Hearing loss and substantially reduced functional capacity - Evans and NDIA [2019] AATA 754

Key points

• In Evans and NDIA [2019] AATA 754 [opens in new window] the Tribunal decided that the NDIA's Operational Guidance, which referred to the NDIA generally being satisfied that a person has a substantially reduced functional capacity if they have a hearing loss of greater than or equal to 65 decibels, could not be used as a 'threshold' to prevent a person whose hearing loss was less than 65 decibels from accessing the NDIS.
• In considering the criteria for access to the NDIS, the relevant question is always whether a specific person has an impairment that results in substantially reduced functional capacity to do one of the things in s 24 of the Act [opens in new window].

Background

Ms Evans has experienced hearing loss for a number of years. She applied to be a participant in the NDIS. The NDIA decided that she did not meet the access criteria in s 24 of the Act [opens in new window]. An issue was whether Ms Evans had an impairment that resulted in substantially reduced functional capacity to communicate - see s 24(1)(c)(i). The NDIA relied on its Operational Guidelines. Section 8.3.3 of the Operational Guidelines [opens in new window] states: 

Generally, the NDIA will be satisfied that hearing impairments of ≥ 65 decibels in the better ear (pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz) may result in substantially reduced functional capacity to perform one or more activities. This audiometric criteria reflects the lower limit of what is likely to constitute a substantially reduced functional capacity to undertake relevant activities.

Hearing impairments < 65dB decibels in the better ear (pure tone average of 500Hz, 1000Hz, 2000Hz and 4000Hz) in conjunction with other permanent impairments (for example vision or cognitive impairments), or where there is evidence of significantly poorer than expected speech detection and discrimination outcomes, may also be considered to result in substantially reduced functional capacity to undertake relevant activities.

The NDIA argued that Ms Evans failed to meet the 65 decibel 'threshold' and therefore did not have an impairment that resulted in a substantially reduced functional capacity to communicate. Ms Evans stated that although her hearing loss was measured at less than 65 decibels, the testing was in a quiet environment. She gave evidence of how her hearing loss impacted her ability to hear in various conditions, including where there was background noise or where she was unable to lip-read. 

At [17(b)] of its decision the Tribunal decided that the NDIA could not apply its operational guidance as a 'threshold' in a way that meant that anyone whose hearing was reduced by less than 65 decibels did not have a substantially reduced capacity to communicate. The Tribunal observed that the question was whether Ms Evans's impairment resulted in a substantially reduced capacity to communicate. That required the Tribunal to look at her subjective evidence about how her hearing loss impacted on her ability to communicate. 

Discussion

This case is of interest to the NDIS community because it is another example of the Tribunal pushing back where the NDIA seeks to rely on its policies and operational guidance as an absolute bar to someone accessing the NDIS, or receiving a certain level of support. Operational guidance and policy is important, and the Tribunal will usually have regard to it, but the Tribunal will not have regard to it if it is inconsistent with the legislation. 

The legislation makes clear that the relevant question is whether a specific person has an impairment that results in a substantially reduced capacity to do one of the things listed in s 24 of the NDIS Act. NDIS participants and their supporters should have regard to this decision if they are faced with a decision of the NDIA that the person does not meet access criteria because of a 'threshold' in NDIA policy.