DALE MULLIGAN v NATIONAL DISABILITY INSURANCE AGENCY
File number:
NSD 693 of 2014
Judge:
MORTIMER J
Date of judgment:
3 June 2015
Catchwords:
ADMINISTRATIVE LAW – whether applicant had a substantially reduced functional capacity to undertake any of the activities in s 24(1)(c) National Disability Insurance Scheme Act 2013 (Cth) – deeming effect of r 5.8 National Disability Insurance Scheme (Becominga Participant) Rules 2013 (Cth) – whether global finding sufficient – failure by Tribunal to perform statutory task – decision set aside and review remitted
ADMINISTRATIVE LAW – whether adequate reasons given by Tribunal – failure by Tribunal to disclose in its reasons the evidence on which findings were based – even if first question of law not answered favourably to the applicant, the Court would be inclined to set aside decision and remit the review for failure to give adequate reasons
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mulligan v National Disability Insurance Agency [2015] FCA 544
Case
[2015] FCA 544
Decision Date
CaseChat Overview and Summary
In the case of Mulligan v National Disability Insurance Agency, the appellant, Mr Mulligan, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) that he did not have a substantially reduced functional capacity to undertake activities listed under section 24(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth). The primary legal issues before the court were whether the AAT had properly assessed Mr Mulligan's functional capacity and if it had provided adequate reasons for its decision. Additionally, the court considered the deeming effect of rule 5.8 of the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth) and whether the AAT's global finding was sufficient.
The court held that the AAT had not performed its statutory task correctly in assessing Mr Mulligan's functional capacity, as it failed to adequately consider the impact of his medical conditions on his ability to perform daily activities. The court also found that the AAT did not provide sufficient reasons for its decision, as it did not disclose the evidence on which its findings were based. Consequently, the court determined that the AAT's decision should be set aside, and the matter should be remitted to the AAT for determination according to law.
The court ordered that the decision of the AAT dated 13 June 2014 be set aside, the matter be remitted to the AAT for determination according to law, and the respondent pay the applicant's costs of and incidental to the appeal.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal dated 13 June 2014 be set aside.
2. The matter be remitted to the Tribunal for determination according to law.
3. The respondent pay the applicant’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
Background
Background to the litigation
For the reasons I set out below the Tribunal’s decision should be set aside, and the matter remitted for determination according to law.FACTUAL BACKGROUND There was no debate between the parties about the factual background in this Court, nor about the approach taken by the Tribunal to its fact finding. Mr Mulligan is 62 years old and suffers from a number of medical conditions which have meant that although he has worked in a variety of jobs, since 1994 he has received a disability support pension. As the Tribunal found, Mr Mulligan has continued to work since that time as he has felt able to do so. At the time of the Tribunal’s decision Mr Mulligan held a part-time position with the Samaritans, supporting people with autism and schizophrenia to live independently. This involved him visiting them, driving them to and from appointments or shopping, and accompanying them on social outings. He took extended leave from that position in March 2014, because of his sciatic pain. There was no dispute before the Tribunal that Mr Mulligan suffers from conditions which include chronic ischaemic heart disease, cardiomyopathy, Conn’s syndrome and sciatica. The Tribunal’s reasons describe Mr Mulligan as having given evidence before it “frankly”. The Tribunal said (at [4] of its reasons) Mr Mulligan was someone who “impressed us as a person determined not to let his conditions get the better of him”. It accepted his evidence describing the ways in which his medical conditions affected his daily life, and summarised his evidence in its reasons (at [30]-[33]):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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The conclusion the Tribunal reaches after that process is properly a matter for it, and not this Court, depending as it does on an evaluation of both lay and medical evidence. Remitter is the appropriate order: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mouratidis (2012) 200 FCR 464; [2012] FCAFC 29 at [35]-[36].CONCLUSION The appeal should be allowed, the Tribunal’s decision set aside and the matter remitted to the Tribunal. There is nothing in the material to suggest anything but the usual orders as to costs should be made.
Ratio Decidendi
Legal Principle Established
The parties made detailed and helpful written and oral submissions, which I have taken into account, and address as necessary below. CONSIDERATIONSome issues of construction The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities. One of the issues which this appeal presents is the height of the thresholds set, and the focus of the thresholds, at least through the operation of s 24(1). Some general observations should be made about these matters. The term “disability” is used in the Act, and in s 24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s 24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function. Although an impairment may, in general terms (and, for example, in the terms of Art 1 of the Convention on the Rights of Persons with Disabilities extracted above) be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act. At p 14 of the revised Explanatory Memorandum, the purpose of what became s 24 is described:Clause 24 sets out the disability requirements a person must satisfy in order to become a participant in the NDIS launch. The disability requirements are designed to assess whether a prospective participant has a current need for support under the scheme, based on one or more permanent impairments that have consequences for the person’s daily living and social and economic participation on an ongoing basis. This clause also implements recommendation 3.2 of the Productivity Commission report. Recommendation 3.2 of the Productivity Commission Inquiry Report, “Disability Care and Support” (31 July 2011), stated:Individuals receiving individually tailored, funded supports through the NDIS: Ÿshould have a disability that is, or is likely to be, permanent, and Ÿwould meet one of the following conditions:Ÿhave significantly reduced functioning in self-care, communication, mobility or self-management and require significant ongoing supportŸbe in an early intervention group, comprising individuals for whom there is good evidence that the intervention is safe, significantly improves outcomes and is cost effectiveIn exceptional cases, the scheme should also include people who would receive large identifiable benefits from support that would otherwise not be realised, and that are not covered by the groups above. Guidelines should be developed to inform the scope of this criterion and there should be rigorous monitoring of its effects on scheme costs.