1. In December 2020, Ms Thompson first applied to access the NDIS.[1] That application was refused by a delegate of the Chief Executive Officer (CEO) of the Agency in January 2021.[2] A later application by Ms Thompson was decided on 9 October 2023,[3] with the CEO's delegate finding that Ms Thompson had not met the disability requirements under section 24 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), or the early intervention requirements under section 25 of the NDIS Act.
2. On 30 October 2023 Ms Thompson asked the Agency to conduct an internal review of that decision.[4] On 5 February 2024 another delegate of the CEO upheld the original decision that Ms Thompson did not meet the access requirements for the NDIS.[5] This is the 'reviewable decision' (the decision under review) that is now before the Tribunal.
3. In providing reasons for that decision to Ms Thompson, the Agency's decision-maker advised that while Ms Thompson met the age and residency requirements in the NDIS Act, and also the requirement of having disability attributable to physical impairments, the decision-maker was not satisfied that Ms Thompson had met the criteria relating to the permanence of all of her relevant impairments; that any of her impairments resulted in substantially reduced functional capacity; that her impairments affected her capacity for social or economic participation, or that she will likely require NDIS support for the rest of her life. The delegate also found that Ms Thompson did not meet the early intervention requirements in the NDIS Act. I will explain these criteria in more detail below.
4. On 6 March 2024 Ms Thompson lodged an application with the former Administrative Appeals Tribunal (the AAT) seeking review of this decision.[6]
5. 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 (Cth), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. The review was heard by video (by Microsoft Teams) on 21 and 22 January 2026. Ms Thompson represented herself throughout the review and at the final hearing. The Agency was represented by Ms Sarah Varney of Counsel, instructed by Maddocks Lawyers.
7. At the hearing, the Tribunal had before it the evidence and other materials filed by the parties during the review. This included the documents lodged by the Agency under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-Documents). All these materials were collated in the form of a Joint Hearing Bundle, prepared and filed by the Agency, following discussion between the parties. The Hearing Bundle became Exhibit 1 in the proceedings. Part E of that Hearing Bundle contained records produced under summonses, issued by the Tribunal at the request of the Agency, by the general medical practice attended by Ms Thompson and also the Victorian Transport Accident Commission (the TAC).
8. During the hearing the Agency filed an additional record, being an internal Agency memorandum dated 1 May 2024. This became Exhibit 2. The Agency also filed a note dated 21 January 2026, which helpfully set out all of Ms Thompson's impairments; this became Exhibit 3.
9. The Agency filed detailed written submissions during the review, being its Statement of Facts, Issues and Contentions, filed on 3 October 2025 (the Agency's SFIC).[7] Ms Thompson also filed a written document dated 17 December 2025, explaining why she disagreed with the Agency's decision.[8] Ms Thompson also filed a number of additional medical reports and other materials as the review progressed; these were included at Part C of the Hearing Bundle.
10. Ms Thompson gave evidence at the hearing. The Agency called Ms Natalie Agnoletto, an Occupational Therapist who had undertaken an independent functional assessment of Ms Thompson at the Agency's request. Ms Agnoletto's report, dated 25 June 2024 (Ms Agnoletto's report), was in evidence and was included in the Hearing Bundle,[9] as was the letter of instruction provided to her by the Agency.[10]

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[12]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[13] In undertaking its review, the Tribunal may exercise all the powers and discretions that are conferred on the maker of the decision under review.[14] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[15]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the access criteria in the NDIS Act), they cannot succeed.[16]
2. In the recent appeal decision of National Disability Insurance Agency v Lampard [2025] FCAFC 139 (Lampard) the Full Court of the Federal Court cited with approval the following observations made by Senior Member French of the Tribunal in Foster and National Disability Insurance Agency [2025] ARTA 718, 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) (Foster):

Section 21(1) [of the NDIS Act] 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.[17]

1. The applicable legislation in this review is the NDIS Act. Section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements and the section 25 early intervention requirements. Those rules, being the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules), are also applicable.

1. After Ms Thompson filed her application for review with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note are the changes that were effected by the amending Act to the NDIS access requirements; while the age and residence requirements remained unchanged, amendments were effected to the disability and early intervention requirements. Additionally, amendments were made to section 21 of the NDIS Act to require the decision-maker to separately consider and decide whether a person meets the disability requirements or early intervention requirements or both. These changes were effective from 3 October 2024.[18] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when Ms Thompson applied to access the NDIS, and later applied to the AAT, or those that appear in the NDIS Act, as now amended.
2. The amending Act included transitional provisions. Under Items 125 and 126 in Part 3 of Schedule 1 of the amending Act, the amendments made to the section 21 access requirements and the amendments made to the disability requirements under section 24 and the early intervention requirements under section 25 of the NDIS Act respectively, apply to a person who makes an access request on or after 3 October 2024. Accordingly, as the amendments made to the access provisions of the NDIS Act only apply to persons making their access request on or after 3 October 2024, Ms Thompson's application must be determined in accordance with the provisions of the NDIS Act existing before that date.
3. Further, Item 126(3) in Part 3 of the amending Act addresses the status of rules made under section 27 prior to 3 October 2024, providing that the rules that were in force immediately before the commencement of Schedule 1 continue in force. This in turn means that the version of the Access Rules in existence prior to 3 October 2024 continues to apply.

1. Section 18 of the NDIS Act provides that a person may make a request (an access request) to the Agency to become a participant in the NDIS. Pursuant to section 20 of the NDIS Act, the Agency's CEO must decide if the person making the access request meets 'the access criteria'. Section 21(1) of the NDIS Act (as it read prior to 3 October 2024) sets out the relevant requirements for this, and provides:

21 When a person meets the access criteria > > (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. Section 9 of the NDIS Act defines 'meets the disability requirements' to have the meaning given by section 24, which provides 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 five disability requirements set out in section 24(1) are cumulative; that is, all of these requirements must be met.
5. Section 9 of the NDIS Act also defines 'meets the early intervention requirements' to have the meaning given by section 25, which provides as follows:
   1. Early intervention requirements

(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;

(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.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(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) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that 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:

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

1. Similarly, the early intervention requirements under section 25(1) are cumulative.
2. The evidence filed in the review identified that unfortunately Ms Thompson has been involved in two car accidents, in 2014 and 2015. Those accidents gave rise to some significant injuries. Ms Thompson sought assistance from the TAC, which provided assistance and supports over a period of time. However, Ms Thompson was no longer receiving any assistance from the TAC, as of the hearing dates.[20]
3. The evidence filed in the review identified that Ms Thompson has a number of medical conditions, some arising from her motor accidents, and others that are unrelated to those events. Not all of the impairments arising from these conditions were relied upon by Ms Thompson, for the purposes of her request to access the NDIS.
4. As noted, the Agency prepared a helpful list noting Ms Thompson's various impairments.[21] That list was in two parts, respectively dealing with those conditions and impairments that Ms Thompson was relying on for purposes of access to the NDIS, and some other conditions and impairments that Ms Thompson has, but was not relying on.
5. Recent Tribunal decisions have noted the utility of the International Classification of Functioning Disability and Health (ICF)[22] as extrinsic material providing a useful analytical framework for the purposes of considering an Applicant's impairments, pursuant to section 24(1)(a) of the NDIS Act.[23] The Agency's list was prepared with reference to the ICF. Part A of the list set out those impairments relied upon by Ms Thompson for access to the NDIS:

Disc prolapse; disc injury to lumbar spine[24]

• impaired sensory functions and pain, being the sensation of pain in the back[25] and left shoulder;[26]
• impaired neuro-musculoskeletal and movement-related functions, being:
  • impaired mobility of a joint (left shoulder);[27]

1. Body structures:
   • impaired body structures, being:
     • lumbrosacral spinal cord;[28]
     • the muscles of the shoulder region (bilateral)[29]

Left subacromial bursitis (shoulder); SLAP tear [of cartilage][30]

Pain in left shoulder radiating to fingers[31]

Small tear in tendon of right shoulder[33]

1. I will return to these impairments below. For present purposes, I note that the Agency accepted that Ms Thompson's physical and sensory impairments, arising from her back and shoulder disabilities, met the permanence criteria under section 24(1)(b) of the disability requirements.[34]

Part B of the Agency's list set out those impairments which are experienced by Ms Thompson, but which are not relied on by her for the purposes of access to the NDIS. As such, I will set out only excerpts from the Agency's list that describe these impairments (and not include the ICF reference or the source materials).

Mild disc bulges in cervical spine, indicating spondylosis [age-related wear]; soft tissue injury in 2015

Left hip subluxation due to motor accident in December 2016. Arthroscopic hip surgery on 23 May 2016 (funded by the TAC)

Poor grip strength in left hand; fingers locking up

1. During the review Ms Thompson confirmed that she was also not relying on impairments arising from sleep apnoea and also a psychosocial condition.[35] This position was confirmed by Ms Thompson at the beginning of the hearing.
2. As noted, in contest was whether Ms Thompson satisfied the requirements concerning:

(a) Whether her permanent impairments result in substantially reduced functional capacity criteria pursuant to section 24(1)(c), in the domains of social interaction, mobility and self-care.[36] Ms Thompson confirmed during the hearing that she was not submitting that her impairments resulted in substantially reduced functional capacity in the remaining three domains of communication, learning and self-management. For the reasons I have explained below, this was an appropriate position. > > (b) Whether her permanent impairments affect her capacity for social or economic participation;[37] > > (c) The requirement of support under the NDIS for the person's lifetime, under section 24(1)(e).[38]

3. Ms Thompson did not seek to pursue the early intervention requirements as a pathway to access the NDIS. Again, this was appropriate in my view, and I will deal briefly with that pathway below.

1. As noted, section 27 of the NDIS Act provides for the making of NDIS Rules relating to the section 24 disability requirements. Section 27 provides:

27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements

The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:

(a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(1)(a)(i) or (ii); or

(b) one or more impairments result in substantially reduced functional capacity of a person to undertake one or more activities for the purposes of paragraph 24(1)(c); or

(c) one or more impairments affect a person's capacity for social and economic participation for the purposes of paragraph 24(1)(d); or

(d) the provision of early intervention supports is likely to benefit a person by reducing the person's future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or

(e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person's functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or

(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person's carer for the purposes of subparagraph 25(1)(c)(iv).

1. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. As noted, NDIS Rules relating to the disability and early intervention requirements have been made (the Access Rules). Relevantly, Part 5 of those Rules addresses 'When does a person meet the disability requirements?' and the requirements of 'permanency' and 'substantially reduced functional capacity to undertake relevant activities.'
2. Specifically, rules 5.4 to 5.7 (inclusive) of the Access Rules address the issue of when is an impairment permanent or likely to be permanent for the disability requirements. These Rules provide as follows:[39]

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.

1. Rule 5.8 addresses the issue of when does an impairment result in substantially reduced functional capacity to undertake one or more of the relevant activities outlined in section 24(1)(c) of the Act, and provides:

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.

1. The Agency has also issued some Operational Guidelines which are relevant to applications to access the NDIS. These guidelines are published on the NDIS website and are described by the Agency as guidelines that set out some of the Agency's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation.' [40] The guidelines of most relevance to this review are those entitled 'Applying to the NDIS' (the Access Guidelines), being that version of the Access Guidelines relating to requests for access to the NDIS made before 3 October 2024.
2. Unlike the NDIS Rules, the NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[41] As such, the Guidelines set out the Agency's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[42]

1. Ms Thompson prepared and provided a number of documents that addressed her impairments and their impact on her life. These included an undated letter, prepared when Ms Thompson was 45 years of age (which reflects that it was prepared some four to five years ago);[43] an impact statement;[44] and Ms Thompson's statement in response to the Agency's decision under review.[45] The impact statement included information about Ms Thompson's experience of 'good' and 'bad' days, stating that in a typical week she would have four good days and three bad days. Ms Thompson also provided a timeline of events regarding treatments undertaken by her, and her current 'pain management plan.'[46]
2. Important evidence going to the main issue of contest, being Ms Thompson's functional capacity, was provided by her when she gave evidence on 22 January 2026. In her opening comments and in her initial evidence, Ms Thompson explained:
   • That her lower back and shoulder impairments cause severe and chronic pain and significant functional limitations, and that she is seeking access to the NDIS for support to manage her pain and to live independently.
   • Due to her impairments, she has made significant modifications to her home and her lifestyle, in an effort to remain as independent as possible. Examples included raising bench heights in the kitchen at her home, to reduce bending, and buying a vehicle with heated seats, to manage her back pain while driving.
   • She has done everything in her power to rehabilitate her injuries and impairments and to remain as independent as possible, following all medical advice, including from surgeons, physiotherapists and pain specialists.
   • Notwithstanding her extensive rehabilitation activities, she still experiences limitations and has been advised by medical specialists that 'task avoidance' is essential for managing her conditions. Ms Thompson explained the advice about 'task avoidance' as being that she should not perform repetitive household tasks (such as bending to empty the dishwasher, hanging out laundry, cleaning bathrooms, mopping floors, lifting pans of food and changing bed sheets) at all, not even slowly. Attempting these tasks, which she has done on many occasions, causes significant back and shoulder pain. Without such task avoidance, 'my pain escalates quickly and my functioning drops significantly.'
   • Grocery shopping was 'extremely difficult' for her, because of the bending, lifting and carrying activities involved.
   • Her impairments have reduced her capacity to work full-time, leading to the need to reduce her hours. Working full-time is no longer sustainable. She/her family currently pay for a cleaner and gardener. During her evidence, Ms Thompson explained that she worked approximately 25 hours per week in a finance role, which is '100% a desk job.' She is able to work flexibly, spreading her hours across five days. This helps her to manage her rehabilitation activities, such as going to the gym or the pool or for physiotherapy. Some days she works a full day. Ms Thompson works primarily from home, occasionally attending one of two office locations. Of these, she drives to one, being a journey of approximately 30 minutes. She is able to park outside the door to the office. To attend the other location, she will travel by train. Her employer provides a laptop at each location, so that Ms Thompson does not have to carry that equipment. At work she engages at times with her colleagues, including attending meetings in the office or over MS Teams.
   • Until July 2025, her husband had helped with household tasks on weekends, but he was presently incapacitated following surgery and unable to provide such assistance. Ms Thompson's two children have disability and cannot provide consistent support.[47]
3. During questioning by the Agency's Counsel, Ms Thompson gave evidence:
   • Explaining how the family/household laundry tasks are undertaken, with some assistance from her children, in order to limit bending actions on her part.
   • Similarly, explaining how she can prepare simple meals for herself, such as a salad for lunch, but when making dinner for the family she experiences difficulty with 'things that involve lifting and straining, or standing for periods of time.' Sometimes her husband will provide some limited assistance.
   • Confirming the advice she provided to Ms Agnoletto during her functional capacity assessment, as to the use of some items to assist her with performing cleaning tasks, in between the regular visits by her paid cleaners, such as a long-handled dustpan and broom and a lightweight upright vacuum. These items help to reduce the need for her to perform bending actions. Ms Thompson also advised that she has allocated the task of performing 'spot vacuuming' to her son.
   • About some findings in the report of a pain medicine specialist (Dr Poel), who noted that upon examination in July 2023,[48] Ms Thompson's range of movement in her shoulders and her lumbar spine was 'normal and pain-free.' Ms Thompson stated that she had never had a full range of movement in her left shoulder since her motor vehicle accident (in 2014) and that she would ensure she maintained task avoidance (such as would cause her pain), before seeing Dr Poel. She also stated that his advice to her about this was to 'keep doing what you're doing.' It is noted that in this report Dr Poel concluded as follows, in a section titled 'Impression and Recommendations:

Today I have not identified pathology amenable to interventions such as surgery or injection therapy on review today.

Current management strategies, including self-care, physiotherapy, and psychological support, are effectively maintaining Colette in stable employment and promoting a stable mood.

I recommend that Colette continues her current self-management and therapeutic strategies, including home help, which seems beneficial in maintaining her self-management and emotional stability.

• It was also noted that Dr Poel's report of July 2023 referred to a 'recent trip' to England. Ms Thompson explained that this was a family trip to see her extended family, rather than a busy tourist holiday, and that she would not have been able to undertake the trip without support from her immediate family. She received assistance at the airport and took medication to help her sleep during the flight and to manage her pain, and undertook a stop-over on the flight home to get some rest.
• With self-care activities, such as showering, Ms Thompson's husband would previously assist her by scrubbing her lower legs and feet once a month. As he was unable to do this now, Ms Thompson undertook this task herself, supplemented by a monthly pedicure and leg scrub provided during beautician services.
• Again, Ms Thompson's husband had previously assisted her with styling her hair, but she now undertook this herself, and had changed her hair style to having shorter hair.

1. Ms Thompson also explained during her evidence that she regularly attends a gym and a pool to undertake rehabilitative exercise, usually attending every Wednesday at the gym; every Thursday at the gym followed by the pool; and again at the gym on Friday and once over the weekend. Ms Thompson stated that her attendance 'all just depends on how I'm feeling, but it is at least four times a week, definitely.' Additionally, she sees a chiropractor; a lady who performs massage; and attends sessions with her physiotherapist. All of these sessions are monthly. She also attends rehabilitative clinical pilates sessions on a Monday.
2. Ms Thompson explained that her physiotherapist guides her exercise sessions, providing three-to-four shoulder exercises and some back exercises to undertake at the gym, some of which, such as modified deadlifts, involve the use of light weights of up to ten kilograms. She also uses some gym machines, such as a hip abductor machine, again with light weight settings. She does not perform these exercises at each gym session and does limited repetitions, to avoid fatigue. At the pool, she performs exercises such as deep water running and an aqua aerobics class, designed for people who are either elderly and/or with disability.
3. Ms Thompson also advised that her exercise regime has been in place since her hip surgery, some eight-to-nine years ago, and she has built it up slowly, although she quickly deteriorates if she takes a break from her program (such as over Christmas).
4. I note that there was some divergence between what was stated in some of the written materials provided by Ms Thompson and her evidence at the hearing, as to aspects of her functional capacity. For example, in her written response to the Agency,[49] Ms Thompson stated that cooking was 'beyond my capacity.' As noted above, her evidence at the hearing, and also that provided to Ms Agnoletto at the time of her assessment, reflected that Ms Thompson can undertake some cooking tasks, albeit experiencing some difficulty and pain, and requiring assistance from family members with some aspects. I am satisfied that Ms Thompson gave her evidence in a truthful way at the hearing, and where such differences exist, I will rely on that more recent evidence.

1. Much of the medical evidence provided in the T-Documents, particularly that relating to Ms Thompson's first application to access the NDIS in 2020, was quite dated by the time of the hearing. While I have considered all of those materials, I found the more recent evidence to be of greater assistance.
2. The general picture emerging from the more recent medical evidence is that Ms Thompson's impairments are now enduring in their nature and stable, despite the treatment options undertaken. For example, Dr Craig Timms, a neurosurgeon, stated upon review of Ms Thompson in March 2025:[50]

She is managing her symptoms by working part time, three days a week. She does physio, hydro, aqua therapy, and walking. and she is good under her current self-managed rehab type programme at the moment, though she is quite limited and avoids a number of tasks in order to maintain her current level of function.

From my point of view, Collette is clinically very stable. Her MRI scan recently performed on Capital Radiology shows a small residual disc bulge at L5/S1, and a disc injury at L5/S1. Though Collette is clinically stable under her current regime, it is likely that the disc will increase again.

From my neurosurgical point of view she does not require any neurosurgical operative intervention and her condition has stabilised. She is unlikely to need surgery in the future. The current plan and treatment management should be ongoing as it is maintaining her level of function. Avoidance of the known physical tasks that aggravate the spine, particularly household tasks and repetitive lifting and bending, and these types of things is a good idea.

I hope she is able to continue to self-manage, as she has been, and it continues keeping control of the symptoms.

1. Ms Thompson's chiropractor provided a short report confirming that 'she receives specific Chiropractic spinal adjustments approximately every four weeks and remedial massages every three months.'[51]
2. Ms Thompson's physiotherapist also confirmed that Ms Thompson has attended his practice 'on a regular basis for rehabilitation purposes since 2016 ... '[52]
3. It is noted also that within the T-Documents is a report on some 'outcome' assessments undertaken by Ms Thompson, regarding her shoulder pain and her back pain. A musculoskeletal pain screening questionnaire was also administered.[53] These assessments were undated. In these assessments, Ms Thompson noted (relevant to the domains of functional capacity in issue in the review) that:
   • Her worst shoulder pain was experienced when washing her back and removing something from her back pocket, followed by carrying a heavy object (4.5 kilograms).
   • Her back pain:
     • Causes her to need help every day in most aspects of her self-care.
     • Limits her to lifting only very light weights.
     • Does not prevent her sitting in her favourite chair for as long as she liked.
     • Prevents her for standing for more than 30 minutes.
     • Cause her to sleep for less than six hours.
     • Restricts her social life and she does 'not go out as often.'
     • Causes bad pain but she can manage journeys over two hours.
4. The Occupational Therapist who supports Ms Thompson's children also provided a letter. This report addressed her children's disability, and how that impacts upon their respective capacities to provide assistance to their mother with activities of daily living, such as household tasks, limiting them to providing 'occasional assistance', and noting they 'cannot be relied upon to complete these tasks routinely or independently.'[54]

EVIDENCE OF MS AGNOLETTO, OCCUPATIONAL THERAPIST

1. As noted, Ms Agnoletto was engaged by the Agency to undertake a functional assessment of Ms Thompson, and to report. Ms Agnoletto gave evidence at the hearing and confirmed the contents of her report dated 25 June 2024.
2. Ms Agnoletto undertook some standardised assessments of Ms Thompson. These included:

Functional Independence Measure (FIM) - a measure of overall disability; '[t]he FIM instrument is a basic indicator of patient disability and is used to track the changes in functional ability of a patient during an episode of hospital rehabilitation care. It has been adapted to be used within the community setting as an overall indicator of disability and support needs.' Ms Thompson scored 111 out of 126, indicating 'modified independence ( In that case Mortimer J rejected an argument advanced by the NDIA that permanent meant "irreversible" or "untreatable" (at [77]). Her Honour instead held (at [85]) that the correct meaning of "permanent" in s 24(1)(b) is "enduring", noting that > > ... This meaning reflects the purpose and context of the legislative scheme, as a scheme intended to deliver lifelong support to persons with disability.[63]

4. In Davis, in deciding that the correct meaning of 'permanent' in s 24(1)(b) is 'enduring', Mortimer J further commented about the effect of the adjectival use of 'permanent' to the noun "impairment" in section 24(1):

"The focus of the text, consistently with the purposes of the scheme, is whether the impairments experienced by individuals (rather than the cause of the impairments or the specific diagnoses which might be applied to a medical condition) have an enduring quality so as to fit within the conceptual emphasis of the scheme." [64]

5. As noted, Rule 5.4 of the Access Rules provides that an impairment will only be considered permanent if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment. In Davis, Mortimer J considered the meaning of the word 'remedy' in Rule 5.4:

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.[65]

1. The Access Guidelines also help in assessing permanency (footnotes omitted):

We need evidence that you'll likely have your impairment for your whole life.

You might have some periods in your life where there is a smaller impact on your daily life, because your impairment may be episodic or fluctuate in intensity. Your impairment can still be permanent due to the overall impact on your life, and the likelihood that you will be impacted across your lifetime.

Even when your condition or diagnosis is permanent, we'll check if your impairment is permanent too. For example, you may not be eligible if your impairment is temporary, still being treated, or if there are remaining treatment options.

Generally, we'll consider whether your impairment is likely to be permanent after all available and appropriate treatment options have been pursued.

Your impairment will likely be permanent if your treating professional gives us evidence that indicates there are no further treatments that could relieve or cure it.

Your treating professional will tell us or be asked to certify if there are medical, clinical or other treatments that are likely to remedy your impairment. We need to understand whether there are treatments that are:

• known and available
• appropriate for you and your impairment
• evidence-based - that is, there's proof they are likely to be effective.

The word treatment should be understood in a broadest sense and may include changes to your diet and lifestyle. So, for example, conditions such as obesity are unlikely to be found to be permanent.

If you're still undergoing or have recently had treatment, we'll need to wait until you know the outcome of the treatment before we can decide your impairment is likely to be permanent.

In some situations, it may be clear your impairment is likely to be permanent while you're still undergoing treatment or rehabilitation. For example, you may still need treatment and rehabilitation for a spinal cord injury, but it's clear you'll have a permanent impairment.

You might still have a permanent impairment, even if its effects may change over time.

For degenerative impairments, or those that get worse over time, we consider them permanent if treatment isn't likely to help or improve the impairment's effects.

1. Mortimer J's consideration of the term 'remedy' in Davis has been set out above. In Davis, Mortimer J also considered the proper construction of the descriptors 'known', 'available' and 'appropriate' in Rule 5.4:

The executive has chosen to use three descriptors, each of which must be given work to do. See Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, Griffith CJ; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71], McHugh, Gummow, Kirby and Hayne JJ; Wilkie v Commonwealth [2017] HCA 40; 263 CLR 487 at [146]; District Council of Streaky Bay v Wilson [2021] FCAFC 181; 287 FCR 538 at [63]. On the application of principles of statutory interpretation to delegated legislation, see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [28]. See also Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417; Acts Interpretation Act 1901 (Cth) s 46(1); Legislation Act 2003 (Cth) s 13(1).

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".[66]

As a general observation, in my opinion each of the adjectives must be construed as referring to circumstances in Australia. In r 5.4, the word "known" connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment. The word "appropriate" connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo. The capacity of individuals with an impairment to undergo certain treatments may vary depending on their physical and psychological capabilities, other aspects of their physical and mental health, on their personal circumstances in terms of where they live and who they live with, and who cares for them.

The word "available" should be understood as meaning available to a particular individual. If it were to be construed as meaning "exists in Australia", then it would have little different work to do from the word "known". The Macquarie Dictionary defines "available" as meaning:

"adjective 1. suitable or ready for use; at hand; of use or service ... "

Assuming as I do the validity of r 5.4, and on the premise any given treatment is "known" and "appropriate" as I have explained those terms, in my opinion the adjective "available" should be understood as directed at what treatments an individual can, in reality, access. Whether a person can afford a treatment will form part of the factual circumstances a decision-maker may need to examine in deciding if a treatment is one that an individual can in reality access.

Affordability may not be the only feature of a treatment affecting whether an individual can access a treatment. For example, whether a known and appropriate treatment for an impairment for a person in a remote Aboriginal community in Australia is "available" to that person is likely to involve considerations of whether that treatment can be delivered in that community, or whether a person has to travel to a major city or regional town to receive that treatment. So too the personal circumstances of a person, and the combination of impairments they might have. If a person has severe agoraphobia, but also has an impairment for which there is a known and appropriate treatment that can only accessed at a busy public hospital, a decision-maker may need to consider whether, as a matter of fact, that treatment is "available" to that individual, even if it might be "available" to a person without agoraphobia. [67]

1. Mortimer J also observed that Rule 5.4 (and also Rule 5.6) is exclusionary in nature, and that these rules:

... 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 the permanency criterion in s 24(1)(b).[68]

1. As noted above, the medical evidence in the review establishes that Ms Thompson's above impairments are stable and long-standing in their nature. The evidence also establishes that Ms Thompson has diligently followed medical and allied health advice as to both her treatment options and rehabilitation activities designed to manage the impacts of these impairments.
2. As such, in considering Rule 5.4 of the Access Rules, and whether there are known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairments that Ms Thompson has, I am satisfied that she has for some time accessed a recommended range of known, available and appropriate treatments. Further, the medical evidence is that those treatments are not likely to 'remedy' those impairments, in the sense of removing or curing them.
3. Accordingly, I am satisfied that the impairments I have noted above arising from Ms Thompson's back and shoulder conditions are permanent, for the purposes of section 24(1)(b).
4. Accordingly, I find that Ms Thompson meets the permanency criteria in section 24(1)(b) of the NDIS Act in relation to the impairments that I have previously identified above.
5. Therefore, those impairments will be considered in determining if Ms Thompson meets the criteria of substantially reduced functional capacity in section 24(1)(c) of the NDIS Act.

Section 24(1)(c) - substantially reduced functional capacity

1. As noted, this is a main issue of contest in this review, with Ms Thompson asserting that her impairments result in substantially reduced functional capacity in the domains of social interaction, mobility and self-care.
2. Ms Thompson does not assert a substantial reduction of functional capacity in the domains of communication, learning and self-management. Ms Agnoletto did not observe any reduction in functional capacity in these three domains and there was no other evidence capable of supporting a finding that Ms Thompson has substantially reduced functional capacity in any of these three domains.
3. Accordingly, I find that Ms Thompson does not have substantially reduced functional capacity in the domains of communication, learning or self-management.
4. However, to meet the requirement within section 24(1)(c), it is only necessary for Ms Thompson to establish that her permanent impairments result in substantially reduced functional capacity in one of the three domains remaining in dispute.
5. Rule 5.8 of the Access Rules has been set out above. In Mulligan, Mortimer J explained the operation of Rule 5.8:

Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have "substantially reduced functional capacity" for the purposes of s 24(1)(c) of the Act.

Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person's impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates_.[69]_

1. Further, Mortimer J noted in relation to the Tribunal's statutory task of considering whether a person's functional capacity is substantially reduced in any of the relevant six activities, that Rule 5.8 does not exhaustively define the concept of "substantially reduced functional capacity":

I note that the Tribunal appears to have approached the concept of "substantially reduced functional capacity" in s.24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. 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 her mind to whether an applicant falls within the meaning 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.[70]

1. As such, my task in assessing Ms Thompson's functional capacity is effectively two-fold. The first is to consider whether her circumstances are included within the deeming effect of Rule 5.8. Should Rule 5.8 not be enlivened, I must still proceed to determine whether Ms Thompson's functional capacity in any of the six activities is substantially reduced.
2. There are three subparagraphs in Rule 5.8. They operate as alternatives. Subparagraph (a) of Rule 5.8(a) requires an assessment as to whether Ms Thompson is unable to participate 'effectively or completely,' or to perform tasks or actions required to undertake or participate effectively or completely in one or more of the relevant activities, without assistive technology, equipment (other than commonly used items), or home modifications.
3. The terms 'assistive technology' and 'equipment' are not defined in the NDIS Act or the Access Rules. However, the NDIS has issued an 'Assistive Technology' Operational Guideline, which provides:

The World Health Organisation has a universal definition of assistive technology.

Assistive technology is equipment or devices that help you do things you can't do because of your disability. Assistive technology may also help you do something more easily or safely. Assistive technology will reduce your need for other supports over time.

This could be small things like non-slip mats, or special knives and forks. It could be big things like wheelchairs and powered adjustable beds. It also could be technology like an app to help you speak to other people if you have a speech impairment.

Not all equipment or technology you use is assistive technology. Many people use some equipment as part of their lives, for example, a radio to listen to music, or a standard microwave oven to cook food.

Assistive technology is only the equipment you need because it helps you do things that you normally can't do because of your disability.[71]

1. The term 'commonly used items' as it is used in Rule 5.8(a) was considered by the Tribunal in Rooney and National Disability Insurance Agency [2021] AATA 3523, where the Tribunal identified the following indicators as to whether items of assistive technology should be considered to be 'commonly used items'; being where they were generally accessible; can be used without the need for complex or specialised customisation or installation; are relatively simple to use; and are relatively inexpensive
2. Alternatively, Rule 5.8(b) addresses whether Ms Thompson usually requires assistance from other people to participate in the activity, or to perform tasks or actions required to undertake or participate in the activity. Ms Thompson will be deemed to meet this requirement if I am satisfied that she usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in one of the three relevant activities specified in section 24(1)(c), or to perform tasks or actions required to undertake or participate in the activity. In this context, the Access Guidelines provide that a person's impairment will substantially reduce their functional capacity if they usually need 'disability-specific supports' to participate in or complete tasks in the six domains. These 'disability-specific supports' are expressed to include, in addition to assistive technology and home modifications (as dealt with above), a 'high level of support from other people.'
3. Finally, Rule 5.8(c) addresses whether Ms Thompson 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. For the reasons set out below, this paragraph of Rule 5.8 is not of application to Ms Thompson's circumstances.
4. In Foster, the Full Court of the Federal Court considered the proper construction of the words 'effectively or completely' in Rule 5.8(a), concluding that a person will not necessarily be deemed to have a substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.[72]
5. Further, in Mulligan, Mortimer J said the following about the operation of section 24(1)(c) of the Act:

[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.[73]

6. In the context of how section 24(1)(c) is to operate, a subjective comparison between what a person could do before the onset of their disability and their function currently is 'not the appropriate yardstick'.[74] The Tribunal must also distinguish between what the person does not do, as opposed to what they cannot do.[75]

1. Ms Thompson contended that the reality of her daily life reflected that she experiences substantially reduced functional capacity in each domain in issue. In her closing comments at the hearing, she reiterated the tasks relating to household activities and mobilising that she undertakes with modifications, or avoids. Ms Thompson noted the importance of task avoidance and her rehabilitation activities, explaining that her adherence to these practices (and the medical advice underpinning them)[76] is the reason she is able to have 'good' days and maintain her current level of independence.
2. I will now deal with the Agency's submissions.

1. In its SFIC, the Agency noted the description of this domain as contained in the Agency's Access Guidelines and contended that:

... there is no evidence support a finding that the Applicant is unable to participate effectively or completely in the activity of social interaction. The Applicant is able to maintain employment, is able to transport herself to access community-based social and recreation activities and maintain friendships. The Respondent accepts that there may be some limitations around the location and types of social events the Applicant attends, for example, the Applicant told Ms Agnoletto she declines invitations to events where there will be a lot of standing, rather than sitting. The Respondent contends that s 24(1)(c)(ii) is not met with respect to the activity of social interaction.[77]

1. In closing submissions, Counsel for the Agency contended that Ms Agnoletto's evidence about Ms Thompson's functional capacity in this domain was generally consistent with Ms Thompson's own evidence about what she does in her day-to-day life, noting that Ms Thompson has regular interactions with her team members and other colleagues at work, and at her gym and exercise activities and classes, and visits friends and relatives each month.

1. The Agency noted submitted that the Tribunal should adopt the approach to functional mobility as expressed in the Tribunal decision of Madelaine and National Disability Insurance Agency [2020] AATA 4025[78] (Madelaine). The Agency noted that in Madelaine the Tribunal 'explained that a person has functional capacity (or put differently, does not have substantially reduced functional capacity), if they can move about their home, get in and out of bed or a chair and mobilise.[79]
2. The Agency relied upon Ms Agnoletto's evidence and assessment as to Ms Thompson's capacity to perform transfers, move about her house, walk outside her home, drive a car, and to independently undertake toileting and showering activities.
3. Further, the Agency submitted that while at times Ms Thompson was assisted in mobilising by aids such as using a shower chair, these were 'commonly used items' for the purpose of Rule 5.8(a) of the Access Rules.
4. In closing submissions, Counsel for the Agency addressed the evidence provided by Ms Thompson in her written statements and at the hearing, as to her fluctuations and good and bad days, noting that Ms Agnoletto had identified that while the activities performed on each day are similar, the distinction lies in how Ms Thompson's body responded to each activity and the effort required to manage her symptoms.[80] As such, the Agency contended that what Ms Thompson could do on a 'good' day was a fair representation of what she could do generally.
5. In conclusion, the Agency submitted that while Ms Thompson experiences some reduction in her capacity to mobilise as a result of her impairments and pain, this does not meet the threshold of being a substantial reduction.

1. The Agency noted that Ms Agnoletto reported that Ms Thompson was independent in the activities of toileting, showering, dressing, feeding herself and caring for her own health needs, by adopting adaptive strategies. Further, while Ms Thompson could not perform the activity of scrubbing her lower legs and toe care without assistance, such a finding in relation to those discrete tasks would not result in a conclusion that Ms Thompson has substantially reduced functional capacity in this domain.[81]
2. In closing submissions, the Agency noted the approach taken to defining the bundle of tasks comprising each of the section 24(1)(c) domains by Senior Member French in the Tribunal decision of Burrows and CEO, National Disability Insurance Agency [2025] ARTA 607 (Burrows). In that decision_,_ Senior Member French addressed the meaning of the terms used in section 24(1)(c), as to the 'tasks' that should be included in each of the section 24(1)(c) domains, applying the Agency's policy guidelines.[82] I have adopted that interpretation of the scope and content of the relevant section 24(1)(c) domains in a previous access decision,[83] and will again do so here.
3. I will address this aspect at further length below.

1. As noted above, I will adopt that interpretation of the scope and content of the relevant section 24(1)(c) domains, as outlined in the decision of Burrows.
2. In Burrows, Senior Member French of the Tribunal proposed that the bundle of tasks within the domain of social interaction:

... is limited to tasks associated with making and keeping friends, interacting with other people in the community, and maintaining behavioural and emotional regulation in a social context.

I note that this bundle of tasks, as identified, does not incorporate any reference to social interaction with immediate family, which is often referred to as evidence of functional capacity for social interaction in access cases ... It is to be noted that represents a departure from the ICF/WHODAS[84] assessment framework. However, upon reflection, it appears to me that this is a deliberate departure that is consistent with the objects of the NDIS Act, with its emphasis on the independence and social and economic participation of persons with disability, beyond their immediate family.[85]

1. I am not satisfied that Rule 5.8 operates to assist Ms Thompson regarding this domain. The evidence reflects that while Ms Thompson experiences some limitations in engaging in social activities, such as avoiding venues where she may have to stand for any extended period, she can undertake the tasks in this domain, such as interacting with her friends and while in the community (when, for example, interacting with colleagues at work). This means that Rule 5.8(c) is not of application; this is not a case where the prospective participant is unable to participate in the activity, even with assistance. Further, Ms Thompson can participate in these activities without the operation of the circumstances in Rules 5.8(a) and (b); namely, requiring assistive technology or usually requiring assistance from other people to participate in these activities.
2. As Ms Thompson does not fall within the deeming operation of Rule 5.8 to satisfy the requirement of substantially reduced functional capacity for social interaction, in accordance with Mulligan, I must still undertake the statutory task of considering whether her functional capacity is substantially reduced in this domain.
3. The use of the word 'substantially' in section 24(1)(c) carries a high threshold for an applicant to satisfy.[86]
4. I accept that because of her permanent impairments Ms Thompson understandably avoids or limits her attendance at some social events, in order to, for example, avoid prolonged standing that will aggravate her impairments. However, the Tribunal has noted previously 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.[87]
5. In assessing Ms Thompson's functional capacity, I note that the evidence provided by her and that of Ms Agnoletto is broadly consistent (as was the case across all domains in issue).
6. As noted above, Ms Agnoletto undertook some standardised assessments. The most relevant to the domain of social interaction was the CIQ-R result, which indicated Ms Thompson scored within the standard deviation.
7. I consider that the evidence reflects that Ms Thompson has functional capacity to perform tasks and activities in this domain. She engages with friends on a regular basis. She has undertaken a volunteer role. She engages regularly with a range of people in her workplace, both face-to-face and via platforms such as MS Teams. There is no evidence that she experiences issues of emotional regulation in any social or community context. I also note also that while representing herself and giving evidence at the hearing, Ms Thompson conducted herself and interacted with the Tribunal and the Agency's Counsel in an appropriate and organised manner. Ms Agnoletto did not observe any deficits in this domain on the day of her assessment.
8. For the above reasons, I am not satisfied that Ms Thompson has substantially reduced functional capacity in the domain of social interaction.

1. I will next consider whether Ms Thompson's permanent impairments result in substantially reduced functional capacity to undertake the tasks and actions involved in the mobility domain.
2. Again, I consider that the deeming operation of Rule 5.8 does not apply to assist Ms Thompson. While there is evidence that at times Ms Thompson uses 'assistive technology' to mobilise; for example, her use of a walking stick on longer walks, such an item is a 'commonly used' item of assistive technology. Further, the evidence is that Ms Thompson does not regularly use this item or other assistive technology to mobilise, either in her home or in the community, and is not reliant on it save for the limited circumstances outlined in her evidence. Similarly, the evidence establishes that Ms Thompson does not usually require the assistance of other people to mobilise.
3. As noted, the Agency submitted that the Tribunal should adopt the approach to this domain that was set out in the case of Madelaine, in that the threshold requirement for achieving functional capacity in this domain is:

... relatively modest ... 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.[88]

1. In Burrows, Senior Member French proposed that:

the bundle of tasks within the mobility activity area is limited to tasks associated with moving around within the home, and in the community, and getting in and out of bed and a chair.[89]

1. The evidence establishes that Ms Thompson is able to independently participate in the tasks in this domain. She is able to mobilise within her home by walking around, and can undertake transfers to and from her bed, a chair and so on. She regularly walks for up to 30 minutes, covering over two kilometres. She attends a variety of exercise and rehabilitation activities, going to the gym, pilates and aqua aerobic classes. She is able to drive a car for up to 30 minute journeys and can travel for longer as a passenger. She is able to use public transport at less busy times. She is able to mobilise to attend her medical appointments and rehabilitation activities.
2. I accept that the rehabilitation program activities are undertaken by Ms Thompson primarily in order to reduce the adverse impacts of her impairments which, on the evidence, would be likely to worsen should she not be as diligent with her rehabilitation program. This was perhaps most clearly illustrated by Ms Thompson's evidence about her attendance at the gym, which was to the effect that prior to her disability she went to the gym because she enjoyed it, while now she attends because she needs to.
3. However, I am required to make an assessment based upon the bundle of tasks and actions that form an activity,[90] and the degree to which the prospective participant can participate in the activity.[91] As such, the evidence about Ms Thompson's rehabilitation activities cannot be put aside in considering her functional capacity to mobilise.
4. While accepting that Ms Thompson's impairments reduce her capacity in the domain of mobility, I am not persuaded that the evidence is sufficient to establish that this reduction is substantial.
5. Given the bundle of tasks in this domain and the evidence I have noted about Ms Thompson's functional capacity to independently mobilise, and on the basis of the approach noted above in Madelaine, I am satisfied that Ms Thompson does not have substantially reduced functional capacity in the domain of mobility.

1. It was noted in Burrows that the bundle of tasks to be considered within the domain of self-care is limited to tasks associated with personal care (including hygiene and grooming), eating and drinking, and health care, and that domestic cleaning and shopping for food do not fall within the bundle of tasks that make up the domain.[92] That formulation of the relevant bundle of tasks is consistent with the tasks description contained for this domain in the Access Guidelines and, for the reasons set out in the Burrows decision,[93] as noted I am content to proceed on this construction of the scope of the tasks falling within this domain.
2. As Counsel for the Agency contended in closing submissions, for Ms Thompson to have substantially reduced functional capacity in the domain of self-care, she must establish that there are 'significant gaps' in her capacity to maintain her personal health, safety and well-being.[94] Counsel contended that the evidence was insufficient to establish such gaps existed.
3. Again, I am not persuaded that Rule 5.8 applies.
4. The evidence provided by Ms Thompson, and also Ms Agnoletto, establishes that Ms Thompson is generally able to independently undertake most self-care tasks, such as showering, toileting, dressing, grooming and eating. Any assistive technology used, such as a shower chair, is a 'commonly used item'. While Ms Thompson at times performs self-care tasks in a modified way, undertaking these tasks in a such a way, or more slowly or in stages, does not necessarily mean that a person cannot participate effectively or completely in self-care tasks.[95] The evidence clearly does not establish that Ms Thompson is either unable to participate in these activities at all, or without assistance from other people (save for some assistance with discrete tasks such as washing her lower limbs and attending to toe care). As such, Rule 5.8 does not apply.
5. I again accept that Ms Thompson's permanent impairments give rise to some reduction in her capacity for self-care. However, I am not persuaded that this reduction reaches the threshold of being substantial.
6. The evidence does not establish, as per the approach taken in Madelaine, that there are significant gaps in Ms Thompson's capacity to maintain her personal health, safety and wellbeing. She is able to independently attend to nearly all self-care tasks, even on her bad days. She is independent and diligent in managing her health care.
7. The focus of this domain is upon the capacity of the prospective participant to care for themselves, rather than others. Further, and notwithstanding the limitations regarding the construction of the bundle of tasks in this domain flowing from the approach taken in Burrows, I note that the evidence reflects that Ms Thompson is able to attend to basic cooking and food preparation tasks (requiring modifications and/or help with some aspects of cooking a family meal, at times). She is also able to undertake some aspects of household tasks such as cleaning and grocery shopping, again with modifications and/or assistance, although she cannot perform heavier tasks. The difficulties Ms Thompson experiences with these tasks does not, in terms of the approach in Madelaine, give rise in my view to significant gaps in her capacity to maintain her personal health, safety and wellbeing.
8. Further, the functional challenges identified by Ms Thompson and Ms Agnoletto in their evidence relating to heavier household tasks such as hanging out laundry, mopping and the like, do not fall within the bundle of tasks in the domain of self-care, as identified in Burrows.[96]
9. I therefore find that Ms Thompson does not have substantially reduced functional capacity in the domain of self-care.

Conclusion regarding substantially reduced functional capacity

1. For the above reasons, I have found that Ms Thompson does not experience substantially reduced functional capacity to undertake the tasks and actions involved in any one of the three section 24(1)(c) domains upon which reliance was placed.
2. As the requirements in section 24(1) are cumulative, this means that Ms Thompson cannot meet the disability requirements for access to the NDIS. As such, I will not proceed to address the remaining section 24(1) requirements.

1. As noted, Ms Thompson did not seek to rely on the early intervention pathway for access to the NDIS. Having regard to the evidence about the enduring nature of her impairments, I consider this was an appropriate approach to adopt.
2. I have set out section 25 of the NDIS Act above. As summarised by the Agency in its SFIC:

Pursuant to [Rule] 6.9 of the Access Rules, in deciding whether the provision of early intervention supports is likely to benefit a person under section 25 of the Act, it is necessary to consider the likely trajectory and impact of the person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity and in reducing their future needs for supports.

1. As noted, Ms Thompson's impairments are enduring in their nature, dating back to 2014 and 2015 and her motor vehicle accidents. Her impairments are now long-standing and cannot be said to be 'early' in their trajectory. Additionally, her impairments are stable, notwithstanding the range of medical treatment and allied health interventions Ms Thompson has undertaken, together with her dedication in following her rehabilitation and exercise program to manage the impacts of her impairments.
2. Having regard to the evidence in the proceeding, I am satisfied that the early intervention requirements are not met.

1. It follows that as Ms Thompson does not meet either the disability requirements under section 24 or the early intervention requirements under section 25, she does not meet the access criteria under section 21 of the NDIS Act.
2. I appreciate that Ms Thompson will be disappointed by this outcome. Consistent with what I have said above, I accept that her impairments have a significant impact upon her life, and that of her family. Ms Thompson has commendably sought to manage and limit the impacts of her impairments by diligently following her medical and allied health advice and committing to a comprehensive program of activity, to assist in preventing the further deterioration of her capacity.
3. However, as the Federal Court observed in the case of Mulligan, the access criteria in the NDIS Act are an essential component of the NDIS, imposing a number of thresholds on access to the Scheme. Such access, and the supports, funding and autonomy that the NDIS delivers, is reserved for a subcategory of persons with disabilities, rather than every person with disability.[97]

1. The Tribunal affirms the decision under review.

[1] Exhibit 1, Joint Hearing Bundle, T-Documents, Document T15, NDIS Access Request - Supporting Evidence form, dated 15 December 2020, pages 95-101.

[2] T-Documents, Document T17, NDIS Access Decision, 6 January 2021, pages 109-113.

[3] T-Documents, Document T28, NDIS Access Decision, 9 October 2024, pages 148-153.

[4] T-Documents, Document T29, Email from Ms Thompson to the Agency (Request for review of decision), 30 October 2023, page 154.

[5] T-Documents, Document T2/1H, Internal Review Decision, 5 February 2024, pages 48-64.

[6] T-Documents, Document T1, Application for Review, 6 March 2024, pages 25-33.

[7] Hearing Bundle, Document A1, Respondent's Statement of Facts, Issues and Contentions, filed on 3 October 2025, pages 7-22 (the Agency's SFIC).

[8] Hearing Bundle, Document A2, Applicant's response to NDIS decision, 17 December 2025, pages 23-24.

[9] Hearing Bundle, Document D2, Occupational Therapy Report, Ms Natalie Agnoletto, Occupational Therapist, dated 25 June 2024 (Ms Agnoletto's report).

[10] Hearing Bundle, Document D1, Letter of Instruction from the Agency to Ms Agnoletto, dated 4 June 2024.

[11] This and some following sections of this decision dealing with the applicable law have been adapted from prior NDIS access decisions of this Tribunal Member.

[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at [78].

[13] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi), at 324-325, 327 (Kiefel J).

[14] Administrative Review Tribunal Act 2024 (Cth), s 54.

[15] Shi, at 300-301 (Kirby J); at 314-315 (Hayne and Heydon JJ); at 327-328 (Kiefel J).

[16] Beezley v Repatriation Commission [2015] FCAFC 165, at [68], as applied in Sutherland v National Disability Insurance Agency [2024] AATA 411, at [53].

[17] National Disability Insurance Agency v Lampard [2025] FCAFC 139, per Bromwich, Neskovcin and Vandongen JJ, at [31].

[18] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s. 2.

[19] The following excerpts reflect how these provisions read prior to 3 October 2024.

[20] Evidence of Ms Thompson, 22 January 2026.

[22] World Health Organisation, (2011), International Classification of Functioning, Disability and Health, Geneva: International Classification of Functioning, Disability and Health (ICF).

[23] See, for example, DQKZ and National Disability Insurance Agency [2024] AATA 2276, at [144]-[149].