Dale Mulligan and National Disability Insurance Agency
[2014] AATA 374
•13 June 2014
[2014] AATA 374
Division National Disability Insurance Scheme Division File Number
2014/0187
Re
Dale Mulligan
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal Senior Member Jill Toohey
Professor Ron McCallum, MemberDate 13 June 2014 Date of written reasons 16 June 2014 Place Sydney The Tribunal affirms the decision that Mr Mulligan does not meet the disability requirements in s 24(1) of the National Disability Insurance Scheme Act2013.
..........[Sgd]..............................................................
Senior Member Jill Toohey
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – access criteria – whether applicant meets disability requirements – ischaemic heart disease – cardiomyopathy – Conn’s Syndrome – ruptured discs in lower back – whether impairments substantially reduce functional capacity – whether impairments affect applicant’s capacity for social and economic participation – whether applicant likely to require support under the NDIS for his lifetime – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss, 3, 3(3)(b), 4(17), 13, 21, 24(1), 32, 33(1), 33(2), 34, 209(3)
National Disability Insurance Scheme (Becoming a Participant) Rules 2013
SECONDARY MATERIALS
United Nations Convention on the Rights of Persons with Disabilities
REASONS FOR DECISION
Senior Member Jill Toohey
Professor Ron McCallum, Member16 June 2014
BACKGROUND
Mr Dale Mulligan has chronic ischaemic heart disease, cardiomyopathy, Conn’s Syndrome, and sciatica from two ruptured discs in his lower back as a result of a work injury in 1983. He seeks review of a decision by the National Disability Insurance Agency (NDIA) that he does not qualify to be a participant in the National Disability Insurance Scheme (NDIS).
Mr Mulligan is 61. He lives with his wife and their 23-year old son in a Department of Housing home in the Hunter region in NSW. He has worked in a range of employment over the years. Since 1994 he has been on a Disability Support Pension while continuing to work when he is able.
Since completing a Diploma of Welfare and Community Services in 2005, Mr Mulligan has worked for a number of community service organisations. Since 2011 he has been employed for 27 hours each fortnight as a Welfare Support Officer for the Samaritans. He has been on leave of absence since March 2014 on account of his sciatic pain. He has recently extended his leave for a further three months but hopes to be able to return to work. He seeks funding through the NDIS for someone to mow his lawn which he cannot manage himself because he experiences severe shortness of breath when he exerts himself.
Mr Mulligan came to Sydney to attend the hearing. He gave his evidence frankly, and he impressed us as a person determined not to let his conditions get the better of him.
Our decision and these reasons were delivered orally on 13 June 2014.
THE NATIONAL DISABILITY INSURANCE SCHEME
Before going further, we will say something about the NDIS generally and the National Disability Insurance Scheme Act2013 (the NDIS Act) which is the legislation we must apply.
The NDIS is an insurance-based scheme which provides, broadly, three forms of support for people with disability:
·general supports to people with disability by way of coordination, strategic and referral services;
·funding to persons or organisations to enable them to assist people with disability participate in economic and social life; and
·personal, goal-based plans by which funding for reasonable and necessary supports is provided to persons with disability who qualify to be participants.
The objects of the NDIS Act are set out in s 3. As well as giving effect to Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities (CRPD), the objects include:
·supporting the independence and social and economic participation of people with disability;
·providing reasonable and necessary supports for participants; and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.
The NDIS Act is supported by Rules which are made by the Minister under s 209(3) of the Act to assist in deciding matters such as who becomes a participant in the NDIS, and what are reasonable and necessary supports. The Rules form part of the legislation that we must apply. As well, the CEO of the NDIA has made Operational Guidelines to assist staff in making decisions and performing other functions under the Act.
The importance of ensuring the financial sustainability of the NDIS so that it can function as an insurance-based scheme to maximise the participation, productivity and inclusion of people with disabilities, is emphasised throughout the Act and the Rules. When giving effect to the objects of the Act, or performing any function or exercising any power under the Act, regard must be had to the need to ensure the financial sustainability of the scheme: s 3(3)(b), s 4(17).
WHO QUALIFIES TO BE A PARTICIPANT IN THE NDIS?
To become a participant in the NDIS, a person must meet the access criteria in s 21 of the NDIS Act. The access criteria comprise age, residence and disability requirements.
Mr Mulligan meets the age and residence requirements. We have to decide whether he also meets the disability requirements in s 24(1) of the NDIS Act.
If a person meets the access criteria and becomes a participant in the NDIS, the CEO of the NDIA must facilitate the preparation of a plan which must include a statement prepared by the participant setting out his or her goals, objectives and aspirations, and matters such as his or her living arrangements, informal community and other supports, and social and economic participation: s 32 and s 33(1).
A participant’s plan must include a statement of participant supports that specifies, among other things, the general supports (if any) that will be provided to, or for, the participant, and the reasonable and necessary supports (if any) that will be funded: s 33(2).
THE DISABILITY REQUIREMENTS
A person meets the disability requirements if:
(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; 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 NDIS for the person's lifetime.
Mr Mulligan must meet each of these requirements to become a participant in the NDIS.
DOES MR MULLIGAN SATISFY THE DISABILITY REQUIREMENTS?
We will deal with the disability requirements in turn.
(a) Does Mr Mulligan have 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?
The words “disability” and “impairment” are not defined in the NDIS Act or Rules. In everyday speech they are often used interchangeably, but it is clear from the Act, and from the language of s 24(1)(a), that they are distinct (“a disability that is attributable to” one or more impairments).
“Impairment” commonly refers to a loss of, or damage to, a physical, sensory or mental function. There is no argument that Mr Mulligan’s heart and lower back conditions are physical impairments.
“Disability” is described in Article 1 of the CRPD as follows:
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.
The Explanatory Statement to the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 explains that, for the purposes of becoming a participant, the focus of “disability” is on the reduction or loss of an ability to perform an activity which results from an impairment. It states that the NDIS “will be open to people with a permanent disability which results in substantially reduced functional capacity” and explains:
Although the definition of “disability” under these Rules does not precisely correspond with that of the CRPD, the eligibility and assessment of need has been based on the World Health Organisation’s International Classification of Functioning, Disability and Health (ICF). The narrower definition of “disability” employed by the [NDIS] is aimed at achieving a legitimate purpose by targeting those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for the segment of the disability population that has the most unmet need.
This “functional definition” is reflected in the second and third disability requirements (permanent impairment resulting in substantially reduced functional capacity to undertake one or more of the specified activities). This raises the question: what do the words “has a disability” in s 24(1)(a) mean?
We understand that the NDIA does not press its earlier position that, in order to have a disability for the purpose of s 24(1)(a), a person must meet each of the disability requirements in s 24(1)(b), (c), (d) and (e), and it seems to us that position could not have been correct.
A person may have a disability without necessarily meeting all, or even any, of the disability requirements in s 24(1)(b), (c), (d) and (e). For example, a person might have a temporary disability, or a permanent disability that has only minimal effect on functioning, or no effect on his or her social or economic participation. The fact that s 13(1) states that the NDIA may provide support to people with disability who are not participants tends to support this view.
On our reading of s 24(1)(a), Mr Mulligan has a disability attributable to his physical impairments because they result in a reduction or loss of the ability to perform certain activities. For the reasons which we will come to, however, it is not necessary finally to decide this question.
(b) Are Mr Mulligan’s impairments permanent or likely to be, permanent?
Reports from Mr Mulligan’s doctors including his general practitioner, consultant physician in nephrology, and cardiologist, show he has a long-standing heart condition and multiple level lumbar disc injuries. It is agreed, and we are satisfied, that his impairments are permanent.
(c) Do Mr Mulligan’s impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication; social interaction; learning; mobility; self-care; self-management?
Mr Mulligan’s evidence
Mr Mulligan has provided a written statement setting out his employment history and the effects of his heart and back conditions on his everyday activities, and he spoke to us at length about these matters at the hearing.
In 1989, Mr Mulligan had to give up work as a transit officer because of his back injury. He found other employment but resigned in 1994 when he was diagnosed with heart failure. He has continued to work when he is able. In his current position with the Samaritans, he supports people with autism and schizophrenia to live independently in the community. He visits them, takes them shopping and to doctors’ appointments, and on social outings such as to galleries and barbeques. He drives himself to work, and drives the people he is helping on their outings.
Mr Mulligan took leave of absence from work in March 2014 because of his sciatic pain. He was finding it increasingly difficult to keep up and was taking increased pain-killers. He is hopeful that his treating doctors will be able to improve his condition but, so far, he remains in a lot of pain and his movement is restricted. Meanwhile, he does a very small amount of voluntary work with local people.
Mr Mulligan says he could manage his work with the Samaritans despite his heart condition because he could go at his own pace, but his back pain made it too difficult for him to continue. However, the shortness of breath he experiences when he exerts himself, combined with his back pain, make it very difficult to perform many everyday activities. He also has panic attacks every couple of months when his heart starts beating arhythmically, sometimes for no apparent reason. When this happens he becomes extremely fearful that he will have a heart attack. He uses self-talk and physical strategies to calm down but he has been taken by ambulance to hospital on 15 to 20 occasions over the years.
After walking about 100 metres on level ground, Mr Mulligan becomes breathless and has to rest. After about 50 metres on an incline, he becomes breathless and the pain in his legs becomes severe. He uses a walking stick outdoors and hand rails on his back steps. Mr Mulligan told us the pain affects almost everything he does but he agreed that, other than mowing his lawn, he can manage most activities, although he has to push himself through the pain.
Mr Mulligan told us he can dress himself from the waist up but it can take 15 to 20 minutes to get fully dressed on his own and his wife generally helps him. He has developed ways of putting on underwear and trousers without help, and wears what he calls “convenience” clothing such as track pants, and shoes with Velcro fastenings instead of laces. He bathes himself with difficulty and manages to dry his feet by putting them one after the other on the bath and pulling the towel against them. He has a grab rail in the shower. Using the toilet is very difficult but he does not wish to call on his wife for help.
Mr Mulligan’s social life has become restricted because he is often fearful of having a panic attack while out. He has given up riding his motorcycle for this reason, and he and his wife no longer see friends as often as they used to. Not surprisingly, he finds these restrictions depressing.
The effects of Mr Mulligan’s conditions are described in detail by Laura Hedditch, an occupational therapist who assessed his impairments at the request of the NDIA.
Ms Hedditch’s report
Ms Hedditch visited Mr Mulligan at his home in April 2014. Her report is based in part on her own observations and in part on what Mr Mulligan told her.
Ms Hedditch reported that Mr Mulligan’s severe shortness of breath is “significantly limiting”, and he has debilitating pain in his legs that he can only relieve temporarily with painkillers, stretching, hot baths, and sitting. He also has numbness and a burning sensation in both feet due to nerve damage, and panic attacks.
Ms Hedditch reported that Mr Mulligan mobilises independently but with a discernible limp; he uses a walking stick outdoors and when his pain is particularly bad. He is able independently to complete transfers to the toilet and bed, but with difficulty because of the pain and the energy he expends. She observed him become short of breath and flushed after walking up his nine metre-long ascending driveway and after walking 100 metres in level ground; he has to rest after negotiating two flights of stairs, and carries heavy items with difficulty. He is unable to bend down to the floor because of his lower back pain and feels pain after sitting for 30 minutes or driving for more than one hour.
Ms Hedditch reported that Mr Mulligan can feed himself and manage his medication independently. He bathes and dresses independently but with some difficulty because of his restricted movement. He can complete toileting independently but leans against the top of the toilet and the wall to overcome his restricted movement. The pain leads to significant sleep disturbances which make him fatigued and affect his energy levels.
Mr Mulligan’s wife does most of the cleaning and laundry. He can do light household duties and, with rests, some vacuuming. He occasionally helps hang out the washing but has to take frequent rest breaks. He and his wife share meal preparation and he will sit if he is experiencing pain. They complete larger shops together but he cannot carry heavy items and he uses the shopping trolley to manage his pain and conserve his energy.
Mr Mulligan told Ms Hedditch he feels breathless and fatigued, and his heart rate increases, after mowing three lengths of the backyard. On one of the last occasions he mowed his lawn, he continued despite his symptoms and was unable to settle his breathing and heart rate for eight hours. His symptoms were compounded by a panic attack.
Ms Hedditch recommended Mr Mulligan use aids to help conserve his energy and to compensate for his reduced range of movement in his lower legs. As well as a toe dryer, sponge, sock aid, shoe horn and an “Easi-reacher”, she recommended he use an over-toilet aid for toilet transfers, and a bed stick to help get in and out of bed. She recommended a damaged roller mechanism on the sliding panels in the shower be repaired, and that he have assistance with lawn mowing. She also recommended he be referred to a pain clinic to manage his pain, and to a disability employment service for help with a job capacity evaluation and a supported return to work.
Mr Mulligan told us he uses an “Easi-reacher” but he does not use any of the other aids recommended by Ms Hedditch. He is not averse to using them and says he will try anything that helps.
Ms Hedditch’s evidence by telephone
Speaking to us by telephone, Ms Hedditch said she thought Mr Mulligan’s capacity for mobility and self-care was substantially reduced. We asked her to explain how that squared with her report that he is independent, or largely so, in those areas.
Ms Hedditch explained that Mr Mulligan is independent in mobility and self-care but only with difficulty, and with pain, and he expends a lot of energy in compensatory strategies. She said he can complete tasks such as getting to the toilet and to bed, and bathing and dressing, without assistance, but he is not doing them in the most effective way. She said the recommended aids would make his life easier, and would reduce his pain and conserve his energy.
The meaning of “substantially reduced functional capacity”
The National Disability Insurance Scheme (Becoming a Participant) Rules2013 explain at paragraph 5.8 that a person has a substantially reduced functional capacity to undertake the relevant activities if:
(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.
There is no question that Mr Mulligan performs most activities with difficulty, often with a great deal of pain, and more slowly than he would without his impairments. His capacity for functioning in the areas of mobility, self-care and social interaction is undoubtedly reduced, but considering everything we have heard, we are not satisfied that his capacity in those areas is substantially reduced. In the areas of mobility and self-care, he participates effectively, if not efficiently, and he can complete tasks within a reasonable time, for the most part without aids of any sort. The aids that he does use, being handrails on his back steps, a grab rail in the shower, and an Easi-reacher, are commonly used by many people.
Mr Tremelling says that Mr Mulligan’s capacity for self-management is substantially reduced because, without the ability to mow his lawns, his Department of Housing tenancy is at risk. We are not sure that self-management, which we understand to mean a person’s ability to plan and manage their everyday life including his or her financial affairs, includes maintaining a tenancy but, if it does, we do not think the inability to mow his lawns is sufficient to say that Mr Mulligan has substantially reduced functional capacity in this area.
For these reasons, we are not satisfied that Mr Mulligan meets this disability requirement.
(d) Do Mr Mulligan’s impairments affect his capacity for social or economic participation?
The NDIA says that Mr Mulligan retains substantial capacity for social and economic participation and does not meet this disability requirement. We do not agree.
We accept that Mr Mulligan retains substantial capacity for social and economic participation but the test in this requirement is only that a person’s capacity for social and economic participation be affected. There is no requirement that it be affected to any particular degree. We accept that Mr Mulligan’s participation in social life is reduced, mainly on account of his fear of exerting himself and bringing on a panic attack, and we accept that he has been on leave of absence from his work with the Samaritans for the past three months on account of his sciatic pain.
We are satisfied that Mr Mulligan meets this disability requirement.
(e) Is Mr Mulligan likely to require support under the NDIS for his lifetime?
It is not clear to us precisely what is needed in order to meet this requirement. Neither the Act nor the Rules offers any guidance, and the Operational Guidelines do not refer to it.
The NDIA says this disability requirement involves consideration of, among other things, whether supports of the kind that Mr Mulligan seeks would be funded or provided by the NDIS if he were to become a participant. We do not think that can be correct. Firstly, it is not clear why the meaning of “support” should be restricted to funded supports. Secondly, it is clear from s 33(2) that a person may become a participant in the NDIS without necessarily receiving funding for supports. Section 33(2) refers to a participant’s plan setting out matters including “the reasonable and necessary supports (if any) that will be funded” and “the general supports (if any) that will be provided”.
Section 34 sets out matters of which the CEO of the NDIA must be satisfied before specifying in a participant’s plan the supports that will be funded. These matters include that account is taken of support that it is reasonable to expect families, carers and other informal networks to provide; and that the support is not more appropriately funded through other general service delivery or support systems.
The NDIA says it is reasonable to expect Mr Mulligan’s son, who lives at home, to provide informal support by way of mowing the lawn for him, and we agree. However, whether Mr Mulligan’s need can be met by informal supports is a test of whether funding should be provided, not whether he meets the disability requirements in s 24(1).
Mr Tremelling says Mr Mulligan meets this disability requirement because he has permanent impairments that are unlikely to improve and he will need support, whether funded or general supports, for the rest of his life.
It seems to us that Mr Mulligan meets this requirement. However, because we have decided that he does not meet the third disability requirement, it is not necessary finally to determine what is required in order to meet s 24(1)(e).
CONCLUSION
For the reasons we have given, we are satisfied that Mr Mulligan meets the disability requirements in s 24(1)(b) and (d). It seems to us that he also meets the requirements in s 24(1)(a) and (e) but it is not necessary finally to decide whether he does because we are not satisfied that he has substantially reduced functional capacity in any of the areas in s 24(1)(c).
Mr Mulligan must meet all of the requirements in s 24(1) in order to meet the disability requirements. As he does not meet the disability requirements, he does not meet all of the access criteria and cannot become a participant in the NDIS. That does not mean that he cannot become a participant at some time in the future, or that he is not entitled to general support under the NDIS.
We affirm the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey, Professor Ron McCallum, Member. .........[Sgd]...............................................................
Associate
Dated 16 June 2014
Date(s) of hearing 12-13 June 2014 Solicitors for the Applicant Mr G Tremelling, Legal Aid NSW Solicitors for the Respondent Mr M Sassella, NDIA
25
0
0