Banoub and National Disability Insurance Agency (NDIS)
[2025] ARTA 1552
•27 August 2025
Banoub and National Disability Insurance Agency (NDIS) [2025] ARTA 1552 (27 August 2025)
Applicant:Amany Banoub
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/4526
Tribunal:General Member J Toohey
Place:Brisbane
Date:27 August 2025
Decision:The Tribunal sets aside the decision under review and decides that the Applicant meets the access requirements in section 21 of the National Disability Insurance Scheme Act 2013 (Cth).
Statement made on 25 August 2025 at 9:58am
.................[SGD]...................
General Member J Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Access – Substantially reduced functional capacity – Chronic pain syndrome – Permanent impairments – Assessing self-care activities and tasks – Becoming a participant rules – Rule 7.5 have reference to the World Health Organisation International Classification of Functioning, Disability and Health – Applying to the NDIS Operational Guideline – Domestic tasks considered within self-care activity
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607
FBJV and National Disability Insurance Agency [2021] AATA 913
Madelaine and National Disability Insurance Agency [2020] AATA 4025
Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 186
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Rooney and National Disability Insurance Agency [2021] AATA 3523
RRMR and National Disability Insurance Agency (NDIS) [2024] ARTA 74
Wiggill and National Disability Insurance Agency [2025] ARTA 115Secondary Materials
Operational Guideline: Applying to the NDIS, published 14 October 2024
Victorian Home and Community Care, Program for Younger People, Interim Guidelines, November 2023World Health Organisation, International Classification of Functioning, Disability and Health
Statement of Reasons
SUMMARY
I have found that the Applicant has impairments that result in a substantially reduced functional capacity to undertake the activity of self-care for the purpose of section 24(1)(c)(v) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). As I have also found that the Applicant meets the other requirements in sections 22, 23, and 24 of the NDIS Act, I have decided that the Applicant meets the access requirements in section 21 of the NDIS Act. My reasons for reaching this decision are set out below.
BACKGROUND
The issue before the Tribunal is whether the Applicant, Mrs Banoub, meets the access criteria to be a participant of the National Disability Insurance Scheme (NDIS) in accordance with section 21 of the NDIS Act.
Mrs Banoub is a 59-year-old woman who lives with her husband in Melbourne. Mrs Banoub is impacted by her longstanding chronic pain syndrome (CPS) and neuropathy which developed after an accident in 2012.
The Tribunal is reviewing a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) on 28 June 2024. This affirmed an earlier decision that the Applicant did not meet the criteria for access to the NDIS. Mrs Banoub applied for a review by the Administrative Appeals Tribunal (AAT) on the same day. This application was made under section 103 of the NDIS Act and section 25 of the AAT Act.[1]
[1] 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, 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.
The Tribunal held a hearing by video on 31 July 2025. An Arabic interpreter was arranged by the Tribunal for the Applicant. The Applicant represented herself with support from her husband, and Mr Andrawis, a family friend. The Agency was represented by Counsel, Dr Taylor, instructed by Maddocks Lawyers.
ISSUES
The issues before the Tribunal are whether the Applicant meets the disability requirements in section 24 of the NDIS Act or the early intervention requirements in section 25 of the NDIS Act.
OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[2]
[2] I have used a similar overview in other matters dealing with access to the NDIS.
Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability,[3] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[4]
[3] Section 3(1)(c).
[4] Section 3(3)(b).
Section 21(1) of the NDIS Act sets out that a person meets the criteria to become a participant in the NDIS 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).Section 24 of the NDIS Act sets out that:
(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.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the variation.
(3) 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 NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.
Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements and the early intervention requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Becoming a Participant Rules).
The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[5] The relevant operational guideline is Applying to the NDIS.[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[6] Pre-legislation version accessed at While the date on this guideline is 14 October 2024, which is after the Back on Track Amendments, the post-amendment update is only to the name of ART. This was advised by Counsel for the Agency in another matter.
SUMMARY OF EVIDENCE
The Tribunal was provided with a Joint Hearing Bundle (JHB) by the parties, and this was accepted into evidence at the hearing.[7] The JHB included:
(a)The ‘T-documents’,[8]
(b)Several letters from Dr Gordon, the Applicant’s treating neurologist,
(c)Other letters and reports from Dr Gordon’s colleagues at the Kingston Centre Pain Clinic,
(d)Letters from Dr Yousef, the Applicant’s general practitioner,
(e)Letters from Mr Morkos, the Applicant’s treating physiotherapist,
(f)A statement of lived experience from the Applicant, and
(g)An independent functional capacity assessment report from Ms Agnoletto, occupational therapist.
[7] The page numbering in the JHB is adopted throughout these reasons.
[8] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
At the start of the hearing, the Tribunal also accepted a further letter provided by the Applicant from Mr Morkos dated 28 July 2025. The Tribunal also had the benefit of written submissions from the Agency and oral evidence from the Applicant and Ms Agnoletto.
CONSIDERATION
Age and residence requirements[9]
[9] Sections 22 and 23 of the NDIS Act.
There is no dispute the Applicant meets the age and residence requirements. I am satisfied that these requirements are met.
Disability requirements
I must consider whether the Applicant meets the disability requirements in section 24 of the NDIS Act.
Impairments affecting social and economic participation
There is no dispute that Mrs Banoub has a disability attributable to impairments[10] which affect her capacity for social and economic participation.[11] Based on the reports before me, I am satisfied that the Applicant has a disability attributable to physical, neurological and sensory impairments from her CPS and neuropathy and that these impairments affect the Applicant’s capacity for social and economic participation.
[10] NDIS Act, section 24(1)(a). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 11.
[11] NDIS Act, section 24(1)(d). See the Agency’s Statement of Facts, Issues and Contentions, at paragraph 11.
Impairments likely to be permanent
The Agency submits that the Tribunal should find that the Applicant’s impairment are not permanent within the meaning of the NDIS framework. The Agency refers to the Becoming a Participant Rules which state:
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.
At paragraph 21 of their Statement of Facts, Issue and Contentions the Agency submitted that:
Based on the available material, the Respondent contends that the Applicant’s impairments are not permanent because a known, available and appropriate evidence-based treatment is likely to assist the Applicant to cope with her pain and reduce impairment:
a. in 2023, Dr Vogts recommended that the Applicant be referred to a psychologist because she “found pain psychology to be helpful but was unable to drive to Kingston regularly for this” and left this to the Applicant’s GP “as she needs to find someone closer to home”.
b. Ms Agnoletto’s assessment found that the Applicant has “clinically significant pain catastrophising” based on her score of 44/52 on the Pain Catastrophising Scale and:
i. this “heightened pain perception may contribute to avoidance behaviours, reduced confidence in movement, and increased distress relating to physical activities”;
ii. while specific function would not be restored, addressing pain catastrophising “through psychological or pain education interventions could support improved participation in therapies and daily activities”; and
iii. recommended psychology given “the emotional impact of chronic pain, loss of function and social isolation” to provide the Applicant with “pain management strategies, including cognitive behavioural techniques to address pain catastrophising”.
c. Ms Agnoletto’s assessment also found that the Applicant would still benefit from both occupational therapy (for “pain and fatigue management strategies”, improving task modifications and supporting limb function and dexterity) and physiotherapy/exercise physiology (training to “manage pain and potentially improve functional capacity”). [emphasis in original, notes omitted]
In closing submissions, the Agency clarified that they were not submitting that there are known treatments that would be likely to remove or cure the Applicant’s impairment. Rather, that Applicant had not received optimal treatment as there were clinical treatments which were recommended to achieve the best possible functional capacity for the Applicant. Based on the oral evidence, the Agency also added that the Applicant’s medications were currently being adjusted, she had been referred again to hydrotherapy (which was last attended prior to COVID), and that she had a further referral for multidisciplinary pain management.
Against these submissions, the Applicant relies on the opinion of Dr Gordon who states that:
She has been exhaustively investigated. She has had neurosurgical and orthopaedic surgical assessments, has been comprehensively assessed through the Monash Hospital Pain Management clinic and has been under my neurologic care for nine years. I believe that unfortunately her condition is permanent … There is no therapeutic intervention that is likely to substantially improve her condition; she has exhausted all therapeutic options since my prior report of 2023.[12]
[12] JHB, page 142.
In his 2023 report, Dr Gordon stated:
Currently, she has disabling pain in her spine and limbs. The assessment from the various units is that further surgical intervention is not warranted. The Pain Management clinic continues with a pain management approach.
She is substantially disabled by her pain syndrome which is not responding very well to the various treatments, but she is at a maximal level of treatment. There is no realistic prospect of any surgical or other intervention changing the nature or severity of her pain.[13]
[13] JHB, page 64.
The Agency raised that Dr Gordon’s opinion is expressed in respect of the Applicant’s ‘condition’ as opposed to ‘impairments’. I accept that impairments are the correct focus in considering the disability requirement. However, I also consider that medical practitioners will frequently use these terms interchangeably. If the Agency wished to test Dr Gordon’s views on this distinction, it would have been appropriate for the Agency to either request a report from Dr Gordon specifically addressing this issue, or to have called Dr Gordon to provide oral evidence. In my view, the Applicant’s pain is an impairment and Dr Gordon is clear that all treatment options for the Applicant’s pain have been exhausted. As Dr Gordon has been treating Mrs Banoub since 2015, he has an extensive history on which to base his opinion. I have placed considerable weight on the opinion of Dr Gordon with regards to the issue of permanency.
I also note that Ms Agnoletto states that:
Based on the medical information provided, Ms Banoub's condition is permanent, with no realistic prospect of surgical or other intervention changing the nature or severity of her pain (T8). She has exhausted all therapeutic options, and no treatment is likely to substantially improve her condition (Dr Victor Gordon, 18 October 2024) …
She previously found benefit from physiotherapy, hydrotherapy, and pain psychology, but her access to these services has been inconsistent due to location and financial constraints. If provided with regular access to these therapies, she may be able to maintain her current level of function and prevent further deterioration.
Occupational therapy intervention is recommended to assist with energy conservation, activity pacing, and assistive technology trials. These strategies may help slow functional decline and enable her to maintain a level of independence for as long as possible. However, without sustained therapeutic support, she is at high risk of increased dependency and social isolation, further exacerbating her physical and psychological symptoms.[14]
[14] JHB, pages 158 and 159.
In her oral evidence, Ms Agnoletto clarified that ‘pain catastrophising’ did not mean that Mrs Banoub was exaggerating her symptoms. Rather, pain psychology and occupational therapy would aim to shift the balance between her good and bad days through ‘addressing the social connections and the quality and the meaningful tasks within her life which could assist with the psychological component of her pain experience.’
In Mrs Banoub’s oral evidence, she was not able to recall the number of psychology sessions she had participated in. Mrs Banoub could not recall if her last psychology session was in 2023 or 2024. In response to questions from me, Mrs Banoub thought that she had attended more than 10 psychology sessions. I showed Mr Banoub the Community Connections Plan at T11.[15] The Agency prepared this document on 22 December 2023 to assist Mrs Banoub to access community and mainstream supports. This plan records that (at that time) Mrs Banoub visited her psychologist at Monash Health 3 to 5 times per year.[16] Mrs Banoub agreed this was accurate but could not recall more details about the overall number of visits. Mrs Banoub also agreed that she could take part in psychology sessions by telehealth if needed. I accept that Mrs Banoub’s recall was impacted by her pain condition and the stress of the hearing process.[17]
[15] Starting at page 77 of the JHB.
[16] JHB, page 83.
[17] Memory impairments are reported by Ms Agnoletto at page 149 of the JHB.
It is somewhat surprising to me that the documents provided by the pain management clinic do not include any letters or reports from a psychologist. It would have assisted the Tribunal to have a summary of the number of sessions that Mrs Banoub had participated in, the outcomes achieved, and any recommendations for further treatment.
It is also surprising to me that obvious gaps in the records were not picked up and corrected at any stage during the Agency’s decision-making, internal review, or external review processes. For example, Mrs Banoub’s Access Request Form at T13 is missing every second page and this omission continues throughout the Section 2: Completed by the Treating Professional. I raised this at the start of the hearing and the Agency confirmed this is how the document was received by the Agency. There were other similar examples. In terms of improving the quality of government decision-making,[18] I would expect that original and internal review decision-makers would have processes in place to identify such clear gaps and to seek further information to address these gaps.
[18] Administrative Review Tribunal Act 2024, section 9(d).
However, in my view, the Tribunal now has sufficient information on which to assess the issue of permanency. Dr Gordon reports that the Mrs Banoub has been comprehensively assessed by the pain management clinic and that all therapeutic options have been exhausted. I accept that this will have included appropriate psychology assessments and treatments.
On balance, while I consider that there are ongoing treatments that might be able reduce the severity of Mrs Banuob’s impairments, I do consider that her impairments are likely to be permanent. In my view this is not a situation in which Rule 5.6 of the Becoming a Participant Rules applies. Completion of the recommended treatments is not required for the likely permanency of Mrs Banoub’s impairments to be demonstrated. Instead, there are some prospects that the impact of Mrs Banoub’s pain on her functional capacity could be improved, but not removed. This is the situation that is contemplated by Rule 5.5 of the Becoming a Participant Rules. I find that the Applicant’s impairments are likely to be permanent as required by section 24(1)(b) of the NDIS Act.
Substantially reduced functional capacity in one of more activities
To meet the disability requirements, Mrs Banoub’s impairments must result in substantially reduced functional capacity in respect one of the activities listed in section 24(1)(c). The Federal Court in Mulligan held that it is sufficient for a person to have substantially reduced functional capacity in relation to one activity.[19] The Full Court in Foster found that it is not sufficient for a person to have substantially reduced functional capacity to undertake a single task within the bundle of tasks and actions that form part of an activity.[20]
[19] Mulligan v National Disability Insurance Agency [2015] FCA 44, [56].
[20] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
Rule 5.8 of the Becoming a Participant Rules states:
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.
Ms Agnoletto includes a table which summarises the Mrs Banoub’s pain symptoms, severity, and associated impairments as follows:[21]
[21] JHB, pages 152 and 153.
Body Area
Pain Rating
Restrictions/Impairments
Hands
9/10
Difficulty with grip, fine motor tasks (e.g., writing, cooking, buttoning clothes).
Headache/Migraines
10/10 (weekly
episodes, reduces
with medication)
Interrupts sleep, leads to fatigue, reduces ability to concentrate and complete tasks.
Neck
9/10
Limits head movement, making it difficult to drive, look down at tasks, or sit comfortably.
Shoulders (Right)
9/10
Affects reaching, lifting, carrying, and upper body movement.
Shoulders (Left)
8/10
Similar to right shoulder, affecting ability to perform bilateral tasks.
Chest/Underarms
7/10
Pain in the underarm area restricts comfortable arm movement and wearing certain clothing.
Upper Back
6/10
Affects posture, prolonged sitting/standing; pain with reaching and carrying objects.
Middle Back
8/10
Impacts torso movement, making bending, reaching, and standing for extended periods painful.
Lower Back
9/10
Severe pain when sitting or standing for prolonged periods; highly sensitive to touch.
Varicose Veins
5/10 (when touched)
Causes discomfort with fitted clothing and prolonged standing.
Stomach
7/10
Bloating and urgency to use the toilet disrupt activities, requiring frequent breaks.
Hips
7/10
Pain restricts walking, standing, and changing positions; affects lower body dressing.
Legs (Knees)
6/10
Affects walking, bending, and using stairs; pain with prolonged standing.
Ankles/Feet
5/10
Numbness reduces foot stability, increasing fall risk and making standing uncomfortable.
Plantar Fasciitis
(Right)
6-7/10
Pain makes walking difficult, limiting mobility and participation in community activities.
Plantar Fasciitis (Left)
5/10
(i) Pain limits mobility and choice of footwear, causing discomfort with prolonged standing.
Elbows (Right)
7/10
(ii) Right arm pain restricts lifting, pushing, and using utensils or tools effectively.
Elbows (Left)
5/10
(iii) Similar to the right, but slightly less severe; still impacts bilateral upper limb tasks.
The Applying to the NDIS guideline also says:
Your needs might go up and down each day or each month. … We consider your ability over time, taking into account your ups and downs.
The information before the Tribunal indicates that Mrs Banoub’s impairments fluctuate. According to Ms Agnoletto, Mrs Banoub’s ‘Good’ and ‘Bad’ days are as follows:
7.1.2. Good Day (1-2 days per week)
On good days, Ms Banoub experiences more manageable pain and is able to participate in activities with family.
- Her best days are when family visits or when she goes out with them, allowing her to engage in activities despite discomfort.
- She is able to drive if required.
- She may walk to the chemist (rare).
7.1.3. Poor Day (5-6 days per week)
On poor days, Ms Banoub experiences high pain levels and severe functional limitations.
- She is unable to engage with her grandchildren or play with them due to pain and mobility restrictions.
- She avoids driving.
- She does not prepare or assist with any meals.
- She spends most of the day alone, with no activities, contributing to boredom and isolation.
- Pain is overwhelming and difficult to manage [emphasis in original] [22]
[22] JHB, pages 153 and 154.
I have considered Mrs Banoub’s capacity over time, taking into account her ‘ups and downs’. In considering the activities set out in section 24(1)(c), I will start with the self-care activity, as this was the activity which the evidence before me indicated was most greatly impacted.
Self-care
The Applying to the NDIS guideline describes self-care as:
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.
The Agency submits the following:
38. Self-care, as an s 24(1)(c) activity, concerns personal care, hygiene, grooming, eating, drinking, and health, as well as how a person gets dressed, showers or bathes, eats or toilets. A person has a substantially reduced functional capacity for self-care if there are “significant gaps” in their capacity to maintain their personal health, safety, and well-being.
39. Based on Ms Agnoletto’s independent assessment, the Respondent contends that the Applicant’s impairments do not result in a substantially reduced functional capacity for self - care for s 24(1)(c)(v) purposes because the assessment of the Applicant indicates that:
a. while the Applicant is “unable to perform self-care activities without assistance or assistive technology”, Ms Agnoletto’s opinion is that other conditions (e.g., plantar fasciitis and vertigo) also contribute to these difficulties;
b. where the Applicant’s functional capacity for self-care is reduced, the reduction is (or could be) mitigated with basic assistance from family members (e.g., help getting out of the shower, help with hair drying), commonly used items (e.g., a long-handled shower brush) and/or simple modifications in the Applicant’s approach to self-care tasks (e.g., taking longer for showering or dressing, taking a five minute rest after showering before continuing with other tasks); and
c. in the relevant FIM observations, the Applicant’s lowest independence scores were ‘minimal assistance’ required for bathing and upper-body dressing and ‘supervision/set-up’ for lower-body dressing; otherwise, the Applicant was considered to have modified independence (eating, grooming, toileting and bladder management) or was independent (bowel management).
40. Accordingly, the Respondent contends that the Applicant does not have substantially reduced functional capacity for self-care for s 24(1)(c)(v) purposes because her reductions in capacity:
a. are mitigated with basic assistance and/or simple modified approaches; or
b. would be further mitigated by commonly used items,
the collective effect of which does not demonstrate “significant gaps” in self-care capacity.[23][notes omitted]
[23] JHB, page 13.
I will consider each of these submissions below.
‘Significant gaps’
In support of their contention that there must be ‘significant gaps’ in a person’s capacity to maintain their personal health, safety, and well-being, the Agency refers to two earlier Tribunal decisions in Madelaine[24] and FBJV.[25] As I have discussed in other matters,[26] the conclusion reached by the Tribunal in Madelaine applied the wording in a prior version of the Applying to the NDIS guideline which said that ‘undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity’. This earlier version of the guideline was also applied FBJV. This reference to ‘slowly or differently’ is no longer included in the current guidelines.
[24] Madelaine and National Disability Insurance Agency [2020] AATA 4025.
[25] FBJV and National Disability Insurance Agency [2021] AATA 913.
[26] See for example Wiggill and National Disability Insurance Agency [2025] ARTA 115, [47.
‘Other conditions’
With regards to other conditions, such as plantar fasciitis and vertigo, contributing to the Applicant’s difficulties with self-care, it is less clear to me that these are impairments which arise separately from the Applicant’s CPS. Ms Agnoletto describes Mrs Banoub’s symptoms as:
Ms Banoub experiences constant, severe, widespread chronic pain and responds poorly to analgesia (T1C). The pain affects multiple areas of her body, impairing mobility, endurance, and daily function. It is exacerbated by exertion, prolonged positions, and sometimes light touch. The persistent pain subsequently contributes to muscle weakness, further limiting her ability to engage in physical tasks.
She also experiences migraines, vertigo, and digestive issues, some of which may be medication-related (see section 6). Fatigue is a significant factor, likely stemming from both chronic pain and its physical and emotional toll. The persistent nature of her pain restricts her functional independence and contributes to emotional distress, limiting her participation in meaningful activities and social engagement.[27]
[27] JHB, page 152.
Ms Agnoletto then includes ‘Plantar Fasciitis’ in the table above as one of the body areas in which Mrs Banoub experiences pain symptoms and associated impairments. This table indicates that the pain associated with plantar fasciitis is (relatively) less severe than pain affecting other areas and mainly impacts Mrs Banoub’s mobility. A letter dated 30 July 2020 from the Kingston Pain Management Clinic (author unknown) to Mrs Banoub’s GP indicated that Plantar Fasciitis was a new diagnosis and that Mrs Banoub had seen a podiatrist for further exercise and footwear. This letter also lists ‘plantar fasciitis’ as part of Ms Banoub’s pain history. With regards to pain medication, Ms Agnoletto notes that Celebrex may contribute to vertigo.[28]
[28] JHB, page 151.
Overall, I am satisfied that Mrs Banoub’s plantar fasciitis, vertigo, lower limb numbness, and fatigue are impairments that are likely to be related to her CPS. I do not consider that these are separate impairments which are distinct from Mrs Banoub’s severe and widespread chronic pain.
‘Mitigation’
With regards to the Agency’s submissions on mitigating Mrs Banoub’s functional incapacity, I will consider three aspects separately. Firstly, I consider that the submission regarding ‘basic assistance’ from family members is misplaced. Rule 5.8 of the Becoming a Participant Rules deems a person to have a substantially reduced functional capacity if ‘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.’ That a person’s capacity to undertake a task might be mitigated by assistance from another person, basic or otherwise, does not seem to me to be exclude a person from the benefit of this deeming provision.
‘Commonly used equipment’
The second aspect regarding commonly used items such a long-handled shower brush needs some additional consideration. In respect of assistive technology for self-care, Ms Agnoletto says:
o Showering: Requires assistance from her husband to wash her back and occasionally to exit the shower due to dizziness and pain. A long-handled shower brush, shower chair, and grab rail may reduce the need for assistance.
o Dressing: Unable to fasten her bra and requires help with socks and enclosed shoes due to pain, dexterity issues, and limited bending. A front-fastening bra and adaptive dressing aids (e.g., button hook) may improve independence.
o Grooming: Requires assistance with hair drying and maintenance from her daughter once per week due to upper limb and neck pain. Unable to manage nail care due to fine motor weakness and relies on monthly professional services.
o Home hygiene: Unable to perform vacuuming, mopping, and scrubbing due to endurance limitations and pain, relying on a weekly cleaner and her husband.
o Toileting: Requires a bidet for toilet hygiene due to upper limb movement restrictions.
I note that the Tribunal in Rooney put forward some suggested ‘indicia’ for assessing whether an aid is a ‘commonly used item’ within the meaning of rule 5.8(a) of the Becoming a Participant Rules, saying:
To this extent the Tribunal considers that the term in this context must surely refer to commonly used items by persons who have the disability concerned. Glasses may be common amongst people who have some level of vision impairment (bearing in mind that the range of vision impairment in the population can vary significantly) the same way crutches may be common amongst persons who have restrictions on their capacity to walk. A back brace for instance may be common amongst persons who suffer significant back complaints but is not common in the community as a whole.
There are also other indicia of commonly used items which include whether the item:
(a) is generally accessible;
(b) can be used without the need for complex or specialised customisation or installation;
(c) is relatively simple to use; and
(d) is relatively inexpensive. [29]
[29] Rooney and National Disability Insurance Agency [2021] AATA 3523, [26, 27].
In my view, respectfully, these indicia are cast too broadly and could lead to individuals with a substantially reduced functional capacity being refused access to the NDIS. I do not agree that the correct comparison to make is with items used by persons who have the disability concerned. For example, a wheelchair is a mobility aid commonly used by people with a spinal cord injury, but I would not consider this to be a commonly used item in the broader population. Similarly, an inexpensive wheelchair can be purchased at a chemist without a prescription or further customisation. I would not consider that a wheelchair for a person with a spinal cord injury should be considered commonly used equipment for the purposes of this deeming rule. Keeping in mind that the carve-out regarding commonly used equipment relates to the deeming of when a person has a substantially reduced function capacity, I would consider that the more appropriate comparator for when equipment is ‘commonly used’ is with persons of a similar age and gender demographic,[30] rather than within a specific disability cohort.
[30] I discussed a comparison with age now also in Morris and National Disability Insurance Agency (NDIS) [2024] ARTA 186, [29, 30].
I agree with the approach recently set out in Burrows on the use of assistive technology in which the Tribunal said:
… consistent with the ICF [International Classification of Functioning, Disability and Health], the assessment of a prospective participant’s functional capacity is based upon the “naked” person; that is, it seeks to determine the person’s capacity without personal assistance or the use of assistive devices. That is the case, except to the extent that this principle is modified by Rule 5.8(a) to require commonly used item of equipment, such as glasses, to be discounted. In my opinion, given that Rule 5.8(a) should be taken to evince a legislative intention, the same approach should be taken in relation to the assessment of functional capacity for the purposes of s 24(1)(c) other than when Rule 5.8 is applicable.
It is to be noted for the purposes of Rule 5.8 and otherwise that the relevant Agency operational policy defines the term “assistive technology” in accordance with the World Health Organisation’s ICF definition as follows:
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 to 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. It includes items that:
Mean you need less help from others
Help you do things more safely or easily
Help you to keep doing the things you need to do
Allow you to do tasks independently
Are personalised for you.[31] [notes omitted]
[31] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607, [71, 72]
The last point in this list ‘personalised for you’ seems less consistent with some of the earlier examples in this operational policy, such as non-slip mats. However, this is an inclusive list in a guideline, and I do not consider it is designed to be applied as definitive criteria. There is no specific evidence before me at to the frequency of use of equipment within Mrs Banoub’s age and gender cohort. On balance, my view is that a long-handled shower brush and front fastening bras are likely to be commonly used items for women aged 60-65. I do not consider that a shower chair, grab rails, adaptive dressing aids, and a bidet are commonly used items. Ultimately however, as will be seen below, my conclusion in this matter is not based on whether or not Mrs Banoub is deemed to have a substantially reduced functional capacity under rule 5.8(a) of the Becoming a Participant Rules.
‘Time taken and breaks’
I agree with the third aspect of the Agency’s submission above regarding modification to the timing of activities and taking short breaks. In this regard, Ms Agnoletto reported that:
Ms Banoub performs several self-care activities more slowly or in a modified manner.
o Showering takes 15 minutes, with an additional 5-10 minutes for hair washing. A
person without disability would typically complete showering within 5-10 minutes.
o She requires a five minute rest after showering before continuing with other tasks. A person without disability would not typically require a rest break.
o Dressing takes five minutes, performed while seated. A person without disability
would typically complete dressing within one to three minutes, often standing.[32]
[32] JHB, page 175.
In my view, that Mrs Banoub takes a few minutes more to complete some of these activities, or needs to take a short break, does not indicate substantially reduced functional capacity.
‘Minimal assistance’
Above, the Agency also submits that the lowest rating that Ms Agnoletto’s assessed Mrs Banoub using the Functional Independence Measure (FIM) was ‘minimal assistance’. I note that FIM uses the following seven-point scale with higher scores indicating greater task independence:
1 - Total assistance with helper
2 - Maximal assistance with helper
3 - Moderate assistance with helper
4 - Minimal assistance with helper
5 - Supervision or setup with helper
6 - Modified independence with no helper
7 - Complete independence with no helper[33]
[33] Sourced from the Australian Institute of Health and Welfare:
I note that levels 4 and 5 in this scale require a ‘helper’. I also note that, at the hearing, Ms Angoletto corrected her opinion with regards to grooming and changed this from being a level 6 to level 4. I also consider that some caution needs to be applied in applying these results in isolation as Ms Agnoletto’s describes the FIM instrument as:
… a basic indicator of patient disability and is used to track the changes in the 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.[34]
[34] JHB, page 149.
The FIM instrument was also one of several standardised assessments that Ms Agnoletto applied in forming her overall opinion. In response to specific questions on self-care, Ms Agnoletto’s opinion was that:
- M. Banoub has a reduction in her capacity to undertake self-care. Her WHODAS score for selfcare is 75.00%, indicating severe disability, impacted by her “extreme/cannot do” rating for D3.4 (staying by herself for a few days).
- This reduction appears to be caused by chronic pain syndrome, fatigue, plantar fasciitis, vertigo, and lower limb numbness. Chronic pain and fatigue limit her endurance, requiring increased time and rest breaks for personal care tasks. Upper limb pain restricts shoulder mobility, making it difficult to wash her back, while fine motor difficulties affect fastening her bra. Lower limb pain and stiffness prevent her from putting on socks and enclosed shoes. Vertigo and lower limb numbness affect her balance, requiring occasional assistance exiting the shower.
- Her ability to maintain home hygiene is also impacted. Home hygiene and domestic tasks have been included in self-care as they are essential for maintaining personal cleanliness and a sanitary living environment. WHODAS life activities section (D5.1-D5.4) scores indicate “extreme/cannot do” for household responsibilities, indicating that she is unable to complete household cleaning tasks. Due to pain and fatigue, she relies on a weekly cleaner, and her husband manages laundry, shopping, and meal preparation, with her assisting as tolerated. She is unable to vacuum, mop, or scrub surfaces due to pain and endurance limitations.[35]
[35] JHB, page 174.
I also note here that Ms Angoletto’s oral evidence was that Mrs Banoub’s self-reporting on the WHODAS assessment could be impacted by her pain perception and that, as with the FIM assessment, the WHODAS results formed one part of her overall assessment of Mrs Banoub’s functional capacity.
Excluding domestic tasks?
In their closing submission, the Agency also referred to the Tribunal’s conclusion in Burrows that:
… domestic tasks such as laundry, domestic cleaning, gardening and yard maintenance, as examples, do not fall within any of the s 24(1)(c) activity areas. That conclusion is reached on a straightforward reading of the statutory language of the section which does not refer to a domestic activity area, and the Agency’s operational policy, which does not include any reference to the physical tasks associated with domestic activity. In this respect the tasks attributed to self-management by the Agency’s operational policy include “day-to-day tasks at home”, but limit those tasks to mental or cognitive tasks, not physical ability to do these tasks. [36]
[36] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607, [90].
In reaching this conclusion, one of the observations made[37] (in the detailed and careful reasoning of the Tribunal) was that no assessment tools have been specified pursuant to rule 5.8 of the Becoming a Participant Rules. I note that, the Federal Court decision in Foster treated the Applying to the NDIS guideline as being an assessment tool made for the purpose of section 7 of the Becoming a Participant Rules.[38] The Applying to the NDIS guideline itself does not state that it is an assessment tool made under the Becoming a Participant Rules. The guidelines do not appear to be written in a way which I would expect for an assessment tool which could be applied in a standardised way. However, I am reluctant to depart from the characterisation of the Applying to the NDIS guideline as an assessment tool as guided by the Federal Court. In any case, as the guidelines are ‘merely administrative tools’ they do not control the meaning of the phrase ‘substantially reduced functional capacity’ or alter the threshold criteria for when a person meets the disability requirements as specified in section 24 of the NDIS Act.[39]
[37] At paragraph 63.
[38] National Disability Insurance Agency v Foster [2023] FCAFC 11, [65].
[39] National Disability Insurance Agency v Foster [2023] FCAFC 11, [625].
My view respectfully departs from the above conclusion in Burrows. I consider that it is correct to ask whether the Applying to the NDIS guideline does properly “have reference to areas of activity and social and economic participation identified in the World Health Organisation International Classification of Function, Disability and Health [ICF] as in force from time to time” as required by rule 7.5 of the Becoming a Participant Rules. The exclusion of domestic tasks, such as laundry, meal preparation, and cleaning from any part of the assessment could not be said to have reference to the ICF as these tasks form part of the ICF Domain 6 ‘Domestic Life’.
Possibly, such ‘Domestic Life’ tasks best align with the legislative activity of ‘self-management’ in section 24(1)(c)(vi). If so, then the Applying to the NDIS guideline specific limitation of ‘self-management’ activities to mental or cognitive abilities, as opposed to physical abilities, might be inconsistent with the legislative intent to have reference to the activities in the ICF. I also note that the ICF Domain 8 ‘Major Life Areas’ and Domain 9 ‘Community, Social and Civic Life’ appear to broadly correlate with the social and economic participation criteria in section 24(1)(d) of the NDIS Act.
As I see it, this leaves the Tribunal to consider three possible interpretations:
(a)domestic tasks are considered within other activities, such as mobility or self-care,
(b)domestic tasks are considered within the self-management activity and, with reference activities in the ICF, the exclusion of non-cognitive self-management impairments in the Applying to the NDIS guideline is incorrect, or
(c)domestic tasks do not form part of the assessment of whether a person has a substantially reduced functional capacity.
I prefer the approach of considering domestic tasks in respect of self-care given the potential impact on a person’s health and hygiene. In my view, this approach is the most consistent with the legislative intent to have reference to the ICF and allows for an functional assessment of what a person can and cannot do in their daily activities.[40] A conclusion that domestic tasks do not form part of a functional assessment only seems to be reached if the activity definitions in Applying to the NDIS guideline are applied in a way which restricts the meaning provided in the NDIS Act and Rules. Considering domestic tasks within the activity of self-care allows for the Applying to the NDIS guideline to continue to be used without finding that the guidelines are inconsistent with NDIS Act and Rules.
[40] Mulligan v National Disability Insurance Agency [2015] FCA 544, [56].
That there may be circumstances where the inability to clean or prepare a meal could impact a person’s capacity for self-care is acknowledged in Burrows at paragraph 145. I consider that domestic tasks, such as cleaning, laundry, and meal preparation, and are appropriately considered in the domain of self-care in circumstances where a person not being able to complete these task would, quite quickly, impact their health and hygiene. This is the approach that Ms Angoletto took in forming her opinion. This is also the conclusion I reached in RRMR.[41] It remains my view, as indicated in RRMR, that tasks such as garden maintenance are more appropriately considered within the activity of mobility, as the link between these task and a person’s hygiene and health is more remote. In respect of Mrs Banoub, I also consider that the task of pool cleaning is properly considered in respect of mobility, rather that self-care.
[41] RRMR and National Disability Insurance Agency (NDIS) [2024] ARTA 74, [52-55]/
Capacity to perform self-care tasks
Based on the evidence before me, I consider that Mrs Banoub’s usually requires assistance with:
(a)Grooming tasks such as washing herself, cutting her nails, and drying her hair,
(b)Meal preparation,
(c)Dressing her upper and lower body,
(d)Heavier cleaning and laundry tasks such as hanging out washing, putting on bed linen, vacuuming, mopping, scrubbing, and taking out rubbish.
I consider that the deeming rule 5.8(b) of the Becoming a Participant Rules applies to Mrs Banoub. Mrs Banoub usually requires assistance from other people to participate in the activity of self-care, or to perform tasks or actions required to undertake or participate in this activity. As such, Mrs Banoub is deemed to have a substantially reduced functional capacity for self-care.
I find that Mrs Banoub is able to complete the remaining self-care tasks independently in a modified manner. Overall however, without the assistance of her husband, daughters, and cleaners, Mrs Banoub’s state of hygiene and nutrition would quite quickly become unsafe. This is especially the case for Mrs Banoub on her ‘bad days’. Even if some improvement in the proportion of ‘good/bad days’ could be achieved through renewed therapies, I consider that Mrs Banoub will still experience a majority of days in which her capacity for self-care is substantially reduced. It is also possible the Mrs Banoub’s perception of pain could be improved with further therapy, however I do not consider that it is realistic that Mrs Banoub impairments would improve to a point which would be considered to be less than ‘severe’.
As I have found the Mrs Banoub has a substantially reduced functional capacity in one of the activities in section 24(1)(c) I do not have to consider the other activities.
Likely to require lifetime support of the NDIS
Section 24(1)(e) of the NDIS Act also requires that a person is likely to require support under the scheme for the person’s lifetime. At paragraph 93 of Foster, the Court clarified that:
The focus of s 24(1)(e) is on whether a prospective participant is likely to require support under the NDIS, or whether those support needs are most appropriately met by other systems.
I note that Mrs Banoub appears to receive cleaning services via the Victorian Home and Community Care Program for Younger People (HACC-PYP).[42] I do not consider that this means that Mrs Banoub’s support needs are most appropriately met by the HACC-PYP. Based on the evidence before me, the services currently being provided are not sufficient for Mrs Banoub’s support needs. According to the public information about the HACC PYP, this program does not deliver services that are the responsibility of other programs to provide, such as the NDIS.[43] Whether provision of these cleaning services for Mrs Banoub needs to transition to the NDIS is a matter for implementation.
[42] JHB, page 83.
[43] Victorian Home and Community Care, Program for Younger People, Interim Guidelines, November 2023, accessed at >
I also note that Mrs Banoub’s husband is aged 63 and is not yet eligible for support under the Aged-Care system. I have taken into account the Agency’s submission that some household tasks, such as pool cleaning and yard maintenance, have always been the responsibility of Mrs Banoub’s husband rather than Mrs Banoub. I have not included these tasks my assessment of self-care tasks above as they are not likely to directly impact on Mrs Banoub’s health and hygiene. Some ongoing therapy supports may be more appropriately provided by the health system. Determining which specific therapy supports are directed to Mrs Banoub’s disability support needs as compared to being clinical treatments for a chronic health condition may not always be a straight-forward matter. Again, this is an issue best considered during planning and implementation.
The Agency submits that a person will only be likely to require support under the NDIS for their lifetime if their impairments substantially reduce their functional capacity. As I found that Mrs Banoub has a substantially reduced functional capacity to undertake the activity of self-care, I consider that it is likely that she will require lifetime support of the NDIS. At a minimum, Mrs Banoub requires regular support worker assistance with cleaning, laundry, meal preparation, shopping, dressing, and grooming. This assistance is most appropriately provided by the NDIS. I do not consider that there is a more appropriate system to provide these supports to Mrs Banoub.
Early Intervention requirements
As I am satisfied that Mrs Banoub meets section 24 of the NDIS Act, I do not need to separately consider whether Mrs Banoub also meets the early intervention requirements in section 25 of the NDIS Act.
DECISION
I am satisfied that the Applicant meets the disability requirements as set out in section 24 of the NDIS Act. The Applicant is eligible to become a participant of the NDIS. The decision of the Agency under review is set aside and substituted with a decision that the Applicant meets the access criteria in section 21 of the NDIS Act.
72.
73.
74.
75.
76.
77. I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of General Member J Toohey.
................[SGD].................
Associate
27 August 2025
Date of hearing: 31 July 2025 Representative for the Applicant:
Self-represented
Assisted by Mr Banoub and Mr Andrawis
Solicitors for the Respondent:
Counsel for the Respondent:
Taylor Hawcridge, Maddocks Lawyers
Dr Michael Taylor, Svenson Barristers
2
10
0