Burrows v NDIA [2025] ARTA 607

Why this case matters

Burrows is now one of the most-cited Tribunal decisions on the NDIS disability requirements — the access test in section 24 of the NDIS Act. It set out, in detail, how the Tribunal decides whether someone has "substantially reduced functional capacity". Later Tribunal decisions have already adopted its approach, and disability advocacy services now build their evidence guides around it.

If you are reading about an NDIS access decision, or preparing evidence for one, this is a case you will keep running into.

The background

Judy Burrows applied to become an NDIS participant in April 2023. The NDIA decided she did not meet either the disability requirements (section 24) or the early intervention requirements (section 25). She asked the Tribunal to independently review that decision.

The Tribunal accepted that Ms Burrows lives with permanent impairments that reduce her ability to do some daily tasks. The dispute was about whether that reduction was substantial in at least one of the six activity areas the law lists:

1. Communication
2. Social interaction
3. Learning
4. Mobility
5. Self-care
6. Self-management

A person only needs to show substantially reduced functional capacity in one of these areas — not all of them.

What the Tribunal decided

The Tribunal affirmed the NDIA's decision, finding Ms Burrows did not have substantially reduced functional capacity in any of the six areas. Along the way, it set out several principles that now shape how access cases are argued.

1. You are compared with a person who doesn't have your impairments — not with your former self

Many people describe their disability in terms of what they have lost. The Tribunal said that is not the legal test. The comparison is with a person who does not have your impairments — an objective, "normative" standard. As the Tribunal put it:

"...the statutory test is not whether a prospective participant has experienced a reduction in functional capacity relative to an earlier stage of life. It is the degree to which the prospective participant has the functional capacity for social interaction relative to a person who does not have the prospective participant's impairments... which does not contemplate prowess, but a level of basic function consistent with day-to-day subsistence."

Burrows at [85]

In plain terms: the benchmark is basic day-to-day function, not being especially good at something.

It helps to know what "social interaction" actually covers. The NDIA's Access Guidelines describe socialising as:

"how you make and keep friends, or interact with the community, ... We also look at your behaviour, and how you cope with feelings and emotions in social situations."

Drawing on this and the WHO's classification framework, the Tribunal designated the bundle of tasks that make up the social interaction activity area:

"Accordingly, the bundle of tasks that constitute the social interaction life activity area should be designated as follows:

• tasks associated with making and keeping friends;
• tasks associated with interacting with other people in the community (who are not friends);
• tasks associated with behavioural and emotional regulation in a social context."

The Tribunal noted this short description can be elaborated using the activity clusters in Chapter 7 of the WHO's International Classification of Functioning, Disability and Health (ICF) — an approach Senior Member French had earlier taken in Foster (No 2). Those clusters (d710, d720 and d730–d750) cover:

• Basic interactions — showing respect, warmth, appreciation and tolerance in relationships; responding to criticism and social cues; using appropriate physical contact
• Complex interactions — forming and ending relationships; regulating behaviour within interactions; interacting according to social rules; maintaining social space
• Relating with strangers — temporary contacts for a specific purpose, like asking for information or making a purchase
• Formal relationships — creating and maintaining relationships in formal settings, such as with teachers, employers, professionals or service providers
• Informal social relationships — casual relationships with people in the same community or residence, co-workers, students, playmates, or people with similar backgrounds

So the assessment looks across that whole bundle — friendships, community interactions, and emotional regulation in social settings — but the standard applied to it is basic day-to-day function, not social confidence or skill. This designated bundle matters beyond social interaction too: it shows the Tribunal's method of giving each of the six activity areas fixed, determinate content, so the access test operates consistently rather than stretching to fit whatever tasks an applicant or the Agency puts forward.

2. "Substantially reduced" generally means more than moderate difficulty

The Tribunal used the World Health Organisation's disability assessment framework (WHODAS 2.0) as a conceptual guide. On that approach:

• "Moderate" difficulty is roughly a 25–50% reduction in capacity to do an activity
• "Substantial" generally means more than moderate — often described as a greater than 50% reduction
• "Reduced" can show up as extra effort, pain or discomfort, slowness, or having to do the task a different way

The Tribunal stressed this framework is a guide only — the words of the Act remain the test.

3. Capacity is about what you can do, not what you actually do

The Tribunal drew a line between functional capacity (what a person can objectively do) and functional performance (what they actually do day to day). Barriers like living somewhere remote or having no public transport can limit performance, but they generally do not count as reduced capacity. Ms Burrows' inability to drive, for example, did not help her case because she could still travel as a passenger.

4. Capacity is assessed without supports — the "naked person" approach

Functional capacity is generally assessed as if the person had no assistive technology or help from others (with an exception for everyday items like glasses). This can work in an applicant's favour: if you can only manage an activity because of equipment or another person's help, that may point towards substantially reduced capacity.

5. Each activity area is a bundle of tasks — and domestic chores sit outside all of them

The Tribunal said each of the six activity areas is a defined "bundle" of tasks, and the whole bundle must be assessed — not just one task in isolation. Importantly, it found that domestic tasks like heavy laundry, cleaning, gardening and grocery shopping do not fall within self-care, mobility, or any other listed area. Difficulty with housework, on its own, generally will not satisfy the access test.

Later decisions have already followed this — for example, RPJJ and CEO, NDIA [2025] ARTA 2291, where the Tribunal accepted the Burrows analysis that domestic cleaning is not part of "self-care".

6. The early intervention pathway needs real evidence of likely benefit

Ms Burrows also failed the early intervention requirements in section 25. Her own treating professional had stated on the application form that early intervention supports would not reduce her future support needs — and the Tribunal was not satisfied any early intervention support was likely to benefit her in the ways the Act requires. What clinicians write on the access form matters a great deal.

What this generally means for access requests

• Evidence framed as "I used to be able to do this" is usually less persuasive than evidence showing what a person cannot do now compared with someone without their impairments
• Evidence often needs to show more than moderate difficulty — extra effort, pain, slowness, or changed methods, described concretely, task by task
• Difficulty with housework alone generally will not meet the test — evidence usually needs to focus on the six listed activity areas
• Help a person receives from others, or equipment they rely on, is often important evidence of reduced capacity
• Clinician reports should address the legal test directly, including the early intervention questions

The bottom line

Burrows narrowed and sharpened the NDIS access test. It confirmed the comparison is with a person without your impairments, set a demanding "more than moderate" threshold, and pushed domestic chores outside the six activity areas. Anyone preparing evidence for an access request — or reviewing a refusal — needs to understand it.

Sources

• Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 (26 May 2025) — AustLII · CaseChat
• RPJJ and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2025] ARTA 2291 — CaseChat
• National Disability Insurance Scheme Act 2013 (Cth), ss 21, 24, 25 — legislation.gov.au
• NDIS (Becoming a Participant) Rules 2016, rr 5.8, 6.2–6.11 — legislation.gov.au
• NDIA — Applying to the NDIS (Access Guidelines) — ourguidelines.ndis.gov.au
• Rights in Action — Daily Activity Log Template (advocacy guidance applying Burrows)