Decision: Pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision under review.

NATIONAL DISABILITY INSURANCE SCHEME - access - chronic pain - depression - neuropathy - physical impairments - psychosocial impairments - whether applicant meets disability requirements - NDIS Act s24(1)(c) - whether impairments substantially reduce functional capacity - communication - social interaction - mobility - learning - self-care - NDIS Act s25 - whether applicant meets early intervention requirements - decision under review affirmed.

Administrative Review Tribunal Act 2024 (Cth) section 105

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

National Disability Insurance Scheme Act 2013 (Cth_) sections 21,22, 23, 24, 27, 29_

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

G v Minister for Home Affairs [2019] FCAFC 79

G v Minister for Immigration and Border Protection [2018] FCA 1229

National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Davis [2022] FCA 1002

Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577

Re Schwass and National Disability Insurance Agency [2019] AATA

Rooney and National Disability Insurance Agency [2021] AATA 3523

PNCB v CEO, National Disability Insurance Agency [2026] ARTA 66

Madelaine v National Disability Insurance Agency [2020] AATA 4025

Kilgallin v National Disability Insurance Agency [2017] AATA 186

Garcia Albiol v National Disability Insurance Agency [2024] AATA 496

Moxham v National Disability Insurance Agency [2025] ARTA 290

National Disability Insurance Agency v Lampard [2025] FCAFC 139

Burrows v CEO, National Disability Insurance Agency [2025] ARTA 607

NDIS - Applying to the NDIS access guidelines, as of 10 February 2024.

1. Ms Carmela Ploenges is a 56-year-old woman. She seeks access to the National Disability Insurance Scheme ('the scheme') so that she can receive supports on the basis of impairments due to multiple conditions.
2. Ms Ploenges' application for access was refused at first instance by the National Disability Insurance Agency ('the Agency') and again upon internal review.[1]
3. Ms Ploenges subsequently applied to the Administrative Appeals Tribunal ('AAT') on 12 March 2024 for review of the Agency's internal review decision ('the decision under review').[2]
4. On 14 October 2024, the AAT became the Administrative Review Tribunal ('the Tribunal'). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 ('Transitional Act'), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is therefore made by the Tribunal.
5. At the hearing Ms Ploenges was self-represented. The Agency was represented by Mr Nicholas Scott of Counsel instructed by Maddock Lawyers.
6. For the reasons set out below, the Tribunal affirms the decision under review and finds that Ms Ploenges does not meet disability requirements under section 24 of the National Disability Insurance Act 2013 (Cth) ('NDIS Act') or the early intervention requirements under section 25 of the NDIS Act. Ms Ploenges therefore does not meet the access criteria under section 21 of the NDIS Act and cannot be granted access to the scheme.

1. On 3 October 2024 and prior to the completion of this review, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 ('the Amending Act') made a range of 'amendments' to the NDIS Act including the provisions relating to access to the scheme. These amendments included amendments to sections 21, 24 and 25 of the NDIS Act ('the access provisions').[3]
2. The Amending Act included transitional provisions under Items 125 and 126 in Part 3 of Schedule 1 to the Amending Act. The effect of these transitional provisions is that the amendments made to the access provisions apply only to a person who makes an access request on or after 3 October 2024. On this basis, Ms Ploenges' application will be determined in accordance with the access provisions, as they existed before the commencement of the Amending Act on 3 October 2025.
3. Item 126(3) in Part 3 of the Amending Act addresses the status of rules made under section 27 of the NDIS Act prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force.
4. On this basis the version of the Access Rules in existence prior to 3 October 2024 continue to apply to Ms Ploenges' request for access.

THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. Access to the scheme requires Ms Ploenges satisfy that she meets the 'access criteria' under section 21 of the NDIS Act. The access criteria impose a series of thresholds on obtaining access to the scheme.[4] Section 21 of the NDIS Act provides as follows:

(1) A person meets the access criteria if:

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

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

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

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

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

........................................................................................................

1. There was no contention by the Agency that Ms Ploenges did not meet the age requirements[5] or the residence requirements.[6]
2. The issue before the Tribunal was therefore whether Ms Ploenges meets the disability requirements under section 24 of the NDIS Act or the early intervention requirements under section 25 of the NDIS Act.
3. The disability requirements are contained in section 24 of the NDIS Act and provide as follows:
   1. A person meets the disability requirements if:

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

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

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

(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.

1. For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
2. For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
3. Subsection (3) does not limit subsection (2).
4. The requirements of section 24 of the NDIS Act are cumulative and all criteria must be met.
5. The early intervention requirements contained in section 25 of the NDIS Act provide as follows:

1. A person meets the early intervention requirements if:

(a) the person: > > > (i) has one or more identified intellectual, cognitive, neurological, sensory, or physical impairments that are, or are likely to be, permanent; or > > > > (ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or > > > > (iii) is a child who has developmental delay; and > > (b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and > > (c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by: > > > (i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or; > > > > (ii) preventing the deterioration of such functional capacity; or > > > > (iii) improving such functional capacity; or > > > > (iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

(3) Despite subsections (1) (2), the person does not meet the early intervention requirements if the CEO is satisfied that the early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

(a) as part of a universal service obligation; or

(b) in accordance with reasonable adjustments required under a law dealing with discrimination of the basis of disability.

1. Likewise, the requirements of section 25 of the NDIS Act are cumulative and all criteria must be met.
2. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 ('the Access Rules').
3. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The Guidelines are 'administrative tools' and exist to provide assistance as to the context of each of the activities listed in s 24(1)(c) of the NDIS Act.[7]
4. The relevant guidelines in this review are the NDIS - Applying to the NDIS Guidelines ('the Access Guidelines').[8]
5. There is no power conferred by the NDIS Act to make Operational Guidelines, and they are issued in an exercise of executive power.[9] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[10] the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[11] where Mortimer J held:

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual's case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it.[12]

1. Therefore, unless the Access Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether Ms Ploenges meets the disability requirements or the early intervention requirements.
2. Whether Ms Ploenges meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a 'fact-finding task'[13] with a relatively high degree of precision and be positively satisfied.[14]

1. Ms Ploenges seeks access to the scheme on the basis of having a disability due to impairments which are as a consequence of the following conditions:
   • Chronic pain;
   • Depression; and
   • Neuropathy.
2. Ms Ploenges contends that her impairments are as follows:

(a) Psychosocial impairments due to depression. These impairments include a decline in mood, reduced motivation, withdrawal from social activities, anxiety and distress; and > > (b) Physical impairments due to chronic pain and neuropathy. These impairments include being unable to sit, walk or stand for long periods of time, being unable to drive as a passenger for long periods of time, being unable to do any physical activities that require exertion.[15]

3. Ms Ploenges contends that all of these impairments are permanent for the purposes of section 24(1)(b) of the NDIS Act.[16]
4. As a consequence of these impairments Ms Ploenges also contends that she has a substantially reduced functional capacity in relation to her communication, social interaction, learning, mobility, self-care and self-management for the purposes of section 24(1)(c) of the NDIS Act.[17]
5. Ms Ploenges also contends that her impairments affect her capacity for social and economic participation for the purposes of section 24(1)(d) of the NDIS Act. Also, that she is likely to require supports under the scheme for her lifetime for the purposes of section 24(1)(e) of the NDIS Act.[18]
6. Finally, Ms Ploenges contends that she meets the early intervention requirements pursuant to section 25 of the NDIS Act.[19]

1. For the purposes of section 24(1)(a) of the NDIS Act the Agency accepts that Ms Ploenges has the following physical impairments due to chronic pain:
   • An inability to sit, stand or walk for long periods of time;
   • An inability to drive for a long period of time.[20]
2. The Agency also accepts for the purposes of section 24(1)(a) of the NDIS Act that Ms Ploenges has the following psychosocial impairments:
   • Difficulty participating in social events;
   • Feels anxious, emotional, argumentative, angry and has negative feelings.[21]
3. The Agency contends that Ms Ploenges has not received a diagnosis of 'neuropathy'.[22] The Agency therefore does not accept, for the purposes of section 24(1)(a) of the NDIS Act, that Ms Ploenges has any impairment due to neuropathy. In this regard the Agency contends there is also insufficient information on any impairments that are attributable to neuropathy, including any medical records which refer to the treatment history, prognosis and description of the symptoms and severity of this condition.[23]
4. The Agency also does not accept that any of Ms Ploenges' impairments:
   • are permanent for the purposes of subsection 24(1)(b) of the NDIS Act;[24]
   • result in a reduced functional capacity in the activities of social interaction, self-care, self-management, learning, communication and mobility for the purposes of subsection 24(1)(c) of the NDIS Act;
   • affect her capacity for social and economic participation for the purposes of subsection 24(1)(d) of the NDIS Act;
   • result in her being likely to require support under the scheme for her lifetime for the purposes of subsection 24(1)(e) of the NDIS Act.[25]
5. The Agency further contends that the evidence is insufficient to establish:
   • Permanence, or likely permanence for the purposes of subsection 25(1)(a) of the NDIS Act;
   • that the provision of 'early intervention support' is likely to benefit Ms Ploenges within the meaning of either subsection 25(1)(b) or subsection 25(1)(c) of the NDIS Act.[26]
6. Finally, the Agency also contends that the supports requested by Ms Ploenges are more appropriately provided through other service systems in accordance with subsection 25(3) of the NDIS Act.[27]

1. I have considered all the written evidence filed with the Tribunal and provided in the joint bundle, the oral evidence provided at the hearing on 2 and 3 December 2025, and the parties' closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

1. Ms Ploenges lives with her husband in a 4 bedroom, 2 bathroom single story home.[28] The front of her home is accessed by a gated step up onto a front patio and then a threshold step into the interior of her home. The rear of her home is accessed by 10 steps up to a wooden veranda. Her home has a medium-sized backyard with a garden as well as a swimming pool.[29]
2. Ms Ploenges has three adult children who no longer live with her and her husband.
3. Ms Ploenges describes her husband as her primary informal support. Mr Ploenges is 61 years of age. He works 4 day a week and also receives a carer's pension. Ms Ploenges receives a disability pension.
4. Ms Ploenges does not currently receive any formal support.[30]
5. She has made enquiries with My Aged Care and Anglicare for assistance. She states that she has been advised that these services are only provided 'through the NDIS' for which she must be eligible.[31]
6. Ms Ploenges advised the Tribunal that she seeks access to the scheme so that she may receive funding for the following supports:
   • Assistance with washing and cleaning which includes vacuuming and any other task that requires strength and exertion;
   • Assistance with gardening:
   • Transport on the basis that she is currently reliant upon her husband to drive her anywhere.[32]
7. Ms Ploenges has been treated under a health care plan by her general practitioner, for many years. Over the years she has also received treatment from Dr Linda McCarthy, psychiatrist and also a psychologist.[33] In addition to depression, Ms Ploenges has also been diagnosed with a generalised anxiety disorder.[34]
8. Ms Ploenges last had psychiatric review in or about 2017. She currently takes escitalopram, an antidepressant medication, which is now prescribed by her general practitioner, with 6 monthly reviews.
9. Ms Ploenges has been diagnosed with a mild disc bulge at L4/L5 of her lumbar spine, including also an annular tear.[35] Her symptoms developed following a workplace injury. As a result of these conditions she experiences chronic pain. In relation to her chronic back pain she has been reviewed by two neurologists. She has also had treatment though a pain management clinic programme,[36] had cortisone injections twice as well as physiotherapy and hydrotherapy treatment.[37] Ms Ploenges has also completed a MAPs program.[38]
10. Ms Ploenges currently manages her chronic pain with OxyContin medication. She also undertakes a light daily exercise program as recommended by her physiotherapist, which takes approximately 30 minutes. These exercises are performed in a seated position. Ms Ploenges' regular exercise regime involves using a 'paddle and ball, dumbbells and exercise equipment'.[39]
11. Historically 'rhizolysis' has been suggested as a treatment for her chronic pain. Rhizolysis is a specialised form of treatment and is also known as RF (radiofrequency) Lesioning. The aim is to cause heat damage to the nerves that supply the facet or sacroiliac joints, so as to stop sending signals back to the spine which can cause pain. Ms Ploenges explained that she has received medical advice that rhizolysis would provide only 'short term relief'. On this basis she has declined having rhizolysis. Surgery to her back has never been suggested to Ms Ploenges by any medical practitioner as a treatment to reduce her chronic pain.
12. Ms Ploenges no longer drives. This is on the basis that she is no longer medically fit to drive as a consequence of multiple 'black outs' due to supraventricular tachycardia ('SVT') and diabetes.
13. In her evidence Ms Ploenges referred to having 'neuropathy'. She described neuropathy as the radiation of pain, tingling and pins and needles. She stated that she experienced these symptoms initially in her right lower limb. In more recent times she has experienced symptoms in her right upper limb and as a result she has recently had carpal tunnel surgery performed on her right limb.[40] She explained that her symptoms of pins and needles in her right arm had subsided with this surgery. Ms Ploenges is currently awaiting review of her left upper limb with a view to carpal tunnel surgery also of this limb. She has also been advised that she has a compression of C5/C6 in her neck and is awaiting review of that condition by neurosurgeon.
14. I will refer subsequently to further oral evidence which was also provided by Ms Ploenges.

1. Mr Elliot Mate is an occupational therapist. Mr Mate assessed Ms Ploenges in her home in June 2024 and provided a report.[41]
2. In his report Mr Mate identified that Ms Ploenges experiences difficulties undertaking tasks which involve the following:
   • strenuous activity requiring exertion;
   • moderate, heavy or forceful manual handling, including lifting, carrying, pushing and pulling;
   • repetitive or sustained use of her upper limbs above shoulder height in an outstretched or overhead manner due to increased load on her lumbar spine;
   • frequent bending, twisting, jarring or jolting of the lumbar spine;
   • prolonged sitting, standing or walking;
   • frequently traversing rough/uneven ground, inclines or steps;
   • unsupported squatting or kneeling;
   • driving.[42]
3. Mr Mate made the following recommendations for Ms Ploenges:
   • That she apply for the subsidised taxi scheme;
   • An over toilet frame;
   • A wearable falls alert;
   • A sock aid to reduce the requirement for bending or squatting when putting on shoes;
   • A bed pole/stick to promote safety and independence with bed transfers and mobility;
   • A long handled shower sponge to facilitate improved safety when showering by reducing the need for bending and squatting to wash her feet and toes;
   • A leg-lifter strap to promote independence with car transfers and reduce reliance on another person.[43]
4. Mr Mate also referred to a number of community based services that may be available to Ms Ploenges which included the following:
   • Department of Human Services (DHS) Home and Living Services for support with shopping, cooking, household tasks, community engagement, personal care and hygiene and independent skills development;
   • DHS equipment program for the funding of mobility and support equipment;
   • State government health service;
   • My Aged Care Services;
   • Anglicare;
   • Catholic Healthcare and Uniting Care;
   • Lifetime Support Authority;
   • Carers SA; and
   • Blue Knot Foundation.
5. Mr Mate also provided oral evidence at the hearing which I will refer to subsequently in these reasons.

**_Does Ms Ploenges have a disability which is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?

Does Ms Ploenges have one or more impairments to which a psychosocial disability is attributable?_**

1. Based on the evidence I accept that Ms Ploenges has physical and psychosocial impairments as referred to at [30] and [31].
2. The Agency's concession in relation to these impairments is reasonable and proper.
3. In relation to Ms Ploenges' contention that she has impairments because of neuropathy I make the following observations:
4. Ms Ploenges relies on the following documentary evidence:
   • A letter by Dr Kar Loong NG, occupational and environmental physician dated 10 October 2014 which states 'Neuropathic pain R Leg'
   • A letter by Dr Dominic Panozzo, general practitioner dated 23 May 2016 which states 'Right Leg Neuropathy/Right Trochanteric Bursitis'
   • A document filed during the course of the hearing, being a letter by an unknown author to Dr Poonoose, Consultant Neurosurgeon dated 6 May 2025 which states "I have no issue otherwise for her to remain on combination Lyrica and Amitriptyline for some of her neuralgic pain which may be associated with her diabetes;[44]
   • A further document file during the course of the hearing, being an extract from the medical records of the Repatriation General Hospital dated 24 July 2025 which states 'Diabetic complications contributing to neuropathy ?'.[45]
5. The Agency refers the Tribunal to the following documentary evidence:
   • A discharge letter from the Flinders Medical Centre dated 3 May 2009[46] which states 'neurologically normal';
   • A letter from Dr Jenny Hill to Dr Dominic Panozzo dated 13 July 2013 which states 'She has no concerning neurology'.
6. Neuropathy is a condition which occurs as a consequence of nerve damage leading to pain, weakness, numbness or tingling in one or more parts of the body.[47] There is no evidence before the Tribunal of any testing results such as nerve conduction studies to persuade me that Ms Ploenges has sustained 'damage' to her nerves which would form the basis of a diagnosis of 'neuropathy'.
7. Ms Ploenges confirmed to the Tribunal that she has no medical training or expertise. It is therefore entirely understandable that she has equated the terms 'neuropathy', 'neuralgic pain' and 'neuropathic pain' to mean one and the same.
8. Irrespective of any diagnosis of neuropathy I do not however doubt that Ms Ploenges experiences nerve pain which may be otherwise to referred to as 'neuralgic pain' or 'neuropathic pain'. This nerve pain however may be due to a number of causes which may include damage to her nerves or simply an irritation of her nerves.
9. Whether Ms Ploenges has an impairment as a consequence of her nerve pain for the purposes of subsection 24(1)(c) of the NDIS Act is however irrelevant. This is because of the cumulative operation of section 24 of the NDIS Act and her failure to satisfy, as a mandatory requirement, subsection 24(1)(c) of the NDIS Act which I will subsequently refer to in these reasons.

Subsection 24(1)(c): Do Ms Ploenges' impairments result in a 'substantially reduced functional capacity' for her to engage in one or more of the activities of communication, social interaction, learning, mobility, self-care and self-management?

1. The Tribunal's task is to consider whether Ms Ploenges' functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management is 'substantially reduced'.
2. For reasons which will follow I am not positively satisfied that Ms Ploenges' functional capacity to undertake any of the activities in subsection 24(1)(c) of the NDIS Act is substantially reduced to the extent of the 'high threshold' required for access to the scheme.
3. In considering Ms Ploenges' functional capacity the Tribunal's task is twofold.
4. The 'first task' is to consider whether Ms Ploenges' circumstances are captured within the deeming effect of rule 5.8 of the Access Rules to establish a 'substantially reduced functional capacity'. Satisfaction of rule 5.8 of the Access Rules will mean that Ms Ploenges is mandatorily included in the category of persons with a substantially reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act.
5. In circumstances where the deeming effect of rule 5.8 is not enlivened, the Tribunal must still proceed to a 'second task'. This second task requires the Tribunal, on the evidence available, to determine whether Ms Ploenges' functional capacity for any of the activities in subsection 24(1)(c) of the NDIS Act is 'substantially reduced'.

Can Ms Ploenges rely on the deeming effect of rule 5.8 of the Access Rules to establish that she has a substantially reduced functional capacity?

1. Rule 5.8 of the Access Rules provides as follows:

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. > > (Tribunal emphasis added)

2. Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether Ms Ploenges can participate 'effectively or completely' on the basis that she is unaided by assistive technology, equipment or home modifications other than 'commonly used items'.
3. The interpretation of 'commonly used items' was considered by the Tribunal in Rooney and National Disability Insurance Agency ('Rooney').[48] In Rooney the Tribunal identified the indicia in respect of what are to be considered 'commonly used items' for the purpose of rule 5.8(a) of the Access Rules. This indicium included items which are:
   • generally accessible;
   • can be used without the need for complex or specialised customisation or installation;
   • relatively simple to use; and
   • relatively inexpensive.
4. Ms Ploenges' evidence is that she will occasionally use a single point walking stick to mobilise and for stability.
5. I am satisfied that a walking stick falls well within the category of being a commonly used item for the purposes of rule 5.8(a) of the Access Rules. On this basis Ms Ploenges cannot rely on the deeming operation of rule 5.8(a).
6. There is also no evidence that Ms Ploenges relies on any assistive technology, complex building modifications or equipment to undertake the tasks that form any of the 'relevant activities' under subsection 24(1)(c) of the NDIS Act.
7. Furthermore there is no evidence that Ms Ploenges usually requires assistance (including physical assistance, guidance, supervision or prompting) from any other person to participate in these relevant activities or to perform tasks or actions required to undertake or participate in these relevant activities.

1. I am satisfied that Ms Ploenges cannot rely upon the deeming operation of rule 5.8 of the NDIS Rules to satisfy that she has a substantially reduced functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act.

The second task: Does Ms Ploenges have a 'substantially' reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?

1. The fact that Ms Ploenges does not satisfy the requirements of rule 5.8 does not disqualify her from satisfying subsection 24(1)(c) of the NDIS Act. This is because the measure of whether Ms Ploenges has a 'substantially reduced functional capacity' for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by rule 5.8. In Mulligan Mortimer J held: [49]

As a deeming provision, r 5.8 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. In that sense, a decision-maker must turn his or his mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas. (Tribunal emphasis)

2. In respect of the operation of subsection 24(1)(c) of the NDIS Act, in Mulligan Mortimer J also held:[50]

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. > > ------ > > ... 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. (Tribunal emphasis)

3. In Foster the Full Court considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[51]

In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do. > > Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of _'_self-care', the Tribunal applied the Guidelines in such a way as to equate Mr Foster's impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.

4. In Foster the Full Court also identified that the Tribunal is required to consider the 'bundle of tasks and actions' that fall within the particular activity under consideration.[52] Also that undertaking a task 'differently' or 'more slowly' to others will not necessarily mean a person cannot participate effectively or complete an activity.[53]
5. More recently in Lampard[54] the Full Court identified the Tribunal's task as determining a prospective participant's 'functional capacity' to carry out a task or action in the activities domains of subsection 24(1)(c) of the NDIS Act. In doing so the Full Court emphasised that 'functional capacity' must be distinguished against the prospective participant's 'functional performance', which is of itself not relevant to the tasks under subsection 24(1)(c) of the NDIS Act.
6. In Madelaine[55] the Tribunal referred to the following Operational Guidelines for guidance in relation to fluctuations in a prospective participant's functional capacity:

When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.

1. Those Operational Guidelines in respect of access to the scheme have been superseded. The current Access Guidelines however provide as follows:

Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.

1. Therefore in determining Ms Ploenges' functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act the following is relevant to the Tribunal's consideration:
   • The severity of Ms Ploenges' impairment having regard not only to the evidence of Ms Ploenges but also medical and clinical evidence;
   • The 'bundle of tasks' that fall within each of the activities in subsection 24(1)(c) of the NDIS Act;
   • Ms Ploenges' overall 'functional capacity' in the 'activities' in subsection 24(1)(c) of the NDIS Act, as a whole and over time and taking into account fluctuations in her ability;
   • A practical and objective assessment of what Ms Ploenges 'can do' and what she 'cannot do'.
2. The following however is not relevant to the Tribunal's consideration in determining Ms Ploenges' functional capacity for the purposes of subsection 24(1)(c) of the NDIS Act:
   • The fact that Ms Ploenges is no longer able to perform the activities in subsection 24(1)(c) of the NDIS Act as often, as freely or as easily as she did previously in her lifetime;
   • Any comparison of Ms Ploenges' function with that of another person;
   • Ms Ploenges' financial circumstances; and
   • How much better Ms Ploenges' life would be if she were to receive supports under the scheme.
3. The Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what Ms Ploenges can and cannot do with respect to her communication, social interaction, learning, mobility, self-care and self-management for the purposes of subsection 24(1)(c) of the NDIS Act. This assessment requires consideration of the 'bundle of tasks' and actions that comprise any given activity which is being considered.[56]
4. Previously in Garcia Albiol v NDIA[57] I considered the use of the word 'substantially_'_ as a descriptor of 'reduced functional capacity' in subsection 24(1)(c) of the NDIS Act. In doing so I determined that the term 'substantially' in the context of reduced functional capacity carries a 'high threshold'. That decision has not been appealed and has in fact been adopted in this Tribunal.[58]
5. My view of a 'high threshold' for reduced functional capacity remains unchanged.
6. The Tribunal's consideration of Ms Ploenges' functional capacity relates specifically to her 'daily life activities'. Relevantly, the Access Guidelines state as follows:

You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities. > > ................ > > Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities_. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks._ (Tribunal emphasis)

1. The Operational Guidelines describe communication as follows:

Communicating - how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

2. At the hearing Ms Ploenges gave oral evidence and was independent with her verbal communication. She was clearly able to explain her history of illness, various treatments and therapies that she had received. She was also able to explain medical advice that she had received, as well as the supports that she would like to receive. Her communication throughout the hearing was clear and entirely comprehendible. I found her to be articulate and well spoken.
3. Insofar as is relevant to her ability to undertake the activity of communication, Ms Ploenges provided the following oral evidence:
   • She considers that her ability to communicate varied during the day and on the basis of the 'effect' of her OxyContin which is a 'slow release' medication;
   • She is very 'short' with people and impatient and this affects her ability to communicate with others;
   • She is able to speak 'in person' and also on the telephone to her husband, children, friends, family and members of the community including her doctor:
   • She is able to speak to make an appointment for herself;
   • She talks to her neighbour;
   • She can send and receive text messages;
   • She can write and also type on a computer.
4. Dr Jayde Clark, general practitioner stated that Ms Ploenges did not require any assistance in relation to the activity of communication as a result of any impairments.[59]
5. In respect of Ms Ploenges' functional capacity for communication Mr Mate stated in his report he considered Ms Ploenges to be "Independent..... able to complete this task without assistance or assistive technology'.[60]
6. Mr Mate also stated in his report:

Ms Ploenges confirmed she is able to read, write, use phones, email, and the Internet, as well as read and understand letters. She responded to all questions appropriately, followed instructions without difficulty, and did not require repetition or rephrasing of questions. During the approximately 2- hour assessment, she was observed to express herself, recount her social history and her medical history, and describe her needs independently. Ms Ploenges does not require support in the domain of communication.[61]

1. In Madelaine v National Disability Insurance Agency ('Madelaine') the Tribunal considered 'communication functionality' in respect of an earlier (and not dissimilar) version of the Agency's Operational Guidelines.[62] In Madelaine the Tribunal described communication functionality to be of 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something and so on'. (Tribunal emphasis)

1. I am satisfied, based on the evidence, that Ms Ploenges' functional capacity to communicate, is not substantially reduced. She is able to effectively engage in the expressive and receptive language tasks that form the bundle of tasks within the activity of communication.[63] These tasks include the ability to communicate both orally and electronically using technology such as a mobile phone and typing on a computer. She is able to express her opinions, views and concerns to other persons, including her medical practitioner. She is also able to talk and respond verbally to others in both a domestic and social context.

1. The Operational Guidelines describe social interaction as follows:

Socialising - 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.

1. In Madelaine the Tribunal held, '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.'[64]
2. In Kilgallin and NDIA the Tribunal observed the following in relation to the threshold requirements for social interaction:[65]

Social interaction as referred to in 24(1)(c)(ii) doesn't, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.

3. In Ghezzaoui and NDIA[66] the Tribunal also made the observation that this 'domain is principally about personal skills needed for social interaction, and only marginally about opportunities to exercise those skills, such as location or frequency.'
4. Ms Ploenges speaks to her family and friends each day.[67] She is in regular contact with her 'best friend' who is a registered nurse and understands her medical challenges. Her friend is able to provide her with emotional and social support.[68]
5. In her oral evidence Ms Ploenges referred to the following:
   • She lives with her husband;
   • She rarely goes out for social events;
   • She enjoys spending time in the garden with her husband;
   • If she leaves her home it is for short periods of time as she is unable to sit in one place for a period of time in excess of 15 minutes;
   • She gets tired very quickly;
   • She cannot talk for very long and is unable to listen to others for very long;
   • During the day she enjoys listening to talk back radio;
   • On the days that her husband does not work they will have breakfast together;
   • She and her husband will occasionally watch a television program together;
   • She and her husband walk their dog approximately three times a week, this is always on the basis that her husband manages the dog on a lead;
   • She and her husband last went for a meal in a restaurant in August 2025;
   • She eats dinner with her husband each evening;
   • She is able to have social conversations with others on topics which include family, friends and dogs;
   • She is no longer able to go to the cinema as she is unable to sit in a chair for an extended period of time;
   • She is able to use and enjoy her swimming pool, provided her husband is with her to assist her;
   • She has two sisters. She has contact with her sisters several times a year which includes for birthdays and at Christmas;
   • She and her husband do a weekly shop at the local supermarket and she 'looks forward' to this activity;
   • She enjoys helping her husband in their garden with light tasks;
   • That she does not want to 'see anybody' or have a conversation with other people because 'there's nothing for me to say';
   • She accepts that she can interact with others in the community when she is required to do so.
6. Dr Jayde Clark, general practitioner stated that Ms Ploenges was not able 'to drive far' and was therefore 'isolated geographically' without assistance from family to provide transport.[69]
7. Mr Mate considered Ms Ploenges to be "Independent..... able to complete this task without assistance or assistive technology".
8. Mr Mate stated in his report:

Ms Ploenges reported her husband is her primary social connection and support, and she also has a supportive relationship with her children. Ms Ploenges stated that she is in weekly contact with her best friend, an ex-nurse who understands her medical challenges and provides emotional and social support. Ms Ploenges was able to maintain the ebb and flow of conversation during the assessment without difficulty.

Ms Ploenges confirmed she is able to interact with the community when required. For example, she confirmed that she is able to speak to shopkeepers, organise medical appointments and perform other social interactions as required.

There have been no indications that Ms Ploenges experiences any behavioural challenges.

Ms Ploenges is able to cope with feelings and emotions in a social context

1. As stated in Madelaine the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am therefore satisfied that whilst Ms Ploenges no longer socialises to the same extent as she did previously when she was able to lead a more active lifestyle, she does still have the personal skills to interact socially with other people. I have given little weight to Dr Clarke's evidence. Dr Clarke misunderstands the nature and concept of 'social interaction' for the purposes of the scheme.

1. I am satisfied based on the evidence that Ms Ploenges' functional capacity to interact socially is not substantially reduced. I am satisfied that Ms Ploenges has the personal skills to undertake the tasks associated with social interaction. This includes the ability to engage with her family and friends regularly and maintain meaningful and enduring relationships. She has the ability to access the community for social interaction and enjoys outings such as a weekly outing to the supermarket. She also has the ability to interact appropriately with others in the community which include supermarket staff and her neighbour.

1. The Operational Guidelines describe learning as follows:

Learning - how you learn, understand and remember new things, and practise and use new skills

1. In Madelaine the activity of learning was explained as having the cognitive capacity to absorb and apply new skills. Furthermore, that the activity of learning should not be confused with 'higher order issues'.[70]
2. Ms Ploenges reports difficulties in her learning functional capacity. In her oral evidence Ms Ploenges referred to the following matters:
   • She has a 'short' span of attention;
   • She listens to 'talk back' radio and is able to follow the news;
   • She has a subscription to 'Better Homes' magazine which she enjoys reading, especially the garden section of the magazine;
   • She is able to follow instructions on packets of food;
   • She is able to follow and remember a cooking recipe.
3. Dr Jayde Clark, general practitioner stated that Ms Ploenges did not require any assistance in relation to the activity of learning as a result of any impairments.[71]
4. Mr Mate considered Ms Ploenges to be "Independent..... able to complete this task without assistance or assistive technology. He also described Ms Ploenges as alert and focussed during the assessment.
5. Mr Mate stated in his report that 'Ms Ploenges understood the purpose of the assessment, her medical conditions and treatments. She has previously worked in cognitively demanding roles for Services Australia, and she is deemed to be independent with learning.'
6. Mr Mate stated that Ms Ploenges was able to use the internet as well as read and understand letters.[72]

1. Whilst Ms Ploenges may refer to having a short attention span I am satisfied that her functional capacity for learning is not substantially reduced to the level required to meet the threshold. I am satisfied that Ms Ploenges has the skills to understand, acquire and retain new knowledge through reading printed material and information on the internet. She has the ability to absorb and acquire information through listening to the radio. She also has the ability to follow instructions. Also to remember and repeat learned tasks which includes tasks such as remembering and repeating cooking recipes.

1. The Operational Guidelines describe mobility as follows:

Mobility, or moving around - how easily you move around your home and community, and how you get in and out of a bed or a chair. We consider how you get out and about and use your arms or legs.

2. In Madelaine the Tribunal held that the threshold requirements to achieve functional capacity with respect to mobility are 'relatively modest' stating that:[73]

A person has functional capacity if they can move about their home, get in and out of a bed or a chair, and mobilise in the community. Movement in the home does not need to be achieved by walking, a person might even crawl from room to room. The Concise Oxford Dictionary defines mobile as moveable, not fixed, free to move. > > The use of the phrase move around ... to undertake ordinary activities of daily living in the Guideline is significant. It implies some expectation of how far a person needs to be able to move to undertake ordinary daily activities, say, getting to the bathroom to wash or toilet, getting to the kitchen to prepare food, perhaps getting to the front letterbox to collect mail. Implicit in this concept is that the distances involved will be relatively short. Significantly, the concept does not include being able to move around in the community for the purpose of accessing services, such as shops, the bus stop or the local park - the phrase moving about in the community is not qualified in the same way that move about the home is qualified by to undertake ordinary activities of daily living. To define mobility by the ability to reach local services would be to make it a function of where one lived. A better application of the concept is to ask whether a person can move about in shops or a park once they have reached them, say by car or public transport. > > No particular distance is specified in the Guideline as defining this level of mobility, but it seems reasonable to suggest that a person who can travel 50 m by herself has the capacity to do the things referred to in the Guideline.

3. Ms Ploenges explains that she is limited as to how far she can walk. She also reports difficulties walking up and down stairs.[74] She also reports only being able to mobilise for 5-10 minutes before needing to rest. Also to a walking capacity of between 50 to 100 metres.[75]
4. In her oral evidence Ms Ploenges referred to the following:
   • She tires easily and can't 'go out for very long';
   • She is able to mobilise around her home;
   • She is able to walk outside her home and in her garden;
   • She is able to walk on the footpath in her street and does this for exercise generally three or four times each week. If her husband is with her she will walk for approximately 100 metres. When walking in her street alone she will only walk for 20-30 metres;
   • She will walk her dog with her husband holding the lead;
   • She is able to get up the front steps to her home using the handrail as support;
   • She will only sometimes mobilise with a single point walking stick;
   • She does not mobilise down the back steps of her home as it is too difficult and in the past she has fallen;
   • She can access the rear of her home through the front door and by going through the garage and down the side of her property;
   • She is able to access her vegetable patch which is at the side of her property;
   • She will help her husband in their vegetable garden which has raised garden beds that are easy for her to access. This includes watering and picking vegetables;
   • She undertakes a 30 minutes exercise regime most days;
   • She can water the lawn and pot plants on her front porch;[76]
   • She is able to use the toilet and to transfer on and off the toilet using the edge of a nearby vanity for support;
   • She is able to get in and out of chairs using the arms of the chair or the back of the chair for support;
   • To get out of bed she will roll off the bed;
   • She can get in and out of the shower independently;
   • She can use a pump soap to bathe and does not like using shampoo on her hair;
   • She can dress and undress, provided that she is in a seated position;
   • She wears 'light' clothes that are easy to put on and remove, also slip on footwear instead of laces;
   • She can travel in a car as a passenger to the supermarket which takes approximately five minutes;
   • She can walk around a supermarket for 20-25 minutes with her husband pushing the supermarket trolley;
   • She can make her bed, although at times does this with her husband;
   • She can 'dust',[77] she can sweep the floor;[78]
   • She cooks all meals and will sometimes make multiple meals for later use;
   • She can mobilise to bake a cake.[79]
5. Dr Jayde Clark, general practitioner stated that Ms Ploenges needed ramps and rails to assist her with mobility.[80] She also suggested 'toilet modification' and transport assistance.
6. Mr Mate's assessment referred to Ms Ploenges being capable of the following tasks:
   • Opening doors, drawers and gates;
   • Lifting objects and using a variety of handles;
   • Able to lift 2-3 kgs;
   • Mobilising independently in her home without a mobility aid.
7. Mr Mate stated in his report:

Ms Ploenges was observed to have access to her home with modified independence. Indoors, she mobilised independently, walking slowly, displaying symptoms of pain and walking with an asymmetrical gait (a limp) without support from a mobility aid or physical assistance. She was observed to stand and walk for 5-10 minutes at a time before needing to rest.

Outdoors, Ms Ploenges was observed using a single-point stick, which she

Ms Ploenges was observed independently accessing a range of cupboards, storage, and shelving. She has difficulty accessing items from a low height, as this causes her pain and discomfort. My observations throughout the assessment were consistent with this report.

Ms Ploenges has rearranged her cupboards and shelving and placed frequently used items above waist height to avoid bending. She reported there is one corner cupboard in her kitchen, which requires bending and twisting, which she avoids accessing.

Ms Ploenges was observed to complete bed transfers with difficulty, displaying symptoms of pain and discomfort, particularly when sitting and twisting. The provision of a bed pole to promote her safety and independence with bed transfers is recommended.

Ms Ploenges was observed to perform chair transfers independently, pushing on the armrest (when on the lounge) and table (when seated at the table) with her arms to support the transfer.

Ms Ploenges was observed to perform toilet transfers independently, pushing on the

Ms Ploenges was observed performing shower transfers independently and

Ms Ploenges's capacity for lifting is reduced. She reported she is able to lift around 2-3kg. She is able to lift most household items. However, she is unable to lift a load of wet laundry. She was observed independently picking up items from the floor, displaying stiffness and symptoms of pain and reporting discomfort while doing so.

Ms Ploenges has modified her independence when mobilising in the community. She reported she is able to walk around 50-100m at a time before needing to rest, and she uses a single-point stick to support her mobility. My observations of Ms Ploenges during the assessment were consistent with this report.

1. Ms Ploenges does not have a driver's licence. Her licence was cancelled due to her experiencing blackouts as a result of supraventricular tachycardia.
2. Mr Mate considered Ms Ploenges is capable of using taxis or Uber services. Mr Mate recommended that Ms Ploenges apply for the government subsidised taxi scheme to increase her independence with community access.
3. Ms Ploenges' evidence is that she regularly sits as a passenger in a motor vehicle driven by her husband, with a tolerance of 20 minutes before requiring a rest.[81]
4. Ms Ploenges reported to Mr Mate that she could mobilise for between 50 and 100 metres before requiring a rest. She also uses a single point walking stick at times to support mobility.

1. I am satisfied based on the evidence that Ms Ploenges' functional capacity to participate in the tasks comprised of the activity of mobility is not substantially reduced. She is clearly able to engage in the tasks associated with moving around and within her home and her community. She is also able to transfer in and out of a car, a chair and her bed. She is also able to engage in the tasks associated with mobilising for the purposes of her self-care including cooking, exercising, shopping, showering, toileting, feeding and dressing herself.

1. The Operational Guidelines describe self-care as follows:

Self-care - personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

1. In Madelaine the Tribunal stated: 'having a substantially reduced functional capacity to care for oneself imports the idea that there are significant gaps in one's capacity to maintain personal health, safety and well-being'[82] (Tribunal emphasis)
2. In her oral evidence Ms Ploenges advised that she experiences incontinence and uses continence aids to manage her incontinence.
3. Ms Ploenges also referred to the following functional capacities:
   • She can make meals, which includes using a slow cooker She used to really enjoy cooking. Nowadays however she prepares simple 'one pot' meals;
   • Her husband does not cook. She prepares all meals;
   • She can make herself breakfast and lunch which includes a sandwich, heating up leftovers or a salad;
   • She can use cutlery to cut up food and to feed herself;
   • She manages her own medications independently[83] but is looking to have the pharmacy prepare her medications in a Webster-pack because there are 'so many';
   • She can trim her fingernails with nail clippers but sees a podiatrist for her foot care;
   • She has not bought clothes for many years. In the past she has tried online clothes shopping but would prefer however to shop 'in person';
   • She manages a diary which includes making her own medical appointments;
   • She is able to sweep the floor for dog hair;
   • She and her husband do the laundry together;[84]
   • She can make herself a cup of coffee;
   • She can 'wash up dishes';[85]
   • She can clean her glass shower screen;[86]
   • She can shop for food at a supermarket.
4. Dr Jayde Clark, general practitioner stated that Ms Ploenges required toilet modification.[87]
5. Mr Mate described Ms Ploenges as casually and appropriately dressed during the assessment. In his report he stated:

Ms Ploenges stated she uses incontinence aids and experiences

incontinence. She confirmed she able to manage her incontinence aids and

Ms Ploenges is able to shower independently with limitations. She has

difficulty reaching her back and lower limbs. This is attributed to the pain

she experiences when reaching, twisting and bending. I expect that the

provision of a long-handled sponge will increase Ms Ploenges's capacity for

showering independently by eliminating the need for bending, twisting and

Ms Ploenges confirmed she is able to dress her upper body independently

and sits on her bed while dressing. She reported she deliberately wears

clothing that does not have back zippers or buttons to make dressing

Ms Ploenges is able to dress her lower body, including donning/doffing

shoes and socks, independently with modified techniques. She will often sit

Ms Ploenges confirmed she is able to clean her teeth and face

Ms Ploenges reported she is able to cook independently despite finding it

can exacerbate her symptoms of pain. She will typically have one big day

Ms Ploenges has modified her approach to performing washing tasks and

shares these tasks with her husband. With difficulty, Ms Ploenges is able to

lift washing from the machine to the basket, which is on the trolley. She

then wheels the trolley to the side veranda of their home and lifts the washing, which is at a raised height from the trolley to the clothes airer.

1. Mr Mate also reported that Ms Ploenges could:
   • Trim her fingernails independently;
   • Access the shops on a weekly basis; and
   • Mop and sweep her floors on a daily basis using a light trigger spray mop, also wipe down a bench.

1. I am satisfied based on the evidence that Ms Ploenges' functional capacity to participate in the tasks comprised of the activity of self-care is not substantially reduced. Ms Ploenges is able to undertake a range of tasks in respect of her personal hygiene, grooming, eating and drinking. She is also able to independently manage her health care which includes her medication and medical reviews.

1. The Operational Guidelines describe self-management as follows:

Self-management - how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to- day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

1. In her oral evidence Ms Ploenges referred to the following:
   • She is able to keep a diary with her appointments;
   • She prepares a weekly 'meal plan';
   • She prepares a weekly shopping list.[88] This list is prepared of the basis of the ingredients she requires for her weekly 'meal plan':[89]
   • When shopping at the supermarket she will buy items which are on special or are a 'better price';
   • Her husband pays all bills however she has her own bank account which her disability pension is paid into.
2. Dr Clark, general practitioner stated that Ms Ploenges was unable to physically manage cleaning, gardening, shopping or driving as a result of impairments.[90] Again I consider Dr Clarke misunderstands the nature and concept of 'self- management' for the purposes of the scheme.
3. In his report Mr Mate stated:

Ms Ploenges is independent in regards to all self-management activities.

Examples of her independence in this domain include:

• she organises all of her own medical and therapy appointments

• she has her own bank account and she manages her own finances

Based on my observations during this assessment, Ms Ploenges has the

capacity to plan, solve problems, and make decisions without assistance. In

my opinion, Ms Ploenges does not have any requirements for assistance in the domain of self-management

1. I am satisfied based on the evidence that Ms Ploenges' functional capacity to participate in the tasks comprised of the activity of self-management is not substantially reduced. Ms Ploenges is able to undertake a range of tasks in respect of her personal organisation and planning, personal decision making including decisions in relation to her self-care, health and even planning what meals she will prepare and eat.[91]

Conclusion - subsection 24(1)(c) of the NDIS Act

1. Ms Ploenges does not appreciate that the satisfaction of the threshold for a 'substantially reduced functional capacity' in the activity areas of subsection 24(1)(c) of the NDIS Act equates to a level of functional capacity which is significantly lower than her current level of functional capacity. The fact that her current level of functional capacity is lower than the level she once enjoyed does not of itself establish that she meets this threshold.
2. Subsection 24(1)(c) of the NDIS Act is not satisfied.
3. Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under subsection 24(1) of the NDIS Act. Ms Ploenges does not meet the disability requirements.

Section 25 NDIS Act: The Early Intervention Requirements

1. Ms Ploenges contends also that she satisfies the early intervention requirements of section 25 of the NDIS Act.
2. Ms Ploenges' evidence is that she seeks as examples the following supports on the basis that they are early intervention supports:
   • assistance with reaching items in her cupboard;
   • assistance with washing because her washing machine is 'too low'
3. I am not satisfied that these supports, as identified by Ms Ploenges, could be considered 'early intervention' in nature, or that they would reduce her future support needs for the purposes of subsection 25(1)(b) of the NDIS Act.[92]
4. I am not satisfied that the provision of early intervention supports for Ms Ploenges is likely to reduce her future needs for support for the purposes of subsection 25(1)(b) of the NDIS Act.
5. As stated, the early intervention requirements in section 25 of the NDIS Act are cumulative. Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied I am not required to consider the remaining criteria under section 25 of the NDIS Act. Ms Ploenges therefore does not meet the early intervention requirements.

1. Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements Ms Ploenges does not meet the access criteria and will not be granted access to the scheme.

1. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2025 (Cth).

1. I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

[3] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

[4] National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [19].

[5] Subsection 21(1)(a) of the NDIS Act, A1 at [8].

[6] Subsection 21(1)(b) of the NDIS Act, A1 at [8].

[7] National Disability Insurance Agency v Foster [2023] FCAFC 11 at [62], National Disability Insurance Agency v Lampard [2025] FCAFC 139 at [40].

[8] National Disability Insurance Agency, Applying to the NDIS 10 December 2024

[9] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 24 ALR 577 at [590].

[11] G v Minister for Immigration and Border Protection [2018] FCA 1229.

[13] National Disability Insurance Agency v Davis [2022] FCA 1002 at [42].

[14] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 at [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28 at [29]; National Disability Insurance Agency v Davis [2022] FCA 1002 at [61].

[15] Applicant's opening - Day 1 recording.

[16] Applicant's opening - Day 1 recording.

[17] Applicant's opening - Day 1 recording.

[18] Applicant's opening - Day 1 recording.

[19] Applicant's opening - Day 1 recording.

[22] Respondent's opening - Day 1 recording.

[25] Day 1 recording Respondent's opening. The Agency accepts that s24(1)(d) will be satisfied if the Tribunal finds that s24(1)(c) is satisfied.

[38] T11, Mindfulness and Pain Program T8.

[48] Rooney and National Disability Insurance Agency [2021] AATA 3523.

[54] NDI v Lampard [2- 25] FCAFC 139 at [51].

[57] Garcia Albiol v NDIA [2024] AATA 496.

[58] Moxham v CEO, NDIA [2025] ARTA 290_; Foster v NDIA_ [2025] ARTA 718_; TZQP v CEO, NDIA_ [2025] ARTA 839_; Coffey v CEO, NDIA_ [2025] ARTA 634_; Burrows v CEO, NDIA_ [2025] ARTA 607_; BFYK v NDIA [2025] ARTA 1006; KNNW v NDIA_ [2025] ARTA 1033_; Foster v NDIA_ [2025] ARTA 718_._

[62] Madelaine v National Disability Insurance Agency [2020] AATA 4025 at [79].

[63] Burrows v NDIA [2025] ARTA 697 at 87.

[65] Kilgallin and NDIA [2017] AATA 186 at [18].

[66] 2023] AATA 2835 [79].

[89] See also C3, applicant is able to check fridge.