Mulligan and National Disability Insurance Agency

Case [2015] AATA 974


Mulligan and National Disability Insurance Agency [2015] AATA 974 (17 December 2015)

Division

NATIONAL DISABILITY INSURANCE SCHEME DIVISION 

File Number(s)

2014/0187

Re

Dale Mulligan

APPLICANT

And

National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey
Professor R McCallum AO

Date 17 December 2015  
Place Sydney

The Tribunal affirms the decision under review.

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

Senior Member J F Toohey

CATCHWORDS – National Disability Insurance Scheme – access –– ischaemic heart disease – cardiomyopathy  – Conn’s syndrome – lumbar disc injury – sciatica – whether applicant satisfies disability requirements – whether applicant has a disability attributable to an impairment – chronic health conditions – whether applicant’s impairments permanent or likely to be permanent – whether impairments result in substantially reduced functional capacity in one or more relevant activities – whether applicant’s impairments affect his capacity for social or economic participation – whether applicant requires support from the NDIS for his lifetime – decision under review affirmed

Legislation

National Disability Insurance Scheme Act 2013 ss 3, 4, 8, 9, 13, 21(1), 22, 23, 24(1), 28(1), 34(1), 209(3)

Cases

Mulligan and National Disability Insurance Agency [2014] AATA 374

Mulligan and National Disability Insurance Agency [2015] FCA 544

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

Secondary Materials

National Disability Insurance Scheme (Becoming a Participant) Rules 2013
Operational Guideline – Access – Disability Requirements
National Disability Insurance Scheme Bill 2012 Second Reading Speech

National Disability Insurance Scheme Bill 2013 Explanatory Memorandum

REASONS FOR DECISION

Senior Member J F Toohey
Professor R McCallum AO

Introduction

  1. Mr Dale Mulligan has ischaemic heart disease and cardiomyopathy, Conn’s syndrome, and bilateral sciatica caused by L4/L5 and L5/S1 disc protrusions.  In August 2013, he applied to become a participant in the National Disability Insurance Scheme (NDIS). 

  2. The National Disability Insurance Agency (NDIA) decided that Mr Mulligan did not qualify to become a participant in the NDIS because he did not meet the disability requirements in s 24(1) of the National Disability Insurance Scheme Act 2013 (the Act). Mr Mulligan sought review of that decision.

  3. On 13 June 2014, the Tribunal affirmed the NDIA’s decision that Mr Mulligan did not meet the disability requirements in s 24(1): Mulligan and National Disability Insurance Agency [2014] AATA 374.

  4. On 3 June 2015, the Federal Court set aside the Tribunal’s decision and remitted the matter to the Tribunal for determination according to law: Mulligan v National Disability Insurance Agency [2015] FCA 544.

  5. For convenience, we will refer to the Tribunal’s first decision as Mulligan No 1 and to the judgment of Justice Mortimer as Mulligan No 2.

    The National Disability Insurance Scheme Act 2013

  6. The objects of the Act are set out in s 3.  As well as giving effect to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (UN Convention), they include:

    ·    supporting the independence and social and economic participation of people with disability;

    ·    providing reasonable and necessary…

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AGLC
Mulligan and National Disability Insurance Agency [2015] AATA 974
Case
[2015] AATA 974
Decision Date

CaseChat Overview and Summary

In the case of Mulligan v National Disability Insurance Agency, the applicant, Mr Mulligan, sought to have the decision of the National Disability Insurance Agency (NDIA) to refuse his application for funding under the National Disability Insurance Scheme (NDIS) reviewed. The dispute centred on whether Mr Mulligan's impairments met the disability requirements under the NDIS Act, specifically whether they resulted in a substantially reduced functional capacity in relevant activities. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to decide whether Mr Mulligan satisfied the disability requirements by reason of his impairments, which included ischaemic heart disease, cardiomyopathy, Conn’s syndrome, and a lumbar disc injury causing sciatica. The primary legal issue was whether these impairments were permanent or likely to be permanent and whether they resulted in a substantially reduced functional capacity in one or more relevant activities, thereby affecting his capacity for social or economic participation. Additionally, the court had to determine if Mr Mulligan required support from the NDIS for his lifetime.

The court found that Mr Mulligan's sciatica was not, nor was it likely to be, permanent, which meant he could not satisfy the disability requirements based on that impairment. However, the court was satisfied that Mr Mulligan had a disability attributable to his heart condition, which was permanent and affected his capacity for economic participation. The court concluded that Mr Mulligan's impairments did not result in a substantially reduced functional capacity in relevant activities, such as mobility, self-care, or self-management, because his functional capacity was primarily limited by his sciatica rather than his heart disease. Consequently, the court found that Mr Mulligan did not satisfy the disability requirements under the NDIS Act, and the decision of the NDIA to refuse his application for funding was affirmed.

The court affirmed the decision under review, upholding the NDIA's refusal to fund Mr Mulligan's application for support under the NDIS.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is difficult to know what to make of s 24(1)(e). It is easier to say what it does not mean than what it does mean. Given that it is one of the disability requirements, its purpose must be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports. However, as we have determined that Mr Mulligan does not satisfy s 24(1)(c), it is not necessary for us finally to determine whether he satisfies s 24(1)(e). Conclusion In summary, we are not satisfied that Mr Mulligan’s sciatica is, or is likely to be, permanent. It follows that he cannot satisfy s 24(1)(b), and so cannot satisfy the disability requirements, on the basis of that impairment. It remains to consider whether Mr Mulligan satisfied the disability requirements by reason of his heart condition. We are satisfied that Mr Mulligan has a disability attributable to a physical impairment of his heart caused by ischaemic heart disease and cardiomyopathy. We are satisfied that the impairment is permanent and affects his capacity for economic participation. He therefore satisfies s 24(1)(a), (b) and (d). Mr Mulligan does not suggest that his functional capacity for communication, social interaction or learning is substantially reduced by reason of his heart disease (or his sciatica). We are not satisfied that Mr Mulligan’s heart disease results in substantially reduced capacity to undertake mobility, self-care or self-management. Taking into account the evidence of what Mr Mulligan is capable of undertaking in regard to mobility, we are not satisfied that his heart impairment results in substantially reduced functional capacity. To the extent that Mr Mulligan’s functional capacity to undertake self-care is limited, we find it is limited primarily by his sciatica. We accept that he experiences shortness of breath when undertaking some activities related to self-care but we are not satisfied that it substantially reduces his capacity for that activity. There is no evidence before us to support a finding that Mr Mulligan’s capacity to undertake self-management is substantially reduced It follows that Mr Mulligan does not satisfy s 24(1)(c). Because Mr Mulligan’s application cannot succeed by reason of his failure to satisfy s 24(1)(c), we have decided against finally determining whether he satisfies s 24(1)(e). We affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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