Stewart and National Disability Insurance Agency

[2024] AATA 109

Stewart and National Disability Insurance Agency [2024] AATA 109 (15 January 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2022/4458

Re:Kerrie Lee Stewart

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member D Connolly

Date:15 January 2024  

Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

........................[SGD].........................

Senior Member D Connolly

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – access criteria – impairments resulting from hearing loss and Meniere’s disease - whether there is substantially reduced functional capacity – decision set aside and substituted

LEGISLATION

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

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

CASES

Madelaine and National Disability Insurance Agency [2020] AATA 4025
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179;

(1979) 2 ALD 634

SECONDARY MATERIALS

National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (Web Page) <

REASONS FOR DECISION

Senior Member D Connolly

15 January 2024

BACKGROUND TO REVIEW

1. The Applicant, aged 59, seeks review of a decision of 20 May 2022, made by the National Disability Insurance Agency (‘the Respondent’), which confirmed an earlier decision to refuse her request for access to the National Disability Insurance Scheme (‘the NDIS’) under provisions of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’).

2. The Applicant lives in regional New South Wales with her husband in their privately owned home. She has four adult children and eleven grandchildren who all live locally. She works full-time as a Student Learning Support Officer at a nearby public school, in the special education unit.[1]

   [1] JB, R2, pp 249-267. This biographical information comes from the report dated 17 December 2022 prepared by Mr Gary Stretton, occupational therapist, at the request of the Respondent (Mr Stretton’s Report). It is generally consistent with the information in other evidence, referred to in my consideration of the evidence.

3. The following information comes from the Applicant’s Access Request Form completed by her and her audiologist, Ms Padmashree Basavaraju.[2] The Applicant has had hearing loss, which is degenerative, for 32 years and currently uses hearing aids. An ENT has concluded that her impairment is associated with Meniere’s disease and significant family history. The Applicant also listed that she has arthritis. She has reported to Ms Basavaraju poor benefit from her current hearing aids, in her workplace, when there is a lot of background noise. Ms Basavaraju has recommended that devices with higher noise cancellation technology will be more beneficial in her workplace. She has provided a quote of $11,460, for binaural hearing aids.[3] Ms Basavaraju has also reported that the Applicant’s disability impacts her functional capacity in the communication, socialising and learning domains.

   [2] T9, Access Request Form, pp 28-55.

   [3] T10, Amplifon quote, pp 56-57.

4. On 8 October 2021, a delegate of the Chief Executive Officer (‘CEO’) of the Respondent determined the Applicant did not meet the access criteria set out in sections 24 and 25 of the Act. An internal reviewer confirmed the decision on 20 May 2022. The internal reviewer found the Applicant’s impairments associated with Meniere’s disease and hearing loss are permanent. The internal reviewer accepted the Applicant has difficulties with completing a number of tasks and that her hearing impairment affects her capacity for some communication, social interaction and learning tasks. However, she found on the information before her, that the Applicant is independent in most of those tasks. She was not satisfied the disability requirements or the early intervention requirements were met.

5. On 25 May 2022 the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the internal review decision.

6. The parties requested that the matter being determined without a hearing. This issue was discussed at a Directions Hearing on 6 November 2023 when I confirmed their consent. Having considered all the material before me, I am satisfied that the issues for determination can be adequately determined in the absence of the parties. On 10 November 2023 I directed that the matter be determined without a hearing, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). In determining the matter, I have considered all the material filed by the parties, including the documents filed by the Respondent pursuant to subsection 37(1) of the AAT Act (‘the T-documents’).

   LEGISLATION

   The access criteria

7. To become a participant in the NDIS, the Applicant must satisfy the access criteria set out in subsection 21(1) of the Act, which provides as follows:

   (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).

8. There is no dispute the Applicant satisfies the age and the residence requirements. I must decide whether the Applicant satisfies the access criteria in section 24 (the disability requirements) or section 25 (the early intervention requirements).

9. Section 24 of the Act states:

   (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 the person has one or more impairments to which a psychosocial disability is attributable; 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 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.

10. If the Applicant does not meet the disability requirements, I must consider whether she meets the early intervention requirements set out in section 25 of the Act which relevantly states:

    1A 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.

11. The Minister may, under subsection 209(1) of the Act, make rules prescribing matters. The rules relevant to this matter are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’), which form part of the legislation.

12. The NDIS Operational Guidelines also assist in making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[4] The relevant Operational Guideline is Our Guidelines – Becoming a participant – Applying to the NDIS (‘the Operational Guideline’).[5]

    [4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634; (1979) 2 ALD 60.

    [5] National Disability Insurance Agency, Our Guidelines – Becoming a participant – Applying to the NDIS, (1 August 2022) (Web Page) <>

    I note in Mulligan[6] Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers… in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted.”[7] The full court in Foster[8] explained that the legislation requires that it is based on a functional, practical assessment of what a person can and cannot do.[9]

    [6] Mulligan v National Disability Insurance Agency [2015] FCA 544 (‘Mulligan’).

    [7] Ibid, [55].

    [8] National Disability Insurance Agency v Foster [2023] FCAFC 11 (‘Foster’).

    [9] Ibid, [44].

    ISSUES

13. I will first consider whether I am satisfied the Applicant has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments, as required by paragraph 24(1)(a) of the Act. The Applicant’s NDIS Application Form and statement of lived experience indicate she seeks to rely on hearing loss and arthritis to meet the access criteria. Ms Basavaraju stated that the Applicant’s only disability is hearing loss.[10]

    [10] T9, Access Request Form, pp 28-55.

14. If I find the Applicant meets paragraph 24(1)(a) of the Act, I will consider whether any of her impairments are permanent such that paragraph 24(1)(b) of the Act is met. The Respondent has accepted that the Applicant’s sensory impairment resulting from hearing loss and Meniere’s disease is permanent.[11]

    [11] Respondent’s Statement of Facts, Issues and Contentions, dated 31 July 2023 (‘RSFIC’), para 12.

15. If I find paragraphs 24(1)(a) and (b) are met, I will consider whether the Applicant’s impairment(s) result in substantially reduced functional capacity to undertake any of the following activities: communication, social interaction, learning, mobility, self-care or self-management. The Respondent contends the Applicant has not demonstrated a substantially reduced functional capacity in any of the specified domains in subparagraph 24(1)(c)(i)-(vi) and therefore does not meet paragraph 24(1)(c) of the Act.[12]

    [12] RSFIC, paras 13-34.

16. If I am not satisfied the Applicant meets the disability requirements, I will consider whether she meets the early intervention requirements. The Respondent contends that the Applicant does not satisfy the early intervention requirements because the evidence does not demonstrate that the provision of early intervention supports is likely to benefit her by reducing her future need for support. Nor, it submits, does her evidence address the early intervention supports required and outcomes to be achieved in relation to her functional capacity. The Respondent also submits that the evidence provided does not indicate that early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in paragraph 25(1)(c) and there is no indication in the evidence provided as to what benefits may or may not be experienced from receiving such support.[13]

    [13] Ibid, para 38.

17. While I did not hear oral evidence from the Applicant, both parties consented to the Tribunal making its decision without holding a hearing. This indicates to me that the Respondent is not concerned about the veracity of the Applicant’s claims. There is nothing before me to indicate that I should not accept her written evidence, including her statements of lived experience, as a reliable record of the impact of her hearing impairment on her functional capacity. While a hearing might have given me an opportunity to observe the Applicant’s capacity to communicate in a hearing room, a quiet environment, she demonstrated and acknowledged to Mr Stretton, the independent occupational therapist who assessed her in November 2022, that she could hear him in a quiet environment (albeit while wearing her hearing aids). He accepted however that she misses words and sounds, regularly asks people to repeat themselves and that colleagues need to speak at a higher volume and ensure optimal direction of speech when communicating with the Applicant.[14] I note the Applicant’s evidence that her hearing impairment impacts her functional capacity in environments where there is background noise, a situation I could not replicate in the hearing room. Also, in my view, it is not my role to assess the Applicant’s hearing, a task for which I am not qualified. Accordingly, I am satisfied that I can rely on the parties’ written evidence to make the correct findings of fact.

    [14] JB, R2, Mr Stretton’s Report, p 263

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the Applicant have a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments?

18. I have considered whether the Applicant has a disability that is attributable to an impairment or impairments. These need to be identified with some precision, because the threshold questions on permanency (paragraph 24(1)(b)) and substantially reduced functional capacity (paragraph 24(1)(c)) operate not on the concept of conditions, but on the concept of “impairment”, which is generally understood to involve the loss of, or damage to, a physical, sensory or mental function.[15]

    [15] Mulligan at [51].

19. The Respondent has accepted that the Applicant satisfies this requirement in relation to impairments arising from hearing loss and Meniere’s disease.

20. The Applicant has stated in her Access request form that she has a disability associated with arthritis. Ms Basavaraju has not repeated this claim. In her statement of lived experience the Applicant stated that she has fibromyalgia, Dercum’s disease (lipoma) and arthritis but “I do not need support with those things”.[16] In April 2023, Dr Margaret Gibbons, of Tobwabba Aboriginal Medical Service, her general practitioner, recorded that the Applicant has fibromyalgia and Dercum’s disease.[17] I note the Applicant reported to the independent occupational therapist, Mr Stretton, in November 2022, that she had no limitations on mobility or ability to perform self-care tasks.[18] I am not satisfied there is sufficient evidence to find that the Applicant has arthritis that causes any impairment. While I accept the Applicant has fibromyalgia and Dercum’s disease, I am not satisfied, on the evidence before me, that the Applicant has a disability attributable to any impairments arising from those conditions.

    [16] JB, A3, Applicant’s Statement of Lived Experience, p 233.

    [17]JB, A4, Report of Dr Gibbons, p 235.

    [18] JB, R2, Mr Stretton’s Report, pp 254-257.

21. Ms Basavarju has reported that the Applicant has difficulty with communication because of an inability to hear from a distance or in noisy places and she tends to avoid social interaction in groups.[19] The Applicant has provided an audiometry report, by B Katen, audiometry nurse, recording sensorineural hearing loss and moderate hearing loss across all frequencies.[20] On the basis of this evidence, and other reports discussed below, I am also satisfied the Applicant has a disability that is attributable to a sensory impairment.

    [19] T9, Access Request Form, p 49.

    [20] T13, Report by B. Katen, pp 67-69.

22. The Applicant has also claimed that she has complex anxiety for which she takes daily medication, Sertra.[21] Dr Gibbons did not mention anxiety but indicated her hearing loss impacts her mental health. Ms Basavaraju did not mention anxiety. While I accept that the Applicant may take medication for anxiety, I am not satisfied she has a disability that is attributable to an impairment associated with the condition.

    [21] JB, A5, Email from Applicant, p 236.

23. Overall, having found the Applicant has a disability that is attributable to a sensory impairment, I find she satisfies paragraph 24(1)(a) of the Act.

    Is the impairment permanent, or likely to be, permanent?

24. The Respondent accepts that the sensory impairment which results from the Applicant's hearing loss is permanent for the purpose of paragraph 24(1)(b). I note her most recent audiometry report records that the Applicant was diagnosed with Meniere’s disease in the 1990s and she has had hearing loss and tinnitus for over 32 years.[22] Having regard to the evidence of Dr Gibbons and the audiometry nurse, I am also satisfied the Applicant’s sensory impairment associated with hearing loss is permanent. Accordingly, I am satisfied the Applicant meets paragraph 24(1)(b) of the Act.

    Does the Applicant’s impairment result in substantially reduced functional capacity to undertake one or more of the specified activities?

    [22] T13, Report by B, Katen, pp 64-66.

25. The Applicant meets the disability requirements set out in paragraph 24(1)(c) if her impairment results in substantially reduced functional capacity to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care, and/or self-management.

26. Rule 5.8 of the Access Rules sets out the matters I must consider when determining whether the Applicant’s impairment results in substantially reduced functional capacity. It is a deeming provision which is relevant but not conclusive as to whether there is substantially reduced functional capacity. It states as follows:

    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.

1. With respect to whether an impairment results in substantially reduced functional capacity the Operational Guideline states:

   Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the (specified) tasks.

   These disability-specific supports include:

   ·a high level of support from other people, such as physical assistance, guidance, supervision or prompting.

   ·assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.

2. In the Applicant’s NDIS Access request form, Ms Basavarju claimed the Applicant needs assistance to undertake communication, social interaction and learning tasks.[23] I will consider the evidence regarding all six domains set out in paragraph 24(1)(c) of the Act.

   [23] T9, Access Request Form, p 49.

   Communication

3. There is no dispute that the Applicant’s hearing loss impacts on her functional capacity for communication. The Respondent however is of the view the Applicant’s impairment with respect to this activity does not reach the high threshold required to demonstrate a substantially reduced functional capacity.

4. In the Applicant’s NDIS Access request form completed in September 2021, Ms Basavarju stated the Applicant has an inability to hear from a distance or in noisy places, causing “constant communication breakdowns”. She advised that the Applicant has been using the same hearing aids, “basic range devices which do not offer noise cancellation”, for over six years but only uses them in meetings or in one-on-one situations to help with listening. As a result, she struggles to communicate in classrooms, when someone talks from a distance or if there are limited visual cues. In her view the Applicant also needs assistive technology, such as fire alarms, door and phone flashes to reduce the risk of the Applicant missing danger alarms. She reported the Applicant would also benefit from assistive mics.

5. In April 2023, Dr Gibbons, the Applicant’s general practitioner for over 20 years, reported the following.[24] The Applicant has been suffering with increased deafness for 25 years which severely affects her ability to communicate with her family and students, affects her social life and mental health, and leads her to stay home. Her deafness magnifies her other conditions, fibromyalgia and Dercum’s disease. She finds it especially difficult to hear when there is background noise. She tries to lip-read but this is not always possible because of masks. She is starting to not initiate conversations because she cannot manage to hear enough to respond appropriately. She becomes confused with instructions. Family, students and staff get frustrated when she asks them to repeat themselves. She cannot talk comfortably on the phone. The Applicant reported trialling modern hearing aids which cut out background noise. While they make a considerable difference, they are very expensive. Dr Gibbons supports the Applicant’s Access application so that the Applicant’s mental health and socialisation may return as close as possible to normal.

   [24] JB, A4, Report of Dr Gibbons. p 235.

6. Mr Stretton assessed the Applicant in her home in November 2022 over one hour and fifteen minutes and produced a report.[25] The Applicant reported the following information to Mr Stretton. She works as a Student Learning Support Officer in the special education unit for children with disabilities. She had been wearing her hearing aids full-time for about 12-15 months. She recently trialled better quality hearing aids, with noise cancelling features and phone connectivity, for two weeks and there was a discernible difference in her ability to hear and function at work. Her colleagues commented on the difference. Mr Stretton observed the Applicant spoke at a slightly elevated volume. However, he noted she did not require him to raise his voice as she was able to understand him at his normal pitch and tone. She advised this was not the case with everyone. I take it from Mr Stretton’s report that the Applicant was wearing her hearing aids during the assessment, given his note that she had been wearing them full-time for 12-15 months. It appears Mr Stretton did not undertake any part of the assessment while the Applicant was not wearing hearing aids.

   [25] R2, Mr Stretton’s Report. pp 238-248.

7. The Applicant reported to Mr Stretton that she had no issues with expressive or receptive communication, in an understanding sense. She has difficulty hearing verbal information, but not with understanding it if it is at a level audible to her. In a functional sense this means she will hear only part of conversations and she misinterprets spoken words. She has difficulty hearing the school bell and other specific sounds when on playground duty as she is unable to block out background noise or determine the direction sounds are coming from. She finds it difficult to hear people who speak whilst wearing a mask and/or in shops when there is a Perspex shield on the counter.  She is able to use a smartphone but only uses the speaker function as she is unable to hear with the phone held to her ear, even with hearing aids in. She finds male voices much more difficult to hear due to their lower tone.

8. Mr Stretton observed that the Applicant was able to understand questions and respond appropriately, communicate her needs and wants, use a variety of expressions in her spoken word and use hand gestures, follow instructions and conversations, and respond to questions appropriately. She was observed communicating verbally with husband. Mr Stretton stated however that the Applicant’s “hearing loss does impact her communication. She misses words and sounds and regularly needs to ask people to repeat what they were saying. Colleagues need to speak at a higher volume and ensure optimal direction of speech when communicating with (her).”[26]

   [26] JB, R2, Mr Stretton’s report, pp 251-263

9. In her statement of lived experience the Applicant stated the following. She has a moderate hearing loss which affects her relationships with family, friends and work colleagues. She relies on hearing aids and lip-reading. Her current hearing aids, which are low quality, do not block out background noise so she finds it difficult to hear in noisy environments such as the classroom and playground. The children get agitated when she asks them to repeat themselves. She has difficulty following the teacher’s instructions. Her family also get frustrated by her hearing loss. She needs to get her husband to relay information quite regularly and this is impacting their relationship. The Applicant was recently her father’s executor, and she failed to hear the solicitor correctly. She had difficulty notifying phone and utility companies to close her father’s accounts because she could not hear them. She rarely goes out as she cannot hear conversations in busy atmospheres. She has withdrawn from social interaction and special occasions. Her hearing loss is affecting her mental health, for which she takes medication daily.

10. The Applicant stated that she cannot enjoy records or CDs because of her hearing loss. She uses captions for watching TV but this interrupts her husband’s viewing. She relies at school on lights for the bell (presumably installed for deaf students). She cannot attend meetings and conferences to update her skills. She struggles to use public transport for fear of missing information. When she drives, she is constantly checking her rear vision mirror in case there is a siren. Loud noise distresses her.  Her husband attends medical appointments with her, so she does not miss vital information. He also goes shopping with her.

11. The Applicant believes that if she had better hearing aids she could reach her potential at work, have better intimate connections and celebrate with her family and friends, take responsibility for her life, talk to help desks, drive and use public transport in a more relaxed manner, go to her medical appointments independently, have a better relationship with her husband, attend social functions, have conversations and be more independent.

12. In an email dated 24 August 2023, the Applicant stated in summary that she fails to hear instructions in her work environment, from shop assistants and doctors. She has missed appointments because she heard the wrong information. She now wears her hearing aids from the moment she wakes up and they do help somewhat but they are not strong enough for her hearing loss. She has become nervous and feels isolated as she cannot join in conversations with people. She disagrees with Mr Stretton’s view that she does not have a problem when she wears her hearing aids. It is true that if there is no noise around her and she is facing the person she can hear, but it is not often that there is no noise. She has found it difficult when people wear masks or if there is a screen. She is on long service leave as she feels she cannot do her job correctly.

13. With respect to any conflict between the Applicant’s evidence and Mr Stretton’s report, the Respondent submitted in an amended RSFIC[27] that Mr Stretton did not conclude the Applicant does not have a problem hearing when she wears her hearing aids – Mr Stretton reported that: “hearing aids…ameliorate the effects of her hearing impairment”,[28] “she does have difficulty hearing verbal information but not with understanding it, if it is at a level audible to her”[29] and her “hearing loss does impact her communication. She misses words and sounds and regularly needs to ask people to repeat what they were saying. Colleagues need to speak at a higher volume and ensure optimal direction of speech when communicating with Ms Stewart”.[30]

    [27] Respondent’s Amendments to Statement of Facts, Issues and Contentions, dated 6 October 2023.

    [28] JB, R2, Mr Stretton’s report, p 257.

    [29] JB, R2, Mr Stretton’s report, p 250.

    [30] Ibid, p 259.

14. The Applicant provided a letter from Peter Johnson, Relieving Principal, Forster Public School.[31] He confirmed the Applicant is employed as a School Learning Support Officer and is required, among other things, to:

    [31] T12, Letter from P. Johnson.

    • Assist students with school routines and classroom activities.

    • Assist the classroom teacher in the teaching and learning environment (both on and off school premises), including the implementation of individual educational programs and individual transition programs.

    • Assist and support students to develop independent living and pre-vocational skills including through travel training, transition, excursions, and work experience programs.

    • Implement the health care plans or behaviour plans of students with disability or behaviour disorders to support their engagement in learning activities.

    • Assist the classroom teacher in organising and preparing resources, in both the classroom and playground to support teaching and learning.

    • Participate in student welfare and wellbeing activities as required.

    • Perform administrative duties to support and enable effective teaching and learning outcomes for students.

    • Observe and record student performance data during the implementation of individual educational and behavioural programs.

    • Assist with toileting and personal care needs of students at all ages and dependency levels, including washing, bathing, showering, dressing and changing.

    • Communicating with students using the most appropriate assistive technology device to meet the needs of the student.

15. Mr Johnson stated “it is essential that clear audible reciprocal communication is always maintained to ensure the safety of all staff and students. Given Kerrie’s current hearing loss, she has reported it is extremely difficult to maintain a high level of communication.”[32] He supported any recommendation or device that would assist the Applicant improve and maintain her employment as a School Learning Support Officer.

    [32] Ibid.

16. The Applicant has provided an audiometry report dated 6 April 2022 by B Katen, audiometry nurse, who stated that the Applicant has:

    Right severe sensorineural hearing loss at 250 and 6000Hz, moderate sensorineural hearing loss at 500, 1000, 2000, 4000, 8000Hz. Left – moderate sensorineural hearing loss across all frequencies tested today.[33]

    [33] T13, Report by B, Katen, p 68

17. Having considered the Applicant’s audiometry report, I note the Applicant’s hearing loss is 52.5 decibels in her right ear and 55 decibels in her left ear, based on a pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz for each ear. Having regard to her audiometry report dated 27 October 2014, it is clear that her hearing has deteriorated, as in October 2014 her hearing loss over four frequencies of 500 Hz, 1000 Hz, 2000 Hz and 4000 Hz was 42.5 decibels in her right ear and 46.25 decibels in her left ear.[34]

    [34] T7, Audiogram, dated 27 November 2014, p 25.

18. I do not have before me evidence that the Applicant has undergone speech detection or speech discrimination tests.

19. The Operational Guideline with respect to communication currently states as follows:

    Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

20. The Operational Guideline with respect to hearing impairment states as follows:

    What if you have a hearing impairment?

    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.

    Then, we look at how your impairments affect your ability to work, study or take part in social life. This means your permanent impairments affect how you can find and keep a job, contribute to your community, or join social activities. We get this information from your NDIS application.

    We look at your ability to do things like:

    ·find and keep a job, or start your own business

    ·study

    ·spend and save money

    ·play sport

    ·go to the movies

    ·volunteer

    ·travel.

    It doesn’t matter how much your ability to work, study or socialise is affected by your impairment. It only needs to affect your social or work life in some way for you to meet the criteria.

21. In the RSFIC, the Respondent cited Foster[35] and acknowledged that the Operational Guideline does not limit the circumstances in which a person with a hearing impairment may be found to have substantially reduced functional capacity. I note in Foster the Court said:

    the Guidelines are merely administrative “tools”. They do not provide a legislative definition of the relevant activities. They do not control the meaning of the phrase “substantially reduced functional capacity”. Nor do they alter the threshold criteria for when a person meets the disability requirements as specified in s 24(1) of the NDIS Act. They are not the equivalent of a statutory provision and are not to be construed in like manner...[36]

    [35] Foster at [36].

    [36] Ibid at [62]

22. It is well established that the Tribunal should apply the Operational Guideline unless there is good reason not to do.[37]  For the following reasons, I am satisfied it is appropriate to not apply the Operational Guideline strictly, with respect to the degree of hearing loss, in this case.

    [37] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 (‘Drake’)

23. The Respondent referred to the guidance in Mulligan[38] when considering whether a person with a hearing impairment may have substantially reduced functional capacity. Her Honour explained that it is based on a multi-faceted assessment of what the person can and cannot do. The Respondent argued the evidence before the Tribunal establishes that the Applicant does not reach the threshold required to demonstrate that the Applicant’s functional capacity for communication is substantially reduced.

    [38] Mulligan at [55].

24. The Respondent further submitted that Mr Stretton’s evidence leads to the conclusion that the Applicant does not experience substantially reduced functional capacity in the activity of communication, as undertaking a task more slowly or differently to others does not necessarily mean that a person cannot participate effectively or completely in an activity.

25. As acknowledged by the Respondent in the RSFIC, rule 5.8 is a deeming provision for paragraph 24(1)(c) of the NDIS Act. It has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in that rule are met.

26. In Foster at [58] the Court noted:

    In National Disability Insurance Agency v Davis [2022] FCA 1002, Mortimer J said that “a rule prescribing circumstances in which an impairment is, or is likely to be, permanent may well be a rule whose effect is to control, or at least affect, the outcome of an exercise of power in s 21, read with s 24 (original emphasis)”. Her Honour went on to say that s 27(a) authorises the executive to make rules about the circumstances in which an impairment will be permanent for the purposes of s 24(1)(b). Mortimer J observed at [73]:

    [O]n its face, s 27(a) authorises inclusionary rather than exclusionary ones. That would be compatible with the usual restrictions on delegated legislation. Otherwise, a rule purportedly made pursuant to s 27 could control (and alter) the meaning of the word “permanent” in s 24(1)(b), and the executive could substantively alter the operation of the legislative scheme created by Parliament. Consistently with those well-established principles, such an operation would also be contrary to the prohibition in s 209(9)(e) of the  NDIS  Act, which provides that rule may not:

    “directly amend the text of this Act.”

27. I am of the view Mortimer J’s guidance with respect to the authority provided by subsection 27(a) of the Act is also applicable to subsection 27(b), which provides authority to prescribe circumstances in which, or criteria to be applied in assessing whether, impairments result in substantially reduced functional capacity to undertake one or more activities for the purposes of paragraph 24(1)(c) of the Act. In other words, the circumstances set out in rule 5.8 are inclusionary, not exclusionary, and so even if rule 5.8 is not met, I must still consider whether I am satisfied the Applicant’s impairment results in substantially reduced functional capacity to undertaken one or more of the relevant activities.

28. The Respondent submitted, “to the extent that the Applicant seeks to rely upon the deeming effect of Rule 5.8 and the use of hearing aids, the Respondent contends that, consistent the Federal Court's approach in Foster at [89] to [90], the use of hearing aids is directed at the Applicant's hearing impairment and the Applicant does not require assistive technology to undertake or participate effectively or completely in the activity of communication.”

29. While I am bound by the Court’s approach in Foster, I note the facts in that case were different to those in this case. Mr Foster used a catheter to urinate, being one discrete aspect of self-care. The Tribunal (differently constituted) had found that Mr Foster’s requirement to use a catheter to urinate was an inability to participate effectively or completely in the activity of self-care. However, the Court found: “Mr Foster is able to toilet himself; his impairment requires him to use a catheter to urinate. Consequently, the Tribunal erred in construing the phrase “effectively or completely” as meaning that his need for equipment to urinate meant that he was unable to participate effectively or completely in the activity of self-care.”

1. In this case the Applicant seeks access to the NDIS because she has hearing loss, a sensory impairment. On the evidence before me, discussed in more detail below, I am satisfied this affects her capacity to hear and participate in conversations, to hear critical information, alarms and instructions, to comprehend and respond appropriately when communicating, to complete her duties as a School Learning Support Officer effectively and safely, to communicate with her family, friends, work colleagues and students, to maintain her marital relationship, to attend medical appointments independently, to use public transport and drive without anxiety about missing important information. In my view this is not analogous to the one discrete task of urinating in the activity of self-care.  

2. In considering whether the Applicant meets the circumstances set out in the Operational Guidelines, I note her hearing loss is not at least 65 decibels in her better ear; it is 52.5 decibels in her right ear and 55 decibels in her left ear. There is no evidence before me to indicate that she has another impairment such as a vision or cognitive impairment, or that her speech detection and speech discrimination outcomes are significantly poorer than expected. This however does not limit my consideration of whether the Applicant has a substantially reduced functional capacity in communication.

3. It is clear to me that a significant issue for the Applicant is hearing in her workplace, a primary school, which I accept is a noisy environment. This is even while she is using hearing aids, which in my view are assistive technology/equipment.  Given the Applicant’s moderate hearing loss, I accept Ms Basavarju’s report that the Applicant has an inability to hear from a distance or in noisy places, causing “constant communication breakdowns”. I also accept Dr Gibbons’ report that the Applicant has been suffering with increased deafness for 25 years which severely affects her ability to communicate with her family and students, affects her social life and her mental health and leads her to stay home. In Dr Gibbons’ view, the Applicant’s deafness magnifies her other conditions, fibromyalgia and Dercum’s disease. Dr Gibbons also reported that the Applicant finds it especially difficult to hear when there is background noise, and that she tries to lip-read but this is not always possible because of masks. I accept Dr Gibbons’ report that the Applicant is starting to not initiate conversations because she cannot manage to hear enough to respond appropriately, and that she becomes confused with instructions. I note Dr Gibbons has been the Applicant’s general practitioner for more than 20 years and knows the Applicant to be devoted to her family, her community and her work at the local primary school. I find her report highly persuasive.

4. I disagree with the Respondent’s view that the Applicant does not experience substantially reduced functional capacity in the activity of communication as, it has argued, undertaking a task more slowly or differently to others does not necessarily mean that she cannot participate effectively or completely in an activity. In my view, she does not hear more slowly or differently – currently there are things she does not hear at all. She experiences misunderstanding because she does not hear properly. There is communication she avoids, such as social interaction, because she cannot hear. I also note her audiologist is concerned she may miss fire alarms. That, in my view, is different to undertaking communication differently or more slowly.

5. Having considered the evidence before me, I am satisfied that, even with her current hearing aids which assist her to hear in quiet environments, the Applicant cannot hear effectively in environments where there is background noise, including during social interaction and in the classroom and playground where she works. I am satisfied that the Applicant would hear even less if she were not using assistive technology/equipment. I agree with Mr Johnson that, in a school environment, clear audible reciprocal communication is critical to ensure the safety of staff and students. I accept that there are things the Applicant misses in her workplace. I accept that her sensory impairment is adversely impacting on her capacity to perform her duties as a School Learning Support Officer and may be raising safety concerns.

6. I have considered the evidence and the application of rule 5.8 and I am not satisfied the Applicant is unable to communicate, as described in rule 5.8(c). Also, while I accept that the Applicant’s hearing loss requires her husband to assist her by, for example, attending medical appointments and shopping with her, and that this demonstrates the Applicant requires some assistance from another person to participate in the activity of communication, I am not satisfied this is at the level of usually requiring assistance as described in rule 5.8(b).

7. I have considered whether the Applicant is unable to participate effectively or completely in the activity of communicating, or to perform tasks or actions required to undertake or participate effectively or completely in communicating, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications, as described in rule 5.8(a). The Respondent has argued that the Applicant’s use of hearing aids is directed at her hearing impairment and she does not require assistive technology to undertake or participate effectively or completely in the whole activity of communication. For the following reasons, I disagree with this view.

8. As indicated above, I am of the view the impact of the Applicant’s sensory impairment is broader than merely her not hearing what has been said. Her sensory impairment impacts her capacity to perform her duties as a School Learning Support Officer, including keeping children safe, her ability to understand what is being said and asked of her, and her capacity to respond accordingly and appropriately. Her audiologist expressed concern that she may miss fire alarms. While I accept the Applicant has no limitation in her capacity to speak, write and express herself, I am of the view her sensory impairment adversely impacts on her capacity to hear and understand people and situations. I accept that when the Applicant misunderstands a student, a colleague, a friend or a family member, she may respond inappropriately or incorrectly, as indicated by her experience as her father’s executor. Her sensory impairment impacts how others understand her. I accept she becomes confused with instructions. I am of the view these factors are likely to jeopardise her ability to perform her duties as a School Learning Support Officer, particularly with respect to assisting and supporting students and the classroom teacher, in the classroom and in the playground.

9. I accept the Applicant’s evidence that, even with her current hearing aids, she struggles to communicate effectively in noisy environments, in the workplace and socially, with students, teachers, colleagues, family and friends.  This impacts on her capacity to do her job safely. I am of the view that if she were not wearing hearing aids her hearing loss would have a greater impact on her capacity to perform her duties. I accept that without any assistive technology or equipment, the Applicant’s capacity to participate in communication which involves hearing, understanding and responding accordingly, would be even worse than it currently is, with the use of her current aids.

10. For the reasons given above, I am satisfied the Applicant is unable to participate effectively or completely in the activity of communication, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology or equipment, such as hearing aids, lights for school bells, fire alarms, and door and phone flashes, and the provision of rule 5.8(a) is met.

11. However, even if I am wrong in my application of rule 5.8, I am still of the view the Applicant’s sensory impairment results in substantially reduced functional capacity to undertake the activity of communication. For the reasons given above, I am satisfied the Applicant’s sensory impairment significantly affects communication in her work and social life, both in terms of her ability to understand people and situations and her ability to be understood. I accept that her sensory impairment has led to the Applicant taking leave from work because she feels she cannot do her job correctly. I also accept her deteriorating hearing is leading to social withdrawal which impacts on her mental health, her communication and relationships with family and friends.

12. Considered overall, I am satisfied that the Applicant’s impairment results in substantially reduced functional capacity to undertake the activity of communication and subparagraph 24(1)(c)(i) of the Act is met.

13. It is only necessary for the Applicant’s impairment to result in substantially reduced functional capacity in one of the activities listed in paragraph 24(1)(c) of the Act. As this requirement is now met with respect to the activity of communication, it is not necessary for me to consider whether the Applicant has demonstrated that she has a substantially reduced functional capacity in any of the other five activities. However, for completeness I will consider each of the other domains.

    Social interaction

14. The Operational Guideline with respect to social interaction currently states as follows:

    Socialising - how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

15. I note in the Applicant’s Access Request Form, Ms Basavarju indicated the Applicant tends to avoid social interaction in groups because of communication breakdown.

16. Dr Gibbons also reported that the Applicant’s hearing loss affects her social life and mental health and leads her to stay home. She reported however that the Applicant is devoted to her family, her community and her work. I take it from Dr Gibbons’ report and the Applicant’s statement of lived experience that the Applicant has been avoiding some social interaction because of her sensory impairment which impacts her capacity to communicate.

17. Mr Stretton reported that he observed the Applicant’s ability to engage in reciprocal social conversation and that she interacted and answered questions appropriately. The Applicant reported to Mr Stretton that she has a good social network and enjoys spending time with family and friends. He noted she has no behaviour issues. However, Mr Stretton reported that the Applicant finds it difficult to hear people around a table at home or in a restaurant due to background noise. She finds that if several people are socialising in her home, she is only able to manage this outside as the echo noise inside is too great for her to hear people speaking.

18. Considered overall I am of the view the Applicant’s difficulties in social interaction are not because of any behaviour concerns or inappropriate emotional responses in social situations; her challenges and reasons for avoiding social interaction are because of her hearing impairment which has led to substantially reduced functional capacity in communication. I am satisfied the Applicant is able to make and keep friends and interact with her community, if she can hear and communicate effectively and appropriately.

19. Having considered the requirements of rule 5.8(b) and (c), I am of the view the Applicant does not usually require assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in social interaction or to perform tasks or actions required to undertake or participate in the activity. Nor is she unable to participate in social interaction 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.

20. I accept the Applicant’s impairment has impacted her social interaction but I am of the view this is related to her capacity to communicate, not her ability to socialise. I note she has to make some adjustments to socialise in her home, such as seeing people outside to avoid the echo indoors. I also note however she reported to Mr Stretton that she has a good social network and enjoys spending time with family and friends. I accept that she has to use the speaker on her phone which makes it possible for her to interact socially when not having face to face contact with family and friends. I am of the view the phone speaker is a commonly used item.

21. I note the evidence indicates that the Applicant was only using her hearing aids in meetings or in one-on-one situations to help with listening until about 12 to 15 months before she was assessed by Mr Stretton and that, even before she started using her hearing aids more regularly, according to Dr Gibbons’ report, she had been devoted to her family and her community, indicating she was able to interact socially.

22. On the evidence before me, with respect to rule 5.8(a), I am not satisfied the Applicant is unable to participate effectively or completely in the activity of social interaction, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology or equipment (other than commonly used items such as glasses). I am of the view she is able to do this but finds it challenging because of her impairment and its impact on her functional capacity in the communication domain.

23. Considered overall I accept the Applicant’s impairment impacts her functional capacity for social interaction. However, I am not satisfied that the evidence demonstrates the Applicant’s impairment results in substantially reduced functional capacity to undertake the activity of social interaction. 

24. I am not satisfied the Applicant has substantially reduced functional capacity in the activity of social interaction and subparagraph 24(1)(c)(ii) of the Act is not met.

    Learning

25. The Operational Guideline with respect to learning currently states as follows:

    Learning – how you learn, understand and remember new things, and practise and use new skills.

26. In the Applicant’s Access Request Form, Ms Basavarju indicated the Applicant needs assistive equipment and technology to participate in meetings and new learning classes.

27. Mr Stretton reported that the Applicant demonstrated no issues with learning new skills or concentrating. She reported to him that she has no issue with learning or skill acquisition in a cognitive sense but requires extra volume if information is presented verbally. I note in her Access request form it was recorded that the Applicant used her hearing aids in meetings.

28. This domain concerns the Applicant’s ability to learn, understand and remember new things. I am not persuaded that the Applicant would have the same issues regarding background noise at the primary school, in an adult learning environment. I also note there are various methods of learning and communicating new information, including written material and videos. Her evidence does not demonstrate that she has been unable to learn, understand and remember new things, or practise and use new skills because of her hearing impairment.

29. I am not satisfied the Applicant is unable to participate effectively or completely in the activity of learning, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology or equipment (other than commonly used items such as glasses). Considered overall I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to learning.

    Mobility

30. The Operational Guideline with respect to mobility currently states as follows:

    Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.

31. The Applicant has not claimed to have substantially reduced functional capacity in the mobility domain. Mr Stretton recorded that the Applicant reported no limitations in mobility, and he observed no limitations. He observed activities and actions including functional mobility, chair transfers, stair climbing, and mobilising indoors and outdoors, and other activities of daily living. While the Applicant stated she has difficulty using public transport and issues while driving, she has attributed those difficulties to her hearing impairment.[39]

    [39] JB p 253-254

32. I am satisfied the Applicant is able to mobilise, transfer and move around her home. On the evidence before me there is no suggestion the Applicant is unable to use her arms and legs. Considered overall I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to mobility.

    Self-care

33. The Operational Guideline with respect to self-care currently states as follows:

    Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

34. Ms Basavaraju did not report that the Applicant’s disability impacts her functional capacity in the self-care domain. Nor was this suggested by Dr Gibbons. Mr Stretton reported that the Applicant displayed, and she reported, no limitations on her ability to perform self-care tasks.

35. I am satisfied the Applicant is able to complete the self-care tasks described above independently and without limitation. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to self-care.

    Self-management

36. The Operational Guideline with respect to self-management relevantly states as follows:

    Self-management – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.

37. Ms Basavaraju did not report that the Applicant’s disability impacts her functional capacity in the self-management domain. Nor was this suggested by Dr Gibbons. Mr Stretton reported that the Applicant displayed, and she reported, no limitations on her ability to perform self-management tasks. Mr Stretton reported that she is able to make simple and complex decisions for herself.

38. I am satisfied that while the Applicant takes her husband or her daughter with her to appointments, she does not misinterpret pertinent information because of any mental or cognitive impairment. I am satisfied the reason the Applicant takes a family member with her to appointments is not because of any limitation in self-management; it is because of her hearing impairment impacting her capacity to communicate effectively. 

39. I am satisfied the Applicant is able to complete the self-management tasks described above independently and without limitation so long as she can hear pertinent information. I am not satisfied the Applicant’s impairments result in a substantially reduced functional capacity in relation to self-management.

    Does the Applicant’s impairment affect her capacity for social or economic participation?

40. The Applicant is currently employed as a Student Learning Support Officer and works at Forster Public School.[40] The Relieving Principal has indicated that it is essential that clear audible reciprocal communication is always maintained to ensure the safety of all staff and students, and given the Applicant’s current hearing loss, she has reported it is extremely difficult to maintain this level of communication.”[41] He supported any recommendation or device that would assist the Applicant improve and maintain her employment as a School Learning Support Officer. I also note the Applicant has taken her long service leave because she is concerned that she cannot perform her job because of her hearing impairment.

    [40] T12, Letter by P Johnson, p 63.

    [41] Ibid.

1. Having considered the evidence set out above, I am satisfied the Applicant’s impairment affects her capacity to work, socialise, shop, engage with her community and to consult her medical practitioners without the assistance of her husband or daughter.

2. The Respondent accepts that the Applicant meets paragraph 24(1)(d) of the Act. I am also satisfied the Applicant’s impairments affect her capacity for social and economic participation and so this requirement is met.

   Is the Applicant likely to require support under the National Disability Insurance Scheme for her lifetime?

3. I must consider whether the Applicant is likely to require support under the NDIS for life under paragraph 24(1)(e). This consideration involves an assessment of the likely duration of her requirement for support under the NDIS, should she be granted access as a participant.

4. The Respondent’s submission on this requirement stems from its position that the Applicant has not established that she has a substantially reduced functional capacity in any of the domains set out in paragraph 24(1)(c) of the Act.[42] For the reasons given above I disagree with that view.

   [42] RSFIC, para 37.

5. I note the Applicant’s hearing impairment is permanent and deteriorating as demonstrated by her increased hearing loss since October 2014. There is no evidence before me to indicate that there is any treatment that will remedy or cure the Applicant’s condition. I am satisfied the Applicant’s hearing impairment will be lifelong and she will require support to address its impact on her functional capacity. Accordingly, I am satisfied the Applicant is likely to require support under the NDIS for her lifetime and paragraph 24(1)(e) of the Act is met.

   CONCLUSION

6. There is no dispute that the Applicant’s meets the requirements of sections 22 and 23 of the Act.

7. For the reasons given above, I am satisfied that the Applicant meets the disability requirements set out in section 24 of the Act.

8. As the Applicant meets the disability requirements it is not necessary for me to consider whether she meets the early intervention requirements.

9. Accordingly, I find the Applicant meets the access criteria set out in section 21 of the Act.

   DECISION

10. The decision under review is set aside and, in substitution, the Tribunal decides that the Applicant meets the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth).

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Connolly

........................................................................

Associate

Dated: 15 January 2024

Date(s) of hearing:	Heard on the papers
Date final submissions received:	6 October 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Ms S Quang, HWL Ebsworth