1. The Applicant completed a Bachelor of Social Work in 2016 and has since been working as a social worker in the field of child protection. She has been in her current place of employment for around 9 years and has been promoted from social worker to senior social worker. The Applicant has a life-partner for 17 years, and two children aged 4 years and 17 months. The Applicant realised around May 2022 that there was something wrong with her hearing. The Applicant has been using a hearing aid since November 2024[1] and this she says has drastically improved her hearing. It is for this hearing aid and replacements of it that she seeks support.

1. The Applicant says due to the loss of hearing she experienced social isolation, teasing, learning difficulties, and limited communication ability before acquiring the hearing aid. She says the loss of hearing impacted her at work, in social environments, in learning, at home, and in her personal relationships. Since the use of the hearing aid the deficiencies she experienced have been addressed, albeit that the aid comes at a high financial cost to her family.[2]
2. The Respondent, the National Disability Insurance Agency ('the Agency'), says that the evidence does not support access to the Scheme being granted to the Applicant. The Agency says the Applicant does not meet the requirements of substantially reduced functional capacity (s 24(1)(c)) and that she also does not meet the early intervention requirements (s 25 of the National Disability Insurance Scheme Act 2013 (Cth) ('NDIS Act'); references to provisions in an Act are references to the NDIS Act, unless otherwise stated).
3. The Applicant says she meets the disability requirements as well as the early intervention requirements as set out respectively in sections 24 and 25 of the NDIS Act. The Applicant says she experiences substantial reduced functional capacity to undertake one of more of the following activities: communication, social interaction, and learning (s 24(1)(c)(i), (ii), and (iii)).
4. The Agency accepts that the disability[3] of the Applicant is permanent[4] and attributable to sensory impairments arising from sensorineural hearing loss in her right ear.[5] The Agency also accepts that the impairment affects the Applicant's capacity for social and economic participation as required by subsection 24(1)(d) of the NDIS Act.[6]
5. The Agency contends, however, there is inadequate evidence that:

(a) the impairments result in substantially reduced functional capacity of the Applicant to undertake the activities in subsection 24(1)(c)(i)-(vi) of the NDIS Act; > > (b) the Applicant is likely to require NDIS supports for her lifetime as required by subsection 24(1)(e) of the NDIS Act; and > > (c) the Applicant meets the requirements for early intervention under section 25 of the NDIS Act.

6. The Applicant's application for access to the Scheme was on 9 April 2025 refused at first instance by the Agency, and that decision was affirmed upon internal review on 12 June 2025 by a different delegate of the Agency ('Reviewable Decision').[7]
7. The Applicant subsequently applied to the Administrative Review Tribunal ('ART') on 12 June 2025 for a review of the Reviewable Decision.[8] In her application to the ART the Applicant stated:

I cannot learn effectively at work, cannot communicate and hear others effectively at work, and I cannot hear others and engage in social interactions without my hearing aids. I work in Child Protection and the ability to effectively learn, communicate, and hear others is critical.[9]

1. The parties submitted a joint bundle of material comprising pages 269, marked Hearing Book ('HB').
2. The hearing took place in Perth on 8 April 2026. The parties participated via video link.
3. At the hearing the Applicant was self-represented. The Agency was represented by Ms Ashlee Provis of Counsel, instructed by Ms Maddison Everist, Mills Oakley lawyers.
4. The Applicant gave oral evidence at the hearing. No other experts or lay persons were called to give evidence. Although, as explained below, the written reports by practitioners, Daniela Rueda (audiologist), Dr Perrot, and Dr Sam Boase confirm the permanency of the hearing loss of the Applicant and that the loss occurs most acutely at high frequency,[10] they did not give oral evidence about the functional impact of the impairment on the areas listed in s 24(1)(c) of the NDIS Act.
5. I find, for reasons explained below, that the Applicant meets the requirements of subsections 24(1)(a), 24(1)(b), and 24(1)(d) of the NDIS Act, but that the Applicant does not meet the requirements of subsection 24(1)(c) of the NDIS Act, or subsection 24(1)(e) of the NDIS Act. I also find that the Applicant does not meet the requirements of section 25 of the NDIS Act.
6. I therefore affirm the decision under review.

1. The issue to determine is whether the Applicant meets the access criteria required to be a 'participant' of the Scheme.
2. By section 21 of the NDIS Act, the Applicant must meet:

(a) the age requirements in section 22; and > > (b) the residence requirements in section 23; and > > (c) the disability requirements in section 24; or > > (d) the early intervention requirements in section 25.

3. Access to the Scheme requires the Applicant to satisfy that she meets the 'access criteria' under section 21 of the NDIS Act. Section 21 of the NDIS Act provides as follows:

(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).

1. For the purposes of paragraph (1)(c), the CEO must separately consider and decide:

(a) whether or not the prospective participant meets the disability requirements; and

(b) whether or not the prospective participant meets the early intervention requirements.

1. The CEO is taken to have decided that the prospective participant does not meet the access criteria if:

(a) the CEO does not do a thing referred to in paragraph 20(1)(a) or (b) within the period applicable under section 20; or

(b) if subsection 26(2) applies--the CEO does not do one of the things referred to in that subsection within the 14-day period referred to in that subsection.

Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

1. The Agency accepts, and so do I find, that the Applicant meets the following requirements:

(a) The age requirement, since she was 30 years of age when the application was made;[11] and > > (b) the residence requirement, since she was at the time the application was made and remains, a resident in Australia and an Australian citizen.[12]

2. The issues for my determination are therefore whether the Applicant meets the disability requirements under section 24 of the NDIS Act, or whether the Applicant meets the early intervention requirements under section 25 of the NDIS Act.

THE NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH)

1. The disability requirements are contained in section 24 of the NDIS Act and provide as follows:

1. A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and > > (b) the impairment or impairments are, or are likely to be, permanent; and > > (c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities: > > > (i) communication; > > > > (ii) social interaction; > > > > (iii) learning; > > > > (iv) mobility; > > > > (v) self-care; > > > > (vi) self-management; and > > (d) the impairment or impairments affect the person's capacity for social or economic participation; and > > (e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

1. 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.
2. The requirements of section 24 of the NDIS Act are cumulative, and all requirements must be met for the Applicant to become a participant in the Scheme.
3. The early intervention requirements contained in section 25 of the NDIS Act are as follows:

1. A person meets the early intervention requirements if:

(a) the person: > > > (i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; > > > > (ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; social interaction; > > > > (iii) is a child who has developmental delay; 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.

4. The requirements of section 25 of the NDIS Act are cumulative, and all requirements must be met for the Applicant to become a participant in the Scheme.
5. Section 27 of the NDIS Act provides for the making of rules in relation to the disability requirements. The relevant rules in respect of this review are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('Access Rules').
6. The Agency also issues Operational Guidelines in relation to the assessment of whether a person meets the disability requirements. The Operational Guidelines represent government policy. The relevant guidelines in this review are the National Disability Insurance Agency, Applying to the NDIS access guidelines (version dated 14 October 2024, current as at 11 March 2025) ('Guidelines').
7. There is no power conferred by the NDIS Act to make Guidelines. They are issued in an exercise of executive power.[13] The Tribunal is therefore not bound by any policy set out in the Guidelines; however, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),[14] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[15] where Mortimer J held:

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual_'_s case with the principal focus bring on the purpose and context of the statutory power, not the executive policy framed to guide it ...

1. Therefore, unless the Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in any determination of whether the Applicant meets the disability requirements or the early interventions requirements.
2. Whether the Applicant meets the disability requirements or the early intervention requirements is a question of fact to be determined on the balance of available evidence. The Tribunal is required to undertake a 'fact-finding task'[16] with a relatively high degree of precision and be positively satisfied.[17]

1. There is, in the Tribunal, no formal onus of proof upon the Applicant. However, as the Full Court of the Federal Court explained in Beezley v Repatriation Commission (2015) 150 ALD 11; [2015] FCAFC 165, at [68], the Applicant must put forward evidence and information sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements are met. If the Tribunal is not so satisfied, the Applicant's request for access to the Scheme cannot succeed.

1. The Applicant asserts in the application to become a participant, in the written material provided to the Agency and this Tribunal, in the oral evidence during the hearing, and in the statement of lived experience,[18] that she meets the disability requirements in section 24, or in the alternative, that she meets the early intervention requirements in section 25 of the NDIS Act.
2. The Applicant says, in essence, that she has a sensory disability; that the disability is attributable to an impairment that is permanent; that as a result of the impairment she has substantially reduced functional capacity in any one of the areas of communication, social interaction and learning_;_ that the impairment affects her capacity for social or economic participation; and that she is likely to require support under the NDIS for her lifetime. The Applicant furthermore says that for the purposes of section 25 of the NDIS Act she meets the early intervention requirements since an NDIS-funded plan may improve and extend her quality of hearing and thereby reduce or mitigate future support needs for hearing and resultant affected functional areas.
3. The Applicant gives the following examples of the practical impact of the impairments on her communication, social interaction, and learning respectively:

(a) All aspects of her life are impacted by the loss of hearing; > > (b) Lack of self-confidence;[19] > > (c) Teasing and miscommunication; > > (d) Acute loss of hearing in a loud or social environment;[20] > > (e) Cannot hear TV without assistance of subtitles;[21] > > (f) Challenges in personal communication and relationships;[22] > > (g) Inability to work effectively in an open plan setting and with vulnerable clients; > > (h) Difficulty to learn when lectures are in groups, at the workplace, or in a busy social environment;[23] > > (i) Difficulty dealing with mature clients and children who do not express themselves well;[24] > > (j) Difficulty to communicate and fulfil parental role with her children;[25] and > > (k) Withdrawing from social engagement, leading to mental health issues, lack of self-esteem and low confidence.[26]

4. The Applicant says she is now using a hearing aid, but this has come at a substantial cost to her and her family. She seeks in this proceeding a contribution to the cost of the hearing aids.[27] The Applicant lists the agencies she has unsuccessfully approached for funding.[28] I agree with the Agency that financial hardship is not a valid consideration under s 24(1)(c).

1. The Agency accepts that the Applicant has a disability that meets the requirements of subsection 24(1)(a) of the NDIS Act attributable to a sensory impairment arising from the loss of hearing in her right ear; that the impairments are permanent pursuant to subsection 24(1)(b) of the NDIS Act; and that her capacity for social and economic participation as per subsection 24(1)(d) of the NDIS Act is affected.
2. The Agency does not accept that the Applicant meets the requirement for substantially reduced functional capacity as per subsection 24(1)(c) of the NDIS Act, or that the Applicant meets the requirement for support under the NDIS for her lifetime as per subsection 24(1)(e) of the NDIS Act.[29] The Agency says furthermore that the Applicant does not meet the early intervention requirements of section 25 of the NDIS Act.

1. I have considered all the written evidence filed with the Tribunal and provided in the joint hearing bundle, the oral evidence provided at the hearing, and the parties' closing submissions. I will refer in my reasons for decision to some of the more salient aspects of the evidence.
2. I will now assess separately each of the statutory requirements for the Applicant to become a participant in the Scheme.

1. I have found that the Applicant meets the age requirement since she was 30 years old at the time she applied to the Agency to become a participant.

1. I have found that the Applicant meets the residence requirement since she is resident in Australia and an Australian citizen.

1. The elements of the disability requirements are as follows.

Subsection 24(1)(a) - a disability attributable to an impairment

1. The Applicant contends, and the Agency accepts, that she has sensory impairments attributable to a disability caused by the loss of hearing in her right ear, particularly at high frequencies.
2. I must be satisfied that the impairments associated with the loss of hearing are permanent. (National Disability Insurance Agency v Lampard [2025] FCAFC 139) Regardless of what impairments were conceded between the parties, I am still required to identify the specific impairments considered for the purposes of s 24(1).
3. The Agency agrees with the Applicant that, based on the medical evidence and her lived experiences, she has a disability that is attributable to hearing impairments.
4. Having considered the evidence, I find that the Applicant has a disability that is attributable to sensory impairments due to the loss of hearing in the right ear. I accept the evidence of lived experience of the Applicant that she experiences hearing loss in her right ear, and the written evidence of audiologist Ms Rueda and Dr Boase and Dr Perrot about the hearing loss the Applicant has been experiencing in her right ear over the course of some years.[30] I find that subsection 24(1)(a) of the NDIS Act is satisfied.

1. Section 24(1)(b) of the NDIS Act requires the impairment or impairments to be permanent or likely to be permanent. An impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the Scheme for the person's lifetime, despite the variation.
2. The Applicant must put forward evidence and information sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements in the Act have been met.[31] In accordance with rule 5.4 of the Access Rules, the Tribunal needs to be satisfied that there are no known, available and appropriate treatments for the impairment. In other words, if the Tribunal is left in doubt about whether there is treatment available to the Applicant, then the rule is not met. The obligation is therefore on the Applicant to demonstrate the existence of a negative, being that there are no known, available and appropriate treatments for the loss of hearing.[32]
3. The Agency accepts that the impairment of the Applicant meets the permanency requirement.[33] The Agency agrees that the evidence establishes that there are no known, available, or appropriate treatments for the impairment.
4. The Applicant refers to her lived experience as well as to the written reports of Ms Rueda, Dr Boase and Dr Perrot to contend that the impairments are, or are likely to be, permanent.[34]
5. Ms Rueda says the hearing loss is permanent;[35] Dr Boase says hearing loss is permanent but stable;[36] and Dr Perrot says hearing loss is permanent.[37]
6. I accept the evidence that the hearing loss in the right ear of the Applicant is permanent, or is likely to be, permanent. Although the practitioners did not give oral evidence, there is nothing in their reports to suggest that the impairment is other than permanent. Ms Rueda also opined that there is 'no medical intervention available to restore sensorineural loss.'[38]
7. I find that that the impairment of the Applicant is permanent or likely to be permanent since there are no known, available, and appropriate treatments. I find that subsection 24(1)(b) of the NDIS Act is satisfied.

Sub-Section 24(1)(c) - substantially reduced functional capacity

1. Subsection 24(1)(c) of the Act requires that the impairments result in a substantially reduced functional capacity to undertake one or more of the activities of communication, social interaction, learning, mobility, self-care, or self-management.
2. The subsection 24(1)(c) inquiry is limited to those permanent impairments that have been established in the subsections 24(1)(a) and 24(1)(b) enquiries.[39] The functional activities of subsection 24(1)(c) are not conjunctive, and therefore it is only necessary for the Applicant to establish that she experiences substantially reduced functional capacity in one of the designated life activity areas.
3. The NDIS Act does not define what is meant by 'substantial'. It is ultimately a question of fact. In Burrows, Senior Member French usefully cites the assessment tool used by the World Health Organisation to assess the 'degree of difficulty' a person experiences in doing a specific function.[40] Senior Member French states as follows:

For present purposes I note that WHODAS 2.0 assesses the "degree of difficulty" a person experiences in doing specified activities of daily living in terms of "increased effort", experience of "discomfort or pain", "slowness" and "changes in the way the person does the activity" (the difficulty factors) according to a five-point scale which is "none" ("1"), "mild"("2"), "moderate"("3"), "severe" ("4") and "Extreme or cannot do" ("5") (the difficulty ratings). For present purposes I note that "moderate" refers to an approximate 25-50% reduced functional capacity to perform and activity and "severe" refers to an approximate greater than 50% reduced functional capacity to perform the activity. In my opinion this analytical framework is helpful in giving meaning to the concept of substantially reduced function. In my view, "substantial" should be understood as connoting a degree of difficulty in performing a task that is more than "moderate", and "reduced" should be understood as being in one of the four ways specified by the difficulty factors.

4. I am not bound by this decision, but I find it apposite as a tool to assess if the Applicant meets the requirement of substantially reduced functional capacity to perform the functions of communication, social interaction, and mobility. The scale of difficulty is not intended to replace or supplement the statutory requirement, but rather to assist to give effect to the statutory requirement by way of practical indicia.
5. The Applicant says that she does not experience substantially reduced functional capacity regarding self-care, mobility, or self-management. She says she experiences substantially reduced functional capacity in communication, social interaction, and learning.
6. I find that the Applicant does not experience substantially reduced functional capacity regarding self-care, mobility, or self-management.
7. The Agency accepts that the impairments result in reduced functional capacity in the areas of communication, social interaction, and learning, but the Agency contends that the Applicant does not meet the requirement of substantially reduced functional capacity in those functional areas.
8. The Tribunal's task in determining whether the Applicant's functional capacity is substantially reduced, is twofold.
9. The first task is to consider whether the Applicant's circumstances are captured within the deeming effect of rule 5.8 of the Access Rules ('Rule 5.8'). Rule 5.8 is intended to simplify the evidentiary requirements for a potential participant to demonstrate that they meet the requirements of subsection 24(1)(c) of the NDIS Act.
10. In circumstances where the deeming effect of Rule 5.8 is not enlivened, the Tribunal must then proceed to a second task. The second task requires the Tribunal, on all the evidence available, to determine whether the Applicant's functional capacity for the activities in subsection 24(1)(c) of the NDIS Act is 'substantially' reduced.

The first task: Whether the Applicant can rely on the deeming effect of rule 5.8 of the Access Rules to establish that she has a substantially reduced functional capacity

1. Rule 5.8 of the Access Rules provides as follows:

An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(d) 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

(e) 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

(f) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. Rule 5.8(a) of the Access Rules requires the Tribunal to assess whether the Applicant can participate 'effectively or completely' on the basis that she is unaided by assistive technology, equipment, or home modifications other than 'commonly used items'.
2. Senior Member French in Foster usefully sets out the methodology to apply Rule 5.8, and although I am not bound by the decision, I find it apposite in this case:[41]

1. In this respect Rule 5.8 is made for the purposes of determining when a prospective participant has substantially reduced functional capacity to undertake a relevant activity within the premises of s 24(1)(c): see Rule 5.1(c). It is not relevant to the disability requirements specified in s24(1)(d) or (e).That must be taken to be the case despite the use of the word "participate" in reference to the life activity areas in paragraph (a) of the Rule. In context, that word must be understood as referring to the prospective participant's functional capacity to undertake the bundle of tasks within the activity (that being the term and concept used in the statute under which the Rule is made), rather than to social and economic participation more generally. 2. To determine if a prospective participant has substantially reduced functional capacity for self-care by operation of Rule 5.8 or otherwise the Tribunal must pose and answer the following questions:

(i) What are the prospective applicant's permanent impairments (as found in the s24(1)(a) and (b) enquiries)? > > (ii) What is the bundle of tasks and actions that falls within the scope of the life activity area? > > (iii) In the prospective participant's intrinsic state, do the impairments result in a reduction in their functional capacity to undertake any of these tasks and actions? > > (iv) If the answer to (iii) is "yes" go to Rule 5.8 and ask:

(a) Is the prospective participant only able to undertake any of these tasks and actions (in the sense of completing them, or in a way that achieves their intended result) with assistive technology, equipment or home modifications? or

(b) is the prospective participant only able to undertake these tasks and actions with assistance? or

(c) is the prospective participant unable to undertake these tasks and actions even with assistive technology, equipment, home modifications or assistance from another person?

(v) If the answers to anyone or more of the parts of question (iv) is "yes", what is the extent to which this is the case considering each of the tasks and actions that falls within the life activity area?

1. If the result of the chain of enquiry at this stage is that the prospective participant is unable to undertake any of the tasks and actions that come within the scope of the life activity area without assistive technology, equipment, home modifications or assistance, or even with these supports, the circumstances specified by Rule 5.8 will be found and by operation of the Rule the prospective participant will be deemed to have substantially reduced functional capacity to undertake the life activity area for the purposes of s24(1)(c). That is obviously a high threshold to be met. However, in my opinion that is consistent with the purpose of the Rule, which is to truncate the evaluative process required by s 24(1)(c) only in the clearest of cases, bearing in mind the limited target group for the NDIS, which is persons with permanent and significant impairments. In this respect Rule 5.8 should be understood as providing a narrow passage to meeting the requirements of s 24(1)(c)in clear cases. It is not a wide net intended to capture cases that require closer evaluation.
2. If the result of the chain of enquiry at this stage is that the prospective participant in their intrinsic state does not have the functional capacity to undertake some tasks and actions with the activity area at all, or only with assistive technology, equipment, home modifications or other assistance, but does have the functional capacity to carry out other tasks and actions within the activity area, then the circumstances specified by Rule 5.8 cannot be found. It is then necessary to continue the enquiry in accordance with the Act and ask the question:

(vi) Do the prospective participant's impairments otherwise than in the circumstances specified in the Rule result in them having substantially reduced functional capacity to carry out the tasks and actions within the scope of the activity area?

1. The answer to question (vi) is ascertained from an evaluative process that considers:

(a) The prospective participant's impairments, and

(b) The scope of the tasks and actions that fall within the activity area, and

(c) The number of tasks and actions within the activity area in relation to which the prospective participant in their intrinsic state experiences reduced functional capacity, and

(d) The degree of reduction in functional capacity the prospective participant experiences with respect to each task or action. The WHODAS2.0 difficulty factors and ratings are a helpful aid with respect to this issue, but are not determinative of the ultimate result, and

(e) The overall impact of the prospective participant's reduced functional capacity in relation to those tasks and actions in the life activity area taken as a whole.

1. Unlike the Rule 5.8 enquiry it is not necessary under the Act for a prospective participant to establish that they cannot undertake any of the tasks and actions that come within the scope of the activity area either at all, or only with the use of assistive technology, equipment, home modifications or assistance. It is open to the decision-maker to determine that the prospective participant's impairments result in substantially reduced functional capacity to undertake the life activity area in circumstances that fall short of all the tasks and actions that make up the activity area. Nevertheless, it remains necessary for the decision maker to be satisfied that the degree and impact of the prospective participant's reduction in functional capacity to undertake or carry out the tasks and actions within the activity area is substantial. (emphasis added)

1. In accordance with the Applying to the NDIS guidelines ('Guidelines'), some hearing impairments may lead to substantially reduced functional capacity.[42] The Guidelines is a statement of government policy which is a relevant consideration before the Tribunal and will be applied unless the policy is inconsistent with the statute. (Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39,590)
2. The Guidelines state that the Agency will 'generally decide that [a person has] a substantially reduced functional capacity if [their] hearing loss is at least 65 decibels in [their] better ear. This is based on a pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz'. The Guidelines also state that the Agency may also decide that a person has a substantially reduced functional capacity if their hearing loss is 'less than 65 decibels in [their] better ear. [The Agency] may decide this if either:

• [the person also has] another permanent impairment, such as vision or

• [the person gives] evidence [their] speech detection and speech discrimination outcomes are significantly poorer than expected'.[43]

1. If the deeming provisions in Rule 5.8 have been met, the person is mandatorily included in the category of persons with a substantially reduced functional capacity. However, if they are not met, the Tribunal is still required to determine whether the Applicant's impairments otherwise result in substantially reduced functional capacity in any of the six activities.[44]
2. I will now assess each of the disputed areas of functional impairments in respect of the degree of functional impairment:

1. I am not satisfied that impairment of the Applicant results in substantially reduced functional capacity in her communication by operation of Rule 5.8 or otherwise. I find so for the following reasons:
2. The Guidelines (p 9) describe 'Communicating' as 'how you speak, write, or use sign language and gestures, to express yourself compared to other people your age ... how well you understand people, and how others understand you.' The threshold is 'a fairly basic kind: telling a family member about something that has happened, explaining to a doctor in what part of the body pain is experienced, asking for help to reach something, and so on' (Madelaine v National Disability Insurance Agency [2020] AATA 4025 ('Madelaine'), [79]). As explained below I find that the Applicant functions well within the range of communicating, albeit that the hearing in her right ear is impaired at high frequency.
3. Although the audio-assessment of the Applicant indicates moderate to severe hearing impairment at high frequency,[45] and Ms Rueda speaks of 'difficulty hearing conversation in noisy environments, hearing TV clearly and hearing sounds in general', neither Ms Rueda, Dr Boase, nor Dr Perrot opine in depth on the impact the hearing loss may have on functional capacity in the areas of communication, social interaction and learning. Dr Perrot seems to repeat what he had been told by the Applicant, rather than having done an independent assessment.[46] In fact, Ms Rueda says the Applicant has 'normal hearing in low frequencies', with 'excellent speech discrimination' at soft conversational levels.[47] This is confirmed by Dr Boase. In the absence of an expert explaining to me orally what 'normal hearing in low frequencies' means, I deduct from the evidence of the Applicant that it includes one to one communication; communication in meetings where one person at a time talks; attending lectures where one person at a time speaks, communication in a social and domestic setting where background noise is limited; speaking to and hearing in a public office in a one-to-one setup; and engaging in social events where other background noise is low. In my assessment of the evidence, the functional capacity of the Applicant to express herself in daily situations and to hear communications in daily situations is reduced, but not substantially reduced.
4. Ms Rueda opines in her written report that the Applicant has normal hearing at lower frequencies for her right ear, with a pure tone average of 23.[48] Ms Rueda also notes that the right ear scores 97% with respect of speech discrimination, with an ability to positively identify almost all words in the right ear. Finally, Ms Rueda says that in the context of a noisy environment, for example watching TV or engaging in a conversation in a crowded area, there is 'high frequency loss'.[49] Otherwise, if there is 'no competing noise at soft conversational levels, consistent with normal hearing in the low to mid frequencies', the Applicant has 'excellent speech discrimination'.[50] The evidence of Ms Rueda does not support a finding that the Applicant experiences 'substantially reduced' hearing across the spectrum in the right ear. Whilst there is hearing loss, and whilst a hearing aid has been prescribed, the threshold of substantially reduced functional capacity is not satisfied. The Applicant has been in a long-term partnership, in a stable work situation, in a responsible position dealing with vulnerable persons, she communicates with friends and family, and she has been promoted prior to her obtaining the hearing aid. While I accept that the causation of the hearing loss is not explicable, the period immediately prior to the Applicant having acquired the hearing aid does not establish substantial reduced functional capacity in her communication.
5. Ms Rueda reports that she was told by the Applicant that she has 'difficulty hearing in noisy environments' such as social gatherings in noisy venues and busy work meetings.[51] The Applicant gave evidence about the challenges she faces at work in an open plan office arrangement, or when meeting clients in a noisy environment, or hearing children when they speak. The Applicant said in response to questions that when speaking on a telephone she can use the left ear, that in meetings persons usually speak one at a time but when they speak over each other it presents a challenge to her; and at home the noise of the children and TV or radio makes it hard to discern what is being said. Whilst I accept that the Applicant has reduced functional capacity to hear in certain circumstances, I find that when the life tasks of the Applicant are considered, the hearing loss does not result in substantial reduced functional capacity. The Applicant may have to make some adjustments, but she is highly articulate in written and oral communication, her evidence is that no adjustments had to be made for her at work immediately prior to her acquiring the hearing aid, and that no complaint had been brought to her attention at work before utilising the hearing aid for possible lack of understanding when engaging clients.
6. Dr Boase says the Applicant has hearing loss in the right ear, that the hearing loss is idiopathic, but he does not expand on the impact of the hearing loss on the communication, social interaction, or learning of the Applicant.[52] The evidence of Dr Boase does not assist the assertion of the Applicant that the hearing loss results in substantially reduced functional capacity in the areas of communication, social interaction, or learning.
7. Dr Perrot mentions that the hearing loss is 'untreatable'[53] and that the Applicant requires the hearing aid in her line of work, but he does not explain to any level of detail how the impairment substantially affects her communication functionality or how he has independently come to these conclusions.[54] He says for example that the Applicant cannot perform her duties without 'hearing aids', thereby seemingly implying that she requires more than one hearing aid. Dr Perrot also speaks about the financial burden of acquiring hearing aids, but this is not in my assessment a consideration for the Tribunal in assessing s 24(1)(c). The evidence of Dr Perrot confirms hearing loss, but fails to support the proposition that the loss is substantial in respect of communication, social interaction, or learning.

1. I am not satisfied that impairment of the Applicant results in substantially reduced functional capacity in her social interaction by operation of Rule 5.8 or otherwise. I find so for the following reasons:
2. The Guidelines describe 'Social Interaction' as making and keeping friends and relationships, behaving within limits accepted by others, coping with feelings and emotions. This focuses on the capacity to interact socially, not whether a person actually engages. Overall, the evidence is that the Applicant has healthy and constructive social relations, that she keeps contact with friends and family, that she is a good employee, she has been serving on the management committee of a dart club since 2022, that her speech or cognition has not been affected, and that there is nothing untoward in her conduct or behaviour. There is inadequate evidence to establish to my satisfaction that prior to acquiring the hearing aid, the Applicant had substantial reduced functionality in social interaction. Although I accept the loss of hearing impacts on her social functioning, I find that the statutory threshold is not met.
3. The Applicant is socially functional as is evidenced in her speaking about her personal, family, friendship, and professional relationships. I accept her evidence that the loss of hearing has made some of her conversations challenging and caused her to withdraw in some circumstances, but her capacity to socially engage has not been substantially reduced. For example, the Applicant speaks about her being a mother of two children, a partner of some 12 years before the hearing loss was diagnosed, a social worker for many years, engaging persons at work, keeping contact by phone, teams and text with friends and family, and serving as the secretary to the local dart club for around 4 years, with extensive communications, orally and in writing, on behalf of management of the club. I am not minimising the impairments experienced by the Applicant due to her hearing loss, but the statutory threshold is not met for those impairments to be regarded as having a substantial impact on her functional ability with respect to social interaction.
4. Although I accept the evidence of Ms Rueda, Dr Boase, and Dr Perrot that the Applicant experiences substantial hearing loss at high frequencies, especially in social settings,[55] the witnesses in their written reports also opine that at lower frequencies, implying one to one communications or uninterrupted social events, her hearing in the right ear is 'normal'.[56] Ms Rueda says the Applicant has 'excellent speech discrimination' if there are no competing noises.[57] Dr Perrot says the Applicant cannot engage in activities and make friends 'without her hearing aids', that she has 'difficulty in her family relationships', and that he self-esteem is impacted.[58] This observation contrasts with the evidence of the Applicant of her being social, maintaining family and friendship contacts, of being active in the darts club,[59] and having been promoted at work. I must consider the entirety of functional capacity of the Applicant in the respective spheres of her life, and although I accept that in some circumstances her impairment is severe, overall and on balance I find that the hearing impairment does not result in substantially reduced functional capacity in her social interaction.

1. I am not satisfied that impairment of the Applicant results in substantially reduced functional capacity in learning by operation of Rule 5.8 or otherwise. I find so for the following reasons:
2. The Guidelines describe 'Learning' as understanding and remembering information, learning new things, practicing and using new skills. Overall, the evidence is that the Applicant is intelligent, she participated in the hearing unassisted, she has undertaken several courses at work, she has a degree, and she has been promoted to senior social worker. All of these are indicative of a person with well-developed capacity to learn, to remember, to practice and use acquired skills. Although I accept the loss of hearing may impact on aspects of her learning,[60] I find that the statutory threshold is not met.
3. The functional capacity of the Applicant to learn, to acquire new knowledge, and to utilise the knowledge is not substantially reduced due to the impairment. Although the Applicant said in evidence that she had experienced learning difficulties before acquiring the hearing aid, the Applicant did not provide any other evidence in support of the learning difficulties. I asked her about the impact of her loss of hearing at work and she explained that no special arrangements had been made to accommodate her within the learning or training environment prior to her acquiring the hearing aid. I note she says that learning at work is often in large groups, but that does not imply a noisy environment. I attach little weight to her evidence about learning difficulties.
4. The Applicant has been at the same employer for around 9 years. She has progressed from a social worker to a senior social worker. There was no documentary or other evidence that demonstrated any learning challenges or cognitive issues she faced arising from hearing loss. Dr Perrot says the Applicant has been 'unable to learn effectively at work',[61] but this is not supported by the evidence of the Applicant who says that shortly prior to acquiring a hearing aid she attended training at work, dealt with clients, and acquired new skills. The Applicant explained in evidence that she is capable of learning online, reading books, doing research, and attending lectures. The Applicant could not cite any specific examples of her experiencing substantially reduced functional capacity in learning.
5. I now turn to answering the question whether the Applicant is -

(a) only able to undertake any of her bundle of tasks and actions (in the sense of completing them, or in a way that achieves their intended result) with assistive technology, equipment or home modifications? or > > (b) is the Applicant only able to undertake these tasks and actions with assistance? or > > (c) is the Applicant unable to undertake these tasks and actions even with assistive technology, equipment, home modifications or assistance from another person?

6. I find in the negative in respect of each of these questions concerning the functions of communication, social interaction, and learning.
7. I find that the Applicant does not meet the requirement of substantially reduced functional capacity for communication, social interaction, and learning by operation of Rule 5.8 of the Access Rules. The Applicant therefore cannot rely on the deeming operation of rule 5.8 of the Access Rules to satisfy subsection 24(1)(c) of the NDIS Act.

The second task: Does the Applicant have a 'substantially' reduced functional capacity in respect of the activities in subsection 24(1)(c) of the NDIS Act?

1. It is then necessary to continue the enquiry in accordance with the NDIS Act and ask the question whether the Applicant's impairments, other than in the circumstances specified in Rule 5.8, result in her having substantially reduced functional capacity to carry out the tasks and actions within the scope of the activity areas of communication, social interaction, and learning.
2. The fact that the Applicant does not satisfy the requirements of Rule 5.8 does not disqualify her from satisfying subsection 24(1)(c) of the NDIS Act. The measure of whether the Applicant has a 'substantially reduced functional capacity' for one or a number of activities in subsection 24(1)(c) is not exhaustively defined by Rule 5.8. In Mulligan Mortimer J held:[62]
   1. As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas.

Further, and in respect of the operation of subsection 24(1)(c) of the NDIS Act itself, Mortimer J also held in Mulligan:[63]

1. ... No decision-maker need be satisfied a person's impairment is "serious", or more serious than another person's. No qualitative judgments in that sense are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.
2. The legislative scheme contemplates 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.
3. In National Disability Insurance Agency v Foster, the Full Court also considered the interpretation of subsection 24(1)(c) of the NDIS Act. The following observation was made in relation to the activity of self-care:[64]
   1. In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
   2. Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of 'self-care', the Tribunal applied the Guidelines in such a way as to equate Mr Foster's impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
4. Therefore, the Tribunal must undertake, with a high degree of precision, a functional, practical assessment of what the Applicant can and cannot do with respect to her communication, social interaction, and learning for the purposes of subsection 24(1)(c) of the ART Act. This assessment requires consideration of what has been called a 'bundle of tasks' associated with a particular function, and actions that comprise any given activity.[65]
5. In Garcia Albiol v National Disability Insurance Agency[66] the Tribunal considered the use of the word 'substantially' as a descriptor of 'reduced functional capacity' in subsection 24(1)(c) of the NDIS Act. In doing so, it was determined that the term 'substantially' in the context of reduced functional capacity carries a 'high threshold'. Although I am not bound by the decision, I find it apposite to this proceeding.
6. The Tribunal's consideration of the Applicant's functional capacity relates specifically to her 'daily life activities'. Although I am not bound by the decision, I find it apposite to this proceeding. Relevantly, the current Guidelines state as follows:
   1. You may be eligible under the disability requirements if you have one or more impairments that are likely to be permanent and this substantially impacts your ability to do daily life activities.
   2. Your impairment means you have a substantially reduced functional capacity to do one or more daily life activities. These activities include moving around, communicating, socialising, learning, undertaking self-care, or self-management tasks.

1. I find that the of impairments cited by the Applicant do not fall within the scope of threshold of her having **'**substantially' reduced functional capacity in respect of communication. The impairments range in my assessment between mild to severe, but the impacts of the impairments overall fall short of the threshold of substantially reduced functional capacity in communication.
2. The activity of communication focuses upon the skills to interact and not the opportunities for interactions. I am satisfied that the Applicant does have the communication skills to interact with others. I have made factual finding above about the communication functionality of the Applicant. In essence I find that the Applicant, without the hearing aid, has normal functionality in day to day, one on one situations, in meetings where one person at a time talks, in lectures where one person at a time talks, engaging with friends and family, and performing her tasks at work. I noted that in some respects her communication functionality is reduced, for example, in noise situations, when radio or TV is on or when someone does not speak clearly, but I find that on balance her communication functionality is not substantially reduced.
3. I find that the Applicant's functional capacity to communication is not substantially reduced and therefore that subsection 20(1)(c)(i) of the NDIS Act is not met.

1. In Madelaine, the Tribunal held 'the criteria referred to in the Guideline are directed principally at personal skills needed for social interaction, and only marginally about opportunities to exercise those skills'.[67]
2. In Kilgallin and National Disability Insurance Agency the Tribunal observed the following in relation to the threshold requirements for social interaction:[68]

Social interaction as referred to in 24(1)(c)(ii) doesn't, in our view, mean social interaction with the whole of the community. It means social interaction with elements of the community, sections of the community.

3. I find that the impairments cited by the Applicant do not fall within the scope of threshold of her having **'**substantially' reduced functional capacity in respect of social interaction. The impairments range in my assessment between mild to severe, but the impacts of the impairments overall fall short of the threshold of substantially reduced functional capacity in social interaction.
4. As stated in Madelaine, the activity of social interaction focuses upon the skills to interact and not the opportunities for interactions. I am satisfied that the Applicant does have the social skills to interact with others. I have made a factual finding above about the social interaction functionality of the Applicant. In essence I find that the Applicant, without the hearing aid, has close contacts with friends and family, she has been at the same workplace for around 9 years, she has been promoted, she is the secretary of a social club, and she engages with the community. I also find that in some circumstances her functional capacity is reduced, for example that she may become withdrawn in groups, that at home with noise her parental role is affected, and that she may in challenging situations not have clear hearing at work. I find that on balance her social interaction functionality is not substantially reduced.
5. I find that the Applicant's functional capacity to interact socially is not substantially reduced and therefore that subsection 20(1)(c)(ii) of the NDIS Act is not met.

1. I find that the impairments cited by the Applicant do not fall within the scope of threshold of her having **'**substantially' reduced functional capacity in respect of learning. The impairments range in my assessment between mild to moderate, but the impacts of the impairment overall fall short of the threshold of substantially reduced functional capacity in learning. I have made a factual finding above about the learning functionality of the Applicant. In essence I find that the Applicant, without the hearing aid, has completed her degree in social science, she has attended many courses and training events at work and online, she has been promoted, and she has a demonstrated capacity to learn, to retain and to utilise information. I also find that in some circumstances her functional capacity is reduced, for example learning in a noisy environment can be challenging, but there was lack of specificity as to when and where her functionality with respect to learning had been practically reduced. I find that on balance her learning functionality is not substantially reduced.
2. I find that the Applicant's functional capacity with respect to learning is not substantially reduced and therefore that s 24(1)(c)(iii) of the NDIS Act is not met.

1. In conclusion, the impairments experienced by the Applicant do not meet the requirements of subsection 24(1)(c) of the NDIS Act.
2. Having determined that subsection 24(1)(c) of the NDIS Act is not satisfied, I am not required to consider the remaining criterion under subsection 24(1) of the NDIS Act.

Section 25 of the NDIS Act: The Early Intervention Requirements

1. The Applicant contends that she satisfies the early intervention requirements of section 25 of the NDIS Act.
2. I have already found that the Applicant has an auditory impairment that is permanent. Accordingly, subsection 25(1)(a)(i) of the NDIS Act is met.
3. In assessing the early intervention requirements, the Agency contends that regard should

be given to the Explanatory Memorandum_,_ National Disability Insurance Scheme Bill 2012 (Cth) ('Bill') which enacted the Act and states:

Clause 25 [of the Bill] sets out the early intervention requirements a person must satisfy, as an alternative to satisfying the disability requirements, in order to become a participant in the NDIS launch. This clause recognises that a person may need support to help minimise the impact of a disability from its earliest appearance, and that the provision of support may improve the person's functioning or prevent the progression of their disability over their lifetime.[69]

1. I find the reference to the Explanatory Memorandum of assistance.
2. I am not satisfied that the provision of early intervention supports is likely to benefit the person by reducing the person's future needs for supports in relation to disability as required by subsection 25(1)(b) of the NDIS Act.
3. My reasoning for finding that the requirement is not met, is as follows:

(a) the Applicant is now 31 years old and there is inadequate evidence that the provision of supports is likely to reduce her future needs for supports in relation to her disability. Although the Applicant says the hearing aid would have to be replaced around every 4-5 years, the support sought now will not reduce the need to replace the aid from time to time; > > (b) it is not clear from the evidence that the needs for support of the Applicant are likely to increase as the Applicant ages. There is no evidence before me as to whether the loss of hearing is expected to worsen and that early intervention may be beneficial; > > (c) the Applicant has been living with the hearing loss for at least 4 years, she has received treatment from professionals, and she had made adjustments to her daily living, which means the supports sought by the Applicant at this stage cannot be regarded as 'early intervention'. The financial hardship of acquiring the hearing aid sought to be relied on by the Applicant is not a consideration for early intervention; > > (d) the impairment of the Applicant is unlikely to be mitigated by intervention due to the permanency thereof; and > > (e) the future needs of the Applicant are unlikely to be reduced by intervention at this stage.

4. Having determined that subsection 25(1)(b) of the NDIS Act is not satisfied, I am not required to consider the remaining criterion under subsection 25(1) of the NDIS Act.

1. Having failed to meet the mandatory criteria in relation to both the disability requirements and the early intervention requirements, the Applicant will not be granted access to the Scheme.

1. The Tribunal affirms the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth).

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member De Villiers

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

[5] HB p 212; s 24(1)(a) of the NDIS Act.

[13] G v Minister for Home Affairs [2019] FCAFC 79, [18].

[14] [1979] 24 ALR 577, [590].

[15] [2018] FCA 1229, [171].

[16] National Disability Insurance Agency v Davis [2022] FCA 1002, [42].

[17] Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 ('Mulligan'), [55] cited in Re Schwass and National Disability Insurance Agency [2019] AATA 28, [29]; National Disability Insurance Agency v Davis [2022] FCA 1002, [61].

[31] Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11, [68]; HPSC and National Disability Insurance Agency [2021] AATA 727, [85]: 'In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41, Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person 'must satisfy' the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security (1984) 1 FCR 354, 356-8 (per Woodward J), 366 (per Northrop J), 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208, 215-8; Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; (2012) 289 ALR 237, [18] and the cases there cited.'

[32] National Disability Insurance Agency v Davis [2022] FCA 1002, [131]; Kelly v National Disability Insurance Agency [2024] FCA 1462, [22].

[39] Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607 ('Burrows'), [60].

[41] Foster and National Disability Insurance Agency (NDIS) [2025] ARTA 718 ('Foster'), [104]-[108].

[42] Applying to the NDIS, 10 December 2024.

[64] [2023] FCAFC 11, [64]-[65].

[66] [2024] AATA 496.

[68] [2017] AATA 186, [18].

[69] Explanatory Memorandum, National Disability Insurance Scheme Bill 2012 (Cth) 13.