Brockett and National Disability Insurance Agency

[2022] AATA 214

Brockett and National Disability Insurance Agency [2022] AATA 214 (14 February 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/2133

Re:Sharyl Brockett

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:14 February 2022

Place:Melbourne

The Tribunal affirms the Decision Under Review.

................................[sgd]........................................

Member K. Parker

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – review of decision approving statement of participant supports – adult participant with partial hearing and vision impairments – participant requests provision of and funding for hearing aids with particular features – whether support is “reasonable and necessary” – whether criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) are met – whether requested hearing aids are most appropriately funded under the National Disability Insurance Scheme – consideration of supports available under Hearing Supports Program offered by Hearing Australia – Decision Under Review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Secondary Materials

NDIS Operational Guidelines - Does the support meet the reasonable and necessary criteria? | NDIS

REASONS FOR DECISION

Member K. Parker

14 February 2022

INTRODUCTION

1. The Applicant, Ms Sharyl Brockett, is an adult participant of the National Disability Insurance Scheme (NDIS). Ms Brockett has a disability arising from impairments that partially affect her hearing in both ears. She is also legally blind, has macular dystrophy and uses a guide dog in everyday life. Ms Brockett has requested that she be provided with, and funded for, under the NDIS, new hearing aid devices for both ears, with features including rechargeable batteries and the ability for her hearing aids to connect “hands-free” to her Apple watch.[1]

   [1] In the Applicant’s Statement of Lived Experience (undated), she stated: “If I had a hands free option to be able to call using my Apple Watch, this would be a safer and quicker option for me to get assistance when I need it in a hurry or in an emergency situation where I need to act quickly”.

2. This application is about whether the Requested Support is a “reasonable and necessary” support under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and should be included in Ms Brockett’s statement of participant supports (SOPS) forming part of her NDIS plan.

3. The Tribunal’s jurisdiction to decide this matter arises under s 103 of the NDIS Act.

4. During closing submission, the National Disability Insurance Agency (NDIA) stated that its primary position was that the Requested Support is not “most appropriately funded” through the NDIS within the meaning of s 34(1)(f) of the NDIS Act, because Ms Brockett may be eligible to receive the Requested Support at no cost through the Hearing Supports Program (HSP) offered by Hearing Australia.

5. For the reasons set out below, the Tribunal considers that the Requested Support is not “most appropriately funded” under the NDIS and is instead more appropriately funded through the HSP. Accordingly, the Tribunal concludes that the Requested Support is not a “reasonable and necessary” support because it fails to meet the mandatory criteria under s 34(1)(f) of the NDIS Act. On this basis, the Tribunal affirms the Decision Under Review.

   ISSUE

6. The issue to be determined in this matter is whether the provision of the Requested Support should be included in Ms Brockett’s SOPS and funded under the NDIS. This will encompass a consideration of whether the mandatory “reasonable and necessary” criteria under s 34(1) of the NDIS Act are met in respect of this Requested Support.

   LEGISLATIVE FRAMEWORK

7. The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3. Section 4 establishes general principles guiding actions to be taken under the NDIS Act. Persons with disabilities may apply to become participants in the scheme, subject to certain eligibility requirements.

8. A participant’s plan is prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. The supports described in the SOPS must be approved in accordance with the NDIS Act and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules).

9. Section 31 of the NDIS Act establishes a set of general principles that applies to the “preparation, review and replacement” of an NDIS participant’s plan, as reproduced below.  These principles have been considered by the Tribunal.

   31       Principles relating to plans

   The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:

   (a)  be individualised; and

   (b)  be directed by the participant; and

   (c)   where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

   (d)  where possible, strengthen and build capacity of families and carers to support participants who are children; and

   (da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and

   (e)  consider the availability to the participant of informal support and other support services generally available to any person in the community; and

   (f)   support communities to respond to the individual goals and needs of participants; and

   (g)  be underpinned by the right of the participant to exercise control over his or her own life; and

   (h)  advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

   (i)   maximise the choice and independence of the participant; and

   (j)   facilitate tailored and flexible responses to the individual goals and needs of the participant; and

   (k)  provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

10. Section 31 of the NDIS Act sets out several principles that apply in the development of a participant’s NDIS plan. The purpose of the plan is to stipulate how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the NDIS. Each plan must have in it an approved SOPS and, in fact, does not take effect until a SOPS forming part of the plan has been approved by the Chief Executive Officer (CEO) under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).

11. Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:

    (a)  have regard to the participant’s statement of goals and aspirations;

    (b)  have regard to relevant assessments conducted in relation to the participant;

    (c) be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;

    (d)  apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;

    (e)  have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f)   have regard to the operation and effectiveness of any previous plans of the participant.

12. Section 34(1) of the NDIS Act provides as follows:

    34       Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

    (b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

    (c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide;

    (f)the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

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

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

    (2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

13. Section 33(5)(d) of the NDIS Act requires that the Supports for Participant Rules be applied in the making of a decision to approve a SOPS.

14. The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43] as follows:

    The rules are legislative instruments to be made by the Minister: see s 209.  Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Supports for Participant Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

15. The Tribunal has considered the Operational Guidelines published by the Respondent on its website; specifically, those relating to the assessment of whether a requested support meets the “reasonable and necessary” criteria under s 34(1) of the NDIS Act.

    EVIDENCE

16. This application proceeded before the Tribunal in an irregular manner in response to developments throughout the course of this proceeding, about what supports were being requested by the Ms Brockett.

17. Ms Brockett initially requested a specific hearing device for both ears, namely, the “Resound LiNX Quattro 7 rechargeable hearing aids + charger” (LiNX Device). The SOPS approved by a delegate of the CEO of the NDIA on 10 January 2020, did not include the provision of, and funding for, the LiNX Device, or for any other hearing aid for Ms Brockett (Original Decision). Ms Brockett sought review of this decision under s 100(2) of the NDIS Act.

18. On 11 February 2020, a different delegate of the CEO of the NDIA (that is, a “reviewer”) affirmed the Original Decision (Decision Under Review). The effect of this decision was to decline Ms Brockett’s request for the LiNX Device to be added to her SOPS. 

19. On 9 April 2020, Ms Brockett sought review by the Administrative Appeals Tribunal (AAT) under s 103 of the NDIS Act. The application was lodged by Mr Stephen Grainger, Villamanta Disability Rights Legal Service Inc., as legal representative for Ms Brockett. Mr Grainger states the Decision Under Review was wrong on the following bases:

    (a)Ms Brockett believed that evidence provided by her had not been taken into account “when deciding there were other options available to her that provided better value of money”; and

    (b)that Ms Brockett’s disabilities were “not fully considered” by the reviewer “when deciding that hearing aids with lower technological capability would assist her”. 

20. Mr Grainger did not state on the Application for Review of Decision form (AAT Application Form) what support was being requested by Ms Brockett, although he attached a completed NDIS General Assistive Technology Assessment Template (AT Template) signed by an AT Assessor on 2 October 2019, recommending the provision of the LiNX Device to Ms Brockett. The following further two documents were attached to the AAT Application Form:

    (a)a letter from Guide Dogs Victoria, dated 12 February 2019; and

    (b)a letter by Ms Stacey Maguire, occupational therapist, dated 12 August 2019.

21. The NDIA lodged a set of documents on 12 May 2020, pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents).

22. On 3 August 2020, Ms Grainger lodged the following further documents with the Tribunal:[2]

    (a)an email from Ms Brockett to Mr Grainger dated 9 June 2020 explaining why she considered she could not wear a Signia Streamline Mic (Signia Mic) as had been suggested by the NDIA as an alternative support, because it would be worn around her neck and she had injuries in her neck, shoulder, and hip;

    (b)a letter from Mr Grainger to Bellarine Hearing dated 14 July 2020 seeking information about the functionality of the Signia Mic and whether it could be paired to an Apple watch and was “easy for a blind person to use”; and

    (c)letter from Ms Sarah Milliken, Senior Audiologist, Hearing Australia, on about 10 June 2020, advising that a Signia representative had informed her that the Signia Mic could not be connected to an Apple watch, but it could connect to an iPhone and other Bluetooth devices such as a computer and an iPad.

    [2] In compiling this list, the Tribunal has omitted any documents referred to above.

23. On 4 November 2020, Ms Brockett lodged with the Tribunal a statement of lived experience attaching the following documents:[3]

    (a)a quote for right and left “GN LiNX Quattro R-RIE 961-DRWC, B249RES” hearing aids (2 X $4,883.85) and “GN LiNX Quattro charger w HA” (no charge), and audiologist report by Ms Monica Jones, Specsavers Audiology, both dated 2 September 2020;

    (b)Falls Risk Assessment dated 22 April 2020 completed by Ms Magurie;

    (c)a letter by Ms Alexa Starratt, physiotherapist, Corio Bay Health Group, dated 10 June 2020; and

    (d)User Guide for the Signia Mic issued by Signia GmbH in 2018.

    [3] In compiling this list, the Tribunal has omitted any documents referred to above.

24. The NDIA submitted a statement of facts, issues, and contentions on 5 February 2021, (NDIA’s SFIC) to which Ms Granger responded with a “Statement of Issues” lodged on 9 February 2021.

25. At the commencement of the first day of the substantive hearing in this proceeding on 2 March 2021, the Tribunal was informed that Ms Brockett was no longer requesting the LiNX Device. The evidence and submissions lodged by the parties with the Tribunal focussed on the LiNX Device. Given this significant development, the Tribunal adjourned the hearing to provide an opportunity for Ms Brockett to lodge updated submissions and evidence relating to the device she wished to have funded under her NDIS plan.

26. Mr Grainger submitted a further statement of facts, issues, and contentions on behalf of Ms Brockett on 5 May 2021 (Ms Brockett’s SFIC).

27. On 11 May 2021, the NDIA lodged a further submission seeking dismissal of Ms Brockett’s application. On 13 May 2021, Mr Grainger, on Ms Brockett’s behalf, lodged a document entitled “Applicant’s submissions as to whether the Tribunal can consider alternative hearing aids”. The Tribunal heard the Respondent’s dismissal application on 1 June 2021. After hearing from the parties, the Tribunal did not grant the dismissal application.

28. On 14 May 2021, Ms Brockett lodged a number of documents with the Tribunal including an email from HSP sent on 21 April 2021 (HSP April 2021 Email) providing an explanation about its program.

29. Following the hearing adjournment, Mr Grainger, on behalf of Ms Brockett, lodged an amended statement of facts, issues and contentions lodged on 11 June 2021 (Ms Brockett’s Amended SFIC) and further documentary evidence, including (among other documents) a “General Assistive Technology Assessment Template” completed by audiologist, Ms Sarah Milliken, dated 10 December 2018.

30. It was not easy to discern from Ms Brockett’s Amended SFIC what support was being requested by her. It seemed that she was requesting new hearing aids generally, which had features including rechargeable batteries, and the ability for her hearing aids to connect wirelessly or “hands-free” to her mobile phone (New Requested Support). However, Mr Grainger, on behalf of Ms Brockett, did not specify in her Amended SFIC any particular model of new hearing aids or provide any further quotes.

31. The substantive hearing of this application was listed to resume on 22 July 2021 (Resumed Hearing). The day before the Resumed Hearing, on 21 July 2021, the NDIA lodged an amended statement of facts, issues and contentions dated 21 July 2021 (NDIA’s Amended SFIC) and a “tender bundle” of further documents (NDIA’s Tender Bundle), which included:

    (a)Hearing Australia’s website extract downloaded on 21 July 2021 about its HSP;

    (b)HSP fully subsidised device schedule, dated 29 November 2012;

    (c)HSP partially subsidised device schedule, dated 12 May 2020;

    (d)HSP eligibility criteria for refitting, undated;

    (e)HSP feedback and complaints, undated;

    (f)Hearing Australia complaints, dated 23 November 2018;

    (g)HSP specialist hearing services, undated;

    (h)Hearing Australia’s website extract downloaded on 21 July 2021 about “Requesting a revalidated service”;

    (i)breakdown of Ms Brockett’s current NDIS plan, undated; and

    (j)Total Care Hearing’s website extract downloaded on 21 July 2021 about the Signia Mic.

32. Mr Grainger objected to the late lodgement of the material by the NDIA as referred to in the above paragraph. The Tribunal asked Mr Grainger whether Ms Brockett wished to make an application for an adjournment of the hearing. He informed the Tribunal that Ms Brockett wanted to proceed with the Resumed Hearing. On that basis, the Tribunal proceeded with the Resumed Hearing.

33. On or about midday on 22 July 2021, after the Resumed Hearing had commenced, Ms Brockett lodged with the Tribunal further documentary evidence including:

    (a)a quote dated 10 June 2021 from National Hearing Centres Pty Ltd (trading as “Amplifon”) (Amplifon), for a device falling within the description of the New Requested Support described by the provisional audiologist, Ms Song, as a “level 5 rechargeable hearing aids by GN Resound”. The quote was for the devices “Ampli-Energy R 5 ON R GLD GN” (x2) and “Ampli-Charge R 1 GN EU” (x1) for the total cost of $10,900 (New Requested Devices);

    (b)an email from Ms Brockett acknowledging to Mr Grainger stating that she had found “the rechargeable hearing aids” on the HSP list, and providing a web link to the Department of Health, HSP, document (or fact sheet) entitled “Fully or partially subsidised hearing devices”;

    (c)completed NDIA Hearing Devices and Hearing Technology Assessment Template form (Hearing Assessment Template) by Assessor, Ms Jones (from Specsavers) dated 7 April 2021 recommending the following hearing aids, “Signia 5NX rechargeable RITE, Model number B358SIE, Style RITA rechargeable and remote microphone” (Signia Device);[4]

    (d)previous quotes from SS Audiology Waurn Ponds Pty Ltd dated 11 March 2021 for left and right hearing aids “Signia Pure Charge&Go 5X”, Model number B358SIE and charger for $6,790 (minus “discounts” of $3,395), leaving a balance of $3,395 and a “Multi Mic” for $350 dated 8 April 2021; and

    (e)previous report by Ms Jones (from Specsavers) dated 7 April 2020.

    [4] This document was also lodged with the Tribunal on 14 May 2021, with a schedule of partially subsidised devices and other documents.

1. At the hearing on 22 July 2021, Ms Brockett gave evidence and was cross-examined by NDIA’s counsel. Neither Ms Brockett, nor the NDIA, called any expert witnesses and instead, sought to rely upon the documentary reports and letters lodged with the Tribunal.

2. After the Resumed Hearing, Ms Brockett lodged the following further documents with the Tribunal on 11 August 2021:

   (a)report by Ms Jones dated 2 September 2020 and attached audiogram results;

   (b)an earlier HSP Device Quote from SS Audiology Waurn Ponds Pty Ltd dated 3 September 2020 for left and right hearing aids, “GN LiNX Quattro R-RIE 961-DRWC, B249RES” and charge for the total cost of $9,767.70 with total deductions of $5,372.70 (comprising HSP subsidies of $977.70 and “Other Discounts and Rebates” of $4,395); “Perfect Dry Lux Kit” of $159.09 (GST $15.91); and Accessories of $350; and

   (c)two completed AT Templates by AT Assessor, Ms Milliken, dated 20 March 2019 and 2 October 2019 respectively.

3. On 19 August 2021, Ms Brockett lodged the following further documents with the Tribunal:

   (a)an email from Mr Grainger to Ms Jones dated 19 August 2021 seeking an explanation as to the reference to discounts and rebates on the quotation provided by Specsavers; and

   (b)an email reply from Ms Jones dated 19 August 2021 advising that it was no longer possible to access the “gn resound” hearing aids at Specsavers and that Ms Brockett would need to obtain a quote from another provider.

4. At the Resumed Hearing, the Tribunal made directions for further information to be obtained and provided to the Tribunal about Hearing Australia’s Hearing Support Program, given that this was central to the NDIA’s contention that the criterion in s 34(1)(f) of the NDIS Act had not been met. This information was lodged on 14 September 2021 and comprised an email from the HSP Voucher Operations Section (HSP September 2021 Email).

5. The Tribunal invited the parties to indicate whether they wanted an opportunity to make any further oral or written submissions in relation to the further documentary evidence produced after the conclusion of the Resumed Hearing. On 21 January 2022, the Tribunal was informed, separately, that neither party intended to make any further submissions.

   CONSIDERATION

   Is the criterion under s 34(1)(f) of the NDIS Act met?

6. Section 34(1)(f) of the NDIS Act is one mandatory criterion which needs to be satisfied before a support may be regarded as “reasonable and necessary” under s 34(1). Section 34(1)(f) requires the Tribunal, upon review, to be satisfied that the Requested Support is most appropriately funded or provided through the NDIS. In other words, the Tribunal must be satisfied that such supports are not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered as part of a universal service obligation.

7. The NDIA contends this criterion is not met because the New Requested Supports, and specifically, the New Requested Devices, may be available to Ms Brockett through the HSP.

   What supports or services are available under the HSP and Community Obligation Scheme (CSO)?

8. The Tribunal accepts the following evidence provided in the HSP April 2021 Email. This evidence was not challenged by either party to this proceeding (emphasis in bold added):

   The Hearing Services Program (the program) provides subsidy for hearing devices approved under the program. All hearing devices approved under the program are listed on one of the two different hearing device schedules. These schedules are:

   ·         the Fully Subsidised Schedule

   ·         the Partially Subsidised Schedule

   There are almost 2200 devices available on these approved devices schedules that are available for fitting depending on your clinical need.

   There are numerous devices on the Partially Subsidised Schedule that have a rechargeable option available for you. Currently, there are no devices listed on the Fully Subsidised Schedule that has a rechargeable option.

   The Department of Health funds Hearing Australia to provide specialist hearing services through the Community Service Obligation (CSO) component of the program. Specialist hearing services are available for clients of the program who need additional assistance to manage their hearing loss and communication.

   The government provides funding solely to Hearing Australia to provide additional assistance to clients with complex communications needs. Products and services for these clients are provided at no charge and include the following:

   1. comprehensive assessment of hearing and communications needs

   2. specialist advice on making the most of hearing ability

   3. a personalised program to improve listening and communication in daily life

   4. access to higher level technology

   5. devices in addition to hearing aids

   6. ongoing program of services and support

   Clients receiving specialist hearing services are entitled to higher level technology (HLT) through Hearing Australia, which may include rechargeable options provided at no additional cost. For further information on the type of devices you are entitled to under the program, please refer to the Client Factsheet.

   We would encourage you to discuss the options available to you with your preferred hearing services provider, including recommending a hearing device that is suitable for your needs.

9. The Tribunal also accepts the following evidence provided in the HSP August 2021 Email. This evidence was not challenged by either party to this proceeding:

   (a)HSP clients are entitled to fully subsidised devices at no cost. If a client chooses to purchase partially subsidised devices, they may be required to pay an additional cost, known as the “gap”, and this is not covered by the program. The additional cost is determined by the Contract Service Provider (provider) and they may, in certain cases, waive the additional cost for the client at the providers’ discretion;

   (b)if a HSP client is deemed a complex client, and they are receiving specialist services under the Community Obligation Scheme (CSO), they may be able to receive device/s on the Partially Subsidised Device Schedule at no cost. Not all devices under the Partially Subsidised Device Schedule are offered under CSO component of the program at no cost. Hearing Australia is the sole provider of specialist services. Services may include access to a broader range of fully subsidised hearing devices, communication training, ongoing services, and support to assist clients with their hearing loss;

   (c)in answer to a question about whether Hearing Australia was only able to provide one make of device, for instance, Signia, it was explained in the HSP August 2021 Email that providers are able to provide any devices on the Fully Subsidised Device Schedule and the Partially Subsidised Device Schedule based on the needs of the client;

   (d)the “higher level of technology” (to which complex clients are granted access), is a phrase used to describe devices on the Partially Subsidised Device Schedule;

   (e)guidance for providers of the program when deciding whether to refit a client is provided in the “Eligibility Criteria for Refitting” (ECR). The ECR outline the situations where a client’s current hearing aid(s) are no longer suitable due to “a significant change in the client’s circumstances” since their last fitting. If this requirement is met, the client requires new hearing aid(s) and “must be refitted”. The HSP client’s current devices must be evaluated and found to be unsuitable before new device(s) are discussed with the client;

   (f)the Department of Health does not provide advice on whether the client meets the ECR, nor advice on the devices that may be suitable. The responsibility lies with the providers to review the ECR and document a case for refitting a client in their clinical record. If the HSP client or the provider would like to obtain clinical advice, they can refer the case to the relevant professional body for clinical support; and

   (g)the Department of Health funds Hearing Australia to provide specialist hearing services through the CSO component of the program. Hearing Australia is the sole provider of specialist services. However, clients who are eligible for specialist hearing services may choose to opt out of this and receive services through the Voucher component of the program from other providers.

   Is Ms Brockett likely be considered eligible to be refitted for a new hearing aid?

10. Ms Brockett was fitted with her current left and right ear hearing aid Siemens Pure devices (Current Devices) on 2 October 2019.[5] They are battery operated and do not connect to her Apple watch on a hands-free basis. Ms Brockett’s evidence is that her hearing has deteriorated since her current set of hearing aids were fitted, and that she requires refitting with new hearing aids to assist her to hear adequately, particularly when there is background noise or when she is in a crowd.

    [5] As recorded in the AT Assessor’s report at T-Documents T1C/17 and NDIA’s Amended SFIC at [5].

11. Ms Jones records, in her letter dated 2 September 2020, that Ms Brockett has been “struggling to hear effectively” since she was fitted in 2019 with her Current Devices and that her hearing has “changed significantly” since that time.

12. The Tribunal is satisfied that Ms Brockett’s hearing has deteriorated significantly since her current hearing aids were fitted, based on the evidence of Ms Brockett and the expert evidence of Ms Jones. Accordingly, the Tribunal is satisfied that Ms Brockett would be considered eligible to be refitted for new hearing aids because her current hearing aids are no longer suitable due to “a significant change in the client’s circumstances” since her last fitting, namely, the significant change in her hearing according to Ms Jones and Ms Brockett.

13. Ms Brockett contends that the loss of her two major senses, vision and hearing, is a unique disability which causes different functional impairments to those living with just one of those sensory losses, and that a person with significant hearing impairment is often able to compensate through the use of visual cues and information via sign language and lip reading. Ms Brockett contends that she cannot employ these compensatory strategies.[6]

    [6] Refer Ms Brockett’s SFIC at [45] to [47].

14. The Tribunal is satisfied that Ms Brockett would be deemed a “complex client” due to her vision impairment alongside her hearing impairment and eligible to receive specialist services under the CSO, which according to HSP may include acquiring the devices listed on the Partially Subsided Devices schedule at no additional cost.

15. Confusion arose during the Resumed Hearing as to whether the New Requested Devices, being the device referred to in the Amplifon quote dated 10 June 2021 provided by Ms Brockett, was the same (updated) device (only by a different name) to the Resound LiNX rechargeable battery device listed on the Partially Subsidised Schedule. Mr Grainger informed the Tribunal in his oral submissions that this was the case. In order to be clear about this, the Tribunal directed that Mr Grainger lodge further evidence from the audiologist as to confirm Mr Grainer’s assertion, as a matter of fact.

16. Consequently, Mr Grainger wrote to Ms Song at Amplifon on 16 August 2021. On the same day, Ms Song responded and confirmed that the quoted device, Ampli-energy R 5 ON R GLD GN, from 10 June was a “new/most updated model of GN ReSound rechargeable hearing aids”. The Tribunal accepts this evidence due to the expertise of the audiologist providing this information. The Tribunal notes that the Partially Subsidised Device Schedule includes the GN Hearing Australia Pty Ltd ReSound LiNX Quattro 5, 7 and 9 devices.[7]

    [7] Refer NDIA’s Tender Bundle at page 14.

17. For this reason, the Tribunal is satisfied that Ms Brockett, if she pursued the New Requested Supports/New Requested Devices through the CSO component of the HSP, would be able to receive them at no cost.

18. As at the date of the Resumed Hearing, Ms Brockett had not requested to be refitted under the HSP with new hearing aids or to receive specialist services from Hearing Australia through the CSO component of the program.

19. The Tribunal considers that it is more appropriate that Ms Brockett be provided with, and funded for, supports under the HSP (including the CSO component of the program) and the provision of the New Requested Supports/New Requested Devices are not most appropriately funded under the NDIS. The CSO component of the program is centrally focussed on assisting persons with hearing loss, and the provision of specialist services to a subset of those persons considered as complex clients. If Ms Brockett makes those requests and does not achieve an outcome whereby, she receives the New Requested Supports/New Requested Devices, it would remain an option to her, to make a new request for this support to the NDIA as part of the next scheduled or unscheduled review of her NDIS plan based on any new evidence as to why such supports were unavailable to her under the HSP (that is, why her application for the supports under that program were not granted).

    CONCLUSION

20. Presently, the Tribunal is satisfied, on a balance of probabilities, that Ms Brockett would be able to receive the New Requested Supports/New Requested Devices through the CSO component of the HSP and potentially, at no cost to her, based on the information before the Tribunal, the evidence given by Ms Brockett about her complex circumstances of having a vision impairment coupled with a hearing impairment, and the recent deterioration of her hearing as corroborated by an audiologist.

21. For a support be a “reasonable and necessary support” under s 34(1) of the NDIS Act, it must satisfy all mandatory criteria as set out in subparagraphs (a) to (f) of that provision. The Tribunal concludes that Ms Brockett failed to meet the mandatory criterion under s 34(1)(f) of the NDIS Act in respect of the Requested Support, for the reasons set out above. On that basis alone, the Tribunal concludes that the Requested Support is not a “reasonable and necessary support” under s 34(1) of the NDIS Act and should not be included in the SOPS in her NDIS plan.

22. Accordingly, the Tribunal affirms the Decision Under Review.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

………[SGD]………………

Associate

Dated: 14 February 2022

Dates of the hearing:  2 March 2021 and 22 July 2021

Final date further evidence lodged:               14 September 2021

Advocate for the Applicant:  Mr Stephen Grainger

Solicitors for the Applicant:  Villamanta Disability Rights Legal   Service Inc

Advocate for the Respondent:  Ms Krystyna Grinberg (Barrister)

Solicitors for the Respondent:  Ms Taylor Mobbs and Mr Nick Crawford, National Disability Insurance Agency