NDIS: ‘Mulligan’ revisited.

The Federal Court had set aside an earlier AAT finding that Mr Mulligan did not meet the NDIS disability requirements (section 24); leading to a further consideration of his claim in Mulligan v National Disability Insurance Agency [2015] AATA 974. As before the NDIA decision was affirmed.

The applicant suffered cardiomyopathy and other conditions. The AATA focused on whether he met the section 24(1)(c) requirements: that the impairments result in a substantially reduced functional capacity to undertake one or more of communication, social interaction, learning, mobililty, self-care and self-management.

The NDIA submitted at [36] that the applicant did not have a disability with the meaning of the Act, but rather he had chronic health conditions appropriately supported by other agencies.

The decision of the Tribunal is quite long but the key points appear to be:

  • A chronic health condition may also be a disability: [43]
  • A  person may have a disability, and satisfy s 24(1)(a), without necessarily satisfying any of the other disability requirements. It is the work of the other requirements to distinguish those whose disability is serious enough to make them eligible for funded support. It is then the work of s 34(1) to determine, even if a person becomes a participant, what, if any, general and funded supports he or she can receive: [51]
  • The applicant has a disability ([52]) but some of his conditions are not likely to be permanent: ([60]).
  • In relation to the applicant’s submission that he has substantially reduced functional capacity to undertake mobility, self-care and self-management, it became necessary to assess which were affected by permanent impairments – none were.

The Tribunal summarised its findings as follows:

  1. 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).

  2. 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).

  3. We are not satisfied that Mr Mulligan’s heart disease results in substantially reduced capacity to undertake mobility, self-care or self-management.

  4. 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.

  5. 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.

  6. There is no evidence before us to support a finding that Mr Mulligan’s capacity to undertake self-management is substantially reduced

  7. It follows that Mr Mulligan does not satisfy s 24(1)(c).

  8. 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).

  9. We affirm the decision under review.

Status of operational guidelines

The Tribunal made comment in passing as to the status of the ‘Operational Guidelines’ made by the NDIA, noting at [31] that they ‘represent government policy and should be applied by the Tribunal unless there is good reason not to do so‘.




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