NDIS: Appeal to Federal Court on disability requirements

Mulligan v National Disability Insurance Agency [2015] FCA 544 appears to be the first NDIS matter to find its way to the Federal Court, having previously been considered by the AAT. The AAT had held that Mr Mulligan did not meet the disability requirements in section 24(1) of the National Disability Insurance Act 2013 (Cth).

Mr Mulligan suffered various medical conditions and was in receipt of a disability support pension. He applied to the NDIS for assistance with home maintenance and in particular lawn maintenance: see [9].

The NDIA and the Tribunal had formed the view that Mr Mulligan did not meet section 24(1) subsection c, which requires impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one of more of 7 named activities. Those are communication, social interaction, learning, mobility, self-care and self-management (see [26] for the full text of section 24.) Rule 5.8 (see [31]) had been created, informing the interpretation of the section.

The determination of whether a person has a substantially reduced functional capacity was central to the questions of law on the appeal. The Federal Court noted at [51] that the section 24 thresholds focused on the concept of impairments, in particular the severity and permanency of the impairments (at [52]).

The AAT decision was flawed in that it made a global finding without careful attention to the various statutory impairments required by section 24. See in particular the courts discussion at [78]. The matter at [103] was therefore remitted to the AAT for a proper consideration of section 24(1) subsection c.

It should be noted that even if Mr Mulligan’s reconsideration falls in his favour, there will  remain the secondary question of what benefits and supports should be provided to him.

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