First NDIS case in the Federal Court

First NDIS case in the Federal Court

19th Jun 2015

On 3 June 2015 the first NDIS case, Mulligan v National Disability Insurance Agency [2015] FCA 544, came before the Federal Court. The case was an appeal of the earlier AAT decision Mulligan v National Disability Insurance Agency [2014] AATA 374, and is concerned with eligibility to access the scheme.

Facts and the AAT decision

At the time, Dale Mulligan was 61 years old and he had received the Disability Support Pension since 1994. He suffered three different heart conditions in addition to sciatica from two ruptured discs in his back, making it difficult for him to complete day-to-day tasks.

Mr Mulligan subsequently sought funding through the NDIS for assistance with home maintenance, and in particular, someone to mow his lawn as he could not manage this task himself. His access request was first rejected by the National Disability Insurance Agency (NDIA) in October 2013, with the decision reaffirmed by internal review in January 2014. Mr Mulligan sought a review in the AAT in January 2014.

The main issue facing the tribunal was whether he satisfied the access criteria. The access criteria in the National Disability Insurance Scheme Act 2013 (Cth) (the Act) is comprised of: the age requirements (s22), the residence requirements (s23) and either the disability requirements (s24) or the early intervention requirements (s5).

The case was focused on the disability requirements under s24(1) of the Act. It was ultimately ruled that Mulligan’s impairment/s did not result in substantially reduced functional capacity for mobility and self-care as is required under s24(1)(c), with Mr Mulligan thus failing to qualify for the scheme.

The Tribunal had accepted, and there was no debate between the parties, that Mr Mulligan met the age and residence requirements in ss22 and 23 to be a participant in the NDIS.The Tribunal had given consideration to each of the five factors set out in s24(1), although it did not make concluded findings on all of them, given its view about Mr Mulligan not meeting the requirements in s24(1)(c). The determination of whether he had a “substantially reduced functional capacity” within the meaning of s24(1)(c) would become central to questions of law on appeal to the Federal Court.

The Federal Court decision

In his appeal, Mr Mulligan posed two questions to the Federal Court (at [43]). The first of these concerned whether the Tribunal erred in its decision that the appellant did not satisfy the requirements under s24(1)(c) in circumstances where it failed to respond to the claim as put by the appellant. 

In relation to the general approach to the characterisation of the Tribunal’s error, the Federal Court stated that the global approach of the AAT to s24(1)(c) was flawed, and it should have considered the categories individually. At [60], Mortimer J stated:

‘[W]here a decision-maker deals globally, or in a summary way, with detailed submissions, especially where the scheme makes detailed provision for assessment, it may be more likely the decision-maker will stray from the task in the statute. That in my opinion, and with great respect to the Tribunal, is what occurred here. By not examining individually, and by reference to the specific evidence and material before it, whether Mr Mulligan’s circumstances satisfied any of the four categories in s 24(1)(c) he relied upon, the Tribunal did not perform its task on review. That task required, in my opinion, a more detailed and particular consideration of each activity in s 24(1)(c) than the Tribunal embarked upon. That is because the evidence and material before the Tribunal did differ in respect of each category, and each category in s 24(1)(c) has a different focus. Parliament had made it clear an applicant need only satisfy one of the six categories set out in s 24(1)(c). Global consideration is likely to obscure particular aspects of the evidence and material before the Tribunal, as in my opinion it did in this case.’

After consideration of the evidence articulated to support each of the individual categories under s41(1)(c), Her Honour stated at [82]:

'I do not consider the Tribunal can be said to have turned its mind, as the statute requires, to the question whether, on all of the evidence and material before it, Mr Mulligan had a substantially reduced functional capacity to undertake any of the activities set out in s24(1)(c)(i) to (vi) of the Act, read with r5.8 of the Rules. Rather, it turned its mind, as demonstrated by its reasons, to some of the evidence and part of the statutory question.' 

The failure of the Tribunal to consider all of the evidence before it was held to be affected by a legal error of 'sufficient substance and materiality' to justify the judgment being set aside [82].

The second question asked whether the Tribunal erred in failing to provide adequate reasons for its decision or identify its findings on material questions of fact. Her Honour deemed that, given her conclusions as to the first question of law, it was unnecessary to answer this question. However, she did state that even if she had not answered the first question in Mr Mulligan's favour, she would have answered the second question in his favour (see [92]-[100]). 

The original decision of the AAT was therefore set aside, and the matter remitted to the Tribunal for reconsideration.

ALA member Bill Madden has noted that if Mr Mulligan is subsequently successful this will raise the 'secondary question of what benefits and supports should be provided to him' (to read more on Bill Madden's Wordpress, click here).

For more information on the AAT decision and the first NDIS cases to reach the courts, see Janine McIIwraith's article in the November/December 2014 edition of Precedent - Focus on Disability and Injury.

All NDIS decisions in the AAT can be viewed here.

Francesca Arciuli was the Media & Policy Assistant at the Australian Lawyers Alliance until November 2015.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: NDIS Francesca Arciuli