Federal Court of Australia

National Disability Insurance Agency v Lampard [2025] FCAFC 139

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal be set aside.

3.    The respondent’s application for merits review of a decision of a delegate of the Chief Executive Officer of the National Disability Insurance Agency to refuse her application for access to the National Disability Insurance Scheme be remitted to the Administrative Review Tribunal to be reheard according to law.

4.    Order 2 and order 3 be stayed until the time for making an application in accordance with order 5 has elapsed, or if such an application is made until it is determined.

5.    The respondent be granted leave to seek a different order than order 2 and/or order 3 above by, within 14 days:

(a)    filing written submissions of no more than 5 pages in length and any supporting affidavit evidence; and

(b)    at the time of lodging the submissions and any evidence for filing, serving a copy by emailing it to the solicitors and counsel for the appellant and the associates to each of the three judges on the appeal.

6.    If submissions and any supporting evidence are filed and served by the respondent in accordance with order 5 above, the appellant within 14 days of receipt:

(a)    file any submissions of no more than 5 pages in length and any supporting affidavit evidence in response;

(b)    at the time of lodging the submission and any evidence for filing, serving a copy by emailing it to the solicitors and counsel for the respondent and the associates to each of the three judges on the appeal.

7.    Any application made in accordance with order 5 above be dealt with on the papers unless the Court wishes to hear from the parties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicant, the National Disability Insurance Agency, appeals from a decision made on 4 September 2024 by a Deputy President of the former Administrative Appeals Tribunal (AAT). An internal review decision of a delegate of the chief executive officer of the Agency (CEO) had upheld the refusal by a prior delegate of an application by the respondent, Ms Carol Lampard, for access to the National Disability Insurance Scheme (NDIS). The AAT:

(a)    set aside the decision of the internal review delegate; and

(b)    decided in substitution that Ms Lampard met the access criteria in dispute, being the disability requirements in s 24 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

All statutory provisions referred to in these reasons are those in the NDIS Act unless the contrary is stated.

2    The Agency seeks orders setting aside the decision of the AAT and for the matter to be remitted to its replacement, the Administrative Review Tribunal (ART), for reconsideration according to law. The Agency also seeks an order that the ART be differently constituted, but it appears that such an order is not required as the Deputy President of the AAT who heard and determined the merits review application is apparently not a member of the ART. If that is not correct, and the remittal relief sought by the Agency is ultimately granted, it will be a matter for the President of the ART or his delegate to decide its composition on remittal, paying due regard to these reasons and the criticisms made of the AAT’s reasons and approach.

3    For the reasons that follow, the appeal must be allowed. The decision of the AAT should be set aside and the matter remitted to the ART to hear Ms Lampard’s application for merits review according to law. As Ms Lampard sought to be heard on the discretion to grant that relief, she will be given a short time to seek any different orders, by furnishing short submissions and any supporting evidence as to why the usual relief ordinarily flowing from the overturning of an administrative decision should not be granted. If such different orders are sought, the Agency will have a corresponding right to oppose that course.

Background facts and procedural history

4    Ms Lampard, now aged 69, has a longstanding history of ill health and has been diagnosed with a series of chronic and inter-related medical conditions, including anorexia nervosa, major depressive disorder, anxiety, compulsive adjustment disorder, chronic obstructive pulmonary disorder, osteoporosis, degenerative disc disease, disc bulge and stenosis, human papilloma virus (HPV) and irritable bowel syndrome (IBS). In this appeal, the alleged errors of law primarily concern the AAT’s conclusions as to the existence, permanence and functional impact of the impairments caused by Ms Lampard’s HPV and IBS.

5    On 16 September 2021, Ms Lampard lodged her application to access the NDIS. On 28 October 2021, a delegate of the CEO found that she did not meet the access requirements contained in ss 24 or 25 of the NDIS Act because she did not satisfy s 24(1)(b) or s 25(1)(a). The issues in this appeal only concern s 24(1).

6    On 20 January 2022, Ms Lampard sought internal review of the delegate’s decision pursuant to s 100. On 23 March 2022, another delegate of the CEO affirmed the earlier decision. In relation to Ms Lampard’s HPV and IBS, the review delegate was not satisfied that they resulted in an impairment resulting in a reduction or loss of an ability to perform any of the relevant activities. As such, the review delegate was not satisfied that the impairment criterion in s 24(1)(a) was met, which requires a person to have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or one or more impairments to which a psychosocial disability is attributable.

7    On 28 April 2022, Ms Lampard applied to the AAT for a review of the internal review delegate’s decision. A hearing took place on 14 and 15 December 2023. On 4 September 2024, the AAT set aside the decision under review, finding that Ms Lampard had met the disability requirements for access to the NDIS as set out in s 24(1).

The questions of law

8    The aspect of the AAT’s decision that is challenged on appeal concerns the interpretation and application of s 24(1) leading to the conclusion that Ms Lampard met the disability requirements for accessing the NDIS. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), preserved by transitional provisions for decisions made prior to the abolition of the AAT and its replacement by the ART, the Agency appeals on three questions of law, with the corresponding grounds set out later in these reasons:

1.    Whether the Tribunal identified the intellectual, cognitive, neurological or physical impairment or impairments that were attributable to irritable bowel syndrome, as required under section 24 of the NDIS Act.

2.    Whether there was any evidence to logically support the finding that there was no known, available and appropriate evidence-based clinical, medical or other treatments that would likely remedy the impairment attributable to the irritable bowel syndrome, under rule 5.4 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) [...].

3.    Whether the Tribunal correctly construed and applied the words ‘functional capacity to undertake’ and ‘social interaction’ in section 24(1)(c) of the NDIS Act.

9    The resolution of this appeal turns upon the proper construction and application of s 24(1), in conjunction with:

(a)    Part 5 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules); and

(b)    the part of the Applying to the NDIS Operational Guidelines (Guidelines) dated 28 September 2023 that addresses the question of whether an impairment relied upon to become a participant in the NDIS substantially reduces functional capacity.

Legislative scheme of the NDIS Act

10    Chapter 3, Pt 1 of the NDIS Act is titled “Becoming a participant”. In particular:

(a)    under s 18, a person may make a request to the Agency to become a participant in the NDIS by way of an access request made in accordance with s 19;

(b)    under s 20(1)(a), once a request is made, the CEO must decide whether the prospective participant meets the access criteria set out in s 21(1);

(c)    pursuant to s 21(1), a person meets the access criteria if the CEO is satisfied that the person meets the following cumulative requirements:

(i)    the age requirements contained in s 22;

(ii)    the residence requirements contained in s 23; and

(iii)    the disability requirements contained in s 24(1) (the alternative of early intervention requirements in s 25 not being in issue in this appeal).

11    Only the disability requirements in s 24(1) for the access criteria in s 21(1) were in issue before the AAT. Section 24(1) provides:

A person meets the disability requirements if:

(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychosocial disability; and

(b)    the impairment or impairments are, or are likely to be, permanent; and

(c)    the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i)    communication;

(ii)    social interaction;

(iii)    learning;

(iv)    mobility;

(v)    self-care;

(vi)    self-management; and

(d)    the impairment or impairments affect the person’s capacity for social or economic participation; and

(e)    the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

12    It is convenient to interrupt this legislative narrative to outline how the AAT addressed the third cumulative requirement in s 24(1), being the six activities set out in s 24(1)(c), because it narrows the scope of the aspects requiring consideration in this appeal. The AAT considered each of the six types of activities listed in s 24(1)(c), finding that only one, “(ii) social interaction”, was established. The AAT was not satisfied that any impairment relied upon by Ms Lampard resulted in her having “substantially reduced functional capacity” to undertake (or psychosocial functioning in undertaking) any of the other five activities listed in s 24(1)(c) of communication, learning, mobility, self-care or self-management. The findings that those other five types of activities were not established are not challenged by Ms Lampard, so do not need to be considered further. Other aspects of the disability requirements that are contested are confined to the social interaction activity.

13    Section 209(1) gives the Minister the power to make rules, which, by s 27, may prescribe the methods or criteria to be applied, or the circumstances in which the disability requirements in s 24(1) may be satisfied. The Access Rules are one of several NDIS rules prescribed under s 209, with the current compilation having been in effect since 27 February 2018. They contain further details about becoming a participant in the NDIS and in particular address the access criteria set out in s 21. Part 5 of the Access Rules, titled “When does a person meet the disability requirements?” addresses all the requirements of s 24 generally, but only some of those requirements in detail, as follows.

The five disability requirements in s 24(1) summarised and addressed by rr 5.1 to 5.3

14    Rule 5.1 of the Access Rules summarises the five disability requirements in s 24(1), and r 5.2 explains an aspect of how the concept of permanence in r 24(1)(b) may be interpreted and thereby met, as further addressed in rules 5.4 to 5.7 reproduced below:

5.1    The Act sets out when a person meets the disability requirements. The requirements are met if:

(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or to one or more impairments attributable to a psychiatric condition; and

(b)    the person’s impairment or impairments are, or are likely to be, permanent (see paragraphs 5.4 to 5.7); and

(c)    the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self- care, self-management (see paragraph 5.8); and

(d)    the impairment or impairments affect the person’s capacity for social and economic participation; and

(e)    the person is likely to require support under the NDIS for the person’s lifetime.

5.2    In relation to the above, an impairment that varies in intensity (for example because the impairment is of a chronic episodic nature) may be permanent, and the person is likely to require support under the NDIS for the person's lifetime, despite the variation.

15    Rule 5.3 notes the non-exhaustive nature of the rest of Pt 5, because this aspect of the Access Rules is confined to a more detailed consideration of the requirements in s 24(1)(b) and (c), and thus does not address the requirements in s 24(1)(d) or (e), which must still be satisfied.

Permanent impairment: s 24(1)(b) as addressed by rr 5.4 to 5.7

16    Rules 5.4 to 5.7 of the Access Rules deal with the “permanent” aspect of the disability requirements in s 24(1)(b):

When is an impairment permanent or likely to be permanent for the disability requirements?

5.4    An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.5    An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.

5.6    An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

5.7    If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

Reduced functional capacity: s 24(1)(c) as addressed by r 5.8

17    Rule 5.8 of the Access Rules deals with the “reduced functional capacity” aspect of the disability requirements, contained in s 24(1)(c) and in this appeal confined to social interaction activities in (ii):

When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

5.8    An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:

(a)    the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b)    the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c)    the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

The Guidelines in relation to s 24(1)(c)(ii) – impairment resulting in substantially reduced functional capacity to undertake social interaction

18    The aspect of the Guidelines that is directed to the question of whether any impairment substantially reduces a person’s functional capacity to undertake social interaction activities for the purposes of s 24(1)(c)(ii), being the only one of the six activities found to be applicable by the AAT, is as follows (at page 9 of 55, emphasis in original):

Does your impairment substantially reduce your functional capacity?

Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:

…

•    Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

…

Principles to emerge from key cases

Impairment rather than disability: s 24(1)(a)

19    The access criteria in Ch 3 are a key component of the NDIS as they impose a series of thresholds on obtaining access to the NDIS in the first place. This appeal focuses on the disability requirements set out in s 24(1), which begins in s 24(1)(a) by requiring the prospective participant to have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, or that they have one or more impairments to which a psychosocial disability is attributable. That enables such an impairment or impairments to be assessed for eligibility to access the NDIS.

20    In Mulligan v National Disability Insurance Agency [2015] FCA 544; 233 FCR 201, Mortimer J (as her Honour then was) emphasised the important and indeed fundamental distinction between a disability and an impairment (at [51]):

… The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.

21    The focus of s 24(1)(b) to (d) is thus upon the permanency and severity of a prospective participant’s impairments, not their disability. In Mulligan, Mortimer J explained the reason for such a focus by reference to the revised Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013 (Cth):

[53]    At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:

Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report.

    [54]    …

[55]    Using the concept of impairment enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence. The legislative scheme contemplates a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional, and multi-faceted.

[56]    That being the case, no arbitrary limits are placed on access to the NDIS. No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

22    Keeping in mind Mortimer J’s remarks above, it is convenient at this point to address how the terms “impairment”, “disability” and “condition” were used by the AAT in its reasons and by the parties in their written and oral submissions.

23    As the most specific descriptor, an “impairment” generally involves the loss of, or damage to, a physical, sensory or mental function. In the context of the NDIS, the term “disability” is used as a broader descriptor for the effect of a person’s impairments on that person’s ability to participate in aspects of their personal and community life. In that way, a person’s disability arises due to the impairments they experience, with this causal relationship being reflected in the Guidelines (at page 7 of 55):

Is your disability caused by an impairment?

When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.

An impairment is a loss or significant change in at least one of:

•    your body’s functions

•    your body structure

•    how you think and learn.

To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below:

•    intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information

•    cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention

•    neurological – such as how your body functions

•    sensory – such as how you see or hear

•    physical – such as the ability to move parts of your body.

…

It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.

24    The term “condition” is not used in the statutory language of s 24, but was used by the AAT throughout its reasons and in particular, in its conclusion that s 24(1)(a) was satisfied “in relation to all of the Applicant’s claimed conditions”.

25    The Agency contends that the AAT used the term “condition” to refer to a concept more akin to “disability”, such that it failed to appreciate the specific nature of the task required by s 24(1)(a), while Ms Lampard contends that the term “condition” was used somewhat interchangeably with “impairment”, noting that medical experts and indeed the Agency itself had conflated those two concepts at various points during the AAT hearing.

26    A close reading of the AAT’s reasons supports the Agency’s position in that the AAT used the term “condition” as a kind of label or diagnosis to refer to the conditions of IBS and HPV. Used in that way, a condition may involve an impairment, which may then result in a disability, but not necessarily in all cases. Compared to a more specific concept like “impairment”, “condition” is a looser term which undesirably leads to greater uncertainty in the context of the NDIS. For example, while health conditions commonly involve impairments, that will not always be the case, as recognised in the Guidelines extracted above. The relationship between impairments and conditions is also not linear, in that two people living with the same condition may experience very different impairments, or the same impairment but at differing levels. A person may also experience an impairment that is caused by more than one condition.

27    It follows that maintaining a conceptual distinction between a disability or a condition on the one hand, and an impairment on the other, is crucial to enable a higher degree of specificity to be achieved in assessing a person’s level of function. While those terms may be used somewhat interchangeably to refer to the same thing in colloquial and everyday settings, care must be taken in this context to conduct a “detailed functional assessment” with “a relatively high degree of precision”: Mulligan at [55]-[56]. That assessment is only possible if the decision-maker directs their attention to a specific impairment, rather than a broader health condition or a person’s disability more generally. Assessing the access criteria by reference to anything other than an impairment carries a real risk of error as it diverges from the approach required by the statute.

28    Turning back to the statute, s 24(1)(a) therefore requires, as a starting point, the identification of one or more intellectual, cognitive, neurological, sensory or physical impairments experienced by the prospective participant. With that identification in hand, the requirements in s 24(1)(b)-(d) require an evaluation of:

(a)    the permanency, or likely permanency, of any identified impairment(s): paragraph (b);

(b)    whether any identified impairment(s) results in substantially reduced functional capacity to undertake one or more of the six types of activity in paragraph (c); and

(c)    whether any identified impairment(s) affects the capacity for social and economic participation: paragraph (d).

29    It follows that a failure to maintain a proper distinction between a disability or a condition and an impairment for the purposes of s 24(1)(a) can easily have adverse flow on effects on the assessment process required by each of s 24(1)(b)-(d) by misdirecting the decision-maker’s attention away from the statutory task.

Permanence: s 24(1)(b)

30    After an impairment has been identified, the decision-maker is required to determine whether that impairment is, or is likely to be, permanent, pursuant to s 24(1)(b). As extracted above, r 5.4 provides that an impairment:

is, or is likely to be, permanent … only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

31    The Agency raises a question in its written submissions as to whether r 5.4 imposes an onus on a prospective participant to demonstrate the existence of a negative, being that there are no known, available and appropriate treatments. The correct position is more conventional than that and appears to be accurately addressed in Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 (Foster and NDIA), a remittal decision following the Full Court decision in National Disability Insurance Agency v Foster [2023] FCAFC 11; 295 FCR 521 (Katzmann, Perry and Sarah C Derrington JJ). In Foster and NDIA, Senior Member P French (French SM) observed at [21]:

Section 21(1) provides that a prospective participant will meet the access criteria for the NDIS if the CEO is ‘satisfied’ that each of the access criteria is met. In this independent review, the Tribunal must also be so satisfied. This is a state of positive satisfaction or relative certainty which must be attained in relation to each criterion specifically. Therefore, while neither the Applicant nor the Agency bear any formal onus of proof, the Applicant does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it that each of the access criteria are met.

32    Reasoning of this kind has long been an important part of administrative law, appropriately departing from conceptualising the process as involving an onus to be discharged.

33    The relationship between s 24(1)(b) and rr 5.4 and 5.6 of the Access Rules was aptly described by Mortimer J (as her Honour then was) in National Disability Insurance Agency v Davis [2022] FCA 1002 at [131]:

… r 5.4 and r 5.6 prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person’s impairment will be excluded from meeting s 24(1)(b). Relevantly, r 5.4 directs attention to a negative state of fact.

34    Mortimer J in Davis also considered the meaning of the word “remedy” in r 5.4 and the concept of “permanent impairment” drawn from the statutory phrase “the impairment or impairments are, or are likely to be, permanent” in s 24(1)(b) (at [136]):

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

(Emphasis added.)

35    The operation of r 5.4 was also considered by McEvoy J in Kelly v National Disability Insurance Agency [2024] FCA 1462 (at [48]):

In my assessment the NDIA is correct to contend that r 5.4 is a rule which prescribes circumstances in which and [the] criteria to be applied in assessing whether one or more impairments are, or are likely to be, permanent for the purposes of para 24(1)(b) of the Act. This is consistent with the power granted to the Minister by s 27(a) of the Act (see also s 209(1) of the Act). Rule 5.4 provides that an impairment is, or will likely be, permanent only if there are no available and appropriate evidence-based clinical, medical or other treatments that would be likely to provide a remedy. So expressed I consider that the rule is properly to be regarded as neutral — it is neither exclusionary nor inclusionary.

36    In its written submissions, the Agency contends that rr 5.4 to 5.8 of the Access Rules have been held to be deeming provisions, citing Mulligan at [77], which is discussed in further detail below at [38]. However, that paragraph only characterises r 5.8 as a deeming provision, which is undoubtedly correct having regard to its terms. In oral submissions, the Agency instead submits that rr 5.4 to 5.7 are not deeming provisions, but rather impose additional requirements to be met before permanency can be established. Ms Lampard submits that if r 5.4 is satisfied, then, by definition, the statutory requirement is met.

37    Rule 5.4 creates a dimension of permanency which requires the decision-maker to be positively satisfied, as expressly stated, that there is “no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment”, referring to any impairment identified and relied upon for access to the NDIS. That is, even if r 5.4 is satisfied, the AAT still needs to make a finding as to the permanence of the relevant impairment(s). The commonly invoked language of the “no evidence” ground of review or appeal in relation to administrative decision-making can therefore be seen to be clumsy and to that extent not especially helpful in its application to the AAT’s finding under r 5.4 that there were “no …treatments”, in that it amounts to a contention that there was no evidence that something did not exist. As noted above in the extract from Davis at [131] reproduced at [33] above, Mortimer J described r 5.4 as directing attention to “a negative state of fact”

Reduced functional capacity: s 24(1)(c)

38    Turning to the substantially reduced functional capacity requirement in s 24(1)(c), the crux of the Agency’s argument is that this provision and the accompanying rules and guidelines require an examination of Ms Lampard’s capacity, relevantly, to socially interact, rather than her willingness to do so. As noted above, r 5.8, which deals with the reduced functional capacity requirement, has been held to be a deeming provision. It has “the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met”: Mulligan at [77] (Mortimer J).

39    In assessing whether a person has a substantially reduced functional capacity to undertake in one of the activities listed in s 24(1)(c), “a decision-maker is required to make a functional, practical assessment of what a person can and cannot do” and assess “the degree to which the person can participate in the activity”: Foster at [64] and [88] (S C Derrington J, Katzmann and Perry JJ agreeing at [1] and [2] respectively). As mentioned above, the assessment to be undertaken is also “avowedly functional, and multi-faceted”: Mulligan at [55] (Mortimer J).

40    The Guidelines, of which a small part is extracted at [18] above, exist to provide some assistance as to the content of each of the activities listed in s 24(1)(c). In this regard, the Full Court stated in Foster (at [62]) that:

… the Guidelines are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner: Australian Prudential Regulation Authority v TMeffect Pty Ltd [[2018] FCA 508; 158 ALD 473] at [59] per Perry J. Rather, they provide non-exclusive content to the range of “tasks and actions” (as referred to in r 5.8) that comprise the “activities” the NDIA is required to consider, consistent with the legislative history, context, and purpose.

41    Recognising the limited nature of the Guidelines, the Agency nevertheless submitted that each of the activities listed in s 24(1)(c) should have determinate meaning, adopting as correct the approach taken by French SM in Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (at [78]):

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

(Emphasis added.)

42    In support of its arguments in relation to s 24(1)(c), the Agency referred extensively to the ART decision of French SM in Foster and NDIA. In the hearing before French SM in the ART, it was mostly agreed between the parties that Mr Foster suffered from permanent neurological impairments in the form of urinary and faecal incontinence and the main controversy concerned whether his impairments resulted in substantially reduced functional capacity to perform the tasks and actions that make up the social interaction and self-care life activity areas. In assessing Mr Foster’s capacity to undertake the activity of social interaction for the purposes of s 24(1)(c)(ii), French SM noted that there were two conflicting decisions of the former AAT as to the approach that should be taken, namely Madelaine and National Disability Insurance Agency [2020] AATA 4025 and Lampard and National Disability Insurance Agency [2024] AATA 315 (Lampard and NDIA), the decision on appeal in this case.

43    In Madelaine at [87], the AAT found that s 24(1)(c)(ii) was “directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills”. For that reason, although the AAT did not accept that “self-consciousness or social awkwardness” prevented Ms Madelaine from participating in social activities, it opined that if those factors did in fact prevent a person from attending social events, it would be “difficult” to see how such supposed reduced functional capacity resulted from their impairments: Madelaine at [89].

44    In Lampard and NDIA at [161], the AAT found that Ms Lampard was reluctant to engage in social activities due to embarrassment about her bowel issues and that resulted in her having substantially reduced functional capacity in the area of social interaction for the purposes of s 24(1)(c).

45    Plainly enough, the respective approaches adopted in Madelaine and Lampard and NDIA cannot sit together.

46    Ultimately, noting that it would not be possible to follow conflicting decisions made by different AAT Deputy Presidents, French SM in Foster and NDIA at [4] preferred and adopted the approach taken in Madelaine and found that Mr Foster did not meet the requirement in s 24(1)(c) because his case failed to “recognise the distinction between functional capacity and functional performance”. French SM subsequently reasoned:

[80]    The Applicant’s incontinence impairments undoubtedly affect his capacity for social and economic participation. They have a serious quality of life limiting impact. But this goes to the s 24(1)(d) disability requirement. If that requirement were to be reached in this review, as I have said, I would have found it to be met.

[81]    The s 24(1)(c) disability requirement is distinct from and does not overlap with the s 24(1)(d) disability requirement. It is concerned with the prospective participant’s “functional capacity to undertake” one or more of the activities specified in the section, which must be substantially reduced for the requirement to be met. As noted above, in Mulligan [at [56]] the Court conceptualised the Tribunal’s task as determining what the prospective participant ‘can and cannot do’, and not ‘what they choose to do’.

[82]    Within the conceptual framework of the ICF [International Classification of Functioning, Disability and Health, World Health Organisation, Geneva, 2011] this invokes the essential distinction that must be drawn between a person’s functional capacity to carry out a task or action in a life domain in their intrinsic (or “naked”) state and their functional performance of the task, which may be impacted by personality, personal characteristics, and various extrinsic factors in the legal, social and built environment (see footnote 52). Functional performance is relevant to the s 24(1)(d) enquiry. It is not relevant to the s 24(1)(c) enquiry.

47    The Agency contends that while Foster and NDIA provides no precedential value – indeed it is not a curial decision – it may be a useful tool for analysing the AAT’s reasons in this appeal, in the sense that it is contended that the Deputy President here made the same error as Mr Foster by conflating functional capacity and functional performance.

48    In response, Ms Lampard submits that the dichotomy between capacity and performance should be rejected, as it does not appear in the statutory text and caution is needed to not elevate the AAT’s remarks in Foster and NDIA as imposing some kind of fetter on the content of the statutory test in s 24(1)(c). In this respect, regard should be had to the remarks of Hayne and Heydon JJ in Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, where their Honours reiterated the importance of focusing on the statutory language (at [92]):

As this Court has so often emphasised in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. That masking effect occurs because attention is focused upon the expression used in the decided cases, not upon the relevant statutory provisions.

49    The reasoning in Shi does not preclude adopting the reasoning of an administrative decision-maker if it conveniently captures the meaning of legislation as independently arrived at by a Court. That is especially so when such reasoning is at least in part based on prior judicial reasoning, in this case the reliance placed by French SM on the observations of Mortimer J in Mulligan in part of [56] that:

… the legislative scheme is based on a functional, practical assessment of what a person can and cannot do. Critically, the scheme makes detailed provision for that assessment, and it is sufficient for a person to have substantially reduced functional capacity in relation to one activity. That, in my opinion, recognises the spectrum of impairments which can be experienced by persons with disabilities, and accommodates different abilities within one person in terms of her or his daily activities. That is why a detailed functional assessment is so important.

(Emphasis added.)

50    That passage, which is clearly a correct interpretation of s 24(1), amply supports the reasoning of French SM in Foster and NDIA (reproduced in full above at [46]). French SM was correct to be guided by Madelaine and correct to discard the approach taken by the Deputy President in this case, Lampard and NDIA. The distinction between functional capacity and functional performance is fundamental. French SM’s consequential reasoning in applying that distinction is compelling.

51    It follows that the task both for the Agency’s delegate, previously the AAT, and now the ART, is to maintain a distinction between a person’s functional capacity to carry out a task or action and their functional performance of that task for the purposes of assessing whether s 24(1)(c) has been met. Functional performance is relevant to the s 24(1)(d) enquiry and may be impacted by, as French SM helpfully put it, “personality, personal characteristics, and various extrinsic factors in the legal, social and built environment”, but that is not relevant to the s 24(1)(c) enquiry as to capacity.

Before the AAT

52    At the AAT hearing in December 2023, substantial medical evidence was adduced, consisting of almost 1,000 pages of medical records and reports concerning Ms Lampard’s chronic conditions. Ms Lampard, her treating psychologist, Dr Shirin Fernandez, and a medico-legal psychiatrist called by the Agency, Dr Tanveer Ahmed, gave oral evidence at the hearing. Ms Lampard was assisted by her sister, Ms Kaye Swan, who re-examined Dr Fernandez, cross-examined Dr Ahmed, and re-examined Ms Lampard herself, on her behalf, and prepared written closing submissions. Final written submissions were furnished on 18 March 2024.

53    It was not in dispute between the parties before the AAT that Ms Lampard satisfied the age and residence requirements in s 21(1)(a) and (b). The issues were confined to whether Ms Lampard satisfied either the s 21(1)(c)(i) (disability requirements) or the s 21(1)(c) (ii) (early intervention requirements). In relation to the early intervention requirements set out in s 25, the AAT found that Ms Lampard did not meet the criteria in s 25(1), nor overcome the prohibition set out in s 25(3) (now repealed). As already noted, s 25(1) is not in issue in this appeal.

54    In relation to the disability requirements set out in s 24(1), the AAT’s reasons were structured using subheadings mirroring each of the paragraphs in that provision. The determinative parts of the AAT’s decision that ground the challenge on appeal are more usefully reproduced than summarised, because both the criticism and defence of key parts of them turn on questions of expression read against the terms of s 24(1) and the corresponding Access Rules.

Impairment: s 24(1)(a)

55    As to s 24(1)(a), containing the requirement of a disability attributable to identifiable impairments, the AAT found (omitting footnotes):

[68]    Section 24(1)(a) of the Act requires that a 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.”

[69]    Though initially contended for some conditions, agreement was reached between the parties that the Applicant met this criterion for all applicable conditions. I accept the parties’ position that s24(1)(a) is satisfied in relation to all of the Applicant’s claimed conditions.

56    Perhaps because of the global nature of the agreed position between the parties as to the conditions from which Ms Lampard suffered, the AAT did not specifically identify the impairments attributable to any disabilities. As will be seen, this became a problem when the AAT proceeded to consider whether permanence had been established for the purposes of s 24(1)(b), and whether substantially reduced functional capacity to undertake any of the listed activities had been established for the purposes of s 24(1)(c), because the AAT’s focus was not, as required, upon impairments, but rather on Ms Lampard’s conditions. The problem was exacerbated by the slide between AAT[68] and AAT[69] in referring first to impairments, and then to conditions, which may have contributed to an unfortunate conflation in the Deputy President’s mind of disability or condition with impairment, affecting his subsequent reasoning.

Permanency: s 24(1)(b)

57    As to s 24(1)(b), containing the requirement that the impairment(s) relied upon be permanent, the AAT found (omitting footnotes):

[71]    Section 24(1)(b) is concerned with the permanence of the impairment, rather than the medical condition necessarily.

[72]    It was eventually accepted by the Respondent that the Applicant meets the permanence requirements for her condition of Anorexia Nervosa. It was also accepted that her Compulsive Adjustment Disorder was permanent for the purposes of the Act. After considering the evidence, I consider the Respondent’s concession appropriate, and I find both of the two above conditions to be permanent.

[73]    The Respondent maintained that the Applicant does not meet the s 24(1)(b) requirements in relation to:

(a)    Major Depression Disorder;

(b)    Anxiety;

(c)    Chronic Obstructive Pulmonary Disease;

(d)    Osteoporosis;

(e)    Degenerative Disc Disease;

(f)    Disc Bulge and Stenosis;

(g)    Incontinence; and,

(h)    Irritable Bowel Syndrome.

58    The Deputy President does not overtly conflate disability or condition with impairment, but the reference to Ms Lampard’s conditions as being permanent, when the issue raised by s 24(1)(b) is only concerned with the permanency of the impairment, may have contributed to at least a blurring of what was being assessed.

59    The AAT then turned to each of the items in the list at AAT[73] above under the following headings:

Major Depression Disorder and Anxiety

Osteoporosis

Degenerative Disc Disease

Irritable Bowel Syndrome (IBS) and Incontinence

Chronic Obstructive Pulmonary Disease (COPD)

60    The only items for which the AAT made a finding of permanence were as follows, which again reflects a conflation between disability or condition on the one hand, and impairment on the other:

Irritable Bowel Syndrome (IBS) and Incontinence

[108]    The Respondent submitted that there is insufficient evidence to satisfy the Tribunal that “there are no known, available, and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments” associated with IBS and incontinence.

[109]    They submitted that “the evidence of the Applicant and Ms Fernandez suggests that psychological treatment of the Applicant’s stress has not been optimised. Equally, Ms Fernandez's evidence of attempts to build the Applicant's independence and capacity to care for her physical health is not adequate to satisfy the Tribunal that all options have been exhausted.”

[110]    They also submitted that the evidence of Ms Maree Taylor, dietician, recording that “less stress equals better appetite and less diarrhoea,” suggests that reducing stress levels is a means of addressing at least one aspect of the Applicant’s IBS and incontinence – namely, diarrhoea – and thus, not “all available and appropriate treatment options have been pursued”.

[111]    In response, the Applicant submitted that the testing done by Dr Yellapu evidenced by reports dated 15 March 2021 indicates deterioration of bowel muscle control resulting from multiple surgeries, and that this lack of bowel control is a permanent condition.

[112]    In regard to the comments of Ms Maree Taylor, dietician, that “less stress equals better appetite and less diarrhoea,” the Applicant submitted that a “Dietician is not a Mental Health Practitioner, and she is not treating the Applicant’s stress. The Dietician is not qualified to assess or comment on the Applicant’s IBS and Incontinence namely diarrhoea.”

[113]    The Applicant submitted further that reduction of stress has already been treated by a range of practitioners, and that this treatment has been identified as adequate for the management of her physical health. As such, they submit that that the Tribunal cannot be satisfied that there are further treatment options for this condition.

[114]    I note the Respondent’s submissions about the evidence of Ms Taylor, dietician, but in view of the deterioration of the Applicant’s bowel muscle control resulting from her multiple surgeries, I am satisfied that there are no known, available and appropriate medical or other treatments available to remedy the Applicant’s IBS and that the deeming provisions of Rule 5.8 [sic] are met.

[115]    Pursuant to s24(1)(c)(ii) I find that the Applicant has a substantially reduced functional capacity resulting from her IBS in relation to her social interaction because it causes her to be reluctant to leave her house and also to engage in social activities.

61    The reference in AAT[114] to r 5.8 should be read as a typographical error because the words “no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy” are drawn from r 5.4, even though, with that correction, the reference remains partly erroneous as r 5.4 is not a deeming provision.

62    This critical part of the AAT’s reasoning reproduced above is sparse, if not perfunctory, because AAT[108]-[113] largely comprise direct quotes and summaries of the parties’ submissions with little or nothing added, while AAT[114]-[115] records only the Deputy President’s conclusions, not his reasons for reaching them.

Substantially reduced functional capacity: s 24(1)(c)

63    As to s 24(1)(c), containing the requirement of substantially reduced functional capacity, the AAT commenced as follows (omitting footnotes):

[125]    Rule 5.8 provides that an impairment results in substantially reduced functional capacity of a person to undertake one or more of the following relevant activities; communication, social interaction, learning, mobility, self-care and self-management and it results in one or more of the matters set out at [11] above.

[126]    The Respondent’s general position was that while the Applicant’s functional capacity is somewhat reduced, this is a result of her advanced age rather than her conditions. However, I consider that her conditions do affect her functional capacity, and accordingly I consider those affects [sic] below.

64    The AAT then addressed the activities listed in [125] above under the following headings:

Mobility

Self-care

Social interaction

Self-management

Communication

65    As noted earlier in these reasons, the only activity for which the AAT made a finding of substantially reduced functional capacity was social interaction. The totality of the findings on that topic are relatively brief, such that it is again more convenient to reproduce them than summarise them, as follows:

Social interaction

[153]    This activity is defined as “how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations”.

[154]    The Tribunal has previously held that “the criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills”.

[155]    The Respondent submitted that while the Applicant has limited opportunities to socialise, the evidence suggests she retains the personal skills needed for social interaction. They submitted that the evidence indicates the Applicant is able to keep and make friends, interact with her community, and interact appropriately in social situations.

[156]    The Applicant disagreed with the Respondent's submissions in that she submitted that she lives alone and will not leave her house most days. Her neighbour will get her groceries and drop them off at her front door while she stays behind closed doors, sometimes refusing entry to her carers. She maintains that she does not attend family events and does not contact her 95-year-old mother.

[157]    The Applicant maintained that she overstated her social connections and that although she said that she sometimes spoke on the phone to her best friend of 55 years there had only been four calls in the past two years. They had only got together for cheese and wine twice in the last two years.

[158]    Although at times assisted by her sister, the Applicant impressed me by being able to answer questions effectively. Once again, a Functional Capacity Assessment may have provided relevant information sufficient to satisfy me that the Applicant’s condition met the appropriate thresholds.

[159]    The Applicant seems to be able to interact effectively enough to have her 80-year-old neighbour do her grocery shopping and Dr Ahmed opined that the Applicant had a reduced capacity in social interaction.

[160]    A reduced capacity is not sufficient to demonstrate that the Applicant is unable to effectively or completely participate in social interaction. Accordingly, I do not find that the Applicant’s impairments of Anorexia Nervosa, and Compulsive Adjustive Disorder result in the Applicant having a substantially reduced functional capacity in the area of social integration.

[161]    However, I find that the Applicant’s impairment of IBS results in the Applicant having substantially reduced functional capacity in the area of social integration because it causes her to be reluctant to leave her house and engage in social activities. I accept her evidence to the effect that she does not leave the house for the embarrassment of her bowel issues, and the impact of her having to change her bedding and clothing due to her bowel incontinence.

66    The above passages again disclose at least a blurring of the distinction between disability or condition on the one hand, and impairment on the other.

Capacity for social or economic participation: s 24(1)(d)

67    As to s 24(1)(d), containing the requirement that the impairment(s) relied upon affect Ms Lampard’s capacity for social or economic participation, the AAT found (at [185]):

I have already found that the Applicant’s IBS is permanent, and impacts upon her social interaction. I find this impairment to be so severe that it causes the Applicant great embarrassment and severely restricts her ability to participate in social activities. I accept that the condition is so chronic as to cause her severe embarrassment and result in regular soiling of her clothes and bedding. Accordingly, I find that s24(1)(d) is satisfied in relation to the Applicant’s capacity for social participation.

68    A blurring between the concepts of disability or condition, and impairment, is once again apparent.

Need for lifetime support: s 24(1)(e)

69    As to s 24(1)(e), containing the requirement that Ms Lampard be likely to require support under the NDIS for her lifetime, the AAT considered the competing arguments at some length between [186] and [208].

70    The conclusions the AAT reached for the purposes of s 24(1)(d) and (e) cannot independently survive if the challenges to the approach taken and conclusions reached, or not reached, as to the identification of impairment, the finding of permanence, or the finding of substantially reduced functional capacity in relation to social interaction activity are vitiated.

The grounds of appeal

71    The grounds for each of the questions in the notice of appeal conveniently summarise the error on the part of the AAT as asserted by the Agency. Success on any of the questions raised is sufficient for the appeal to succeed. However, in this case, each question is potentially of some importance to the administration of this aspect of the NDIS Act, as well as for future consideration of Ms Lampard’s position, and accordingly should be addressed.

The grounds for Question 1

72    The grounds for Question 1 in the notice of appeal are as follows:

In order to comply with the statutory criteria in section 24 of the NDIS Act, the Tribunal was required to find, relevantly, that:

(a)    the Respondent had a ‘disability attributable to one or more intellectual, cognitive, neurological or physical impairments’: section 24(1)(a);

(b)    the impairment or impairments are, or likely to be, permanent: section 24(1)(b); and

(c)    the impairment or impairments result in a substantially reduced functional capacity to undertake one or more of the activities listed in section 24(1)(c).

The Tribunal accepted that the Respondent had a number of disabilities, including irritable bowel syndrome (paragraph [2]) and adopted the parties’ agreement that section 24(1)(a) was satisfied, accepting that the Respondent had disabilities, including the irritable bowel syndrome, attributable to an impairment at a global level (paragraph [69]).

The Tribunal failed to identify with sufficient precision the ‘impairment’ to which the irritable bowel syndrome is attributable. It therefore failed to make any finding as to whether the impairment is permanent, and whether that impairment results in a substantially reduced functional capacity to undertake one the activities of daily living set out in section 24(1)(c). It therefore failed to carry out the statutory task required by s 24(1)(c).

73    Although the grounds themselves also display a certain level of confusion, the thrust of the Agency’s argument is that the AAT erred by confusing the concepts of disability and impairment, relying upon what was said in Mulligan on this topic in part of [51] (reproduced in full above):

… The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment …

74    Flowing from the reasoning in Mulligan, the Agency submits that the AAT needed to identify Ms Lampard’s impairments in order to address the requirements in s 24(1)(b) and (c) as to permanence and capacity. This alleged error became most acute at AAT[114], where the AAT focused on whether Ms Lampard’s IBS was permanent, which it undoubtedly was given that she had suffered from that condition for over 30 years, rather than focusing on whether impairments associated with IBS were permanent and gave rise to substantially reduced functional capacity in respect of one or more of the listed activities. By asking the wrong question, obtaining the necessary answer was virtually impossible.

75    The AAT fell into this error despite demonstrating an awareness at times of the difference between an impairment and a condition. For example, the Deputy President stated at [108]:

The Respondent submitted that there is insufficient evidence to satisfy the Tribunal that “there are no known, available, and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments” associated with IBS and incontinence.

(Emphasis added.)

76    The reference to “impairments associated with IBS” suggests that the AAT was aware that the condition of IBS was distinct from the various impairments it caused, but this recognition was not carried through to the analysis and conclusions that followed. In some ways, the fact that the AAT was clearly able to differentiate between an impairment and a condition at points in its reasons renders it less likely that it used “IBS” as a shorthand for the related impairments of diarrhoea and faecal incontinence, as contended by Ms Lampard. This remains the case in the context of concessions made by the Agency before the AAT. There was some dispute and confusion about which impairments were conceded, but the Agency ultimately accepts that they conceded to the impairment of incontinence arising from Ms Lampard’s HPV. However, regardless of what impairments were conceded, the AAT was still required to identify the specific impairment(s) considered for the purposes of s 24(1). Some degree of agreement between the Agency and Ms Lampard did not discharge the AAT’s statutory task, which required it to go further.

77    Senior counsel for Ms Lampard, appearing pro bono, valiantly tried to rescue the AAT’s reasoning by calling upon a beneficial interpretation of the language deployed, applying the well-established principles to that effect. In a less stark case, Ms Lampard’s otherwise cogent argument might well have prevailed. However, the manifest defects in the AAT’s approach were compounded beyond rescue when it considered the issue of permanence without taking the necessary first step of identifying the relevant impairment. The undoubted permanence of Ms Lampard’s IBS did not even ask, let alone answer, the question of permanence of any of the possible impairments resulting from that diagnosed condition and giving rise to her disability.

78    The failure to identify the relevant impairment was even more obvious when it came to assessing whether Ms Lampard had substantially reduced functional capacity to undertake social interaction. The absent reasoning as to impairment and the resultant defective reasoning as to permanence meant that the proper question as to Ms Lampard’s capacity to undertake social interaction was never even referred to, much less considered, by reference to any such impairment.

79    It follows that the legal error identified in Question 1 has been established.

The grounds for Question 2

80    The grounds for Question 2 in the notice of appeal are as follows:

To validly make a finding that the Respondent met the access criteria under rule 5.4 of the Access Rules, the Tribunal was required to find that there were no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

The Tribunal noted the Respondent’s submission that ‘… the testing done by Dr Yellapu evidenced by reports dated 15 March 2021 indicates deterioration of bowel muscle control resulting from multiple surgeries, and that this lack of bowel control is a permanent condition’ (paragraph [111]). This conclusion was not supported by the evidence before the Tribunal. In particular, Dr Yellapu’s report did not state nor otherwise support the conclusion that the Respondent’s lack of bowel control is a permanent condition.

The Tribunal concluded that, ‘…in view of the deterioration of [the Respondent’s] bowel muscle control resulting from her multiple surgeries, I am satisfied that there are no known, available and appropriate medical or other treatments available to remedy [the Respondent’s] IBS and that the deeming provisions of Rule 5.8 are met’ (paragraph [114]).

There was no evidence to support a finding that there were no known, available and appropriate medical or other treatments available to remedy the impairment from the irritable bowel syndrome.

81    Strictly speaking, Question 2 is not reached because the error in relation to Question 1 has been established. However, the issue raised as to the operation of r 5.4 is important and can be addressed succinctly. The substance of that rule is that an impairment cannot be found to be permanent unless the decision-maker is satisfied that it is unlikely to be able to be remedied, in the sense identified by Mortimer J in Davis at [136] (reproduced above at [34]) of meaning more than just relief or improvement, but rather something approaching a removal or cure of the impairment. That is, there had to be a positive finding as to a negative – that there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy an identified impairment. This accords with the overall scheme of the NDIS Act, which is not to provide supports that replace or constitute medical treatment addressing an identified impairment, but to ameliorate the impairments that are not capable of being so addressed.

82    This is a significant departure from what the High Court described as the traditional meaning of a “no evidence” ground of review, which will fail if there is even a skerrick of evidence in support of the finding of fact made: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ). Here, to defeat the ground, Ms Lampard had to be able to point to at least some evidence that there was no such medical or other treatment available to remedy the impairment upon which she relied, rather than the overall disability or condition. Yet there was no such evidence to that effect whatsoever, both because the question was asked and answered by reference to IBS, and not to any impairment resulting from IBS.

83    The defects in the AAT’s reasoning are twofold:

(a)    by not identifying the impairment, the AAT focused on the question of a remedy for the overall condition of IBS, which as already noted was undoubtedly permanent and without a cure, whereas there might well have been a remedy for an impairment associated with that permanent disability (also described by the AAT as a condition);

(b)    perhaps in part led astray by Ms Lampard’s submission recorded at AAT[113] that the AAT could not be satisfied that there were further treatments for IBS, the AAT found that there were “no known, available and appropriate medical or other treatments available” to remedy not an identified impairment as required, but rather IBS, again as a permanent disability (also described by the AAT as a condition).

84    Left intact, that reasoning would shift the required focus of s 24(1)(b) from impairments, for which there may be a range of remedies, to making the NDIS available for all people with incurable disabilities or conditions, irrespective of the impairments they experience and what is available to remedy them. That outcome would plainly be contrary to the evident purpose and design of the legislative scheme.

85    The degree of divergence from what was required of the AAT is made even more apparent by the limitations in the evidence that was before the Deputy President.

86    Once again, there was a valiant effort made on behalf of Ms Lampard to rescue this manifestly defective reasoning by the AAT, to no avail.

87    It follows that the legal error identified in Question 2 has been established.

The grounds for Question 3

88    The grounds for Question 3 in the notice of appeal are as follows:

The Tribunal was satisfied that the impairments from the irritable bowel syndrome resulted in a substantially reduced functional capacity in social interaction, ‘because it causes [Ms Lampard] to be reluctant to leave her house and engage in social activities. I accept her evidence to the effect that she does not leave the house for the embarrassment of her bowel issues, and the impact of her having to change her bedding and clothing due to her bowel incontinence’ (paragraph [161]).

The Tribunal misconstrued the words ‘functional capacity to undertake’ by focusing on the Respondent’s voluntary avoidance from activities because of the disability, rather than whether the subject impairment reduces the Respondent’s functional capacity to undertake the activity.

The Tribunal also misconstrued the term ‘social interaction’ by not focusing on the Respondent’s personal skills needed to establish and maintain interpersonal interactions and relationships, but rather focused solely on her opportunity to exercise those skills.

89    As noted earlier in these reasons, the AAT was only satisfied that Ms Lampard had “substantially reduced functional capacity” in relation to one of the activities listed in s 24(1)(c), being “social interaction”. The reasons for this conclusion were reproduced in full above at [63].

90    The Agency focuses on the final paragraph of this part of the AAT’s reasons in the context of those preceding it, AAT[161]:

However, I find that the Applicant’s impairment of IBS results in the Applicant having substantially reduced functional capacity in the area of social integration because it causes her to be reluctant to leave her house and engage in social activities. I accept her evidence to the effect that she does not leave the house for the embarrassment of her bowel issues, and the impact of her having to change her bedding and clothing due to her bowel incontinence.

91    The central legal issue raised by Question 3 concerns the requirement imposed by the express terms of s 24(1)(c) to focus on Ms Lampard’s capacity, relevantly, to socially interact, rather than her willingness to do so, no matter how good the reason. The error in the AAT's approach to s 24(1)(c), which is revealed at AAT[161], was to proceed upon the basis of Ms Lampard’s willingness to engage in social interaction, and her embarrassment, erroneously treating that as synonymous with the required test of capacity. As Ms Lampard’s capacity will need to be addressed upon any remittal, based on the circumstances that prevail at the time of the fresh hearing in the ART (being the relevant time), it is best that the issues raised by Question 3 are addressed at a level of abstraction, rather than the prior precise factual context that was before the AAT. The circumstances in which this issue will arise are many and varied, and the risk is that a conclusion will be expressed by this Court in universal terms that are not necessarily applicable in all cases or circumstances.

92    Ms Lampard makes several possibly sound points in characterising the Agency’s approach to what is required by s 24(1)(c) as being too narrow, asserting that it departs from the “functional, practical assessment” contemplated by Foster and by Mulligan. She contends that the Agency’s approach ignores r 5.8(a), where it refers to a person being “unable to participate effectively or completely”. She contends that there is no support for the Agency’s focus on “skills”, a word that does not appear in the Guidelines, which in any event do not provide definitions, but rather provide non-exclusive content to a range of tasks and actions comprising the activities that are required to be considered, citing Foster at [62]. Ms Lampard further contends that the distinction that the Agency draws between “social interaction” in s 24(1)(c)(ii) being concerned with skills in contrast with “social participation” s 24(1)(d) being concerned with opportunities for such social interaction is no more than an assertion, and that it also ignores the references also in r 5.8(a), (b) and (c) to participation. Reliance is placed on parts of French SM’s reasoning in Foster and NDIA, but not on others, also with the caveat that both s 24(1)(c) and (d) refer to “capacity”.

93    There is merit in Ms Lampard’s argument, which is to focus on whether a person is unable to participate effectively or completely in one or more of the relevant activities. The Agency’s focus on whether a person has the “skills” to undertake, say, the activity of social interaction might not be appropriate in the case of an adult, as opposed to a child. However, the problem with Ms Lampard’s argument is that none of these features received even passing attention by the Deputy President. Her argument encourages an almost advisory approach because it seeks consideration and invites an assessment of matters that were never hinted at. That there might have been reasoning that properly addressed the statutory test, and that the Agency’s approach on this appeal might, at least in some very different circumstances, be too rigid, does not engage with what actually happened in this case, where there was no serious attempt by the Deputy President to address the statutory test in s 24(1)(c) properly.

94    It is also important to note the different way in which “capacity” is referred to in s 24(1)(c) and s 24(1)(d):

(a)    In paragraph (c), it is a direct reference to capacity itself:

substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: … .

(b)    By contrast, paragraph (d) is concerned with aspects of an applicant’s impairment(s) that impact on their capacity:

the impairment or impairments affect the person’s capacity for social or economic participation.

Thus, paragraph (d) can be seen to permit opportunity reasoning, while the paragraph (c) is concerned with what an access applicant can actually do, as recognised in Mulligan at [55].

95    French SM in Foster and NDIA addressed s 24(1)(c) in a thorough and comprehensive way: see ART[49] to [64]; see also ART[81] to [83]. But that is not the decision being challenged in this case. If there is any infelicity or error in French SM’s reasoning, and none is readily apparent, this is not the time or place to review and analyse it, because the present case does not call for that to occur.

96    The contrast between the perfunctory approach taken by the Deputy President in this case, and the thorough, thoughtful and methodical approach taken by French SM in Foster and NDIA, especially at ART[49] to [64], and also ART[81] to [83] could not be more stark. There is nothing in the reasons of the Deputy President here to rescue it from the manifest error in reasoning identified by the Agency. As it is obvious the wrong question was asked, it was inevitable that the Deputy President reached the wrong answer.

97    It follows that the legal error identified in Question 3 has been established.

Conclusion

98    The appeal succeeds on the grounds for all three questions.

99    It should be noted that although the Agency argued, in the context of Question 2, that there was no evidence to support the only basis on which the AAT was satisfied that Ms Lampard was suffering from an impairment that was, is or is likely to be, permanent, for the purposes of s 24(1)(b), the Agency sought an order that the matter be remitted to the ART for reconsideration according to law. The Agency took the same approach in the context of Question 3, which concerned the only basis on which the AAT was satisfied about that part of the disability requirements addressed by s 24(1)(c).

100    While Ms Lampard seeks to be heard on remedies before any orders are made, the better course is to order that the decision of the AAT be set aside and that her application for review of the Agency’s decision be remitted to the ART for determination, but to stay those orders for a short time, and to give her leave to seek to have any different order made.

101    The Agency did not seek any order for costs and accordingly none will be made.

Associate:

Dated:    10 October 2025