Laurente and National Disability Insurance Agency

Laurente and National Disability Insurance Agency [2024] AATA 217 (19 February 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/8320
Re:Allan Laurente
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K Buxton
Date:19 February 2024
Place:Brisbane

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
...........................[SGD].................................
Senior Member K Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Application for Review of Decision – Access to Scheme – Substantially Reduced Functional Capacity – Hearing Loss – Decision Under Review Affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan and National Disability Insurance Agency [2015] AATA 974
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
Senior Member K Buxton
19 February 2024

In this application Mr Allan Laurente (‘the Applicant’) seeks review of a decision of the National Disability Insurance Agency (‘the Respondent’) declining his request for access to the National Disability Insurance Scheme (‘the NDIS’).
The Applicant is now 67 years of age and lives with his wife in New South Wales. He is not currently working but has previously worked in the furniture and electrical sales industry. In June 2021 the Applicant made a request to become a participant in the NDIS on the basis of his sensorineural hearing loss. The Applicant’s access request was declined. On 6 September 2021 he sought internal review of that decision. Following a review under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’), a delegate affirmed the earlier decision on 5 October 2021. The Applicant applied to the Tribunal for review. The Applicant contends that he meets the access criteria prescribed under section 21 of the NDIS Act.
The Respondent accepts, and the available evidence demonstrates, that the Applicant’s request met the age and residency requirements in order to access the scheme.[1] The issues arising in this case are whether the Applicant satisfies the “disability requirements” under section 24 of the NDIS Act and/or the “early intervention requirements” under section 25 of the NDIS Act.
[1] NDIS Act, para 21(1)(a) and (b), ss 22 and 23. He was under 65 years of age at the time of his request.
There are five mandatory requirements that the Applicant must satisfy in order for him to meet the “disability requirements” as set out in paragraphs 24(1)(a) to (e) of the NDIS Act (reproduced below). The Respondent accepts that the Applicant meets the requirements in paragraphs 24(1)(a), (b) and (d) of the NDIS Act for hearing loss. However, the Respondent contends that he does not meet paragraph 24(1)(c) and (e) of the NDIS Act for his impairments. The Respondent does not accept that the Applicant meets the early intervention requirements in section 25 of the Act.
The review was determined on the papers and without an oral hearing in accordance with section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). In arriving at a decision, the Tribunal has considered the documents provided by the Respondent under section 37(1) of the AAT Act and various additional documents lodged by the parties, including medical reports, together with various written submissions.[2] The Tribunal notes that the Applicant raised concerns about a denial of procedural fairness in decision-making leading to the reviewable decision. In particular, he noted that information that did not relate to him had been included in the Respondent’s reasons for decision. The Tribunal notes that this is a full merits review where the Tribunal has considered, afresh, the Applicant’s request for access in the context of all information available to the decision-maker and all additional information provided by the parties in this review.
[2] Hearing Bundle (HB) lodged on [22 January 2024]; Applicant’s submissions filed 5 February 2024.
RELEVANT LEGISLATION
The objects and principles in the NDIS Act give guidance on the interpretation of the statute and these can be found in sections 3 and 4 of the NDIS Act. In particular, the objects of the Act relevantly include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities established at the UN Headquarters in New York on December 2006.[3] Paragraph 3(3)(b) of the NDIS Act provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the NDIS Act.
[3] [2008] ATS 12, ratified by Australia on 17 July 2018.
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the NDIS Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’) form part of the legislative scheme. Operational Guidelines written by the Chief Executive Officer of the Respondent also assist staff to make decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be considered by the Tribunal unless there is good reason not to do so.[4] The relevant Operational Guideline is the Our Guidelines – becoming a participant (‘the Access Operational Guidelines’)[5] published in June 2023. Relevant parts of the Access Rules and the Access Operational Guidelines are set out and considered later in these reasons..
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.
[5] National Disability Insurance Agency, Our Guidelines – Applying to the NDIS, (Web Page) < > (‘The Access Operational Guidelines’).
The Access Criteria
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the NDIS Act:
21 When a person meets the access criteria
(1)       A person meets the access criteria if:
(a)The CEO is satisfied that the person meets the age requirements (see section 22); and
(b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)The CEO is satisfied that, at the time of considering the request:
(i)     the person meets the disability requirements (see section 24); or
(ii)    the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant meets the age requirements in section 22 of the NDIS Act and the residence requirements in section 23 of the NDIS Act. Therefore, the issues for determination by the Tribunal are whether the Applicant meets the access criteria that are set out in sections 24 and 25 of the NDIS Act.
Section 24 of the NDIS Act states:
24 Disability requirements
(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; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the Act states:
25 Early intervention requirements
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmentaldelay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Applicant did not expressly submit that his circumstances also met the early intervention access criteria set out in section 25 of the NDIS Act. However, the Tribunal has considered this issue.
The criteria set out in each of subsections 24(1) or 25(1) of the NDIS Act are cumulative. All of the requirements in either subsections 24(1) or 25(1) of the NDIS Act must be met for a person to become a participant in the NDIS.
THE APPLICANT’S CONTENTIONS
The Applicant lodged written submissions on 5 February 2024, in which he submitted that he was a person who met the disability requirements under sections 24 and 25 of the NDIS Act. The Applicant submitted that the impact of his hearing loss upon his functional capacity led to the conclusion that he had impairments that were substantial and permanent, and for which he was likely to require lifetime support from the NDIS.
In his review Application the Applicant stated the following bases for review:
(a)The access criteria were not applied correctly in the reviewable decision.
(b)While the NDIA is satisfied that I have a disability attributable to sensory impairment (bilateral sensorineural hearing loss), the NDIA opined that the disability is not permanent and will not reduce my functional capacity to undertake communication, social interaction, learning, mobility, self-care and/or self-management.
(c)The NDIA in applying the criteria placed more emphasis on the visual and physical impact of disability. In its decision, NDIA opined, “Evidence provided indicates you and for example are able to move within your home, undertake cleaning tasks such as mopping, undertake meal preparation, complete grocery shops, communicate with others, maintain relationships, complete self-care tasks and self-management tasks. As the criteria has not been met, it will not be assessed further in the review.”
(d)The NDIA in applying the criteria did not take into account the impact of my disability to my capacity to communicate, undertake social interaction and learning.
The Applicant also contends that the NDIA incorrectly applied the Access Operational Guidelines in that Guideline 8.3.3 has been met by the Applicant in this case (which was the relevant Guideline at the time of the decision under review). The Applicant submitted that it was proper to apply the Access Operational Guidelines to his circumstances because of the severity of his hearing loss and that is was proper to conclude, as a result, that the disability criterial were satisfied in this case.
The Applicant submitted that he has permanent bilateral hearing loss and, although he requires hearing aids, he is not eligible for financial support to access hearing aids through any other scheme, including the Hearing Services Program or My Aged Care.
THE RESPONDENT’S CONTENTIONS
The Respondent submitted that the decision under review ought to be affirmed as the Applicant does not satisfy either the disability requirements or the early intervention requirements.
The Respondent submitted that the Applicant met the requirements of paragraph 24(1)(a) of the NDIS Act, as the Applicant has a disability attributable to the impairment of sensorineural hearing loss in both ears. As to paragraph 24(1)(b) of the NDIS Act, the Respondent accepted that the hearing loss was permanent and noted that the Applicant has lived with hearing loss for approximately 15 years. The Respondent also accepted that the requirements of section 24(1)(d) were met in this case.^.
The Respondent submitted that the Applicant’s impairment does not result in a substantial reduction in the Applicant’s functional capacity in order to meet paragraph 24(1)(c) of the Act. Under paragraph 24(1)(c) of the Act, the Tribunal must be satisfied that the “impairment” results in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities of communication, social interaction, learning, mobility, self-care or self-management.
The Respondent referred to the Access Operational Guidelines. In particular, the current guidelines (which are in substantially similar terms as the previous chapter 8.3.3 referred to by the Applicant) provides guidance in the nature of an indicative provision that the reduction in a person’s functional capacity is likely to be “substantial” where a person’s hearing loss meets a particular level, namely more than 65dB of loss in the batter ear. The Respondent referred to the available evidence demonstrating that the Applicant has bilateral hearing loss but does not have more that 65dB of loss in either ear.
The Respondent submitted that the following approach was appropriate:[6]
[6] Respondent’s SFIC para 38.
To ensure consistency in decision making, policy guidance should generally be followed unless there are cogent reasons to depart from it.[7] Therefore the Tribunal should conclude that as the Applicant does not meet the threshold in the Operational Guidelines, he does not have a substantial reduction in functional capacity for the purpose of s.24(1)(c).
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.
The Respondent further submitted that, in any event, the functional capacity evidence available to the Tribunal did not demonstrate substantial reduction in the functional capacity of the Applicant. The Respondent contended that where paragraph 24(1)(c) of the NDIS Act is not met, it followed that paragraph 24(1)(e) of the NDIS Act would not be met and relied upon the decision of the Federal Court in National Disability Insurance Agency v. Foster.[8]
[8] [2023] FCAFC 11.
The Respondent submitted that the requirements of subsection 25(1) of the NDIS Act had not been met based on the length of time since the Applicant’s hearing loss.
EVIDENCE
The Applicant has consulted various specialists, including his general practitioner, Dr Rosemarie Castro, Audiologist Ms Emma Russell and Audiometrists Ms Rashana Moerberk, Mr Munish Pundir and Ms Rashana Pundir.
The Audiometric Reports prepared by Rashana Moerberk[9] on 13 May 2021 and Munish Pundir[10] on 16 June 2021 reported the Applicant’s hearing levels are below the normal range both the left and the right ear.
[9] T3, p.32.
[10] T5, p.38.
By the letter dated 11 August 2021 to Dr Castro, Mr Pundir stated that the “audiogram shows bilateral mild to moderate severe sloping sensorineural hearing loss”, and noted that, “speech discrimination results were excellent at appropriate levels of amplification.”
Dr Rosemarie Castro assisted the Applicant by providing information for his access request on 11 June 2021 and confirmed[11] that the Applicant has Bilateral Mild to Moderate, Severe Sloping Sensorineural Hearing Loss which was likely to be lifelong having been experienced by the Applicant for 15 years. She identified the area of communication as being impacted and identified that the Applicant required Bilateral Hearing Aids.
[11] T4, p.34.
Ms Russell’s report, dated 7 March 2022, confirmed that the Applicant has a “bilateral, symmetrical sloping, mild-moderately severe sensorineural hearing loss” which is permanent. She further noted the Applicant’s articulation index of 9% in the right ear and 10% in the left ear, meaning that during normal conversational speech level (approximately 60dB at a one-metre distance), the Applicant has access to a maximum of 10% of speech sounds, and that Speech Audiometry with single words in quiet with appropriated amplification was excellent bilaterally, being 93% in the right ear and 97% in the left ear at 80dB. Following speech in noise testing, his signal-to-noise ratio hearing loss was 8.5dB which is considered moderate.
Ms Russell concluded that, given the low articulation measured, the significant signal-to-noise ratio loss and the fact that English is the Applicant’s second language, the Applicant is coping incredibly well. She noted that the Applicant has developed “some fantastic strategies to enable him to communicate more effectively, such as developing good lip-reading skills, good assertiveness skills, …asking for clarification and using contextual cues”. She further noted that this cognitive load is, “likely exhausting and not sustainable” for the Applicant and recommended hearing aids and possibly a remote microphone to aid in communication.
On 9 November 2022 Ms Gary Stretton, Occupational Therapist, at the request of the Respondent, provided a report regarding the Applicant’s functional capacity following a functional assessment carried out on 5 October 2022.[12] In his report, Mr Stretton stated:
[12] HB 6, p.21.
(a)During the assessment the Applicant spoke at slightly elevated volume and did not require that Mr Stretton raise his voice as the Applicant was able to understand his spoken word;[13]
[13] HB 6, p.25.
(b)He was fluent in the English language and easy to understand;
(c)He participates in a church choir, sings, plays guitar and drums. He enjoys spending time with family and socialising but finds it difficult to hear people in environments where there is background noise.
Mr Stretton considered the Applicant’s functional capacity with regard to the relevant domains in section 24(1)(c) of the NDIS Act. He concluded that the Applicant was not limited in relation to mobility, learning, self-management and self-care.

In relation to communication, Mr Stretton stated that the Applicant misses words and sounds and regularly needs to ask people to repeat what they are saying. He opined that the Applicant would have difficulty hearing in an environment where there was background noise, or with several people talking at once. Mr Stretton noted that the Applicant’s strategies to assist communication include using visual clues such as facial expression and lip reading. He has a sound bar for television and air pods to listen to music. Hearing aids had been recommended and would appear to be of benefit. The Applicant did not require any other communication aides.
In relation to social interaction, Mr Stretton concluded that the Applicant does not have any reduction in his functional capacity to interact in social situations, despite his hearing loss. Mr Stretton referred to his observations of the range of social activities in which the Applicant regularly engages. He noted that the Applicant reported difficulties hearing people around a table at home or in a restaurant due to background noise but less difficulty in larger spaces (such as a supermarket) which may have better dispersal of noise. He sometimes asks people to repeat themselves.
The Applicant’s wife, Mrs Elvira Laurente, provided a statement of lived experience to the Respondent on 20 September 2021[14] in which she described a number of domestic and social settings in which she and others felt frustration and embarrassment as a result of the Applicant’s hearing loss, including when the Applicant is on the telephone, watching movies with her or when they play music together at Church. Mrs Laurente expressed hope that the Applicant’s hearing could be assisted with hearing aids so that he could function properly in communication and lower down volumes to a level acceptable to people around him.
CONSIDERATION
[14] T8.
The medical evidence before the Tribunal establishes the following:
- The Applicant has been diagnosed with permanent hearing loss.
- This hearing loss can be expressed audiometrically as bilateral, symmetrical sloping, mild to moderately severe sensorineural hearing loss which is permanent. The Audiometric results show that the Applicant has mild hearing loss in low frequencies with his results “sloping” to between moderate and moderately severe as the frequency increases. Put another way, the hearing loss is mild at low frequency and moderate to severe at higher frequency.
- The Applicant’s articulation index is 9% in the right ear and 10% in the left ear, meaning that during normal conversational speech level (approximately 60dB at a one-metre distance), the Applicant has access to a maximum of 10% of speech sounds. However, Speech Audiometry with single words in quiet with appropriated amplification was excellent bilaterally, being 93% in the right ear and 97% in the left ear at 80dB. Following speech in noise testing, his signal-to-noise ratio hearing loss was 8.5dB which is considered moderate.
- The Applicant has developed a range of effective coping mechanisms.
- The Applicant would benefit from hearing aids.
The Disability Requirements
Paragraph 24(1)(a) of the NDIS Act – does the Applicant have a disability?
Paragraph 24(1)(a) of the NDIS Act requires that a person has “a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable”. Consistent with Mortimer J’s decision in Mulligan,[15] the term ‘impairment’ is commonly understood as loss of, or damage to, a physical, sensory or mental function.
[15] Mulligan v National Disability Insurance Agency [2015] FCA 544, [15] – [16].
The uncontroverted medical evidence demonstrates that the Applicant has a “disability” arising from the impairment of sensorineural hearing loss in both ears which cause a reduction of loss of the Applicant’s ability to function. It follows that the Applicant has a disability within the meaning of paragraph 24(1)(a) of the NDIS Act.
Paragraph 24(1)(b) of the NDIS Act – are the Applicant’s impairments permanent?
Paragraph 24(1)(b) of the NDIS Act requires that the applicant’s ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the NDIS Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Participant Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
(emphasis added)
The uncontroverted evidence the Audiometrists, Ms Russell and that of Dr Castro demonstrates that there is no prospect of the Applicant’s hearing loss reversing of improving with any treatment. It follows that the Tribunal finds that Applicant’s impairment of hearing loss is, or is likely to be, permanent.
Paragraph 24(1)(c) of the NDIS Act – do the Applicant’s impairments result in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management?
To meet the criteria in paragraph 24(1)(c) of the NDIS Act, the Applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in subparagraphs (i) to (vi): communication, social interaction, learning, mobility, self-care and self-management.
Each of the activities specified in paragraph 24(1)(c) of the NDIS Act and their impact on functional capacity will be examined in relation to the Applicant’s impairments.
Application of the legislation requires:[16]
…a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do). The assessment to be undertaken is avowedly functional and multi-faceted.
[16] Mulligan v National Disability Insurance Agency [2015] FCA 544, [55].
It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: “If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates”.[17]
[17] Ibid, [67].
Rule 5.8 of the Participant Rules provides:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(emphasis added)
Further, the Access Operational Guidelines provide, in relation to hearing loss:
Some hearing impairments may lead to a substantially reduced functional capacity.
We’ll generally decide you have a substantially reduced functional capacity if your hearing loss is at least 65 decibels in your better ear.
This is based on a pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz.
We may also decide you have a substantially reduced functional capacity if your hearing loss is less than 65 decibels in your better ear. We may decide this if either:
·you also have another permanent impairment, such as a vision or cognitive impairment.
·you give us evidence your speech detection and speech discrimination outcomes are significantly poorer than expected.
The Applicant submitted that his impairments result in a substantially reduced functional capacity to undertake activities only in the domains of communication and social interaction. There is no evidence before the Tribunal from which a conclusion could be reached that the Applicant has a substantially reduced functional capacity in the other domains in section 24(1)(c).
Subparagraph 24(1)(c)(i) of the NDIS Act – Communication
The Access Operational Guidelines relevant refers to communication as, “how you speak, write, or use sign language and gestures, to express yourself compared to other people your age” together with, “how well you understand people and how others understand you”.
The evidence available to the Tribunal demonstrates that the Applicant can speak and can understand the spoken word of others. The Tribunal accepts that there are limitations upon the settings in which the Applicant’s communication is wholly effective. He does have an impairment in his communication arising from the presence of both background noise and where multiple people are speaking. Whilst this may impact the Applicant, and reduce his capacity for communication, the question for the Tribunal is whether his reduction in functional capacity to communicate is substantial. Clearly, the Applicant is able to communicate even in more challenging settings. The evidence demonstrates that he is aware that he may have missed words as he will ask in an effective manner for words to be repeated. Further, the fact that the Applicant is described by Ms Russell as coping “incredibly well” with, “some fantastic strategies to enable him to communicate more effectively, such as developing good lip-reading skills, good assertiveness skills, …asking for clarification and using contextual cues” indicates that he is able to ensure he is understood and can understand others even in those more challenging settings.
The Tribunal further notes the Applicant participated in the functional assessment, without support of any kind, and was alert and responsive according to Mr Stretton. The evidence demonstrates that the Applicant has minimal functional impairment in such controlled settings and further demonstrates that the Applicant retains his functional capacity to communicate, albeit with the need for some strategies and modifications, even when a person is speaking to him in a noisy setting.
The Applicant asserted that the Access Operational Guidelines which assist in determining functional capacity in persons with hearing loss were applicable to his circumstances. The Applicant does not satisfy the first part of those guidelines in that his audiometry does not show a loss of at least 65dB in the better ear. Further, the Applicant does not rely on any other impairment to satisfy the disability criteria. Therefore, in order for the Tribunal to be assisted by the relevant guideline the Applicant’s evidence would need to demonstrate that his “speech detection and speech discrimination outcomes are significantly poorer than expected”.
The words “poorer than expected” must be understood in the context in which they appear, namely the consideration of the loss of functional impairment in a person with hearing loss that is less than 65dB. The Tribunal would need to be satisfied not that the Applicant’s speech detection and discrimination outcomes are poor generally, but that that they are poorer than expected for a person with a hearing loss of less than 65dB in the better ear.
In the particular circumstances of this case, the evidence of Ms Russell is important. Rather than having outcomes in speech detection and discrimination that are poorer than expected, her evidence is consistent with the Applicant’s outcomes being better than expected. Although the Applicant’s articulation index of 9% in the right ear and 10% in the left ear, meant that during normal conversational speech level (approximately 60dB at a one-metre distance), Ms Russell concluded that, given the low articulation measured, the significant signal-to-noise ratio loss and the fact that English is the Applicant’s second language, the Applicant is coping incredibly well. In a quiet setting his Speech Audiometry with single words in quiet with appropriated amplification was excellent bilaterally, being 93% in the right ear and 97% in the left ear at 80dB. Following speech in noise testing, his signal-to-noise ratio hearing loss was 8.5dB which is considered moderate. These conclusions are consistent with the other available evidence, including that of Mr Stretton as to the Applicants capacity to discern speech and participate in conversation. The Tribunal is not satisfied that the guidance towards a finding of substantially reduced functional capacity in certain cases is pertinent to this case as the evidence does not demonstrate a poorer that expected outcome in speech detection and speech discrimination for a person with hearing loss of less than 65dB in the better ear.
It follows from the Tribunal’s findings that the deeming effect of Rule 5.8 has no application in this case as the Applicant is not unable to effectively or completely participate in the activity of communication unless he has assistive technology. Neither does the Applicant usually require assistance with communication. The evidence demonstrates that he sometimes requires assistance and would benefit from the assistive technology of hearing aids, but that falls some way short of satisfying the deemed definition in Rule 5.8 of substantially reduced functional capacity in communication.
Each case turns of its facts. The functional capacity of the relevant individual is to be assessed in the relevant domains. In this case, the Applicant is an effective communicator with permanent hearing loss who makes himself heard and understood in a wide range of situations. Having regard to the available evidence, the Tribunal is not satisfied in this case that the Applicant has substantially reduced functional capacity to communicate within the meaning of subparagraph 24(1)(c)(i) of the NDIS Act.
Subparagraph 24 (1)(c)(ii) of the NDIS Act – Social Interaction
The Access Operational Guidelines relevantly refer to social interaction as, “how you make and keep friends, or interact with the community … your behaviour, and how you cope with feelings and emotions in social situations.”
The Applicant’s limitations in social interaction relate primarily to his capacity for communication in these settings and the Tribunal’s findings about this domain are set out above. The Applicant has an active social life and is able to undertake a broad range of activities without assistance. The evidence from Mrs Laurente suggests that she and others are frustrated by the Applicant’s hearing loss. However, the evidence does not extend to demonstrating that the Applicant is himself affected in this way. It is the Applicant’s functional capacity in the relevant domain that is to be considered.
I accept the evidence of Mr Stretton that the Applicant may ask people to repeat themselves or have some difficulties with comprehending speech in louder settings. The evidence does not demonstrate that the Applicant is unable to socialise and, to the contrary, the evidence demonstrates that the Applicant has a full and active social life. He may require words to be repeated at times, but the evidence does not demonstrate that he usually or routinely requires assistance to interact socially.
The Tribunal is not, therefore, satisfied that the Applicant’s hearing loss would prevent social interaction or that he could do so only with the assistance of others . While the Applicant’s capacity for social interaction may fluctuate from time to time, and in particular in some noisier settings, the Tribunal is not satisfied that any such limitations result in a substantially reduced functional capacity for social interaction within the meaning of subparagraph 24(1)(c)(ii) of the NDIS Act.
Paragraph 24(1)(d) of the NDIS Act – do the Applicant’s impairments affect his capacity for social or economic participation?
Paragraph 24(1)(d) of the NDIS Act requires that the Applicant’s impairment or impairments affect his capacity for social or economic participation. There is no requirement that the affect be “substantial”, or otherwise significant. The Respondent accepted that this requirement had been met.[18]
[18] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [111].
The Tribunal accepts that this finding is supported by the evidence set out above. The Tribunal is therefore satisfied that the requirement in paragraph 24(1)(d) of the NDIS Act is met.
Paragraph 24(1)(e) of the NDIS Act – is the Applicant likely to require support under the NDIS for his lifetime?
The Access Operational Guideline states the following:
You must be likely to need support under the NDIS for your whole life.
NDIS supports are investments that help you build or maintain your functional capacity and independence, and help you work, study or take part in social life.
Even if your needs go up and down over time, or happen episodically , we may still consider it’s likely you’ll need lifetime support under the NDIS.
We consider your overall situation to answer this question.
When we decide if you’ll likely need support under the NDIS for your whole life, we consider:
·your life circumstances
·the nature of your long-term support needs
·whether your needs could be best met by the NDIS, or by other government and community services.
For example, you may have an impairment which is caused by a chronic health condition. Many chronic health conditions are most effectively managed or remedied through medical management through the health system.
If this is the case, we may decide that you don’t have a lifetime need for support under the NDIS.
The relevant consideration is whether a prospective participant’s overall circumstances indicate that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports.[19]
[19] Mulligan and National Disability Insurance Agency [2015] AATA 974 at [153].
The Tribunal has concluded that the Applicant’s impairments do not result in him having substantially reduced functional capacity to undertake activities in any of the relevant domains. It would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management. In any event, considering the Applicant’s overall circumstances, there is no basis to conclude that the Applicant cannot manage his impairments through the health system and otherwise continue to manage concerns in relation to his hearing loss with health care professionals as they arise. A person’s concern about the availability or affordability of a support such as hearing aids is not sufficient to satisfy section 24(1)(e) of the NDIS Act where the other cumulative requirements of section 24(1) have not been met.

As the Tribunal is not satisfied that the Applicant’s impairments result in substantially reduced functional capacity in any relevant domain, the Tribunal does not find that the Applicant will require assistance under the NDIS for his lifetime. Therefore, the Applicant does not meet the requirement of paragraph 24(1)(e) of the NDIS Act.
Early intervention requirements
Rule 2.5(b) of the Participant Rules provides the following general outline of these requirements:
… a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment...
[emphasis added]
The Tribunal has found that the Applicant has a disability as defined in paragraph 25(1)(a) of the NDIS Act and therefore satisfied this requirement. Paragraph 25(1)(b) of the NDIS Act requires that:
the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability.
The evidence demonstrates that the Applicant has lived with hearing loss for at least 15 years before seeking access to the scheme. In those circumstances it is not clear how supports rendered now could be considered “early” or how providing supports now could reduce the Applicant’s need for supports in relation to his disabilities in the future. The Tribunal has concluded that the Applicant’s impairment is permanent, and not likely to be remedied. It follows that providing supports now is unlikely to improve the Applicant’s future support needs in relation to his impairments.
The Applicant has not met the requirements in paragraph 25(1)(b) of the NDIS Act. It is not, therefore, necessary to further consider the other cumulative requirements of subsection 25(1) of the NDIS Act. The Tribunal notes, in any event, that the Applicant has not contended, nor has he provided evidence that early intervention supports are likely to benefit him by achieving the stated outcomes in subsection 25(1)(c) of the NDIS Act.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 64 paragraphs are a true copy of the reasons for decision of Senior Member K Buxton.
............................[SGD]...............................
Associate
Dated: 19 February 2024
Date listed for determination:             6 February 2024, On the papers
Applicant:  Mr Alan Laurente
Solicitor for the Respondent:             Mr John O’Connell, HWL Ebsworth Lawyers

[2024] AATA 217

19 February 2024

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