Federal Court Hears NDIS Related Case, Overturns AAT Decision on Eligibility
Monday 29 June 2015 @ 11.35 a.m. | Legal Research
The Federal Court has made what appears to be the first judgment on a case involving eligibility under the National Disability Insurance Scheme Act 2013 (Cth) in Mulligan v National Disability Insurance Agency [2015] FCA 544. The Court considered an appeal from Hunter Valley man Dale Mulligan against a decision by the Administrative Appeals Tribunal that he did not meet the disability requirements set out in section 24(1) of the National Disability Insurance Scheme Act 2013 (Cth). The Federal Court upheld his appeal, finding that the AAT had made a global finding that did not suffice the “detailed consideration of each factor” under s 24(1) that was required by the legislation.
Advocacy co-ordinator for Disability Advocacy New South Wales Dee Mtonga told ABC News that the decision was a significant one:
“The NDIS is a new scheme… The legislation isn't tested and without it being tested we can't actually know whether it's working. So it going up to the highest level of appeal is just helping and moulding the scheme to better suit people in the future.”
The case has been remitted to the AAT for redetermination.
Section 24(1) & Decision
The Federal Court considered the reasoning process required for the AAT to evaluate Mr Mulligan’s claims. Section 24(1) sets out the criteria for a person meeting the 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.
Mr Mulligan and his legal team made a number of detailed submissions under each of these provisions. Mortimer J of the Federal Court acknowledged that the AAT was not supposed to consider every element of Mr Mulligan’s evidence, however, he found:
“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.” [at 60]
His Honour also found that the Tribunal did not give sufficient reasons for its decision.
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Sources:
Mulligan v National Disability Insurance Agency [2015] FCA 544
