Timofticiuc and National Disability Insurance Agency

Timofticiuc and National Disability Insurance Agency [2021] AATA 3015 (23 August 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/2680
Re:Gheorghe Timofticiuc
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member Buxton
Date:23 August 2021
Place:Brisbane

The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
....................................[SGD]....................................
Member Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirement – whether applicant meets early intervention requirements – total sensorineural hearing loss in right ear – tinnitus – adjustment disorder – whether impairments are, or are likely to be, permanent – whether impairments substantially reduce functional capacity – whether applicant likely to require support under the National Disability Insurance Scheme for lifetime – decision under review affirmed.
Legislation
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 21, 23, 24, 25, 27, 209
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) rules 2.5, 5.4, 5.8
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Kilgallin v National Disability Insurance Agency [2017] AATA 186
Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201
Secondary Materials
‘Access to the NDIS Operational Guidelines’, National Disability Insurance Agency (Web Page, 6 July 2021) < clauses 8.1, 8.3
REASONS FOR DECISION
Member Buxton

In this application Dr Gheorghe Timofticiuc (‘the Applicant’) seeks review of a decision of the National Disability Insurance Agency (‘the Respondent’) declining his request for access to the National Disability Insurance Scheme (‘the NDIS’).
The Applicant is aged in his early 50s and lives alone in coastal South-East Queensland. He works as a general practitioner. In September 2018, whilst overseas at a conference in Georgia, the Applicant contracted an upper respiratory tract infection which caused total sensorineural hearing loss in his right ear and subsequently led to episodes of aural fullness and various types of tinnitus.[1] He has since developed an adjustment disorder with depressed mood and has various other health issues.[2]
[1] Exhibit 1, T1C, T4, T5, T6 and T8.
[2] Exhibit 1, T1K.
In January 2020 the Applicant made a request to become a participant in the NDIS.[3] The Applicant’s access request was declined on 12 March 2020 and he sought internal review of that decision. Following a review under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), a delegate affirmed the earlier decision on 30 April 2020.
[3] Exhibit 1, T11.
On 5 May 2020 the Applicant applied to the Tribunal for review. The Applicant contends that he meets the access criteria prescribed under section 21 of the Act.
The Respondent accepts, and the available evidence demonstrates, that the Applicant has met the age and residency requirements in order to access the scheme.[4] The issues arising in this case are whether the Applicant satisfies the “disability requirements” under section 24 of the Act and/or the “early intervention requirements” under section 25 of the Act.
[4] NDIS Act, para 21(1)(a) and (b), ss 22 and 23.
There are five mandatory requirements that the Applicant must satisfy in order for him to meet the “disability requirements” as set out in paragraphs 24(1)(a) to (e) of the Act (reproduced below). The Respondent has conceded that the Applicant meets the requirements in paragraphs 24(1)(a) and (d) of the Act for hearing loss and adjustment disorder.[5] However, the Respondent contends that he does not satisfy the requirements as set out in paragraph 24(1)(b) of the Act for tinnitus [6] and does not meet paragraph 24(1)(c) and (e) of the Act for any of his impairments.[7] The Respondent does not accept that the Applicant meets the early intervention requirements in section 25 of the Act.[8]
[5] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [27] and [111].
[6] Ibid, [66].
[7] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [70] and [113].
[8] Ibid, [23] and [115].
The application was heard by the Tribunal in Brisbane, utilising the electronic platform Microsoft Teams, across 28 and 29 April 2021. During the hearing the Applicant was self-represented and the Respondent was represented by Mr Nolan of counsel. After the hearing both parties lodged substantial written submissions. In arriving at a decision, the Tribunal has considered various documents, including medical reports, together with the evidence of the parties and their written submissions.
RELEVANT LEGISLATION
The objects and principles in the Act give guidance on the interpretation of the statute and these can be found in sections 3 and 4 of the Act. In particular, the objects of the Act relevantly include giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities established at the UN Headquarters in New York on December 2006.[9] Paragraph 3(3)(b) of the Act provides that regard is to be had to the need to ensure the financial sustainability of the NDIS in giving effect to the objects of the Act.
[9] [2008] ATS 12, ratified by Australia on 17 July 2018.
The Minister may make rules prescribing matters pursuant to subsection 209(1) of the Act. Relevant to this matter, the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Participant Rules’) form part of the legislative scheme. Operational Guidelines written by the CEO of the NDIA also assist staff to make 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.[10] The relevant Operational Guideline is the Operational Guideline – Access to the NDIS (‘the Access Operational Guidelines’). Chapter 8 of the Access Operational Guidelines relates to the disability requirements and chapter 9 relates to the early intervention requirements.
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634, 645.
The access criteria
To become a participant in the NDIS, a prospective participant must satisfy the access criteria, which are set out in subsection 21(1) of the Act:
21 When a person meets the access criteria
(1)       A person meets the access criteria if:
(a)The CEO is satisfied that the person meets the age requirements (see section 22); and
(b)The CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c)The CEO is satisfied that, at the time of considering the request:
(i)     the person meets the disability requirements (see section 24); or
(ii)    the person meets the early intervention requirements (see section 25).
There is no dispute that the Applicant meets the age requirements in section 22 of the Act and the residence requirements in section 23 of the Act. Therefore, the issues for determination by the Tribunal are whether the Applicant meets the access criteria that are set out in sections 24 and 25 of the NDIS Act.
Section 24 of the Act states:
24 Disability requirements
(1) A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)     communication;
(ii)    social interaction;
(iii)   learning;
(iv)   mobility;
(v)    self‑care;
(vi)   self‑management; and
(d)the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
Section 25 of the Act states:
25 Early intervention requirements
(1) A person meets the early intervention requirementsif:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmentaldelay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The criteria set out in each of subsections 24(1) or 25(1) of the Act are cumulative. All of the requirements in either subsections 24(1) or 25(1) of the Act must be met for a person to become a participant in the NDIS.
THE APPLICANT’S CONTENTIONS
The Applicant submitted that he was a person who met the disability requirements under sections 24 and 25 of the Act.[11] The Applicant submitted that he had multiple disabilities, each one separately diagnosed, and that their collective impact upon his functional impairment, when considered together, led to the conclusion that he had impairments that were sufficiently significant, that were permanent, and for which he was likely to require lifetime support from the NDIS.[12]
[11] Exhibit 4, [2].
[12] Ibid, [2.6].
The Applicant contended that the Respondent’s decision:
(a)incorrectly focussed on “disability” (hearing loss) rather than “impairment”;
(b)incorrectly focussed on hearing loss alone, ignoring the diagnoses of Tinnitus, Aural Fullness, Tension Headaches, Adjustment Disorder, chronic insomnia, dental sensitivity and conditions of the shoulders, hips and vision (lens implants following cataracts);
(c)incorrectly concluded that further treatments or interventions were available that would remedy the impairment;
(d)ignored the Applicant’s right to elect whether or not he undertook cochlear implant surgery, which carried risks to his health;
(e)did not take proper account of the evidence from the Applicant and from his treating doctors;
(f)ignored the purpose and objects of the NDIS; and
(g)incorrectly applied the Access Operational Guidelines.
The Applicant submitted that he has permanent right-sided hearing loss and will continue to have that hearing loss even if hearing aids or other devices are used to address the symptoms of that loss, including cochlear implantation. The Applicant drew the Tribunal’s attention to the chapter 8.3.1 of the Access Operational Guidelines which deals with the disability requirements and referred to examples of a “substantial reduction in functional capacity” in the area of hearing loss and ‘it’s intertwined symptoms’.[13]
[13] Exhibit 4, [3.2.iv].
The Applicant submitted that it was proper to apply the Access Operational Guidelines to his circumstances because he could not undertake various activities or tasks without assistance, and that would continue to be the case if he employed hearing aids because these were not commonly used items but, rather, specialist assistive technology.[14] The effect of this submission was that the Applicant stated he would still have permanent hearing loss, whether or not he undertook cochlear implant surgery and, in any event, it was a matter for him to choose whether to undertake surgery which carried with it a real, and not insubstantial, risks of side-effects and complications.[15] The Applicant contended that he was at liberty to decide whether to proceed with cochlear implant treatment.[16] He has decided that the risks of such treatment outweigh any possible benefits.[17]
[14] Ibid.
[15] Ibid, [3.2.ivD].
[16] Transcript, P-61, lines 24 – 26 and 31 – 32.
[17] Ibid, P-60, lines 9 – 15, 24 – 26; P-61, lines 31 – 32; P-63, lines 40 – 44; P-64, lines 1 – 10.
The Applicant contended that the purpose of the requirement as identified by Justice Mortimer in Mulligan is that the Tribunal is required to consider a prospective participant’s overall circumstances in assessing whether support is required under the scheme for their lifetime as required by paragraph 24(1)(e) of the Act. [18]
[18] Exhibit 4, [3].
Finally, the Applicant submitted that his circumstances met the early intervention access criteria set out in section 25 of the Act as his impairment was amenable to early interventions.[19] In particular, he submitted that access to supports was likely to benefit him by reducing his need for further supports, preventing further deterioration of his health and preventing accidental injury in the future.[20]
[19] Exhibit 4, [4.5].
[20] Ibid.
THE RESPONDENT’S CONTENTIONS
The Respondent submitted that the decision under review ought to be affirmed as the disability and early intervention requirements had not been met in this case.[21]
[21] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [23] and [116].
The Respondent submitted that the Applicant met the requirements of paragraph 24(1)(a) of the Act, [22] as they accept that the Applicant has impairments attributable to the following disabilities:
(a) sensorineural hearing loss in the right ear;[23]
(b) tinnitus;[24]
(c) tonic tensor tympani syndrome (‘TTTS’);[25] and
(d) adjustment disorder with depressed mood. [26]
[22] Ibid, [27], [31] – [33].
[23] Ibid, [31].
[24] Ibid, [32].
[25] Exhibit 2, [15].
[26] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [33].
As to paragraph 24(1)(b) of the Act, the Respondent accepted that the hearing loss and related adjustment disorder were permanent[27] but did not accept that the tinnitus or TTTS met the requirements for permanence.[28] A substantial focus both during the hearing and in the Respondent’s written submissions was the issue of whether the tinnitus episodes could be remedied by further treatment.
[27] Ibid, [39] – [40].
[28] Ibid, [51] and [64].
Relevantly, the Participant Rules state:
When is an impairment permanent or likely to be permanent for the disability requirements?
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a
determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The Respondent submitted that, accordingly, if there are known, available and appropriate treatment available, the a prospective participant should generally undergo the medical treatment or review before making a determination on permanency, and identified two further processes that should first be exhausted by the Applicant in respect of his tinnitus before that condition could be regarded as permanent:
(a)Undertake online consultations with Dr P Selvaratnam, Musculo-skeletal physiotherapist, who is uniquely experienced in treating the symptoms of tinnitus - related TTTS;[29] and
(b)Undertake some cochlear implant testing recommended by Dr Brent McMonagle, ENT Surgeon, specialising in cochlear implants, in February 2019. This was again recommended by Dr O’Neill, ENT Surgeon in November 2020.[30]
[29] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [45].
[30] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [67].
It was submitted by the Respondent that the bases upon which the Applicant has rejected cochlear implants was not reasonable.[31] The Applicant has stated that he did not wish to undergo cochlear implant surgery because he would be unable to have an MRI after implantation, the rehabilitation would be challenging and the effect on his tinnitus would be unknown.[32] The Respondent submitted that the Applicant effectively wants a “guarantee” that the tinnitus will be fixed before undergoing the procedure, which his treating doctors will not give.[33] The Respondent submitted, with reference to an article in the Lancet Journal that was relied upon in a report prepared by Ms Myriam Westcott, that cochlear implantation has been shown to improve or eliminate tinnitus in up to 86% of patients with tinnitus.[34] It was contended by the Respondent that the Applicant should, at least, undergo the testing for suitability for cochlear implants.[35]
[31] Ibid.
[32] Exhibit 4, [2.6iii].
[33] Exhibit 2, [21].
[34] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [57] and [64].
[35] Exhibit 2, [21].
The Respondent submitted that, in respect of the impairments that it has accepted were permanent (and, with respect to the other impairments if the Tribunal found those to be permanent) that they did not lead to a substantial reduction in the Applicant’s functional capacity in order to meet paragraph 24(1)(c) of the Act.[36] Under paragraph 24(1)(c) of the Act, the Tribunal must be satisfied that the “impairment” results in a substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the activities of communication, social interaction, learning, mobility, self-care or self-management.
[36] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [70].

The Respondent submitted that the Participant Rules provide further criteria on establishing paragraph 24(1)(c) of the Act.[37] The Participant Rules have been held to be “deeming” provisions, in that the Participant Rules have the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity.[38]
[37] Ibid, [71].
[38] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [71], citing Mulligan, [77].
The Respondent submitted that the following approach was appropriate:[39]
[39] Exhibit 2, [27] – [30].
First, when construing the meaning of the phrase “substantially reduced functional capacity” the word “substantially” carries a high threshold in that:
(a)the NDIS was not intended to provided support to every person with a disability;
(b)the NDIS was intended to provide funding to minimise the impact of those who are suffering “the consequences of disability – isolation, poverty, loss of dignity, stress, hopelessness and fear of the future”; and
(c)the need to ensure the financial sustainability of the NDIS.
Secondly, s24(1)(c) looks at the person’s functional capacity to undertake the various activities of daily living. Accordingly, the consideration goes beyond what the person is in fact doing or not doing and extends to what activities the capable is capable of doing or not doing. A consideration of medical and allied health evidence is required to determine the Applicant’s functional capacity.
Thirdly, the Tribunal’s task is to determine whether the person’s functional capacity is substantially reduced in the activities of social interaction, mobility, or self-care as distinct from particular activities that require social interaction, mobility, or self-care. In the premises, the Applicant’s capacity to perform those activities has to be viewed in the context not only of what he cannot do but what she can do, even with limitations.
Finally, the Operational Guidelines can be seen to assist in the “development of a nationally consistent approach” to the application of the disability requirements. As a statement of government policy, the content of those guidelines will be a relevant consideration before the Tribunal and will be applied unless they are shown to be inconsistent with the statute. The relevant parts of the Operational Guidelines are addressed below.
(footnotes omitted)
The Respondent contended that the Tribunal is not confined to limiting its evaluation to whether the Applicant suffered from “substantially reduced functional capacity” by reference to what is set out in rule 5.8 of the Participant Rules.[40]
[40] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [71].
The Respondent contended that the issue in this application in relation to rule 5.8(a) of the Participant Rules focussed on whether the Applicant was “unable to participate effectively or completely” in various activities, [41] but that this formulation must be understood in the context of the criterion in the Act required a “substantial” reduction in functional capacity.[42] The Respondent submitted:[43]
The Applicant does not contend that he 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, nor does he contend that he usually requires the assistance from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity.
…
The word “substantially” has a very important purpose in the Act and carries a high threshold. Its meaning should be considered in the context that the NDIS was not intended to provide support to every person with a disability. Rather, access to NDIS was intended to minimise the impact of those who are suffering “the consequences of disability” such as “isolation, poverty, loss of dignity, stress, hopelessness and fear of the future”. The word also needs to be understood in the context of ensuring the financial sustainability of the NDIS.
[41] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [73].
[42] Ibid, [73].
[43] Ibid, [73] and [76].
The Respondent contended that where paragraph 24(1)(c) of the Act is not met, it followed that paragraph 24(1)(e) of the Act would not be met as it took paragraph 24(1)(c) of the Act as its subject matter and extended it into the future.[44] The Respondent contended that on this basis, paragraph 24(1)(e) of the Act was not met by the Applicant.[45]
[44] Exhibit 2, [50]; Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [113].
[45] Ibid.
The Respondent submitted that the requirements of subsection 25(1) of the Act had not been met because:[46]
(a)without undergoing the further treatments, it is contended that the Tribunal cannot be satisfied that the claimed impairments are permanent, as required under s25(1)(a)
(b)the current evidence does not demonstrate the provision of early intervention supports that is likely to benefit the Applicant by reducing his future needs for support. The evidence does not address the early intervention supports that the Applicant requires and outcomes to be achieved in relation to his functional capacity, as required under s25(1)(b); and
(c)the evidence provided does not indicate the early intervention supports are likely to benefit the Applicant by achieving one or more of the outcomes listed in s25(1)(c). There is no indication in the evidence provided as to what benefits may or may not be experienced from receiving support.
EVIDENCE
[46] Exhibit 2, [52]; Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [115].
The Applicant’s evidence
The Applicant’s evidence in his witness statement, dated 26 April 2021,[47] and in oral evidence given during the hearing, was to the following effect:
[47] Exhibit 4.
(a)The Applicant was first diagnosed with right-sided total hearing loss by Dr John O’Neill, Ear, Nose and Throat Surgeon, on 8 October 2018.[48] He has since been diagnosed with three varieties of tinnitus, aural fullness and tension headaches and he veers to the right as a result of his symptoms.
[48] Exhibit 1, T4.
(b)The Applicant has since been diagnosed by Dr Can, Psychiatrist, with an adjustment disorder arising from the hearing loss and tinnitus.[49]
[49] Ibid, T7.
(c)The tinnitus that the Applicant experiences is a symptom of his auditory condition that developed as a result of his loss of hearing function and severe damage to the hearing function and vestibul-acoustic system.[50]
[50] Exhibit 4, [2.4i].
(d)The Applicant also suffers from bursitis and tendon damage to his left shoulder, osteoarthritis in his right shoulder, left hip labral tear, lens implants to both eyes following cataracts (and a bifocal prescription for glasses), osteopaenia, dental sensitivity, insomnia and tension headaches.[51] Whist the Applicant did not seek access to the NDIS on the basis of these conditions, he contends that they are permanent and were relevant in considering his capacity to perform different activities.[52]
[51] Ibid, [1.3].
[52] Exhibit 4, [1.3]; Transcript, P-65, lines 2 – 18.
(e)The Applicant has to frequently and repetitively take time off from his role as a General Practitioner, often on short notice or no notice, because of his health. The Applicant indicated that he has lost patients because his working hours have become extremely unpredictable.[53]
[53] Transcript, P-65, lines 36 – 40; Exhibit 11.
(f)The Applicant stated he is substantially functionally impaired in four key areas, being social isolation, communication, learning and mobility.[54]
[54] Transcript, P-65, lines 25 – 27; Exhibit 4, [3.2.iv(iii)].
(g)His social work-related isolation results from being unable to attend meetings and conferences.[55] The Applicant stated that his mental tiredness affected his ability to attend work meetings.[56] His ability to enjoy the last conferences he attended in October 2019 was adversely affected as he could not hear conversation or comments, people would laugh at him then completely isolate him.[57]
[55] Transcript, P-65, line 47; P-66, line 1.
[56] Ibid, P-66, lines 45 – 47.
[57] Ibid, P-67, lines 1 – 15.
(h)His communication is affected by his hearing loss as he is not even aware when people are talking to him from one side as a result of his non-stereo hearing.[58] He has found dating extremely awkward as he is concerned about being seen as a very disabled and unusual person. He does not want pity or indifference and has now isolated himself from such contact.[59]
[58] Ibid. P-57, lines 45 – 46.
[59] Ibid, P-67, lines 17 – 28.
(i)He is a high functioning and high achieving individual, but his personality is now changing.[60] As he was over 50 years of age when he suffered hearing loss and he found it difficult for his brain to adjust.[61]
(j)He has been involved in multiple collisions with cyclists, pedestrians etc whilst walking, particularly on the beach front near his home.[62] He tends to veer to the right side when walking as he looks over his shoulder and that places him at risk when near traffic.[63] He stated that he is also repeatedly physically and verbally abused as a result.[64] His reaction to these incidents is increasing anger and he is concerned he will kill the next person with whom he collides.[65] He stated that there was no cure, no medical management plan or mental health plan that would assist.[66]
(k)When he has suffered episodes that affect his ability to drive to work in the morning, he has had to delay the start of his working day (affecting his patients) or catch a taxi to work rather than driving.[67]
(l)His debilitating episodic screeching tinnitus affects him roughly three times a week, and sometime four times a week.[68] On those days he may experience aural fullness between six and seven in the evening and pitching tinnitus within 15 to 30 minutes. He can then take a high dose of sleeping pills and sleep this off, waking early the following morning.[69] Alternatively, he may experience the tinnitus later in the evening, say at 9 or ten, when it is too late to take sleeping tablets as he will be too drowsy the next day, but will instead distract himself with very loud television until he falls asleep in the early hours of the morning, and when he wakes he will be very tired the next day.[70] He experiences either one, or the other, of these episodes for three days of each week, on average.[71] On the other days he does not experience screeching tinnitus.[72]
(m)He stated that his whole life is destroyed and he has to either avoid the tinnitus or deal with it.[73]
(n)In addition to the evidence above, as to certain aspects of functional impairment, the Applicant stated:
·Learning is completely ineffective. He has fallen behind with ongoing learning obligations and has to put a lot of effort into learning, which limits his time for social interaction. He has also lost patients at work, and lost confidence as a result;[74]
·Social interaction was limited as a result of his hearing loss and his adjustment disorder;[75]
·Communication was impaired as the Applicant was unaware of people approaching him from his right side or behind.[76] His communications problems from hearing loss and tinnitus has led to loss of confidence and related psychological problems for which he has sought treatment;[77] and
·Communication, learning, social interaction and mobility were effectively stopped during episodes of debilitating tinnitus, aural fullness and veering to the right.
[60] Ibid, P-67, line 45.
[61] Ibid, P-58, lines 3 – 5.
[62] Transcript, P-67, lines 40 – 43.
[63] Ibid, P-68, lines 16 – 19.
[64] Ibid, P-68, lines 20 – 21.
[65] Ibid, P-68, lines – 6 – 7.
[66] Ibid, P-68, lines 14 – 15.
[67] Ibid, P-68, line 47; P-69, lines 1 – 2, 11; P-72, lines 15 – 16.
[68] Ibid, P-70, line 25.
[69] Ibid, P-70, lines 43 – 45.
[70] Ibid, P-72, lines 12 – 20.
[71] Ibid, P-72, lines 23 – 31.
[72] Ibid, P-72, line 37.
[73] Ibid, P-73, lines 1 – 2.
[74]Transcript, P-73, lines 25 – 32.
[75] Ibid, P-65, lines 32 – 34.
[76] Ibid, P-65, lines 27 – 32.
[77] Exhibit 4, [3.2iv], [3.2vj].
Evidence of Dr Tariq, general practitioner
Dr Tariq did not give oral evidence. The Applicant relied upon the written report of Dr Tariq dated 18 February 2021, addressed to the Applicant but referring him to a neurologist, Dr George.[78] In that document Dr Tariq stated:
Presenting Problem:
[the Applicant] has had an issue since 2018 with unilateral hearing loss and tinnitus. The nature of his tinnitus has changed of late. On concentration he gets a screeching sound like a train braking – this causes him pain and he feels it is becoming more frequent and intense. This always follows aural fullness. He also gets a musical tinnitus at times but is not as distressing. He also complains that he gets off balance more easily and always to the right. He now is worried that he may have an underlying neurological disorder.
[78] Exhibit 9.
Evidence of Dr George, neurologist
Dr George did not give oral evidence. Dr George prepared a letter to Dr Tariq, dated 23 February 2021,[79] following an examination of the Applicant on that day. The Applicant had expressed concerns that his tendency to veer to the right when walking may indicate an underlying neurological issues such as multiple sclerosis. Mr George concluded:
[The Applicant] has post viral Sensory Neural Deafness in the right ear. There is no evidence of MS. Historically he has some evidence of symptoms of right Vesitibular Neuropathy but clinically there is no evidence of it.
As a result of this evidence, the Respondent withdrew an earlier submission that further investigation may be needed to determine underlying neurological issues relevant to the Applicant’s conditions.[80] It is therefore not necessary to further consider the existence or impact of any suspected neurological issues.
[79] Exhibit 15.
[80] Transcript, P-115, lines 34 – 36.
Evidence of Dr McMonagle, ENT Surgeon
Dr McMonagle did not give oral evidence. Dr McMonagle prepared a letter to Dr Tariq dated 12 February 2019, following an examination of the Applicant on that day.[81] In that document, Dr McMonagle stated:
[the Applicant] presents with a sudden right sensorineural hearing loss… Since then he has had no hearing at all on the right side. Subjectively normal on the left. He has an in the head whooshing and screeching type tinnitus which is intermittent. He is really struggling quite a lot at present and is relying on sleeping tablets to help him fall asleep. His balance has been a little off but no vertigo at all. He has right aural fullness, but no ontological symptoms. He has had an audiogram… in October of last year that showed a right dead ear, the left within normal limits and type A tympanometry. He has also had an MRI though South Coast Radiology which has shown nothing remarkable/ There is no history of ear related problems but a family history involving his father. He has had no noise or ototoxic exposure. Along the way he has had some oral Prednisone including a two week course of 50mg to no avail. He has considered transtympanic steroid, but decided against this. He has had a trial of bone anchored hearing aid which he found unhelpful and CROS system which was okay.
…
We have talked about the options available, which include noting at all, a CROS system, bone anchored hearing aid, or a right cochlear implant. [the Applicant] will consider some cochlear implant testing and a CT temporal bones and we will catch up in a month or two.
Evidence of Dr O’Neill, ENT specialist
[81] Exhibit 1, T5.
Dr O’Neill, the Applicant’s treating Ear, Nose and Throat Specialist, provided various letters and reports, spanning from 8 October 2018 to 8 February 2021.[82] Dr O’Neill also prepared a report dated 12 August 2020 addressed to the Respondent.[83] Within this report, Dr O’Neill set out history consistent with the Applicant’s evidence as to his hearing loss, and stated:
… we were trialling all sorts of amplification for him, aiding and the like to try and treat it. The tinnitus and aural fullness is related to the sensorineural hearing loss, it’s a central mechanism as how it occurs. The intensity it will be also related to stress they have found in studies but people with just hearing loss will also present with tinnitus.
I provided the diagnosis based on the audiogram and treatment was started as soon as the diagnoses, the effect of the treatment didn’t have any effect at all. The next option is aiding [the Applicant’s] ear which has failed. A cochlear implant could be considered and I have referred[the Applicant] onto Dr McMonagle early 2019 who reviewed [the Applicant], felt he was possibly a candidate for a cochlear implant but again had no idea what that would do to [the Applicant’s] tinnitus fully. [the Applicant] has seen a Psychiatrist and a Neurologist also in this time.
[the Applicant] will have communication issues where if there is any background noise around he will have difficulty following conversations. This will significantly affect social interaction. With learning [the Applicant] will still be learning with no problems in the right environment, it will have no effect of his mobility or self care or self management. In saying this with increased stress the tinnitus may get to a level where [the Applicant] feels disabled by it. [the Applicant’s] function is not deteriorating, its not self limitation, it is at a stable state but again the tinnitus can vary. A cochlear implant may improve [the Applicant’s] hearing and therefore his communication. I am unsure what it will do to [the Applicant’s] adjustment disorder and tinnitus.
[82] Exhibit 1, T1F, T4, T6, T9 and T10; Exhibit, 6, 7 and 13.
[83] Exhibit 6, 1.
On 8 February 2021, Dr O’Neil provided a letter addressed to Dr Tariq, the Applicant’s general practitioner outlining observations that Dr O’Neil had made following a consultation with the Applicant. [84] Dr O’Neil stated:
At this stage he is seeing a psychiatrist or psychologist, he has seen a neurologist, he has had an opinion from a colleague of mine whom I sent him to who deals with cochlear implants, Dr Brent McMonagle, who felt that there is indeed a chance of improving the hearing but it may do nothing for the tinnitus in that right hand side, which is really debilitating for [the Applicant]. If [the Applicant] cannot get a guarantee on tinnitus being fixed he is not willing to undergo a procedure, I can’t look [the Applicant] in the eye and say that a cochlear implant would cure it.
It is a fairly invasive surgery which he has been counselled about before at Dr McMonagle’s rooms and at this stage other tinnitus management strategies have been tried. Unfortunately, the stresses of being concerned with someone just appearing on [the Applicant’s] right hand side with his personality now changing with it becoming somewhat dangerous for him and probably anyone that does accidentally bump him out of the blue.
I am unsure where to go with this except for, as he suggested, maybe having a support person that can come a couple of times a week just to get him some fresh air and be on his right hand side and support him.
Of course a cochlear implant may give him sensation of someone coming up next to him and help him in that respect by I will leave the actual expectations with a cochlear implant surgeon to discuss.
[84] Exhibit 13.
Dr. O’Neill also gave brief oral evidence at the hearing which was largely consistent with the opinions expressed in his various reports.
Evidence of Ms Westcott, Audiologist
On 31 March 2021, a report was completed by Audiologist, Myriam Westcott, at the request of the Respondent. Ms Westcott prepared the report based on the information provided by the Applicant during an audiological assessment on his symptoms of tinnitus, hearing loss and aural fulness, and the nine reports and letters that were provided to her. Ms Westcott answered several questions, as outlined by the Respondent, primarily concerning the permanency of the Applicant’s conditions, whether any treatment options were available to the Applicant and what supports the Applicant requires to mitigate or alleviate the functional impact of the Applicant’s condition. With respect to the permanency and available treatments for the Applicant’s tinnitus, Ms Westcott stated:[85]
…In most cases, including in the Applicant’s case, there is no available curative treatment for tinnitus.
…
Cochlear implantation has been shown to improve or eliminate tinnitus in up to 86% of patients with tinnitus, although 9% report worse postoperative tinnitus. Of patients who do not have tinnitus initially, up to 4% develop it after surgery. These are significant risks for [the Applicant].
Additionally, if [the Applicant’s] screeching tinnitus is the result of TTTS, an involuntary mechanism arising due to a subconscious need to ‘protect’ the ear/hearing/tinnitus from the threat of potential damage, cochlear implantation carries an additional unknown risk.
…
In view of the debilitating nature of [the Applicant’s] screeching tinnitus episodes, and the possibility of post-surgery tinnitus exacerbation, plus the effect of [the Applicant’s] Adjustment Disorder affecting post-surgery adaptation and rehabilitation, cochlear implantation carries a significant level of risk.
[85] Exhibit 10, 5 – 7.

With respect to the required supports to mitigate or alleviate the functional impact of the Applicant’s sensorineural hearing loss, Ms Westcott stated:[86]
…[the Applicant] would benefit from a support person walking with him in busy environments.
Additionally, I note and endorse the recommended supports outlined in Dr Adem Can’s report of: a hearing assistant dog; supports to enhance social networking and enable stronger social participation.
[86] Exhibit 10, 8.
With respect to the required supports to mitigate or alleviate the functional impact of the Applicant’s tinnitus, Ms Westcott stated:[87]
[the Applicant] would benefit from support (such as taxi vouchers) on the days when [the Applicant] is unable to drive safely to work due to fatigue and poor concentration as a result of sleep disruption following his screeching tinnitus episodes. [the Applicant] reported being unable to drive to work on at least 6 occasions per month.
…
Additionally, I note and endorse the recommended supports outlined in Dr Adem Can’s report of: sound proofing [the Applicant’s] office to reduce the impact on [the Applicant’s] neighbours of [the Applicant’s] loud television volume levels during [the Applicant’s] screeching tinnitus episodes; noise cancelling headphones.
[87] Ibid, 9.
Ms Westcott also gave oral evidence at the hearing which was largely consistent with her report.
Evidence of Dr Can, Psychiatrist
On 9 December 2020, Dr Can, Consultant Psychiatrist, provided a report in response to questions posed by the Respondent, [88] but was not available to give evidence during the hearing. Dr Can stated that, in his opinion, the Applicant’s “adjustment order is likely to be permanent” and that the Applicant will require supports for his lifetime. Dr Can stated that the Applicant’s psychological symptoms were characterised by depressed mood, difficulty concentrating, tiredness, exhaustion, low motivation, sleep disturbances and social isolation. [89] Dr Can gave some specific evidence about the criteria relevant to functional impairment, to which I have referred later in these reasons.
[88] Exhibit 8.
[89] Ibid, 1.
In addition, Dr Can stated:[90]
…Unfortunately, his psychopharmalogical treatments were tried so far have not been successful addressing his psychological symptoms.
[the Applicant] felt that psychological interventions were beneficial … however overall he did not notice any significant improvement in his psychological wellbeing so far.
…
In my opinion, [the Applicant’s] prognosis is poor. I believe that it is unlikely that he will significantly improve in the future due to his chronic physical symptoms. However, he needs ongoing monitoring, psychological interventions, and social support in order to prevent further worsening and developing other mental health conditions such as depressive disorders and acute risk issues such as suicidality.
…
If there is any resolution of improvement or better management of his tinnitus and hearing impairment, there is no doubt that this will certainly affect the prognosis of [the Applicant’s] adjustment disorder positively. [the Applicant] does not want to try any surgical operation or intervention at this stage due to [the Applicant’s] concerns around their success rate, side effects and complications.
[90] Ibid, 5 – 8.
Evidence of Ms Brown, Occupational Therapist
On 29 June 2020, Regan Brown, Occupational Therapist, at the request of the Applicant, provided a report regarding the Applicant’s functional capacity.[91] Ms Brown did not give evidence at the hearing. In her report, Ms Brown stated:[92]
Overall Impression
[the Applicant’s] complete hearing loss and tinnitus is impacting on his function. Due to his hearing loss and tinnitus, [the Applicant] is socially isolated; [the Applicant] demonstrates low mood and has reduced confidence when in the community. [the Applicant] also suffers poor sleep patterns, with resultant reduced endurance and drowsiness; which impacts on [the Applicant’s] ability to participate in functional tasks.
[the Applicant] would also benefit from assistance with household tasks.
[the Applicant] would benefit from support to increase his participation in social and leisure activities.
[the Applicant] would also benefit from assistive technology such as noise cancelling headphones and sound proofing to [the Applicant’s] office at home.
[the Applicant] would benefit from assistance with transportation.
[91] Exhibit 5
[92] Ibid, 8.
CONSIDERATION
The medical evidence before the Tribunal establishes that the applicant has been diagnosed with the following conditions:
·sensorineural hearing loss in the right ear;
·tinnitus;
·adjustment disorder with depressed mood.
The evidence is consistent with the Applicant suffering from the following additional conditions, which are relevant to his overall functional capacity:
·chronic insomnia, dental sensitivity, conditions of the shoulders and hips and vision condition (lens implants following cataracts);
·a cluster of symptoms including aural fullness, tinnitus and hearing loss, that may together be described as TTTS.
The disability requirements
Paragraph 24(1)(a) of the Act – does the Applicant have a disability?
Paragraph 24(1)(a) of the NDIS Act requires that a person has ‘a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition’.
Consistent with Mortimer J’s decision in Mulligan,[93] the following guidance is outlined in chapter 8.1 of the Access Operational Guidelines:
For the purposes of becoming a participant in the NDIS the focus of ‘disability’ is on the reduction or loss of an ability to perform an activity which results from an impairment.
The term ‘impairment’ commonly refers to a loss of, or damage to, a physical, sensory or mental function.
The narrower definition of ‘disability’ employed by the NDIS seeks to target those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for people with disability that are in the most need (Explanatory Statement to the Becoming a Participant Rules).
[emphasis added]
[93] Mulligan, [15] – [16].
These paragraphs specify that for a person to have a disability within the meaning of paragraph 24(1)(a) of the Act, they must demonstrate that:
·they have an impairment, which is a loss of, or damage to, a physical, sensory or mental function; and
·their impairment must be the cause of their reduction or loss of ability to function.
The uncontroverted medical evidence demonstrates that the Applicant has a “disability” arising from sensorineural hearing loss in the right ear, adjustment disorder with depressed mood and tinnitus and that each of these disabilities cause a reduction of loss of the Applicant’s ability to function. The hearing loss results in this functional loss at all times,[94] and the adjustment disorder and tinnitus affect the Applicant’s functional capacity during acute episodes.[95]
[94] Exhibit 10, 2. Transcript, P-157, lines 15 – 38.
[95] Exhibit 8, 1. Transcript, P-144, lines 25 – 28.
Sensorineural hearing loss is a condition identified in “List B” of the Access Operational Guidelines. Chapter 8.6.2 of those guidelines therefore has the effect of deeming sensorineural hearing loss a disability attributable to an impairment without further assessment.
I am satisfied the Applicant has a disability within the meaning of paragraph 24(1)(a) of the Act. It is not necessary to separately consider whether each of his other medical issues satisfy this paragraph although I have, in any event, made those findings with respect to the adjustment disorder and tinnitus.
Paragraph 24(1)(b) of the Act – are the Applicant’s impairments permanent?
Paragraph 24(1)(b) of the NDIS Act requires that the applicant’s ‘impairment or impairments are, or are likely to be, permanent’. Subsection 24(2) of the Act further notes that ‘an impairment that varies in intensity may be permanent’.
The Participant Rules provide the following guidance in considering when an impairment is, or is likely to be, permanent:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
(emphasis added)
I will now consider whether various aspects of the applicant’s impairments are, or are likely to be, permanent as required by paragraph 24(1)(b) of the Act and the Participant Rules.
Hearing Loss
The deeming effect of chapter 8.6.2 of the Access Operational Guidelines is that the Applicant’s hearing loss is considered permanent. The Tribunal notes that the evidence of Dr O’Neill demonstrates that there is no prospect of the Applicant’s hearing returning. Even if the Applicant were to have a procedure for a cochlear implant, which has been suggested by the Respondent as a reasonable treatment option for Applicant, his hearing loss will not “likely to be remedied”. The implant does not return the lost sensorineural hearing. Rather, it converts sounds into an electrical signal which pass through wires to stimulate the cochlear to process sound in a different way. This, perhaps, explains the inclusion of sensorineural hearing loss in List B of the Access Operational Guidelines.
I find that the Applicant’s impairment of hearing loss is, or is likely to be, permanent.
Tinnitus
In considering whether the Applicant’s disability of tinnitus is ‘permanent’, I have had particular regard to the evidence of Dr O’Neill and Ms Westcott.
The Applicant gave evidence that there is no recognised treatment for tinnitus.[96] He submitted that cochlear implant surgery is a treatment for hearing loss.[97] He referred to a study considered by Ms Westcott[98] that identified an 86% improvement in the tinnitus symptoms of patients within the studied sample. The same study also identified a negative effect, or deterioration of symptoms in 9% of patients, with a further 4% of patients developing tinnitus following the surgery.[99] The Applicant submitted that the instance of cochlear implants is so small as to be statistically insignificant when assessing the likelihood of such a treatment in improving his symptoms of tinnitus. He also submitted that, in any event, although some patients saw improvement in their tinnitus, a smaller but still significant proportion were worse off.[100] He submitted that the risks associated with using cochlear implant surgery as a treatment for tinnitus, albeit that it is intended to address hearing loss, were unacceptable in his case.[101] He also stressed that rehabilitation after surgery would be too lengthy and challenging and that he would no longer be able to undertake MRI for investigations of health concerns.[102] The report of Dr Westcott addresses the risks of cochlear implant surgery to the Applicant’s tinnitus conditions as follows:[103]
These are valid concerns… Additionally if his screeching tinnitus is the result of TTTS, an involuntary mechanism arising due to a subconscious need to ‘protect’ the ear/hearing/tinnitus from the threat of potential damage, cochlear implantation carries an additional unknown risk.
[96] Transcript, P-58, lines 18 – 25; Exhibit 4, [3.2.ivD].
[97] Exhibit 4, [3.2.ivD].
[98] Exhibit 10, 6, citing D Baguley, D McFerran, D Hall. Tinnitus. Lancet 2013; 382: 1600–07.
[99] Ibid.
[100] Transcript, P-63, lines 1 – 4.
[101] Ibid.
[102] Exhibit 4, [2.6iii].
[103] Exhibit 10, 6.
Dr O’Neill was also unable to say what impact cochlear implantation would have on the Applicant’s tinnitus.[104] During the hearing he stated that there would have to be a “wait and see” approach.[105] I note that Dr McMonagle, surgeon, recommended further investigation into cochlear implantation in 2019.[106] There is no evidence that the Dr McMonagle determined that the cochlear implantation was likely to remedy the tinnitus. The Applicant stated that he has investigated sufficiently to identify unacceptable risks associated with the surgery.
[104] Exhibit 6.
[105] Transcript, P- 167, lines 40 – 45.
[106] Exhibit 1, T5.
The Tribunal has considered the Respondent’s submission as to permanency of the tinnitus. The Tribunal notes that it does not follow, because a study published in the Lancet in 2013 reported an 86% improvement in the tinnitus symptoms of patients who had cochlear implantation, that cochlear implantation is a “treatment” that would be “likely to remedy” the Applicant’s impairment from tinnitus. First, there is no evidence to suggest it is a recognised “treatment” for tinnitus. It is a procedure for addressing symptoms of hearing loss. Secondly, even if cochlear implantation were regarded as a “treatment” for tinnitus, there is no evidence that the Applicant’s tinnitus would likely be remedied. The expert evidence is consistently to the opposite effect – no-one can say what impact cochlear implantation would have on the Applicant’s tinnitus. The conclusion that cochlear implantation is a treatment that is likely to remedy the Applicant’s tinnitus is therefore not available on the evidence before me.
In her report, Ms Westcott opined that the Applicant would benefit from online consultation with a musculo-skeletal physiotherapist, Dr Selvaratnam. [107] Ms Westcott did not indicate that this consultation would constitute a “treatment” that was “likely to remedy” the Applicant’s tinnitus, or the TTTS. She stated that in most cases there is no available curative treatment for tinnitus.[108] During the hearing the Applicant offered to undertake such a consultation.[109]
[107] Exhibit 10, 6.
[108] Ibid, 5.
[109] Transcript, P-88, lines 34 – 38.
On 2 June 2021, the Applicant wrote to the Tribunal noting that he had had a lengthy video consultation with Dr Selvaratnam the day before and indicated that Dr Selvaratnam could not make any clear diagnosis, musclo-skeletal or TTTS inclusive, and recommend that he try ‘tapping exercises’. The Applicant noted that Dr Selvaratnam concluded his recommendations by telling him to ‘concentrate for 10 minutes and take regular breaks.’ The Respondent later wrote to the Tribunal and indicated that they objected to this information forming part of the evidence in this review. The Respondent did not provide any reasons or submissions as to why such information should not be considered.
There is no prejudice to the Respondent in accepting that late material into evidence, which simply demonstrates that the Applicant has now attended a consultation with Dr Selvaratnam.
Based on the evidence, I am not satisfied the Applicant has failed to engage in evidence-based clinical, medical or other treatments for the impairment of tinnitus and therefore satisfies rule 5.4 of the Participant Rules. I note that a “permanent” impairment may continue to be treated and reviewed. I find that the Applicant’s impairment of tinnitus is, or is likely to be, permanent.
Adjustment disorder
In considering whether the Applicant’s disability of adjustment disorder is permanent, I have had particular regard to the evidence in the report of Dr Can, psychiatrist, date 9 December 2020.[110] Dr Can confirms that the adjustment disorder is permanent, and that his prognosis was poor.[111] A second opinion from Dr Aciu, psychiatrist, confirmed that diagnosis and suggested that, with regular monitoring, his illness will not progress to a major depressive disorder.[112]
[110] Exhibit 8, 4.
[111] Ibid, 6.
[112] Ibid, 5.
Based on the evidence, I am satisfied the Applicant has engaged in evidence-based clinical, medical or other treatments as required by rule 5.4 of the Participant Rules. This has included the Applicant taking recommended medications and participating in regular consultations with his treating psychiatrist and therapy. It follows that there is no further treatment available that would be likely to remedy the Applicant’s impairment.
The medical evidence establishes that the Applicant’s impairment of adjustment disorder is permanent within the meaning of paragraph 24(1)(b) of the Act, notwithstanding that the impairment may vary in intensity and the severity of its impact on the functional capacity of the Applicant may fluctuate.
For these reasons, I am satisfied the Applicant’s impairment of adjustment disorder is permanent within the meaning of paragraph 24(1)(b) of the Act.
TSSS
Ms Westcott opined that the Applicant’s cluster of symptoms may be explained by a syndrome she identified as Tonic Tensor Tympani Syndrome. The syndrome was not formally diagnosed in the evidence before me, and in any event does not seem to further advance the question whether the Applicant meets the disability requirements as I have already determined that impairments arising from key aspects of these symptoms constitute permanent impairments for the purpose of paragraph 24(1)(b) of the Act.
The Respondent invited the Tribunal to bundle together a cluster of symptoms, being aural fullness, veering to the right and screeching tinnitus, and conclude that none of these constituted a permanent impairment because Ms Westcott had suggested consultation with Dr Selvaratnam with a view to treating those symptoms.[113] Ms Westcott did not express the opinion that this cluster of symptoms could be remedied by the suggested consultation.[114] Rather, at its highest, she suggested that consultation may “relieve” the Applicant’s symptoms and indicated that it was “worth a go”.[115] The Tribunal does not have sufficient information to conclude either that a consultation with Dr Selvaratnum is an “available and appropriate evidence-based clinical, medical or other treatment” for the Applicant’s symptoms, nor that such a consultation would be “likely to remedy the impairment” as intended by rule 5.4 of the Participant Rules.
Paragraph 24(1)(c) of the Act – do the Applicant’s impairments result in substantially reduced functional capacity to undertake communication, social interaction, learning, mobility, self-care or self-management?
[113] Exhibit 10, 6.
[114] Transcript, P-145, lines 42 – 46.
[115] Ibid.
To meet the criteria in paragraph 24(1)(c) of the Act, the Applicant must demonstrate that his impairments result in substantially reduced functional capacity to undertake any one or more of the activities specified in subparagraphs (i) to (vi): communication, social interaction, learning, mobility, self-care and self-management.
Each of the activities specified in paragraph 24(1)(c) of the Act and their impact on functional capacity will be examined in relation to the Applicant’s impairments.
Application of the legislation requires:[116]
…a relatively high degree of precision by decision-makers (see, for example, the six activities in s 24(1)(c)) in assessing what a person can or cannot do). The assessment to be undertaken is avowedly functional and multi-faceted.
[116] Mulligan, [55]

It is enough for a prospective participant to have substantially reduced functional capacity in relation to one activity: “If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates”.[117]
[117] Mulligan, [67]
Rule 5.8 of the Participant Rules provides:
An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) – if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
(emphasis added)
Further, chapter 8.3.1 of the Access Operational Guidelines states:
The following information provides further guidance in relation to determining when an impairment results in substantially reduced functional capacity:
By itself, reliance on commonly used items will not result in a substantially reduced functional capacity to participate effectively or completely in an activity. Commonly used items include glasses, walking sticks, non-slip bath mats, bathroom grab rails, stair rails, age appropriate child safety locks, simple adapted kitchen utensils and dressing aids.
In considering the role played by assistive technology, home modifications and equipment, the NDIA will consider specific needs arising from the prospective participant’s impairment, and whether those needs are met (or need to be met) through the use of specialist disability aids and/or equipment.
Such items would generally be specifically designed to assist in increasing the functional capacity and participation of people with disability and be formally prescribed by a medical practitioner, specialist clinician or allied health professional such as an occupational therapist, physiotherapist or speech therapist.
When considering whether a person requires assistance from others to participate or perform tasks associated with an activity, the NDIA will have regard to whether a person’s need for assistance is consistent with normal expectations of a person of a similar age.
…
A person will be considered to be unable to participate effectively or completely in an activity if they cannot safely complete one or more of the tasks required to participate in an acceptable period of time. Undertaking a task more slowly or differently to others will not necessarily mean a person cannot participate effectively or completely in an activity.
When considering whether a fluctuating or episodic impairment results in substantially reduced functional capacity to undertake relevant activities, the NDIA will consider the impact on the person's ability to function in the periods between acute episodes.
I note that the Applicant submitted that his impairments result in a substantially reduced functional capacity to undertake activities only in the domains of communication, social interaction, learning and mobility. I consider each of these in turn.
Subparagraph 24(1)(c)(i) of the Act – Communication
Chapter 8.3 of the Access Operational Guidelines refers to communication as including: “being understood in spoken, written or sign language, understanding others and expressing needs and wants by gesture, speech or context appropriate to age”.
The Respondent contended that the Applicant does not have substantially reduced functional capacity in communication and submitted that he is able to communicate effectively:[118]
The Applicant cannot hear in the right ear but can hear in the left. He is able to communicate effectively when he is in a quiet environment. He has difficulty communicating in groups and where there is background competing noise. The Respondent accepts that the Applicant has difficulties in these environments, however this does not give rise to a substantially reduced functional capacity to communication. Despite having difficulty in those environments, he is still able to communicate. Further, he has no difficulty communicating in quieter environments.
[118] Exhibit 2, [34].
The Applicant can speak and hear, although his hearing is affected by the lack of stereo sound. Ms Brown and Dr Can both noted that the Applicant is able to communicate his needs.[119] Both experts, and Ms Westcott, noted that he could not understand if someone is speaking to him from his right side. Ms Westcott also noted that the Applicant could communicate effectively in a quiet “1:1” environment.[120] The Tribunal accepts that there are limitations upon the settings in which the Applicant’s communication is effective. He does have an impairment in his communication arising from the background noise, position of the other speaker and his ability to locate sounds. However, this impairment does not substantially affect his capacity to communicate with others. The Tribunal accepts that during his acute episodes of tinnitus his functional capacity will be greatly reduced. However, the Tribunal is required to consider the Applicant’s functional capacity between such episodes.
[119] Exhibit 8 and 10.
[120] Exhibit 10, 7.
The Applicant conducts a medical practice and has done so for many years after the onset of his impairments. His capacity to communicate with patients would be an essential aspect of his ongoing ability to do so. The Tribunal further notes that the Applicant represented himself during the two-day hearing before the Tribunal without support of any kind, and was alert, responsive and eloquent during this time. The Applicant retains his functional capacity to communicate, albeit with the need for some modifications, particularly when a person is speaking to him from his right side or in a noisy setting.
Having observed the Applicant to give evidence and make submissions on his own behalf, and having regard to the available medical evidence, the Tribunal is not satisfied that the Applicant has substantially reduced functional capacity to communicate within the meaning of subparagraph 24(1)(c)(i) of the NDIS Act.
Subparagraph 24 (1)(c)(ii) of the Act – Social Interaction
Chapter 8.3 of the Access Operational Guidelines refers to social interaction as including:
…making and keeping friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
The Respondent made the following submissions in support of the contention that the Applicant does not have substantially reduced functional capacity in relation to social interaction:[121]
Social interaction is described in the Guidelines as including the making and keeping of friends (or playing with other children), interacting with the community, behaving within limits accepted by others, coping with feelings and emotions in a social context.
In Kilgallin and National Disability Insurance Agency Deputy President Humphries held that social interaction does not mean interaction with the whole community but rather elements of the community and sections of the community, and that interactions on a more-or-less regular basis with people the person feels comfortable with amounts to social interaction. Those findings were approved by Deputy President McDermott in Ferminger and National Disability Insurance Agency.
Further, Deputy President Humphries in Kilgallin also observed that a comparison should be made with what a person in the community who has not experienced the impairments of the Applicant might otherwise be able to undertake.
The Applicant claims that he has avoided dating and social situations because he found it difficult to explain his need for communication support in social situations and requesting optimal positioning when sitting in groups. This shows that the Applicant is still capable of socially interacting but needs to reposition himself and explain to people his hearing difficulties. It is contended that this does not give rise to a substantially reduced functional capacity in social interaction.
[121] Exhibit 2, [35] – [36].
The Applicant’s oral evidence was that his social contact was non-existent.[122] The Applicant stated that he is no longer married and does not have a partner or any friends.[123] The Tribunal accepts this evidence. However, the Applicant’s evidence does not demonstrate a causal connection between his limited social interaction any functional incapacity in the Applicant to socialise. The Applicant gave evidence that he finds this harder, and feels he is being laughed at.[124]
[122] Transcript, P-69, lines 19 – 22.
[123] Ibid, P-80, lines 38 – 46.
[124] Ibid, P-67, lines 12 – 23.
Dr Can reported that the Applicant avoids interaction with others in social situations.[125] However, Dr Can attributes the Applicant’s reported difficulties in social interaction to his hearing loss, not to the adjustment disorder. The Tribunal has already determined that the Applicant can communicate in appropriate settings and with some modification. Dr Can’s evidence does not assist the Tribunal to link the conclusion that the Applicant is substantially functionally impaired to the Applicant’s adjustment disorder, which is the impairment in respect of which Dr Can, a psychiatrist, could give the most compelling evidence.
[125] Exhibit 8, 7.
The Tribunal accepts that the Applicant’s capacity for social interaction is somewhat impeded by his hearing loss and may also be affected by his adjustment disorder. In Kilgallin and National Disability Insurance Company[126] (‘Kilgallin’), Deputy President Humphries observed, in a similar setting:[127]
His impairment no doubt has the effect of mounting barriers to his participation in those activities, including through a lack of motivation and a lack of desire to leave the home from time to time. The Tribunal accepts that those barriers affect him adversely in his ability to undertake activities and reduce the frequency with which he undertakes them. But the Tribunal is not convinced that the level of incapacity experienced by Mr Kilgallin, demonstrated through the evidence before the Tribunal, necessarily equates to a substantial reduction in his psychosocial capacity or functioning in those areas.
[126] [2017] AATA 186.
[127] Kilgallin, [18].
In this case, the Applicant’s lack of desire to socially engage is manifested in not seeking out settings where he could partake in groups with a focus on activities the Applicant has stated that he enjoys, like walking, or socialising with friends in a quieter setting such as his own home. These would be the types of interactions with which the Applicant might feel comfortable and are therefore more relevant than a consideration of how the Applicant might socialise with the community at large.[128] In his oral evidence, the Applicant did not state that he was unable to socialise, either out in an appropriate group, or at home with friends. In relation to the latter he simply stated that it “does not happen”.[129] He told Ms Westcott that he no longer has any local friends,[130] but there is no evidence before the Tribunal that he has isolated himself from local friends since the onset of his impairments. The Applicant states that he still interacts meaningfully with patients,[131] and with people at his work.[132]
[128] Ibid, [19].
[129] Transcript, P-94, lines 31 – 39.
[130] Exhibit 10, 7.
[131] Transcript, P-69, lines 20 – 22.
[132] Ibid, P-68, lines 36 – 39.
Ms Westcott was asked during the hearing whether the Applicant would have problems in a quiet environment, and she provided the following oral evidence:[133]
I would think one on one, when [the Applicant is] facing a person, that in a quiet environment with normal hearing in the left ear there should be no communication difficulties.
…
If somebody is sitting on your right side with normal hearing in the left ear you would certainly be able to hear something but, yes, what most people would do of course is to turn to see, to face that person.
[133] Ibid, P-141, lines 14-16 and 27-30.
I am not, therefore, satisfied that the Applicant’s hearing loss would prevent social interaction. I do not overlook the role that the adjustment disorder may play in his limitations. However, the Applicant’s treating psychiatrist, Dr Can, speaks to the Applicant’s preference not to socialise due to his hearing loss, rather than conclude that he cannot socialise.[134]
[134] Exhibit 8, 7.
The evidence before the Tribunal demonstrates that social interaction is the area where the Applicant’s functional incapacity is most significantly impacted as a result of his hearing loss, tinnitus and adjustment disorder. It is necessary for the Tribunal to look to all of the evidence to carefully consider whether the Applicant has satisfied the statutory threshold of substantial functional impairment as a result of his impairments.
Looking at the evidence as a whole, the way in which the Applicant has isolated himself is unfortunate, and no doubt is causing him real difficulties. However, his residual capacity for social interaction, albeit with modifications in relation to place and activity, remains. I must consider not what the applicant does not do, but what he cannot do. The statutory threshold is met only if his impairments result in substantial functional impairment. The Tribunal finds that there is an insufficient evidential nexus between the Applicant’s lack of social interaction and any functional incapacity that would impact his social interaction. Put another way, I am satisfied that the Applicant does not interact socially beyond what is required for his work and other basic needs, but the evidence does not demonstrate that he cannot do so because of a substantial functional impairment arising from his physical and/or psycho-social impairments.
While the Applicant’s capacity for social interaction may fluctuate from time to time because of his impairments, and in particular the adjustment disorder, the Tribunal is not satisfied that any such limitations result in a substantially reduced functional capacity for social interaction within the meaning of subparagraph 24(1)(c)(ii) of the Act.
Subparagraph 24(1)(c)(iii) of the Act – Learning
Chapter 8.3 of the Operational Guideline states that learning “includes understanding and remembering information, learning new things, practising and using new skills.”
The Respondent contended that the Applicant does not have reduced functional capacity in learning. It was submitted that he is able to learn: [135]
Learning is described in the Guidelines as including understanding and remembering information, learning new things, practicing and using new skills.
The Applicant claims that, when he has a screeching episode of tinnitus, he is unable to concentrate. He is, however, fully functional in this activity when he does not suffer from these episodes.
Functional capacity should not be characterised on what the Applicant is only able to do on a “bad day”. The Respondent contends that the Applicant does not have a substantially reduced functional capacity in the activity of learning.
[135] Exhibit 2, [39] – [41].
The Applicant gave evidence that he experiences problems with short-term memory and forgetfulness depending upon his level of fatigue. The problems are aggravated if he is drowsy from taking a sleeping pill or exhausted from little sleep.[136] These issues arise primarily from his episodic tinnitus and his compromised ability to concentrate as he wishes in order to minimise these episodes. The Applicant stated that his learning is completely ineffective.[137] He also stated that he has fallen behind with ongoing learning obligations as a medical practitioner and has to put a lot of effort into such learning, which limits his time for social interaction.[138] He gave an example of a conference he attended in which he felt socially isolated.[139] It is not unreasonable to conclude from his anecdotal evidence that the Applicant’s ability to learn is somewhat impeded but the question is whether he has a substantially reduced functional capacity for learning.
[136] Transcript, P-65, lines 5 – 8.
[137] Ibid, P-73, lines 25 – 32.
[138] Ibid, P-100, lines 14 – 16.
[139] Ibid, P-67, lines 1 – 15.
Ms Brown’s functional assessment and Dr Can’s report both conclude that the Applicant is able to learn new information and processes when his tinnitus is not severe.[140] Both Dr Can and Ms Westcott noted that it is the episodic tinnitus which compromises the Applicant’s ability to learn.[141] However, the Tribunal must consider the Applicant’s functional impairment between such episodes, rather than when he is at his worst. Dr O’Neill stated in oral evidence that he would be able to learn in the right environment, in a quiet area and with frequent breaks.[142]
[140] Exhibit 5, 5; Exhibit 8, 7.
[141] Exhibit 8, 7 - 8; Exhibit 10, 8.
[142] Transcript, P-167, lines 1-6.
In the process of representing himself during this case the Applicant demonstrated a thorough command of the relevant legislation, evident in both his written and oral submissions, which it is reasonable to conclude he has learned during the course of these proceedings. He continues to operate his general practice, albeit with some modifications. I accept that his capacity to learn is, at times, impacted by his episodes of tinnitus and the steps he takes to try and minimise them. However, his residual capacity to learn, albeit with some modifications, remains. The evidence does not meet the requisite standard of a substantial reduction in his capacity to learn.
The Tribunal is not satisfied that there is satisfactory evidence of a substantially reduced functional capacity in learning as required by subparagraph 24(1)(c)(iii) of the Act.
Subparagraph 24(1)(c)(iv) of the Act – Mobility
Chapter 8.3 of the Operational Guideline provides a definition of mobility:
This means the ability of a person to move around the home (crawling/walking) to undertake ordinary activities of daily living, getting in and out of bed or a chair, leaving the home, moving about in the community and performing other tasks requiring the use of limbs.
The Respondent contended that the Applicant does not have reduced functional capacity in mobility.[143] It was submitted that he is able to mobilise effectively:[144]
[143] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [110].
[144] Exhibit 2, [42] – [46].
The Applicant told the Tribunal that he ordinarily drives his motor vehicle, including to work. His only limitation with respect to this is when he is affected by an episode of tinnitus from the previous night when he will delay driving to work the following morning or take a taxi instead. The Applicant can walk from his car to the office, about his office and did not give evidence about any mobility restrictions that would prevent him from going about daily activities such as food shopping. The Applicant stated that he had taken a holiday since losing his hearing and was able to navigate to and through the airport and catch a flight to his destination.[145]
[145] Transcript, P-95, lines 21 – 27.
Ms Brown conducted a functional assessment of the Applicant and noted that he has functional limb strength and no deficits in muscle tone or head and neck control.[146] The Applicant reported some pain and reduced hip strength but no loss of function is reported by Ms Brown as a result.[147] Ms Brown noted that the Applicant can walk independently and drive.[148] She noted that he had reduced confidence when walking as he felt unsafe in an area heavily trafficked by pedestrians, bicycles and vehicles.[149] This is consistent with the evidence of Ms Westcott.[150] Ms Brown noted that the Applicant would benefit from assistance with transportation and noted that the Applicant reported that he may require a taxi about six times per month.[151] The Tribunal notes that these occasions are during, or immediately following, acute episodes of tinnitus, rather than as a result of the Applicant’s hearing loss or other impairments. This evidence does not demonstrate that the Applicant usually requires a taxi or other transport support.[152]
[146] Exhibit 5, 3.
[147] Ibid.
[148] Ibid, 6.
[149] Ibid.
[150] Exhibit 10, 7.
[151] Exhibit 5, 6.
[152] As outlined in r. 5.8 of the Participant Rules.

The Tribunal accepts that, when the bouts of tinnitus are at their worst, the Applicant would have limited capacity to move. He does not have significant mobility restrictions at other times.
The Applicant told the Tribunal that he cannot walk for exercise on the beach front path near his home.[153] His evidence fell short of stating that he could not walk in a quieter or safer environment. He conceded that, perhaps, exercising on a treadmill was a “good suggestion”.[154] The Applicant is certainly inconvenienced by the restriction upon walking alone on the busy beach front path near his home, but he is able to mobilise independently in a wide variety of situations. The Tribunal is satisfied that the Applicant’s residual capacity to mobilise, albeit with some modifications, remains.
[153] Transcript, P-96, lines 32 – 36.
[154] Ibid, P-150, lines 42 – 45
The Tribunal is not satisfied that the Applicant’s impairments have substantially reduced his functional capacity in mobility within the meaning of subparagraph 24(1)(c)(iv) of the Act.
Subparagraphs 24(1)(c)(v) and (vi) of the Act – Self-Care and Self-management
The Respondent contends, and the Applicant accepts, that the Applicant has no or minimal reduced capacity in the activities of self-care and self-management.[155] This is consistent with the evidence given by the Applicant during the hearing as to his capacity to manage his self-care and his own affairs.
[155] Ibid, P-93, lines 25 – 30.
The Tribunal finds that the Applicant’s impairments have not substantially reduced his functional capacity in self-care and self-management within the meaning of subparagraphs 24(1)(c)(v) and (vi) of the Act.
Paragraph 24(1)(d) of the Act – do the Applicant’s impairments affect his capacity for social or economic participation?
Paragraph 24(1)(d) of the Act requires that the Applicant’s impairment or impairments affect his capacity for social or economic participation. There is no requirement that the affect be “substantial”, or otherwise significant. The Respondent accepted that this requirement had been met.[156]
[156] Respondent’s Outline of Submissions (in closing) dated 21 May 2021, [111].
The Applicant’s oral evidence to the Tribunal was that he has been employed as a General Practitioner for many years but that his working hours have been curtailed as a result of his impairments. The Tribunal accepts this evidence.
On balance, I find the requirement in paragraph 24(1)(d) of the Act is met because the Applicant’s impairments affect his capacity for economic participation.
Paragraph 24(1)(e) of the Act – is the Applicant likely to require support under the NDIS for his lifetime?
Chapter 8.5 of the Access Operational Guideline states the following:
8.5 When is a person likely to require support under the NDIS for their lifetime?
The NDIA must also be satisfied that the prospective participant is likely to require support under the NDIS for the rest of their lifetime (section 24(1)(e)).
If an impairment varies in intensity (for example, because the impairment is of a chronic episodic nature) the person may still be assessed as likely to require support under the NDIS for the person's lifetime, despite the variation (section 24(2)).
The NDIA is required to consider a prospective participant’s overall circumstances and conclude that the person will require support under the NDIS for their lifetime. The purpose of this requirement seems to be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports (Mulligan and NDIA [2015] AATA 974 at [153]).
For example, if a person's support needs arise from a health condition and are most appropriately provided through another service system (i.e. the health system) then the person will not require support under the NDIS for their lifetime. Rather, the person will require support under the health system.
When considering this criterion, the NDIA does not need to be satisfied that the support/s required for the person's lifetime meet the reasonable and necessary criteria. The reasonable and necessary criteria are relevant to whether funding is provided, not whether a person meets the disability requirements (see Mulligan and NDIA [2014] AATA 374 at [53] and Mulligan and NDIA [2015] AATA 974 at [146]–[150]).
The Tribunal has concluded that the Applicant’s impairments do not result in him having substantially reduced functional capacity to undertake activities in any of the domains of communication, social interaction, learning, mobility, self-care or self-management.
Reading the policy guidance set out in chapter 8.5 of the Access Operational Guidelines, I consider that it would be inconsistent for the Tribunal to make a finding that a prospective participant is likely to require support under the NDIS for their lifetime in circumstances where the evidence shows they do not have a substantially reduced functional capacity to undertake activities in the domains of communication, social interaction, learning, mobility, self-care or self-management. In any event, considering the Applicant’s overall circumstances, he is able to manage his impairments through the health system and otherwise continue to manage his own health concerns as they arise.
The Applicant submitted that the Tribunal should consider the collective impact of his multiple disabilities. When considering that collective impact, the Tribunal observes that the Applicant is a high functioning individual who has adapted to his physical and psychosocial disabilities with various strategies and has been able to maintain his independence and his career. In choosing to manage his tinnitus the Applicant has sacrificed time he might otherwise have spent on learning or on social interaction. Further, as identified above, the Applicant’s adjustment disorder has provided challenges to the Applicant. However, his impairments, whether considered collectively or as a whole, and his adaptations to them, have not resulted in substantial functional impairment of the Applicant in any of the relevant domains discussed in these reasons. Considering the Applicant’s circumstances as a whole, I cannot be satisfied that the Applicant is likely to require support under the NDIS for the rest of his lifetime.
As I am not satisfied that the Applicant’s impairments result in substantially reduced functional capacity in the relevant domains, I do not find that the Applicant will require assistance under the NDIS for his lifetime. Therefore, the Applicant does not meet the requirement of paragraph 24(1)(e) of the Act.
Early intervention requirements
Paragraph 25(1)(a) – does the Applicant have a disability?
Rule 2.5(b) of the Participant Rules provides the following general outline of these requirements:
… a person can access the NDIS through the early intervention requirements without having substantially reduced functional capacity. Instead, the early intervention requirements consider the likely trajectory and impact of a person's impairment over time and the potential benefits of early intervention on the impact of the impairment on the person's functional capacity. The CEO may consider a range of evidence in deciding the potential benefit of early intervention on a person's impairment. The CEO may consider existing evidence or information from an individual or their family or carer. Where a young child has an impairment resulting in developmental delay, or resulting from a condition on a list published by the CEO for which the benefits of early intervention have already been established, no further evidence of the benefit of early intervention supports to the child is required to meet the early intervention requirements. A young child or other person can still meet the early intervention requirements without having one of these conditions, provided there is evidence that the requirements are satisfied.
[emphasis added]
The Tribunal has found that the Applicant has a disability as defined in paragraph 25(1)(a) of the Act and therefore satisfied this requirement. Paragraph 25(1)(b) of the Act requires that:
the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability.
The Applicant gave evidence that he took steps to investigate and deal with his diagnoses for some significant time before seeking access to the scheme.[157] In those circumstances it is not clear how supports rendered now could be considered “early” or how providing supports now could reduce the Applicant’s need for supports in relation to his disabilities in the future. The Applicant has invited the Tribunal to conclude that his impairments are permanent, and not likely to be remedied. The Applicant submitted that his condition has deteriorated over time but has not pointed to particular evidence showing that he continues to deteriorate, or that this could be arrested by particular supports. It follows that the likely trajectory of his impairments is that they are stable, and that providing supports now is unlikely to improve his future needs in relation to his impairments.
[157] Transcript, P-56, lines 14 – 20.
The Applicant submits that he satisfies this requirement because of the risk to himself from accidental injury, particularly when out walking or by being burned alive in his apartment if he is unable to hear the fire alarm.[158] The prospective risk of future injuries, leading to future disabilities, is speculative. In any event, the early intervention requirements call attention to supports designed to address current impairments, not future contingencies.
[158] Transcript, P-66, lines 16 – 18.
The Applicant has not met the requirements in paragraph 25(1)(b) of the Act. It is not, therefore, necessary to further consider the cumulative requirements of subsection 25(1) of the Act. The Tribunal notes, in any event, that the Applicant has not provided evidence that early intervention supports are likely to benefit him by achieving the stated outcomes in subsection 25(1)(c) of the Act.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant does not meet the access criteria in sections 24 or 25 of the NDIS Act.
DECISION
The Tribunal affirms the decision under review pursuant to paragraph 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 127 (one hundred and twenty seven) paragraphs are a true copy of the reasons for decision of Member K. Buxton.
………………[SGD]…………………
Associate
Dated: 23 August 2021
Dates of the hearing:  28 and 29 April 2021
Date of final closing submissions:            15 June 2021
Counsel for the Respondent:  Mr Philip Nolan
Solicitors for the Respondent:                  Christopher Bilboe

[2021] AATA 3015

23 August 2021

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