Evans and National Disability Insurance Agency

[2019] AATA 754

Evans and National Disability Insurance Agency [2019] AATA 754 (24 April 2019)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2018/0801

Re:Lee Evans

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:24 April 2019

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the Applicant satisfies the access criteria, pursuant to s 24 of the Act, to become a participant of the National Disability Insurance Scheme.

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

Mr A. Maryniak QC, Member

Catchwords  

NATIONAL DISABILITY INSURANCE SCHEME – access – hearing impaired applicant – whether impairments result in substantially reduced functional capacity in one or more relevant activities – whether substantially reduced functional capacity to communicate – whether applicant requires support from the NDIS for lifetime – decision under review set aside and substituted

Legislation  

Parliamentary Privileges Act 1987 (Cth)
National Disability Insurance Scheme Act 2013

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

Cases  

Mulligan v National Disability Insurance Agency [2015] FCA 544
Mulligan v National Disability Insurance Agency [2015] AATA 974
McGarrigle v National Disability Insurance Agency [2017] FCA 308

Drake v Minister of Immigration and Ethnic Affairs (1979) 46 FLR 409

Secondary Materials              

United Nations Convention on the Rights of Persons with Disabilities
Operational Guidelines of the National Disability Insurance Agency
National Disability Insurance Scheme Bill 2012 Revised Explanatory Memorandum

National Disability Insurance Scheme Bill 2012 Explanatory Memorandum

REASONS FOR DECISION

Mr A. Maryniak QC, Member

24 April 2019

Background

1. The Applicant seeks review of an internal review decision made by the Respondent, dated 24 January 2018, pursuant to s 100(6) of the National Disability Insurance Scheme Act 2013 (the Act).  That decision affirmed a decision dated 2 October 2017, which denied the Applicant’s request to access the National Disability Insurance Scheme (NDIS) because she did not satisfy the access criteria set out in ss 21 to 25 of the Act.

2. The Applicant is aged 47.  She has experienced hearing loss for many years.  She has had a difficult life but tries to do her best as a single mother and primary carer of her two daughters, aged about 12 and 14.  The elder daughter has a diagnosis of autism spectrum disorder (ASD) with her own NDIS plan.  Her younger daughter also has ASD.  The Applicant is employed part time with the Medico-Legal Society of Victoria, as well as in an administrative capacity for a local farming entity and receives carer payments for her daughters due to their disabilities.

   Issues

3. The issue in this matter is whether the Applicant meets the access criteria under s 21 of the Act. The parties agree she meets the age and resident requirements per ss 22 and 23. Further, there is no dispute of the applicability, subject to the Tribunal being satisfied, of ss 24(1)(a), 24(1)(b) and 24(1)(d). The Tribunal is satisfied in this regard.

4. Hence, in issue is:

   (a)the admissibility of a report of Deloitte Access Economics dated June 2017 entitled The Social and Economic Cost of Hearing Loss in Australia (the DEA Report); and

   (b)whether the Applicant satisfies ss 24(1)(c), 24(1)(e), and if not, 25(1)(b), 25(1)(c) and 25(3) of the Act.

   The DEA Report

5. The Respondent submits that the report is subject to parliamentary privilege and is not admissible by reason of s 16 of the Parliamentary Privileges Act 1987 (Cth) (the PP Act) which relevantly provides:

   (2)… proceedings in Parliament means all words spoken and acts done in the course of, or for the purposes of a House or of a committee, and without limiting the generality of the forgoing, includes:

   (a)the giving of evidence before a House or a committee, and the evidence so given;

   (b)the presentation or submission of a document to a House or a committee;

   (c)the preparation of a document for purposes of or incidental to the transacting of any such business; and

   (d)the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

   (3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of or for the purpose of:

   (a)questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

   (b)otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

   (c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings.

6. The Applicant seeks to have the Tribunal accept the contents of the DEA Report as established facts, that is, the Applicant seeks to “rely on the truth” of the contents of the report. This approach appears contrary to s 16(3)(a) of the PP Act. In such circumstances, by reason of s 16(3)(a), it is not lawful for the DEA report to be tendered or received into evidence. Even though the rules of evidence do not apply in the Tribunal, the PP Act operates to exclude that report from consideration in this matter.

   Agreed Principles

7. The parties contend, and the Tribunal agrees, that the following principles apply with respect to the Act.

8. The Act utilises the social model of understanding disability. Rather than seeing disability as a problem, that either needs to be fixed or unavoidably results in marginalisation, the social model focuses on the need to change the physical and social environment to facilitate social and economic participation. Relevantly, the objects of the Act include:

   (a)supporting the independence and social and economic participation of people with disability;[1]

   (b)enabling people with disability to exercise choice and control in the pursuit of their goals;[2] and

   (c)enabling people with disability to maximise independent lifestyles and full inclusion in the community.[3]

   [1]  National Disability Insurance Scheme Act 2013 (Cth) s 3(c).

   [2] National Disability Insurance Scheme Act 2013 (Cth) s 3(e).

   [3] Ibid s 3(g).

9. Section 4 of the Act further affirms that people with disability should be supported to participate in, and contribute to, social and economic life to the extent of their ability.[4]

   [4] Ibid s 4(2).

10. In Mulligan v National Disability Insurance Agency, Mortimer J noted that the objectives of the Act have “common themes: enhancing supports for people with a disability in a way which promotes their autonomy over their lives and full inclusion in the Australian community; and doing so in a nationally coordinated way”.[5]

    [5] [2015] FCA 544, [14].

11. Importantly, the Act also expressly gives effect to the Convention on the Rights of Persons with Disabilities (CRPD).[6]  The CRPD enshrines the need for people with disability to fully and effectively participate in society and to make their own choices; and to have respect for difference and acceptance of persons with disabilities.[7]

    [6] National Disability Insurance Scheme Act 2013 (Cth) s 3(1)(a).

    [7] United Nations Convention on the Rights of Persons with Disabilities, article 3.

    Substantially reduced functional capacity to communicate: s 24(1)(c)

12. The Applicant submitted the following as set out through to paragraph 16. To become an NDIS participant, s 24(1)(c) of the Act requires that a person have a substantially reduced functional capacity to undertake one or more the activities listed in s 24(1)(c)(i)-(vi). The Applicant submits that she has a substantially reduced functional capacity to communicate.[8]

    [8] National Disability Insurance Scheme Act 2013 (Cth) s 24(1)(c)(i).

13. Relevantly, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (the Rules) state that an impairment will result in substantially reduced functional capacity where a person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate in effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications.[9]

    [9] National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), rule 5.8 T12/61.

14. The Applicant submitted that the evidence establishes that she is unable to participate effectively or completely in the act of communication without assistive technology.  It was common between both experts in this matter that the Applicant had moderate to severe sensorineural hearing loss in both ears.[10]  Audiologist Ben Featherston gave evidence that the Applicant had an impairment between 1 kHz and 8 kHz, and that she required significant amplification to hear sounds in that range. Mr Featherston’s evidence was that the sounds that the Applicant missed are the sounds that usually start and end words, which greatly affected her capacity to discriminate speech sounds.[11]  He estimated that she missed approximately 50 percent of speech sounds, and that the sounds the Applicant missed are the most important in relation to understanding human speech.[12]  The Tribunal accepts this evidence, which is corroborated by the Applicant’s oral evidence.

    [10] Ben Featherston report exhibit A2, p 1; Eugene Mougerman report, Exhibit R1 [4.1].

    [11] Ben Featherston, evidence in chief.

    [12] Ben Featherston, evidence in chief and cross-examination.

15. Mr Featherston also gave evidence that background noise, masking the softer parts of speech, significantly impacted the Applicant’s capacity to comprehend. Mr Featherston’s evidence was that noises like a fan, children in the background, or a car engine affect the Applicant’s capacity to discriminate speech. Importantly, the hearing tests performed on the Applicant occurred in a quiet space.  As such, Mr Featherston stated that her true functional impairment is even worse than what is indicated by the graphs and charts.[13]

    [13] Ben Featherston, evidence in chief.

16. Consistent with Mr Featherston’s opinion, the Applicant gave evidence that she struggles to understand speech in any situation, other than sitting in a quiet room with another person.  She misses parts of words, and relies on lip-reading to try to fill in the gaps. However, she explained that lip-reading is ineffective when she cannot see a person’s lips or when a conversation involves more than one other person.  As such, she finds it very difficult, if not impossible, to communicate at a restaurant, at a pub or while she is driving. She gave evidence that this means that she was sometimes unable to communicate with her daughters, take minutes in work meetings, or understand conversation during on-site meetings in paddocks.[14]  Her daughters concur that she had “trouble hearing” “most of the time”.  They describe that they cannot go out to dinner with their mother, have difficulty speaking with her on the phone and spend the long car trips to their father’s house “mostly in silence”.[15]  The Applicant gave evidence that her impairment impacts upon 95 percent of her daily interactions.[16]  The Applicant submitted that in light of such evidence, it is plain that she is unable to participate effectively or completely in the act of communicating. 

    [14] Lee Evans, evidence in chief.

    [15] T10/42.

    [16] Lee Evans, evidence during re-examination.

17. The Respondent raised two issues in relation to s 24(1)(c). First, the Respondent relied on the Operational Guidelines of the National Disability Agency (the Guidelines) to assert that the Applicant failed to meet a “minimum threshold” of a 65-decibel impairment in her better ear.[17]  In relation to this, the Applicant submitted that:

    (a)It would be erroneous to construe the decibel levels in the Guidelines to be a “minimum threshold”.  While the Guidelines state that impairments of more than 65 decibels will “generally” satisfy the statutory test, they explicitly state that lesser decibel impairments may satisfy the statutory test where there is “evidence of significantly poorer than expected speech detection and discrimination”.[18]  The Applicant submitted that the present case falls into that category.  The Applicant submitted, and the Tribunal finds that the evidence establishes, that the Applicant’s impairment affects her capacity to hear the sounds that are the most important for speech detection and discrimination.  Further, background noise has a significant impact on her capacity to understand speech.  The Applicant’s evidence before the Tribunal was compelling on these points.

    (b)The rigid application of a 65-decibel “threshold” would be inconsistent with the key statutory question: whether the Applicant’s impairment results in a substantially reduced functional capacity to communicate. In McGarrigle v National Disability Insurance Agency, Mortimer J held that the Tribunal should disregard policy statements that were not consistent with the legislative scheme.[19]  Her Honour found this to be consistent with the appellate decision in Drake v Minister of Immigration and Ethnic Affairs.[20]  To the extent that the Guidelines do dictate a “threshold”, it is submitted that they would be inconsistent with the statutory question and should be disregarded.  On balance, the Tribunal finds this to be the correct and preferable way in which the Guidelines should be applied upon the evidence in this matter.

    [17] Guidelines, 8.3.3, T13/115.

    [18] Guidelines, 8.3.3, T13/115.

    [19] [2017] FCA 308, [52]-[53].

    [20] (1979) 46 FLR 409.

18. Second, the Respondent stated that the Applicant needing to perform tasks “differently” “does not mean she cannot communicate or interact effectively or completely at work”. In relation to this, the Applicant submitted that the evidence established that she was unable to effectively communicate in a range of situations, including when she is driving, cooking, in meetings, during site-visits to paddocks for work, and in noisy public spaces such as restaurants.[21]  While she was sometimes able to ask people to later clarify what had been said, this does not mean that she had been able to effectively communicate at the relevant time.  Further, the Applicant gave evidence that she was able to ask for clarification of anything “pertinent” from her manager, but that she “misses a lot of what’s being said”.  She said that this had impeded her capacity to gain information from site-visits, and had impeded her capacity to obtain information that would allow her to learn.[22] The Applicant submitted that the social model of disability and the principles of the Act (above) do not support an interpretation of the Act that concluded that a person who was unable to understand a significant amount of what is said to them on a daily basis is communicating “differently”. On the evidence before it, the Tribunal agrees with this approach. The Tribunal finds that the Applicant’s hearing impairment results in a substantial inability to communicate in everyday life situations.

    [21] Lee Evans evidence in chief; Ben Featherston report, Exhibit A2, 2; Eugene Mougerman report, Exhibit R1, [4.3]-[4.5].

    [22] Lee Evans evidence in chief.

19. In response the Respondent made submissions regarding what “communication” may mean within the Act and submitted the following in respect of the evidence before the Tribunal.

20. “Communication” is not defined in the Act or the Rules.[23]   However, clause 8.3 of the Guidelines states:[24]

    “Communication:  includes being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age.”

    [23] T12.

    [24] T13, page 112.

21. Clause 8.3.3 of the Guidelines provides additional guidance for hearing impairments.[25]  In its Statement of Position (SOP) the Respondent, in reference to this additional guidance, described a hearing impairment of 65 decibels as a “minimum threshold”.[26]  In adopting that description the Respondent was not contending that the measurement had been, or could validly be, applied as a standalone criterion that governed access to the NDIS.[27]

    [25] T13, page 115.

    [26] At [5.14].  See also [18] of the Applicant’s submissions.

    [27] See for example [5.23], where the Agency referred to evidence regarding the impact of Ms Evans’ hearing loss upon her functional capacity.

22. There was no dispute that the Applicant suffers hearing loss,[28] and that this impacted upon her capacity to understand others. However, the Respondent submitted that the evidence did not support a conclusion, on the balance of probabilities, that the Applicant’s functional capacity to communicate is substantially reduced as described in rule 5.8 of the Rules.[29]  The Applicant’s evidence (her statement[30] and her oral evidence to the Tribunal) was to the effect that in controlled quiet environments, one on one, she does not have much difficulty hearing.  However, with background noise, or layered sound, she can hear less.  She is able to lip read, although this relies upon her having a clear view of the speaker’s face; and in any event is not completely effective.

    [28] Exhibit A1 (Audiogram 8 December 2008; Report of Ms Milliken, audiologist, dated 11 May 2018, attaching her report dated 8 February 2018 and audiology reports dated 28 March 2017 (see also at T4D, page 20) and 8 February 2018; report of Mr Featherston, audiologist, dated 4 June 2018, Exhibit R1 (report of Mr Mougerman, audiologist).

    [29] T12, page 61.

    [30] Exhibit A1 (statement dated 14 May 2018).

23. The Applicant’s oral evidence to the Tribunal was a practical demonstration of her capacity to understand others in that particular controlled environment—quiet with limited background noise, not always facing the speaker.[31]  The Applicant demonstrated that she was able to understand and respond to the questions asked of her most of the time.  The Tribunal specifically asked the Applicant about her capacity to hear what was being said in the hearing room.  The Applicant indicated that she missed parts of some words and agreed with the Tribunal’s characterisation that it cut in and out.  It was apparent to the Tribunal (from the Applicant’s oral evidence) that the Applicant’s hearing impairment was very frustrating and challenging for her, and impacted her ability to participate fully in everyday situations.

    [31] There were occasions when Ms Evans was facing the bar table when asked a question by the Tribunal and vice versa. The fact that she responded to these questions supports an inference that she was able to understand them.

24. As to the detail of her evidence, the Applicant addressed her functional capacity in a number of different contexts:

    (a)She has two part-time jobs:

    (i)The first is a position with the Medico-Legal Society of Victoria. She works 2 to 3 days per week. Usually, she works from home, mostly via email. Occasionally she is required to attend meetings.  She has held the role for 10 years. Her duties are not impacted by her hearing loss.  She is invited to, but does not attend, functions held by the Society because of her hearing loss.  She confirmed that attendance at these functions is not a requirement of her role.

    (ii)The second is an administrative position with Warrambine Pastoral (Warrambine), a local farming entity.  The Applicant stated that the role was created for her after she applied for a different (finance) role, and because of the circumstances in which she started working, there was no job description.  With minor discrepancies that are not relevant in this proceeding, Mr Taylor, Director at Warrambine, confirmed this evidence. Generally, the Applicant works one day per week, but this can vary depending upon the season and other commitments (Mr Taylor referred to her skipping weeks during school holidays).  She has been in this role for between three and four years.  Her work for Warrambine has two “types” of days, and her hearing loss impacts upon these days differently.

    ·     On “office days”, she and Mr Taylor work in the same room.  If he needs to speak to her, he will either “give her a shout” (in which case she walks to his desk) or walk over to her desk.  They will have a discussion, and then she returns to work. In answer to a question from the Tribunal, Mr Taylor stated that he had not considered using email/telephone to communicate with Ms Evans in the office, but said that could be done.  The Applicant gave evidence that she is not able to take minutes at meetings.  In evidence in chief, she suggested that taking minutes was an expectation of her role.  In cross-examination she clarified that Mr Taylor had asked her to take minutes, she said she could not and so he does it.  Mr Taylor confirmed that he takes the minutes and noted that this work is only required a couple of times per year.  While the Applicant does not take the minutes, she still attends and participates in the meetings.

    · The other type of day comprises “site visits”, where Mr Taylor, the Applicant and others inspect paddocks (driving and walking) and discuss issues. Although she initially said that the conversation in the car was near impossible for her to keep up with and that she could not hear what was being said, she agreed in cross-examination with the implication from Mr Taylor’s statement that she was able to hear parts of the conversation,[32] and that if she was not driving she could follow the conversation more readily. Similarly, when walking in the paddock, the combination of background noise and the need to watch her footing meant that her capacity to follow the conversation was compromised. When the group stood still in the paddock (for example, looking at grasses) she was able to follow the conversation. The Applicant and
    Mr Taylor gave evidence that he would fill her in on parts of the conversation that she missed.

    ·     The Applicant told the Tribunal that missing parts of the conversation impacted upon her work, because she was not able to learn a quarter of what she should.  Mr Taylor did not support this evidence. In cross-examination he said that Ms Evans knew everything she needed to know in order to do her job.   However, Mr Taylor was not in a position to give evidence of what the Applicant heard and didn’t hear.

    ·     Mr Taylor said that compromises were made for Ms Evans in the context of her employment. Notwithstanding these compromises, he regarded her work as “exemplary” and “exceptional”.  Despite this, it is clear that the Applicant’s participation is restricted by the impact the hearing impairment has upon her ability to communicate; particularly amongst groups of people and where, as is often the case, background noise is present.

    (b)In the context of communicating with her children, in cross-examination the Applicant agreed that she does have some capacity to hear her children in the car.  She is able to have some degree of conversation with the children during car rides.  These rides are not entirely silent.  She also agreed that when she is cooking and the children enter the kitchen to talk to her, she could hear them and would turn to face them and engage in conversation.  She agreed that her capacity in this scenario was similar to that demonstrated during the Tribunal hearing.[33]

    (c)Also in relation to her children, she confirmed that at medical appointments for the children, when she missed information (as described in her statement) she was able to obtain that information from the doctor at a later time.

    (d)The Applicant gave evidence of “social isolation” as a result of her hearing loss. However, in answer to questions from the Tribunal, the Applicant stated that she could hear “fairly well” on a landline (in re-examination on this point she said “relatively well”) and “okay” on a mobile (this did not change in re-examination). The Applicant also described using “Facebook Messenger” to communicate.  She gave evidence about her participation in weekend long Welsh pony shows (three per year) and occasional single day events. While indicating that her hearing loss impacted upon her participation in these events, her evidence showed that she was able to understand verbal instructions from stewards, and to obtain information about class times, etc, by reading signage at events.

    [32] Exhibit A1 (statement dated 26 July 2018).

    [33] See 20 and footnote 26 above.

1. Whilst the Applicant contended that the evidence established that she was “unable to effectively communicate in a range of situations, including when she is driving, cooking, in meetings, during site-visits to paddocks for work and in noisy public spaces such as restaurants” (emphasis in original); the Respondent submitted, with the exception of the last example, this contention is not an accurate reflection of the evidence.  The Tribunal disagrees.  On balance, the evidence shows that the Applicant’s life is substantially limited functionally, by her inability to communicate, in all the situations in which other individuals, without hearing loss, can.  She has to constantly modify her behaviour in attempts to communicate as best she can in a multitude of situations, which in itself impacts upon the functionality of her life.

2. The Respondent submitted that the evidence does not support a characterisation of the Applicant as “a person who is unable to understand a significant amount of what is said to [her] on a daily basis”.  The Applicant was asked in re-examination about the impact of her hearing loss. Specifically, she was asked what percentage of her interactions were impaired in some way, and she responded 95 percent.  Whilst she did not say that she was unable to understand a significant amount of what was said to her on a daily basis, she is restricting her life in ways she would not have to, if her hearing loss was rectified.

3. The Respondent submitted that the weight of evidence supported a conclusion by the Tribunal that, while the Applicant does have reduced functional capacity to communicate (specifically to understand others) as a consequence of her hearing loss, her functional capacity is not substantially reduced.  The fact that she sometimes utilises different methods (including lip reading to supplement her hearing, Facebook Messenger and email), or undertakes the task of communication more slowly (including a need to ask a person to repeat him/herself) does not mean that she is unable to participate effectively or completely in the activity of communication.[34] 

   [34] Rule 5.8 (T12, page 61) and Operational Guideline, clause 9.3.1 (T13, page 114).

4. The Tribunal disagrees with the above submission. The evidence, on balance, does not support the characterisation which the Respondent submits.  The Tribunal finds that the Applicant’s functional capacity in life is substantially reduced by her hearing loss.

5. Whilst the Applicant’s hearing loss, when measured as a pure tone average or four frequency average, is 38.75 decibels in the left (or better) ear and 41.25 decibels in the right ear and according to clause 8.3.3 of the Operational Guideline, the Applicant’s hearing loss is below the “lower limit of what is likely to constitute a substantially reduced functional capacity”.  However, the Applicant’s hearing loss does result in a substantially reduced functional capacity and the Tribunal finds there is evidence of significantly poorer than expected speech detection and discrimination outcomes, as is obvious from the preponderance of evidence before the Tribunal.

6. Speech detection and discrimination were addressed in Mr Featherston’s evidence. The results show that the Applicant’s speech detection and discrimination was outside the normal range. It also showed that at 50 decibels she had 70 percent accuracy in the left ear and 65 percent accuracy in the right. At 70 decibels this rose to 95 percent (left) and 90 percent (right). Mr Featherston’s evidence was that the test was undertaken in a controlled environment and Ms Evans’ true functional capacity would be lower is consistent with the bulk of the evidence in this matter, as discussed above.

7. The Applicant’s submissions regarding the evidence are compelling and, on balance, properly reflect the evidence before the Tribunal; particularly the oral evidence of the Applicant regarding the restrictions on her functional capacity to communicate in most surroundings and everyday life situations, other than in a quiet room.

8. The Tribunal accepts, on the evidence, that the Applicant’s capacity to understand questions asked of her by one person who is facing her in a quiet room is consistent with the expert evidence.  The evidence of Mr Featherston was that her capacity to understand in such an environment was a demonstration of her hearing at its best.  Much of daily spoken communication does not occur one on one in a quiet environment where one is facing the speaker.  For example, it is not part of everyday life for an individual to spend each day in a controlled Tribunal hearing room.  It cannot be the case that a scheme, one of whose principal aims is the integration of disabled persons into community life, should propose as a test for substantially reduced functional capacity one which bears no reality to manner in which community life, in this case verbal communication, is conducted.  Further, even in such an environment, the Applicant’s evidence indicated that she needed to concentrate and did have difficulty understanding at times.

9. The task for the Tribunal, as directed by the Act, is to determine whether the Applicant has a substantially reduced functional capacity.[35] The Tribunal holds that the Rules further elaborate that an impairment will result in a substantially reduced functional capacity where a person is “unable to participate effectively or completely” in the activity.  It would be erroneous for the Tribunal to require the Applicant to be completely unable to undertake communication in place of the question in s 24(1)(c)(i) of the Act, as submitted by the Respondent.

   [35] National Disability Insurance Scheme Act 2013 (Cth) s 24(1)(c).

10. The Applicant’s clear and unequivocal evidence was that her impairment affects 95 percent of her interactions in some way.  She also gave evidence about the way her impairment affects her life: “walk for an hour in my shoes. You would realise how hard I try and how exhausting it is...this level of concentration all day every day”.  The Applicant described having to process “every sentence that I hear” to find a word and then find another word if the first one didn’t ‘fit’.  She described the process as constant and exhausting.  She also described the attendant anxiety of misinterpreting what was being said.  This is her everyday reality.  The Tribunal accepts this evidence.

11. The Applicant took issue with the Respondent’s characterisation of her social isolation as inaccurate.  The options of telephone and online communication were put to the Applicant in cross-examination and re-examination.  Her evidence was that she felt “devastated” about the level of social contact she has.  She said that she can talk on Facebook Messenger, but that it “does not negate the need for human interaction”.  Specifically, she described that indirect contact is not a substitute for a hand on the arm when she is upset, a hug, or the physical joy of laughing.  Poignantly, she said that while she had sometimes had a chuckle at something on Facebook, she could not remember the last time she had a belly laugh with a friend.  The Tribunal accepts this evidence of social isolation.

12. The Applicant’s evidence of the impact of her impairment should be considered in the context of her lived experience.  The Applicant’s statement described the profound impact her hearing impairment has on her life.  The Applicant’s statement of lived experience describes the impacts of background noise (“I may pick up words here and there but certainly not enough to follow a conversation with someone”). She further describes that “there are so many ways hearing loss effects my life”, an incapacity to speak with her children in another room, pain caused by having her children’s friends over, significant difficulty understanding conversation while driving so that car rides are “largely spent in silence”, substantial issues with socialising and resulting isolation, difficulty attending pony meetings, and the dangers of not hearing background noise in situations like carparks.[36]  The expert engaged by the Respondent, Mr Mougerman, expressed the view that the impact of the Applicant’s hearing loss is consistent with the level of hearing loss described by her.[37]  On the evidence before it, the Tribunal agrees.

    [36] Applicant’s statement.

    [37] Report of Eugene Mougerman, [4.5].

13. The Applicant contended that underlying the Respondent’s submissions regarding her employment was an assumption that the Applicant should be content with filling a functional role, and that her professional development aspirations are something the scheme is unconcerned to promote. The Applicant submitted this is at odds with the objects and principles of the Act. The Tribunal agrees.

    Is the Applicant likely to require support from the NDIS for her lifetime? s 24(1)(e)

14. The parties submitted the following:

    (a)Pursuant to s 24(1)(e), a person must be likely to require support under the NDIS for their lifetime.

    (b)In its opening submissions, the Respondent indicated that the Guidelines state that this involves a question of whether the supports are most appropriately provided under another service system.[38] There is no basis for suggesting that the language of s 24(1)(e) requires an assessment of whether supports are most appropriately provided under another service system, for the following reasons:

    (i)Parliament has specifically required consideration of that issue in determining whether supports are reasonable and necessary.[39] The wording of the test in s 24(1)(e) is different to those sections.

    (ii)In Mulligan v National Disability Insurance Agency, Mortimer J noted that the question of whether a person is determined to be a participant is a threshold question, and that the question of whether supports are ‘reasonable and necessary’ is to be subject to a separate decision-making process.[40]  The two sets of questions must therefore not be conflated.

    (iii)Section 24(1)(e) does not limit the consideration to whether a person will require reasonable and necessary supports for their lifetime.  In Mulligan v National Disability Insurance Agency, the Tribunal held that there does not appear to be any basis for reading “support” in s 24(1)(e) differently from “supports” elsewhere in the Act”.[41]  The Act defines supports to include general supports, which include supports in the nature of coordination, strategic or referral activity, provided to people who are not participants.[42]

    [38] Guidelines, 8.5, T13/116.

    [39] National Disability Insurance Scheme Act 2013 (Cth) s 34(1)(f).

    [40] Mulligan v National Disability Insurance Agency [2015] FCA 544, [32].

    [41] Mulligan v National Disability Insurance Agency [2015] AATA 974, [146] – [150].

    [42] National Disability Insurance Scheme Act 2013 (Cth) ss 9, 13(2).

15. The Applicant submitted, on the plain wording of s 24(1)(e), the evidence established that the Applicant’s impairment is permanent and likely degenerative, that its impact on her functional capacity is likely to continue. She is likely to require supports —at least in the nature of co-ordination, and likely in the nature of funded supports—for her lifetime.

16. The Respondent made contrary submissions as follows:

    (a)Section 24(1)(e) of the Act provides that a person meets the disability requirements if “the person is likely to require support under the [NDIS] for the person’s lifetime”. The Rules do not offer any guidance on the interpretation of
    s 24(1)(e).[43]  The provision is addressed in clause 8.5 of the Guidelines.[44] As with s 24(1)(c) and clause 8.3.3, there is no cogent reason why the Tribunal should not follow this policy guidance.

    (b)The Respondent’s contention that s 24(1)(e) required consideration of whether support was most appropriately funded under the NDIS or through another service was based upon the language of the section and the content of clause 8.5.[45] The Respondent acknowledges that the language “most appropriately funded” does not appear in the section, and that this is not the test under s 24(1)(e). The section does not ask whether a person is likely to require support for his or her lifetime. Rather, the section expressly requires consideration of whether “the person is likely to require support under the [NDIS] for the person’s lifetime”.[46]  This necessarily invites consideration not only of whether lifetime support is likely to be required, but also the source of that support.

    [43] Mulligan and National Disability Insurance Agency [2015] AATA 974.

    [44] T13, page 116.

    [45] See Statement of Position at [5.29] to [5.31].

    [46] The National Disability Insurance Scheme Bill 2012 Explanatory Memorandum described s 24 as including a requirement that a person’s “support needs are likely to continue for the person’s lifetime”. The National Disability Insurance Scheme Bill 2012 Revised Explanatory Memorandum changed the description to “the person is likely to require lifetime support under the NDIS”. The National Disability Insurance Scheme Bill 2012 Supplementary Explanatory Memorandum (House of Representatives p 5) stated: “Amendment 16 replaces paragraph 24(1)(e) with a new paragraph which focuses on whether the person with disability is likely to require lifetime support under the NDIS, rather than whether the person’s support needs are likely to continue for their lifetime. This is one of the conditions that need to be met for a person to satisfy the disability requirements.

    Conclusion

17. The evidence before the Tribunal establishes that the Applicant’s hearing loss is permanent and likely degenerative. There was a slight improvement in the hearing in her better ear on a most recent testing.[47] But there is no suggestion that she will recover. On that basis, the Tribunal can be satisfied that any support the Applicant requires is likely to be for her lifetime.

    [47] Compare 27 May 2017 and 8 May 2018 audiograms (which showed 41.25 decibel hearing loss bilaterally) with 28 May 2018 audiogram (38.75 (L) and 41.25 (R)).

18. Mr Featherston told the Tribunal that there have been advances in all aspects of hearing aid technology since 2010. Despite the fact that the Applicant has not trialled hearing aids available through other services in more than eight years, the Tribunal is satisfied, on balance, that she is likely to require support under the NDIS for her lifetime.

19. The Tribunal sets aside the decision under review and in substitution decides that the Applicant satisfies the access criteria, pursuant to s 24 of the Act, to become a participant of the NDIS.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.

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

Associate

Dated: 24 April 2019

Date of hearing:	12 October 2018
Solicitors for the Applicant:	Joel Townsend Victoria Legal Aid
Solicitors for the Respondent:	Ms Katherine Whittemore Sparke Helmore