NDIS – First AATA decision on disability requirements

Mulligan and National Disability Insurance Agency [2014] AATA 374 appears to be the first decision of the Administrative Appeals Tribunal of Australia, addressing the interpretation of the NDIS section 24 disability requirements.

The applicant (aged 61 years) suffered chronic ischaemic heart disease, cardiomyopathy, an adrenal gland disease, and sciatica from two ruptured discs in his lower back as a result of a work injury some years earlier: [1] – [2]

He sought review of a decision by the National Disability Insurance Agency (NDIA) that he did not qualify to be a participant in the NDIS. His application was for funding through the NDIS for someone to mow his lawn which he could  not manage himself because of severe shortness of breath on exertion: [3].

The applicant met the age and residence requirements: [12]. Section 24 sets out the disability requirements as follows:

24  Disability requirements

             (1)  A person meets the disability requirements if:

                     (a)  the 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 National Disability Insurance Scheme for the person’s lifetime.

             (2)  For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

The Tribunal held at [59] that an applicant must meet all of the requirements in s 24(1) in order to meet the disability requirements.

As for social and economic participation the Tribunal held at [50]:

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….

On another point, the NDIA argued that it was reasonable to expect the applicant’s son, who lives at home, to provide informal support by way of mowing the lawn for him, and the Tribunal agreed. However, whether  needs 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): at [55].

The difficulty for the applicant here was section 24(1)(c) – the requirement for substantially reduced functional capacity in self-management. His application failed as the inability to mow his lawns did not crate a substantially reduced functional capacity (at [47]).




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