PPFQ and National Disability Insurance Agency

PPFQ and National Disability Insurance Agency [2019] AATA 1092 (31 May 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2018/2733
Re:PPFQ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:31 May 2019
Place:Sydney

The Tribunal decides that the internal review decision of 13 April 2018 under section 100 which affirmed the reviewable decision of 1 December 2017 under section 33(2) is set aside and in substitution thereof a decision is made:
(a)to include the following reasonable and necessary support that will be funded under a National Disability Insurance Scheme:
(i)a pair of GN Resound LiNX 3D 9 hearing aids.

...............................[SGD].........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Applicant suffers from moderate to severe hearing loss, tinnitus and hyperacusis – Applicant requested funding for high level technology hearing aids – whether supports are reasonable and necessary pursuant to subsections 34(1) of the National Disability Insurance Act 2013 (Cth) – whether there has been adequate investigation of other sources of funding - whether supports represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support – whether support is the minimum necessary support required - decision set aside and substituted
LEGISLATION
Australian Hearing Services Act 1991 (Cth)
Declared Hearing Services Determination 1997 (Cth) s 3
Hearing Service Rules of Conduct 2012 r 17
Hearing Services (Eligible Persons) Determination 1997, s 4(6)
Hearing Services (Participants in the Voucher System) Determination 1997
Hearing Services Administration Act 1997 (Cth)
Hearing Services Provides Accreditation Scheme 1997
Hearing Services Rules of Conduct 2012 rr 16(1), 17
Hearing Services Voucher Rules 1997
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 3.1(a), 4.1(d), 7.4
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 3(1)(f), 32, 33(1), (2), (5) 34(1)(a), (b), (c), (d), (f), 100
CASES
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 148 ALD 206
SECONDARY MATERIALS
National Disability Insurance Scheme Operational Guideline – Planning cll 9.4, 10.5
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
31 May 2019

The applicant, PPFQ is 40 years old. He has had moderate to severe hearing loss since he was a small baby. He was diagnosed with tinnitus and hyperacusis (an increased sensitivity to certain frequencies of sound) when he was a teenager. He wore hearing aids when he was a child but stopped wearing them around the age of 20 to 22 because of the hyperacusis and tinnitus. He was fitted with free-to-client (FTC) hearing aids in 2014 (the 2014 hearings aids) but found them ineffective and ceased wearing them except for job interviews.
PPFQ has been a participant in the National Disability Insurance Scheme (the Scheme) since 13 December 2016. He is seeking funding from the Scheme for a pair of high level technology hearing aids.
The reviewable decision was made on 13 April 2018. It affirmed the primary decision made on 1 December 2017 to approve a statement of supports under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act). The statement of supports did not include funding for high level technology hearing aids.
Hearing aids are assistive technology (AT) under the Scheme. The National Disability Insurance Agency (the Agency) is the Respondent. It argued that when considering funding AT for participants in the Scheme, care should be taken to ensure that:
(ii)Other forms/sources of government or private funding for particular items of AT are identified, investigated and applied because the Scheme is not necessarily the default provider of AT.
(iii)Where the Scheme is responsible for funding AT, participants are provided with the appropriately defined level of AT that will assist participants to meet their goals, facilitate economic and social participation, be effective and beneficial, and provide value for money bearing in mind the proliferation of AT available in the free market at a range of price points.
In summary, the Agency argued that there has not been a proper identification and investigation of other forms or sources of funding or of the potential efficacy of FTC hearing aids which are in the lower to middle of the price range. Therefore, the Tribunal should not be satisfied that the support is value for money pursuant to section 34(1)(c) of the Act.
The law and guidelines
The Chief Executive Officer (CEO) of the Agency must facilitate the preparation of a participant’s plan.[1] A participant’s plan must include a statement of the participant’s goals and aspirations prepared by the participant, and a statement of participant supports which is prepared with the participant and approved by the CEO.[2]
[1] Section 32 of the Act.
[2] Section 33(1) and (2) of the Act respectively.
The objects of the Act in section 3 include the provision of high quality and innovative supports that enable people with disability to maximise independence and full inclusion in the community. The objects are to be achieved by adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability, and regard is to be had to the financial sustainability of the Scheme and the provision of services by other agencies.
Another of the objects of the Act is to facilitate the development of a nationally consistent approach to the access to, and planning and funding of, supports for people with disabilities.[3]
[3] Section 3(1)(f) of the Act.
In deciding whether or not to approve a statement of participant supports, the CEO/Tribunal on review must:
(a)have regard to the participant’s statement of goals and aspirations;
(b)have regard to relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35;
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.[4]
[4] Section 33(5) of the Act.
Section 34(1) of the Act sets out the matters the CEO, and on review, this Tribunal, must be satisfied of in relation to the funding each support. Relevantly, they include:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
…
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Supports Rules) have been made. Part 3 is relevant: Assessing proposed supports. It requires various matters to be taken into account when assessing proposed supports, including:
Rule 3.1(a):
whether there are comparable supports which would achieve the same outcome at a substantially lower cost.
Rule 4.1(d):
relate support needs to the participant’s statement of goal and aspirations.
Operational Guidelines (OGs) are relevant policies to be taken into account. They are not binding on the Tribunal but should be applied unless there are cogent reasons to the contrary.[5]
[5] Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179.
In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 148 ALD 206 at [54], the High Court said:
Policy guidelines … promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision-making”, such as the determination of applications for Subclass 202 visas.
Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2), Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”.
Clause 10.5 of the Operational Guideline – Planning is headed “Deciding to include supports in a participant’s plan” (the Planning OG). Generally, it repeats the content of relevant sections of the Act and Supports rules already set out above in relation to whether the support represents value for money. The Respondent relied on an example given in the clause:
… where assistive technologies and certain types of aids and equipment are being considered, it is expected that the NDIA will generally only fund the minimum necessary or standard level of support required (i.e. a wheelchair with standard specifications and features, as opposed to funding additional items such as bespoke wheels or other luxury finishes).
The Agency acknowledged that a wide range of hearing aid options are on the market and it would be difficult to identify any ‘standard level’. It argued that the inquiry in this case is better directed at the question:
Are the hearing aids sought, the ‘minimum necessary’ support PPFQ requires, having regard to his goals including maintaining employment?
The section 34(1)(f) issue
In its written submissions provided after the hearing, the Agency stated the following. It agreed with the post hearing submission made on behalf of PPFQ that the support requested, that is, high level technology hearing aids, falls within Rule 7.4 of the Support Rules such that the Scheme will, as a general matter, be responsible for that support. Therefore it is unnecessary for the Tribunal to form a concluded view on the issue of whether the Commonwealth Hearing Services Program (HSP) is a system to which s 34(1)(f) applies. In this context, the HSP includes the voucher system for FTC hearing aids and the Community Services Obligations (CSO) which is administered by Australian Hearing.
It is useful to set out Rule 7.4 to understand the concession that the Agency has made:
The NDIS will be responsible for supports related to a person’s ongoing functional impairment and that enable a person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and to participate in education and employment.
The Agency’s position - there has not been any/adequate investigation of other sources of funding
The Agency put the following argument to the Tribunal.
If a participant is able to access a particular support by other means, then the participant should do so. In this case, “other means” include the voucher system and the CSO under the HSP which applies to NDIS participants. It is unnecessary to set out in detail the complex regulatory regime for the HSP.[6]
[6] Australian Hearing Services Act 1991 (Cth); Hearing Services Administration Act 1997 (Cth); Hearing Services Rules of Conduct 2012; Hearing Services Voucher Rules 1997; Hearing Service Rules of Conduct 2012; Hearing Services (Participants in the Voucher System) Determination 1997; Hearing Services Provides Accreditation Scheme 1997
Under the voucher system, a voucher holder may be fitted with a “top-up” device which has additional features above and beyond those required to meet the voucher-holder’s audiological needs. A voucher-holder may be required to pay a charge to be fitted with a “top up” device.
Sections 34(1)(c) of the Act and Rule 3.1(a) of the Support Rules support the Agency’s contention. The financial sustainability of the Scheme would be undermined if the Scheme funded supports even where alternative sources of support are available.
Clause 9.4 of the Planning OG concludes:
To the extent permissible under the NDIS Act and Rules, the NDIA will consider and prefer, in almost all cases, the provision of in-kind supports.
Accessing hearing aids through the HSP and CSO is the provision of in-kind supports.
Rule 16(1) of the Hearing Services Rules of Conduct 2012 requires a contracted service provider to provide a voucher holder with a choice from a range of types and styles of approved FTC devices that meet the voucher-holder’s audiological needs.
Rule 17 of the Hearing Services Rules of Conduct 2012 provides that a contracted service provider must not encourage a voucher-holder to select a top-up device where an approved hearing device available to the voucher-holder free of charge under the voucher system would reasonably meet the voucher-holder’s hearing rehabilitation needs. That direction suggests that Parliament intended that a contracted service provider explore the FTC options before recommending a top-up device.
The Hearing Services Rules of Conduct 2012 require the contracted service provider to give a written quote, get the voucher-holder to sign the quote, and keep a record of it.
In this case, PPFQ’s audiologist did not explore the FTC options.
The CSO provides hearing services to designated persons.[7] Relevantly, that is a person who has:
(a)Profound hearing loss; or
(b)Hearing loss and severe communication impairment.
[7] Australian Hearing Services Act 1991 (Cth)
PPFQ does not satisfy the criterion for profound hearing loss.
“There is sufficient evidence before the Tribunal to raise, at the least, the real possibility that (PPFQ) does have communication difficulty”, which is defined as:
… communication difficulty that:
(a)prevents the person from communicating effectively in his or her daily environment; or
(b)is caused or aggravated by significant physical intellectual, mental, emotional or social disability.[8]
[8] Section 3, Declared Hearing Services Determination 1997
PPFQ has communication difficulty caused or aggravated by his conditions of tinnitus and hyperacusis. “On the face of it”, PPFQ has a case to make for access to CSO which “might” open the way to funding of the support he seeks. He has not been referred to CSO. The potential for access to CSO has not been sufficiently investigated and an Agency delegate or the Tribunal on review would not fund a support until such assessment has taken place.
Has there been adequate investigation of other sources of funding?
In early 2014, PPFQ was made redundant from his administration and data entry job which he had for over five years. That job required little customer interaction.
In September 2014, PPFQ was fitted with a pair of hearing aids at the Macquarie University Speech and Hearing Clinic under the HSP voucher scheme, that is, at no cost to him (the 2014 hearing aids). PPFQ did not find 2014 hearing aids effective, even after adjustments. His interests are writing for aviation and railway magazines. He had difficulty conducting and transcribing interviews.
In the Access Request Form for the Scheme dated 17 November 2016, PPFQ’s general practitioner identified his primary disability as “Bilateral Sensorineural deafness & tinnitus”. On 13 December 2016, the decision-maker was satisfied, based on an audiogram, that PPFQ’s disability qualified him for the Scheme.
On 14 February 2017, PPFQ attended the Macquarie University Speech and Hearing Clinic for audiological and rehabilitative assessment. The audiologist, (Audiologist 1) wrote a report of the same date addressed to the Agency. She wrote that PPFQ reported minimal use of his 2014 hearing aids. In addition to his tinnitus, PPFQ reported concern about further damage to his hearing through exposure to noise which led him to use noise protection earplugs regularly day-to-day when outside, “even in situations that would not be considered to be unsafe for hearing”. Audiologist 1 described his sloping sensorineural hearing loss as mild to moderately severe in the right ear and mild to profound in the left ear.
Audiologist 1 made the following recommendations for the following reasons:
(i)Strongly, that PPFQ consider wearing his 2014 hearing aids more consistently. The continued lack of amplification can contribute to auditory deprivation, which will ultimately make it much more difficult to get used to any hearing aids, irrespective of the level of technology.
(ii)Strongly, that PPFQ consider pursuing counselling with a psychologist who specialises in tinnitus and sensitivity to loud sound. This is to reduce excessive use of earplugs, which the Applicant uses for the purposes of avoiding damage to his hearing through loud sound and avoid exposure to sound that may trigger his intermittent tinnitus, but is compounding the issue of auditory deprivation
(iii)Discussion about new technology is warranted once consistent use of his current hearing aids has been demonstrated and it can be established that his hearing aids are not meeting his communication needs.
Audiologist 1 concluded:
… for the time being we have strongly encouraged him to explore the other recommendations outlined in this report. Without consistent use, and with regular use of earplugs, it is unlikely that he will have a significantly better outcome with new hearing aids, irrespective of their technology level.
Correspondence between the Agency and Audiologist 1 in March 2018 was also in evidence.
PPFQ’s first plan was approved on 20 February 2017. It did not include funding for replacement hearing aids which he had requested.
On 7 August 2017, PPFQ saw Audiologist 2 at Audiology Solutions for a hearing assessment, and then on three occasions for a trial fitting of premium hearing aids. Audiologist 2 wrote a report dated 17 October 2017. She concluded that the 2014 hearing aids were not meeting his hearing needs.[9] She trialled him with:
technologically advanced hearing aids (Oticon, Opn 1 BTE13 PP) which were programmed to specifically aid (PPFQ)’s hypersensitivity, reduced speech clarity and difficulties in ambient noise environments.
[9] Report, Audiologist 2, a to Respondent, enclosing Client Oriented Scale of Improvement Results (16.10.2017)
She concluded that those hearing aids met his Client Orientated Scale of Improvement (COSI) goals. She quoted $8,200 for those hearing aids.
Correspondence between Audiologist 2 and the Agency in March 2018 was also before the Tribunal.

In October 2017, the Agency brought forward the review of PPFQ’s plan. He completed a Getting NDIS Scheduled Review Ready form. He wrote that his goal was to "obtain hearing aids that are tailored to my particular high frequency sensory neural hearing loss, tinnitus and hyperacusis".
On 1 December 2017, PPFQ’s current NDIS plan was approved (the primary decision). It did not include funding for hearing aids.
His first goal under the current plan is:
To maximise hearing in a way most suited to my particular needs to enable me to be safe within and without my home and to enable me to seek employment opportunities that match my skills, capacity and experiences.
His longer term goals are:
To create and participate in conversation within group settings, to join in community and social activities with people who share the same interests and to become more able to explore work related social interaction as I become less stressed by lack of hearing at work.
From 19 October 2017 to April 2018, Agency interaction records show numerous contacts from PPFQ and his mother seeking to resolve the issue of funding for hearing aids.
On 19 December 2017 a planner at the Agency contacted the HSP to enquire about PPFQ’s involvement in the program. Annie of the Access and Information section responded that upon receipt of an application form, the HSP could "make him NDIS-in-kind".
On 20 December 2017, the planner completed an 'Application for National Disability Insurance Scheme participants' to the HSP on behalf of PPFQ. On 22 December 2017, PPFQ was issued a 'Hearing Services Program Return Pack' by the Office of Hearing Services. As his voucher had expired, he was issued with a return voucher.
On 19 February 2018, PPFQ’s mother sought internal review of the decision to approve PPFQ’s plan without funding for hearing aids made. The reviewable decision-maker confirmed the primary decision because the hearing aids recommended by Audiologist 2 did not meets subsections 34(1)(c) and (f) of the Act.
Between May 2018 and October 2018, PPFQ had at least eleven appointments with Audiologist 3 at Shout Hearing Healthcare. She tested his hearing and fitted PPFQ with and tested him wearing, two different types of loan hearing aids. PPFQ told the Tribunal Audiologist 3 has the 2014 hearing aids.
Audiologist 3 prepared a report dated 3 October 2018. She gave oral evidence at the hearing with another audiologist from her practice who was knowledgeable about the technical specifications of hearing aids (Audiologist 4). Audiologist 3 was provided with various documents to consider before preparing her report, including the report of Audiologist 1 dated 14 February 2017, the report of Audiologist 2 dated 17 October 2017, and correspondence between the Agency and Audiologist 1 and Audiologist 2 in March 2018.
Audiologist 3 concluded that the 2014 hearing aids are not appropriate to his needs. She has recommended that he be fitted with high level technology hearing aids, either GN Resound LiNX9 3D or Oticon OPN 1, both of which cost $6,000.
During her oral evidence, Audiologist 3 confirmed that she has spent about 20 hours consulting with PPFQ, including on weekends.
The evidence of Audiologist 3 was comprehensive, detailed and compelling. It is reinforced by the evidence of Audiologists 2 and 4. To the extent that the evidence of Audiologist 1 is inconsistent with the evidence of the three other audiologists, the Tribunal does not accept it.
The Agency relied on the opinions of Audiologist 1 that:
·If PPFQ is not motivated to wear hearing aids and adjust to amplification it does not matter what choices and features the hearing aid has and therefore she was reluctant to consider fitting him with new hearing aids until he demonstrated regular use.
·PPFQ would not need top-of-the range hearing aids to achieve a good outcome based on the communication goals he reported to her.
The Agency did not provide the reports of Audiologist 2 or 3 to Audiologist 1 to review, but just asked her specific questions in the March 2018 correspondence. The Tribunal accepts the criticisms Audiologist 3 made of the opinions of Audiologist 1, who had only one appointment with PPFQ:
·Audiologist 1’s statement fails to recognise the reason that the FTC aids may not have been consistently used, in turn leading to them being rejected.
·Audiologist 1 was not the consulting audiologist in PPFQ’s initial 2014 assessment, fitting and follow-up appointments.
·There was no clinical measurement of PPFQ’s tinnitus and hyperacusis, no outcome measures of benefit and no review of his COSI goals at the time of follow-up.
·Her comments appear arbitrary and without evidence.
·The hearing aids that were prescribed were not appropriate and a thorough case history and understanding of PPFQ’s psychosocial as well as his cosmetic and comfort concerns were not addressed.
·PPFQ has shown consistent use of his current loan aids and has achieved a significant portion of his COSI goals as a result of the loan aid fitting.
·Audiologist 3 did not believe more consistent use of PPFQ’s FTC aids would determine if they were or were not appropriate to meet his goals. Many clients reject hearing aids due to poor fit, uncomfortable moulds, poor sound quality and poor speech clarity.
·The 2014 hearing aids have the following functionality shortfall to meet his goals: 4 channels to tune, comfort and the size of the devices are inappropriate for a young 40-year-old man who is trying to secure employment and whose confidence and concern about other people’s perception of him is important.
The March 2018 correspondence between the Agency and Audiologist 2 included the following.
(Question) It is my understanding most hearing aids have a tinnitus masker (even at the basic price point …) plus some degree of noise reduction technology why is this hearing aid chosen? We need to see a full breakdown of other hearing aids with different costs/level of features to understand exactly what is required for PPFQ.
Response: The aid was chosen as, in my professional experience, it has the best noise suppression, compression for sudden sounds and clarity of speech. I have professionally found that the sound quality and comfort of this particular hearing aid is extremely good for cases with hyperacusis and intolerance to noise. It was chosen in view of the problems (PPFQ) has experienced with sound quality of other aids. Yes, all aids have varying amounts of noise suppression and masking but the processing chips and speed with which they do this, as well as amount of frequency bands, differs significantly.
…
(Question) It is in our view, PPFQ would not need top-of-the-range hearing aids to achieve a good outcome. This is what (sic) we need to distinguish exactly what is required for (PPFQ) because there is not enough evidence he has habituate (sic) his hearing with the aids thus far.
Response: As an audiologist, my job was to help (PPFQ) as best as I could, with his communication needs, hyperacusis and getting him wearing his hearing aids more regularly I feel in the short time he was a client of mine, I achieved this. He only had a trial of hearing aids at this clinic to see whether there was a significant improvement in his tolerance to sounds and commitment to increased use of aids that was achieved. It is unrealistic to expect an audiologist to try every level of technology available and many different aids (this could mean him trying at least 5 different aids) that are on the market as this is a very costly and time-consuming exercise there are many technology levels on the market and many different brands of hearing aids.
Under the care of Audiologist 3 since May 2018:
(PPFQ) has achieved consistent use of his GN Resound hearing aids and is currently trialling the OPN 1 hearing aids with good feedback and acceptance. (PPFQ) is addressing his issues with tentativeness and hyperacusis and has attended an initial appointment with (Dr S), a specialist Tinnitus, Hyperacusis and Misophonia psychologist.(PPFQ) is now wearing hearing aids and getting the appropriate amplification he needs to stimulate his auditory nerve, when he was, in the past, resistant. (PPFQ) is now gainfully employed, his general demeanour and positive attitude towards amplification and acceptance of hearing devices has significantly improved and his self-reported benefits are positive which leads to hearing aid acceptance
Since engaging with Audiologist 3 in May 2018 and wearing the hearing aids lent to him, PPFQ has obtained two jobs, a short term position and then his current job.
The Tribunal accepts the expert evidence of Audiologists 3 and 4 that no FTC hearing aids provided under the HSP would give PPFQ the same results as using the hearing aids recommended by Audiologist 3. Audiologist 3 has been dedicated to achieving the best possible outcome for him. The results have been life-changing for PPFQ.
The Tribunal does not accept the veiled suggestion from the Agency that she is making the recommendation she has to earn commission on the hearing aids. The Tribunal infers that she has not and will not be compensated financially for all the time she has spent helping PPFQ.
The Tribunal accepts the evidence of Audiologist 3 that PPFQ does not qualify under the CSO. Her opinion was based on her knowledge of the applicable criteria, her conversation with Australian Hearing, and the fact that two other audiologists had not referred him to the program. The Tribunal would add that the audiologist he saw in 2014 also did not refer him to that program. The Agency’s argument to the contrary was speculative.
The Tribunal finds that there has been adequate identification and investigation of alternative sources of funding and provision of in kind supports for PPFQ.
The Tribunal did not understand the Agency to argue that the hearing aids recommended by Audiologist 3 did not satisfy ss 34(1)(a), (b) or (d). For certainty, the Tribunal finds that they do satisfy those provisions.
The Tribunal finds that the hearing aids recommended by Audiologist 3 represent value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support. In making that finding, it takes into account that the hearing aids recommended by Audiologist 2 cost $8,200. The subject hearing aids cost $6,000. It does not accept that there are comparable supports which would achieve the same outcome at a substantially lower cost.[10] The need for hearing aids relate to PPFQ’s statement of goals and aspirations.[11]
[10] Rule 3.1(a) of the Supports for Participants Rules.
[11] Rule 4.1(d) of the Supports for Participants Rules.
The Tribunal is satisfied that the recommended hearing aids are the minimum necessary support required.[12] This is not a case of funding “bespoke wheels or other luxury finishes”. Both Audiologists 2 and 3 have made a judgment based on their expertise and experience and a number of consultations with PPFQ, that he requires high-level technology hearing aids because of his particular audiological and psycho-social circumstances. Their judgment has been borne out by the benefit PPFQ has gained from using such hearing aids. The evidence of Audiologist 1 is not persuasive for the reasons set out above.
[12] Planning OG cl.10.5
By the time of the hearing, PPFQ had found that he was most comfortable with the GN Resound LiNX 3D 9 hearing aids. Those hearing aids satisfy s 34(1)(c) of the Act. They are a reasonable and necessary support pursuant to s 34(1) of the Act.
DECISION
The Tribunal sought the parties’ views as to the terms of the decision that would give effect to the Tribunal’s findings based on its reasons. The parties filed agreed terms of a proposed decision on 30 May 2019. As agreed by the parties, the Tribunal decides that:
The internal review decision of 13 April 2018 under section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) which affirmed the reviewable decision of 1 December 2017 under section 33(2) of the Act is set aside and in substitution thereof a decision is made:
to include the following reasonable and necessary support that will be funded under the National Disability Insurance Scheme:
(iv)
a pair of GN Resound LiNX 3D 9 hearing aids.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[SGD]........................................
Associate
Dated: 31 May 2019

Date of hearing: 28 November 2018

Date final submissions received: 21 December 2018

Solicitors for the Applicant: Ms L Ash, Legal Aid NSW

Solicitors for the Respondent: Mr T Giugni, Australian Government Solicitor

[2019] AATA 1092

31 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	28 November 2018
Date final submissions received:	21 December 2018
Solicitors for the Applicant:	Ms L Ash, Legal Aid NSW
Solicitors for the Respondent:	Mr T Giugni, Australian Government Solicitor