (iv) changes in the way a person does the activity; and
- an assessment of reduced capacity in one of the six activity areas:
- should ignore environmental factors that affect performance (rather the capacity), e.g. a lack of local transport options or other services;
- should not be measured against an earlier stage of life or someone who has prowess at the activity; but
- should be measured relative to a person who does not have the applicant’s impairments according to an objective standard of a level of basic function “consistent with day-to-day subsistence”.
Friction Points:
Perhaps most controversially, the Tribunal held that as a matter of statutory interpretation, domestic tasks such as laundry, domestic cleaning, gardening and maintenance, do not fall within any of the six activity areas. This is a marked departure from several previous Tribunal decisions, in which the decision-maker has concluded that such tasks fall within mobility, self-care and/or self-management activities. (The Tribunal decided that tasks within the self-management activity area are limited to cognitive tasks associated with personal organisation, planning, decision-making, self-care, problem solving and financial management.)
On the facts:
The Tribunal decided the applicant’s reduced functional capacity for communication, social interaction, learning, mobility, self-care, and self-management were not substantially reduced. As such, the applicant did not get access to the NDIS.
Yes, but:
Arguably, parts of the Tribunal’s statutory interpretation in this case do not sit easily with parts of the Federal Court’s 2023 decision in Foster. As noted, the Tribunal’s comments on domestic tasks are inconsistent with several previous Tribunal and AAT decisions. For applicants and the NDIA, it would be helpful if this decision were appealed, so that the Federal Court could clarify the law. (A Federal Court decision would bind the Tribunal.)
Reforms add to barriers:
This decision is based on the law as it stood before the reforms of October 2024. Since then, applicants also need to show they are likely to require NDIS Supports (as defined in section 10 of the NDIS Act, and transitional rules) under the scheme for the person’s lifetime.
Read the decision:
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
Note:
* Rule 5.8 says: An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management…- if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(Emphasis added.)
For the purposes of this Rule, the Tribunal held that adaptive techniques to record and remember information (e.g. notes and diaries) do not amount to “assistive technology” or “equipment” because “these are memory aides that might be used by anyone who does not have [an impairment].”
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