HKTR and National Disability Insurance Agency

[2022] AATA 150

HKTR and National Disability Insurance Agency [2022] AATA 150 (3 February 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2020/8287

Re:HKTR

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:3 February 2022  

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Stewart Fenwick, Senior Member

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – access to scheme – various conditions including hearing loss – whether impairments result in substantially reduced functional capacity to undertake one or more specified activities – whether applicant meets early access requirements – access criteria not met – decision affirmed

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

Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Evans and National Disability Insurance Agency [2019] AATA 754

Mulligan v National Disability Insurance Agency [2015] FCA 544

Secondary Materials

National Disability Insurance Agency, ‘Access to the NDIS Operational Guideline’, Operational Guidelines (Web Page, 16 July 2019) <

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

3 February 2022

BACKGROUND

1. The Applicant (HKTR) sought a review on 14 December 2020 of a decision made by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent) on the internal review dated 16 November 2020 denying her access to the National Disability Insurance Scheme (the scheme).

2. HKTR had applied to become a participant of the scheme in August 2020 on the basis of several identified disabilities: a jaw condition known as Temporomandibular Disorder (TMD); mental health conditions, being anxiety and depression; chronic pain; and hearing loss. The decision maker found that HKTR did not satisfy the functional impact or lifetime support criteria in accordance with the disability requirements in s 24, nor the early intervention requirements in s 25 of the National Disability Insurance Scheme Act 2013 (the Act).

3. HKTR was represented and lodged documents including a Statement of Facts, Issues and Contentions (SFIC), a Statement of Lived Experience and medical reports. The Respondent lodged a SFIC and documents under s 27 of the Administrative Appeals Tribunal Act 1975 (T documents).

4. At the hearing, the parties and Tribunal relied upon a Hearing Bundle (HB) prepared by the Respondent and comprising of the T documents and relevant material presented by both parties. This document was also the reference for written submission that were lodged at the close of the hearing.

5. HKTR and her husband both gave evidence at the hearing. Two medical witnesses were called to give evidence: Dr Tim Hwang, a rehabilitation physician; and Dr Vincent Cousins, a surgeon and otolaryngologist.

6. It was contended for HKTR in the closing submissions that scope of the impairments had reduced and, accordingly, the impairments in question are: hearing loss (severe in the left ear, and mild in the right ear); TMD; and, chronic pain associated with the TMD and other injuries.

7. HKTR is a 53-year-old woman, married and presently unemployed. She receives the Disability Support Pension and payments from a private income protection scheme. Her Access Request form (HB26) describes chronic pain arising from her neck and jaw (being the TMD) associated with headaches and cervical (neck) pain. HKTR states the impairments first arose in 1990.

8. HKTR also references in this document pain in her shoulder, lower back and knees, which has been present since 2014. Finally, HKTR describes a hearing impairment, with stress and anxiety secondary to its impact on her personal and social life.

9. According to HKTR’s Statement of Lived Experience (HB46), her physical injuries arose from several falls including at work. HKTR has had chronic middle ear inflammation of the left ear leading to surgery. She has moderately severe permanent hearing loss in that ear and some mild hearing loss in the right ear.

   LEGISLATION

10. I will not set out here the provisions concerning the Act’s Objects and Principles as the primary focus here is on Part 1 of Chapter 3, ‘Becoming a participant’.

11. The Act does not define disability as such, and to be granted access to the scheme, under s 21, a person must have satisfied either or both the ‘disability requirements’ in s 24, or the ‘early intervention requirements’ in s 25 of the Act.

12. Section 24 of the Act provides:

    (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 to one or more impairments attributable to a psychiatric condition; 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, or psychosocial functioning in undertaking, one or more of the following activities:

    (i)     communication;

    (ii)    social interaction;

    (iii)   learning;

    (iv)   mobility;

    (v)    self‑care;

    (vi)   self‑management;

    (vii)     the impairment or impairments affect the person’s capacity for social or economic participation; and

    (viii)    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 support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

13. Pursuant to s 25 of the Act, a person is considered to meet the early intervention requirements if the CEO is satisfied that the provision of supports is (among other grounds), likely to reduce the person’s future needs for support, will mitigate or alleviate their impairment, or prevent its deterioration.

14. Section 25(3) of the Act specifically provides that, despite a person being found to satisfy the early intervention requirements, they are deemed not to meet the requirement if the CEO is satisfied that early intervention support is ‘most appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body’, including through a universal service obligation.

15. Relevantly, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Rules) prescribe in Part 5 when a person is considered to have met the disability requirements (per s 27 of the Act). The Rules elaborate on the requirement to demonstrate the functional impact of an impairment as set out in s 24(1)(c) of the Act in r 5.8 of the Rules:

    When does an impairment result in substantially reduced functional capacity to undertake relevant activities?

    5.8An 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. 

16. I note that the concept of impairment was addressed in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan). There, Mortimer J stated that it ‘enables assessment of the severity and permanency of a person’s condition, and of the effects of that condition through not only the evidence of an applicant, but also medical and clinical evidence’ (at [55]). Her Honour adds that the scheme contemplates a high degree of precision, but that assessment is ‘avowedly functional, and multi-faceted’.

17. The NDIA has published Operational Guidelines (the Guidelines) that are described as explaining how considerations arising under the scheme and its instruments result in decisions. The Guidelines deal with access to the scheme at ch 8, ‘The disability requirements’, and provide guidance about the nature of the identified activities. Thus, in summary:

    (a)communication is said to include being understood and understanding others;

    (b)social interaction is said to include making and keeping friends and interacting with the community;

    (c)learning is said to include understanding and remembering information;

    (d)mobility is said to include ability to move around the home, undertake normal everyday activities including in the community;

    (e)self-care is said to relate to personal hygiene and grooming, as well as caring for own health care needs; and

    (f)self-management is said to relate to capacity to organise one’s life including completing daily tasks and decision making.

18. The Guidelines also include at 8.3.3 ‘Additional guidance for hearing impairments’. This appears, on its face, to assume that a person may have substantial, or perhaps even total, hearing loss in one ear. This is because it states that ‘generally’ only an impairment of greater than or equal to 65 decibels in the better ear may result in the requisite substantially reduced functional capacity. A lesser level of impairment in conjunction with other impairments or with evidence of significantly poorer speech discrimination ‘may’ also be considered to meet the functional test.

19. Early intervention requirements are also addressed by the Guidelines. Aside from restating the terms of the legislation, the Guidelines cross-reference elements of the Rules at r 6.9. In particular, they state that consideration be given to: the likely trajectory and impact of an impairment over time; the potential benefits on functional capacity of early intervention; and evidence from a range of sources including family and carers, or expert opinion.

    ISSUES

20. The single issue in this matter is whether HKTR meets the access criteria. This involves separate consideration of the two heads under ss 24 and 25 of the Act. This is also the contention of the parties, and they are also in agreement that other qualifying provisions under the Act are not engaged.

21. Consideration of HKTR’s level of functional capacity under s 24 of the Act requires assessment against six separate activity types, and a substantial reduction for one or more is required. The HKTR’s closing submissions address communication and social interaction, learning, and self-management, with a considerable focus on the issue of hearing loss.

22. The HKTR’s submissions address her other conditions (TMD and chronic pain), together with hearing loss, in relation to the requirement for lifetime support specified in s 24(1)(e) of the Act.

23. HKTR  also contends that the early intervention requirements in s 25 of the Act are satisfied in respect of her hearing loss.

24. I note that the permanency of HKTR’s impairments is not in issue between the parties. Permanency is a requirement under s 24(1)(b) of the Act and is defined in r 5.4 of the Rules as applying to an impairment for which there is no known, available and appropriate clinical, medical or other treatment that would remedy it.

    FUNCTIONAL CAPACITY

    Communication and social interaction

25. HKTR gave evidence consistent with the description of hearing impairment in her Statement of Lived Experience (HB46), and indeed with a relatively recent audiology report (HB29). That is, she experiences difficulty with communications, thus affecting her level of social interaction, particularly when background noises are present, or in group situations.

26. HKTR and her husband gave evidence that she is able to communicate effectively in one-on-one situations at home. However, she is unable to hear her husband when he is, for example, more than 10 feet away.

27. As her husband does not drive, HKTR stated that her left-sided hearing can cause difficulties on the road, given her husband is on the passenger side. She stated that the hearing loss can also cause friction in their relationship.

28. HKTR has a smart phone but stated that she does not engage with social media. She participated in the hearing effectively due, she stated, to the use of headphones. HKTR stated that she engages in regular consultations with her GP on the phone, and can use the phone to communicate, favouring her right ear.

29. In her evidence, HKTR explained that she had substantially reduced social interaction due to all her impairments, but largely due to her hearing loss. She has no friends and does not socialise with family. Being unable to hear, she stated, is embarrassing and humiliating.

30. HKTR stated that she has two siblings, both living within an hour’s drive. She speaks with one sibling perhaps once a month on the phone. Her outings otherwise comprise of face-to-face visits with medical practitioners, including for physiotherapy, and shopping trips with her husband.

31. In cross-examination, HKTR accepted that she could be understood on the phone. She also accepted that she could, if required, deploy strategies when out to improve communication effectiveness.

32. I note the audiology report referred to above (HB29), provides a technical analysis of HKTR’s hearing as follows: right side mild loss with a four-frequency average of 16dBHL; left side severe mixed hearing loss with a four frequency average of 85 dBHL.

33. In his report dated 23 August 2021 (HB41), Dr Cousins describes the hearing loss as moderately severe, and recommends that HKTR use a hearing aid.

34. At the hearing, Dr Cousins provided a detailed explanation of HKTR’s history of inflammation known as chronic otitis media, and explained the surgical procedure that he undertook, being a tympanomastoidectomy. This involved the removal of diseased tissue in HKTR’s middle ear.

35. Dr Cousins described HKTR as having conductive hearing loss, meaning it arose from mechanical rather than neural reasons. He stated that, in his opinion, a hearing loss of over 30 decibels was inadequate for social purposes. A loss of over 45 decibels, in his opinion, was a significant impairment. In this context, Dr Cousins stated that each ear is considered separately, but that impairment relates to the individual’s functioning overall.

36. When asked about the likely change in hearing over time, Dr Cousins stated that HKTR has very good hearing in her right ear and that her left ear is unlikely to change significantly. HKTR’s hearing would stay much the same until affected by age-related factors.

37. Dr Cousins agreed in cross-examination that those with hearing loss can deploy simple strategies to compensate in different circumstances. He also stated that other people tend to be somewhat non-compliant with those who have a hearing loss.

38. With respect to the impact of hearing loss, Dr Cousins stated that the difficulty arises in not being able to get information. He added, in re-examination, that there are flow-on effects, being engaging less and enjoying life less. Dr Cousins agreed it could impact employment due to loss of confidence.

39. Dr Cousins stated further that patients can take some time to adapt to a hearing aid, particularly where there is normal hearing on one side. In his opinion, given HKTR’s level of hearing loss, she would likely benefit as a regular wearer of hearing aids.

    Learning and self-management

40. HKTR gave evidence that she experiences difficulty in retaining information and with concentration. She referred at this point to pain shooting to her head, and also stated that she misses out on information. HKTR stated that since her 1990 accident she has been unable to sustain long periods in the workforce.

41. In cross-examination, HKTR agreed she had obtained a qualification in tourism in 2000. She stated that she reads regularly on Wednesdays and could follow audio books with the use of headphones. HKTR considered that she could not watch programs on TV with the sound up, but would be able to follow subtitled programs.

42. HKTR disputed that a neuropsychological examination from 2001 (HB17) remained an accurate representation of her cognitive ability. In this report, I note, it is stated that HKTR demonstrated mild fluctuation on concentration and adequate memory. The report posits that her concentration was affected by pain.

43. A report from Associate Professor Jack Gerschman in 2018 (HB27) provides an overall assessment of HKTR’s then long-standing complaint of TMD. It is described as being associated with headaches and cervical pain. Further, it is posited that HKTR’s ‘interconnected’ conditions are chronic and accompanied by ‘central sensitization’, and that she has a ‘severe degree of suffering’.

44. I note that this practitioner records several specialisations, primarily in oral medicine, but also in pain medicine. I make the observation that the phrase ‘central sensitization’ is associated in medical practice with the field of chronic pain.

45. There is an earlier report from Associate Professor Gerschman in 1998 (HB16) in which he states that stress is a ‘maintaining factor’ for HKTR’s condition, and that she will maintain a ‘moderate’ level of disability.

46. A more recent report in 2014 of Mr Michael Hase, oral and maxillofacial surgeon (HB20), identifies the predominant finding that the origin of the TMD is a muscle dysfunction. He also reports a ‘strong parafunctional activity’ of clenching (that is, an abnormal function).

47. This report includes reference to associated issues of neck discomfort. Accordingly, I observe that there is medical material forming part of the wider body of evidence that substantiates a range of conditions. These include: some radiological observations arising from a lumbar MRI in 2019 (HB12); left shoulder tendinosis (in the same report); various mild changes noted in a thoracic MRI in 2018 (HB13); and, an indication of a lateral meniscus tear of the left knee in a 2020 MRI (HB11).

    Mobility and self-care

48. These activity types were not addressed directly in HKTR’s closing submissions. However, there was relevant evidence at the hearing concerning the wider group of impairments noted immediately above.

49. When describing her typical day, HKTR stated that she will put away dishes and stack the dishwasher and potter around the house. As previously noted, she shops with her husband, but he carries the bags.

50. The evidence was that HKTR will prepare simple meals several times a week, but will get assistance from her husband for example with heavier trays or dishes. She stated that pain stops her form doing more, and that activities are restricted above shoulder level. Bending increases her pain level, such as when using the fridge.

51. In cross-examination, HKTR stated that walking was limited to around 15 minutes duration. She stated that she could drive for up to an hour.

52. I asked HKTR directly about her personal self-care and she stated that her husband assists her with putting on tops and bras. She is able to load the washing machine, but her husband removes the clothes and hangs them. HKTR stated that she has no difficulty with the shower and bath.

53. In his evidence, Dr Hwang expanded on the statement in his report dated 1 June 2021 (HB49), in which he describes HKTR as demonstrating a lack of adaptation. He stated that adaptation was changing movement as a consequence of a physical limitation, such as squatting to lift objects. Dr Hwang added that pain or lack of confidence can lead to avoidance greater than true physical limitations.

1. In cross-examination, Dr Hwang agreed that a person’s functional ability given a set of conditions was individual, although he also noted that it was dependent upon a number of factors, including psychosocial as in the case of HKTR.

2. Dr Hwang also stated that he considered HKTR’s TMD, other physical conditions and hearing loss to be fairly separate. That is, her chronic pain would not ‘compound’ with her hearing.

3. I note that in his June 2021 report, Dr Hwang records his consideration of a wide range of other medical material, including reports of MRIs such as those noted above. He also records the outcome of a comprehensive functional physical examination involving limb and joint movement. Dr Hwang concludes that the majority of HKTR’s symptoms relate to chronic pain ‘more so than the individual anatomical injuries or conditions’.

4. Dr Hwang observes that HKTR reported widespread rather than localised pain symptoms and that, while radiology demonstrates some degenerative changes (cervical and thoracic spine) and bursitis (left shoulder), these are not expected to be disabling to the extent claimed. Dr Hwang also considers in this report that they would not limit her social interaction (leading to the cross-examination about the interaction with her hearing loss).

   Consideration and finding

5. It is submitted for HKTR that s 24(1)(c) of the Act is satisfied on the basis of the evidence. The Respondent contends that HKTR has fundamentally failed to address the relevant question, being whether for each activity domain there is actually substantially reduced function, and to what degree.

6. The Respondent further contends that the Tribunal should not accept HKTR’s submission that the Guidelines addressing hearing loss should not be followed. This is in part because this matter is said to be distinguishable from Evans and National Disability Insurance Agency [2019] AATA 754, which I note involves an applicant with more severe bilateral hearing loss.

7. With respect to communication and social interaction, HKTR does not appear to habitually use assistive technology. I do not consider in the context of the Rules, that using an iPhone and headphones qualifies, and I understand from the evidence that she does not use a hearing aid.

8. HKTR does not appear to rely upon her husband for either of these activities. Indeed, the evidence indicates that HKTR is able to independently communicate with her health care team, and with a member of her family, at will. In the terms of the Guidelines, for example, the evidence demonstrates to my satisfaction that HKTR can understand and be understood.

9. I also consider it appropriate to take into account the specific way in which hearing loss is addressed in the Guidelines. The impact of hearing loss is in most respects a matter of subjective experience for the individual. It is, however, capable of measurement and clinical assessment. The relevant measurements in the case of HKTR demonstrate that her limited level of hearing loss in her good ear is some way below the threshold identified in the Guidelines.

10. It might be that in some circumstances such a measurement does not usefully contribute to an assessment of impairment. Further, it is not expressed in absolute terms, given that at least one exception is identified, being the individual’s capacity with sound discrimination. However, there is nothing arising from the body of evidence overall that suggests the impairment in HKTR’s case satisfies the required threshold in respect of communication.

11. I add that the consideration of policy guidance is considered by the authorities to be beneficial, to the extent that it promotes consistent decision making (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420–421).

12. I accept that the evidence indicates that HKTR has a truncated social life, including very limited interaction with her family. On HKTR’s own evidence this is a direct consequence of her hearing impairment. On the evidence more broadly, there is what has been described as a psychosocial dimension to HKTR’s conditions.

13. Strictly speaking there is no submission before the Tribunal asserting that HKTR has a particular condition that relates directly to her social interaction. That is, HKTR  does not rely on any specific mental health condition. I have also identified only one limited piece of evidence that might be interpreted as relating to chronic pain as a discrete condition, however this is untested and not the subject of a supporting contention.

14. While it was submitted for HKTR that her conditions have an effect on her mental wellbeing, such as to impact her functional capacity to the requisite degree, I am unable to agree with this submission.

15. To recall the context of s 24 of the Act, the person’s disability must be attributable to a particular impairment. That impairment must result in a reduced functional capacity to a substantial degree. I consider the better interpretation of the evidence to be that HKTR behaves in a way in response to her perceived pain from the various physical impairments and hearing loss, but these behaviours are not sufficient to meet the test.

16. I consider the evidence overall to indicate that HKTR is able to effectively interact with the community and has the capacity, albeit she may not have the desire, to engage in wider social interaction.

17. There is limited evidence before me as to HKTR’s learning ability. HKTR correctly observed in evidence that the neuropsychological material is relatively old, however it is the only specific medical material before me on the subject. I raise this in the context of the Guidelines which highlight the cognitive elements associated with this activity.

18. I am urged in HKTR’s submissions to consider the material of Associate Professor Gerschman. The Respondent, I consider, properly contends that this material does not adequately speak to the specific functional capacity. I accept that HKTR gave some direct evidence as to her concern about memory and the retention of information. I do not discount this, but Mulligan sets a somewhat higher benchmark, including relevant clinical evidence (at [55]).

19. In short, I would need to be positively satisfied on the basis of probative evidence as to HKTR’s limitations with respect to learning, and I do not consider the evidence to support this finding.

20. As with social interaction, HKTR’s case also involves a consideration of the manner in which her hearing loss might be said to affect this activity. I consider that this dimension falls under the communication activity which has already been addressed above. The evidence indeed demonstrates that HKTR has the functional capacity to engage with various media, written, visual and televisual, which would, it is reasonable to conclude, be involved in learning tasks.

21. I am also unable to make a positive finding in HKTR’s favour in respect of self-management. The evidence that I do have demonstrates to my satisfaction that HKTR is able to manage her own affairs. She operates largely independently of her husband, as I understand the evidence, in relation to her medical care. She occupies herself during the day.

22. The evidence did not otherwise address matters in the Guidelines such as financial affairs and decision making. However, for the reasons given above with respect to learning, I consider there not to be sufficient probative evidence to satisfy me that HKTR lacks the general intellectual capacity to self-manage to the degree required. On the contrary, the evidence overall indicates that she manages her own affairs to an appropriate level.

23. HKTR’s submissions are silent on the activity types of mobility and self-care. For completeness, as the s 24 of the Act only requires satisfaction as to the substantial reduction in functional capacity in one area, I also find that HKTR does not meet this standard for these activities.

24. I am satisfied that, despite reporting pain and some limitation of movement in her shoulders, HKTR’s evidence demonstrates that she is functionally able to effectively engage in these activities. I do not consider the particular instances in which her husband assists are sufficient to support a finding as to substantial reduction in capacity.

25. While I have in part referred to both the Rules and the Guidelines to assist in my deliberations, I acknowledge that these instruments do not define the parameters of findings under s 24 of the Act. However, with the task as elucidated in Mulligan in mind, I add for clarity that I make my findings here on the basis of the need to conclude that HKTR has substantially reduced functional capacity in at least one of the different activity types. Having considered each, I find that she does not in fact satisfy the disability requirements of s 24 of the Act.

    EARLY INTERVENTION

26. HKTR contends that the evidence with respect to hearing loss means that she satisfies the requirements of s 25 of the Act.

27. The Respondent contends that there is no cogent, independent material before the Tribunal that addresses the specific issues identified in ss 25(1)(b) and (c) of the Act. In the alternative, it is contended that HKTR has access to relevant services through Medicare, private health insurance and the Australian Government Hearing Services Voucher Program.

28. The primary problem with respect to this issue is that the evidence about the trajectory of HKTR’s hearing loss is that it is likely to remain essentially the same for the foreseeable future. Any further deterioration was described as being age-related. Further, there is something to be said for the Respondent’s contention that consideration of this issue would need to be based upon relatively specific evidence addressing the factors identified in the legislation.

29. On this basis, I am unable to make a finding in HKTR’s  favour as to ss 25(1)(c)(ii) and (iii) of the Act.

30. I note that under s 25(1)(c)(i) of the Act there is no standard of impairment referred to in respect of measures that might mitigate the impact of an impairment (presumably as this forms the basis of the separate head of entitlement under s 24). The evidence demonstrates that the impact of HKTR’s hearing on, in particular, communication, would be mitigated or alleviated with the use of a hearing aid. However, this would not serve the purpose of the provision, which is to reduce HKTR’s future needs, given the evidence as to the stable nature of the condition.

31. Overall, I am not satisfied that there is adequate material before me to support HKTR’s contention, and I find that the lifetime support requirement is not satisfied.

    DECISION

32. For the reasons given above, the Tribunal affirms the decision under review.

I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 3 February 2022

Dates of hearing:	11–12 October 2021
Date final submissions received:	19 November 2021
Counsel for the Applicant:	Christopher Fitzgerald
Solicitors for the Applicant:	AED Legal Centre
Counsel for the Respondent:	Christopher McDermott
Solicitors for the Respondent:	National Disability Insurance Agency