CATCHWORDS - National Disability Insurance Scheme - access -- ischaemic heart disease - cardiomyopathy - Conn's syndrome - lumbar disc injury - sciatica - whether applicant satisfies disability requirements - whether applicant has a disability attributable to an impairment - chronic health conditions - whether applicant's impairments permanent or likely to be permanent - whether impairments result in substantially reduced functional capacity in one or more relevant activities - whether applicant's impairments affect his capacity for social or economic participation - whether applicant requires support from the NDIS for his lifetime - decision under review affirmed

National Disability Insurance Scheme Act 2013 ss 3, 4, 8, 9, 13, 21(1), 22, 23, 24(1), 28(1), 34(1), 209(3)

Mulligan and National Disability Insurance Agency [2014] AATA 374

Mulligan and National Disability Insurance Agency [2015] FCA 544

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

National Disability Insurance Scheme (Becoming a Participant) Rules 2013

Operational Guideline - Access - Disability Requirements

National Disability Insurance Scheme Bill 2012 Second Reading Speech

National Disability Insurance Scheme Bill 2013 Explanatory Memorandum

1. Mr Dale Mulligan has ischaemic heart disease and cardiomyopathy, Conn's syndrome, and bilateral sciatica caused by L4/L5 and L5/S1 disc protrusions. In August 2013, he applied to become a participant in the National Disability Insurance Scheme (NDIS).
2. The National Disability Insurance Agency (NDIA) decided that Mr Mulligan did not qualify to become a participant in the NDIS because he did not meet the disability requirements in s 24(1) of the National Disability Insurance Scheme Act 2013 (the Act). Mr Mulligan sought review of that decision.
3. On 13 June 2014, the Tribunal affirmed the NDIA's decision that Mr Mulligan did not meet the disability requirements in s 24(1): Mulligan and National Disability Insurance Agency [2014] AATA 374.
4. On 3 June 2015, the Federal Court set aside the Tribunal's decision and remitted the matter to the Tribunal for determination according to law: Mulligan v National Disability Insurance Agency [2015] FCA 544.
5. For convenience, we will refer to the Tribunal's first decision as Mulligan No 1 and to the judgment of Justice Mortimer as Mulligan No 2.

The National Disability Insurance Scheme Act 2013

1. The objects of the Act are set out in s 3. As well as giving effect to Australia's obligations under the United Nations Convention on the Rights of Persons with Disabilities (UN Convention), they include:

• supporting the independence and social and economic participation of people with disability;
• providing reasonable and necessary supports for participants; and
• enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.

1. Section 4 sets out general principles by which actions under the Act are to be guided. The principles affirm the rights of people with disability to realise their full potential, to participate in and contribute to social and economic life to the extent of their ability, to determine their own best interests to the full extent of their capacity, to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
2. Section 8 provides a "simplified outline" of the Act which shows that the NDIS comprises support for people with disability in the form of:

(a) the provision of services or activities that are in the nature of coordination, strategic or referral services or activities; and

(b) funding to persons or entities to enable them to assist people with disability to participate in economic and social life; and

(c) individual plans under which reasonable and necessary supports will be funded for certain people, called participants.

1. These forms of support correspond with the three main functions of the NDIS recommended by the Productivity Commission in its report, Disability Care and Support, Report No 54, 31 July 2011 and the "three different populations of 'customers' and costs" associated with them (at 158). The NDIS is modelled on the Commission's recommendations.
2. The Commission observed (at 158) that "[p]eople with a disability have different needs and aspirations and encounter different barriers" and it was not intended that the NDIS address the care and support needs of all individuals. Rather, the scheme should focus on those whose needs are greatest. To this end, the Commission recommended (Recommendation 3.1) it should:
   • cost-effectively minimise the impacts of disability, maximise the social and economic participation of people with a disability, create community awareness of the issues that affect people with disabilities and facilitate community capacity building. These measures should be targeted at all Australians
   • provide information and referral services, which should be targeted at people with, or affected by, a disability
   • provide individually tailored, tax-payer funded support, which should be targeted at people with significant disabilities who are assessed as needing such support...

1. These functions of the NDIS were described by the Commission (at 158-159) in terms of "tiers":

• Tier 1: Everyone
• Tier 2: People with, or affected by, disability
• Tier 3: People with disability for whom NDIS-funded, individualised supports would be appropriate

1. Tiers 1 and 2 are reflected in the provisions of Chapter 2 as well as in Chapter 3 of the Act. In particular, s 13 provides for general supports for persons who are not participants in the NDIS, and funding to individuals and organisations to help people with disability participate in social and economic life. Tier 3 is reflected in the provisions of Chapter 3 which concerns Participants and their plans.

1. A person who meets the access criteria in s 21 of the Act becomes a participant in the NDIS: s 28(1). The access criteria comprise age, residence, and disability or early intervention requirements: s 21(1). A person who becomes a participant is eligible for funding for "reasonable and necessary supports" in accordance with s 34(1).
2. Mr Mulligan meets the age and residence requirements, the details of which are in ss 22 and 23. The question in these proceedings is whether he meets the disability requirements in s 24(1).

1. Section 24 (1) provides that 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:

(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.

1. A person must satisfy all of the requirements in s 24(1) in order to become a participant in the NDIS.
2. When these proceedings commenced, the NDIA did not dispute that Mr Mulligan satisfied subsections 24(1)(b), (d) and (e). As evidence emerged during the course of the hearing, however, that position changed and subsections 24(1)(b) and (d) were in dispute. As well, we took the view that we required parties' submissions about the meaning and application of subsection 24(1)(e).

1. We have before us the information that was before the Tribunal at the time of our first determination and the transcript of the hearing on 12 June 2014. The following additional information was submitted in these proceedings:

• further oral evidence from Mr Mulligan;
• a statement of evidence from Mr Mulligan's wife, Violet Mulligan, who was unable to attend the hearing on account of ill-health;
• a report and oral evidence of Dr John Carter, a general physician and endocrinologist, who visited Mr Mulligan at home in September 2015 for the purposes of assessing his functional capacity in each of the areas of activity in s 24(1)(c).

1. Mr Mulligan is now 63. He lives with his wife and adult son.
2. In 1983, while employed as a transit police officer for the NSW State Rail Authority, Mr Mulligan injured his back when he fell over some steps and suffered L4/L5 and L5/S1 disc protrusions. He gave evidence that the pain resolved with physiotherapy over a period of about one month. This appears to be at odds with his written statement that he ceased employment with the State Rail Authority in November 1989 because of his back injury but nothing turns on this.
3. Mr Mulligan worked for the next two years as a security and maintenance manager before returning to New Zealand with his wife and son where he worked as a fraud investigator. He resigned from that position in July 1994 after being diagnosed with heart failure. He returned to Australia with his family in mid-1994.
4. In August 1994, Mr Mulligan was granted a disability support pension on account of his heart failure. In accordance with social security law at the time, he was, and still is, able to work up to 30 hours a week without affecting his qualification for the pension. Between August 1994 and early 2003, he worked at different times as a casual handyman, a customer services officer at the Department of Social Security, and as a manager of a motor market.
5. From 2005, after completing a Diploma of Welfare and Community Services, Mr Mulligan worked for a number of community service organisations. He evidently enjoyed the work and we have no reason to doubt his evidence that he was a valued worker. From 2011 until March 2014, he was employed for 27 hours a fortnight as a Welfare Support Officer for the Samaritans, supporting people with autism and schizophrenia to live independently in the community.
6. In March 2014, Mr Mulligan took leave from his position with the Samaritans because of his sciatic pain. He gave evidence that he could manage his job, even with his heart condition, because it "did not put any great tax on my physical ability" but he could not manage with his back pain. At the time of the first hearing, the Samaritans were keeping his position open for him; he hoped to be able to return to work but it was not to be and he resigned in about July 2015. He has not been employed since.

1. Mr Mulligan has provided reports from Dr Paul Trevillian consultant physician in nephrology, Dr Bruce Bastian cardiologist, and Dr Michael Ferguson his general practitioner, which show that in 2002 he had been diagnosed with hypertensive cardiomyopathy. Dr Trevillian reported at that time that Mr Mulligan "almost certainly" had primary Conn's syndrome, a condition in which the adrenal glands produce an excess of aldosterone, and this diagnosis was further supported by his "dramatic response" to medication with an associated "significant improvement in his wellbeing".
2. Mr Mulligan gave evidence to the effect that he had been advised that his heart failure had been "brought upon" by Conn's syndrome but he was not aware he had the condition until this was explained to him. In an undated report in support of his application to become a participant in the NDIS, in which Dr Ferguson described his "impairment/diagnosis" as:

1. Dr Ferguson did not refer to Conn's syndrome as a separate impairment or condition and we do not understand Mr Mulligan to say that Conn's syndrome of itself causes him any functional impairment.
2. Dr Carter gave evidence at the hearing that Conn's syndrome is a "classical endocrine disorder" which can be associated with ischaemic heart disease and cardiomyopathy. He concluded that, in light of the reports indicating successful treatment, there was no disability associated with Mr Mulligan's Conn's syndrome.
3. In these circumstances, we do not propose to consider Mr Mulligan's Conn's syndrome as a separate impairment but rather as part of his ischaemic heart disease and cardiomyopathy.

Does Mr Mulligan satisfy the disability requirements?

1. By s 209(3) of the Act, the Minister has made Rules about matters concerning determinations under the Act. Relevant to these proceedings are the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (the Rules). The Rules form part of the legislation.

1. The CEO of the NDIA has made Operational Guidelines to assist staff in making decisions and performing other functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634. Relevant to these proceedings is Operational Guideline - Access - Disability Requirements (the Operational Guideline).

(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;

1. The Act does not define the terms "disability" or "impairment". ("Participant's impairment" is defined in s 9 to mean an impairment in relation to which the participant meets the disability or early intervention requirements to any extent).

1. The terms "disability" and "impairment" are commonly used interchangeably but the language of s 24(1)(a) ("a disability that is attributable to" one or more impairments) indicates a difference between them for the purposes of that provision. Whatever the difference is, however, it is not apparent from the Act.

1. The Explanatory Statement to the Rules explains that they provide "greater specificity and clarity around the definitions for 'disability' and 'early intervention'". The NDIS "will be open to people with a permanent disability which results in substantially reduced functional capacity". In this context, it is apparent that the Explanatory Statement means open to those who will qualify to become participants. It continues:

Although the definition of "disability" under these Rules does not precisely correspond with that of the [UN Convention], the eligibility and assessment of need has been based on the World Health Organisation's International Classification of Functioning, Disability and Health (ICF). The narrower definition of "disability" employed by the [NDIS] is aimed at achieving a legitimate purpose by targeting those people with disability who have a significant impairment to their functional capacity. This functional definition of disability focuses on outcomes for the segment of the disability population that has the most unmet need.

1. This "functional definition" of disability is reflected in particular in the disability requirements in ss 24(1)(b) and (c) which narrow access to funded supports to those with a permanent impairment that results in substantially reduced functional capacity. It is also reflected in the requirement in s 24(1)(d) that a person's capacity for social or economic participation be affected. However, it is the impairment, rather than the disability attributable to it, that must meet those requirements.

1. The NDIA does not dispute that Mr Mulligan has physical impairments but submits that he does not have "a disability" within the meaning of the Act. Rather, it is submitted, his conditions are properly characterised as "chronic health conditions" that are appropriately supported by other agencies such as the Commonwealth and New South Wales Departments of Health.

1. In support of this submission, the NDIA contends that "disability" in s 24(1)(a) takes its meaning from the nature and purpose of the NDIS and the objects and principles in ss 3 and 4 of the Act. In giving effect to the objects of the Act, it is submitted that regard must be had to the broader context in which the NDIS is situated which includes the UN Convention, the National Disability Strategy 2010-2020 endorsed by the Council of Australian Governments (COAG) in February 2013, the National Disability Agreement endorsed by COAG in 2009, Principles to determine the responsibilities of the NDIS and other systems, agreed to by COAG in April 2013, and the report of the Productivity Commission.

1. For Mr Mulligan it is contended that "disability" in s 24(1)(a) must be given wide meaning and that, regardless of whether he satisfies the other disability requirements, he has a disability and satisfies s 24(1)(a).

1. It is clear that the NDIS was not intended to provide funded supports (as opposed to general supports) for every person with a disability. Noting that "[t]here is no single definition of disability", the Productivity Commission said its terms of reference indicated that the scheme was "intended to cover a subset of those affected by disability" (emphasis added). As a result, "the size of the relevant group is much smaller than all those with a disability" (emphasis added): (at 94-95).

1. The intended beneficiaries of funded supports are the "more than 400,000 people living with significant and permanent disabilities" whose "human and economic potential... and... contribution" the nation is being "robbed of". For the first time, those people "will have their needs met in a way that truly supports them to live with choice and dignity" so that "the consequences of disability - isolation, poverty, loss of dignity, stress, hopelessness and fear of the future" might be avoided: National Disability Insurance Scheme Bill 2012 Second Reading Speech.

1. Consistent with this intention, the purpose of having prescribed access criteria is explained in the revised Explanatory Memorandum to the National Disability Insurance Scheme Bill 2013 as follows:

• to ensure that reasonable and necessary supports are provided to people with significant and permanent care and support needs;
• to ensure the financial sustainability of the scheme; and
• to identify which people with disability come within the sphere of the launch sites, including residing in a state which has agreed to become a host jurisdiction.

1. For all that, we do not think the interpretation of "disability" in s 24(1)(a) contended for by the NDIA can be sustained.

1. Firstly, to characterise a condition as a "chronic health condition" does not preclude it from also resulting in "a disability". Whether the NDIS should provide funded supports for a person with that condition is another matter. Recognising that "chronic medical conditions can be disabling", the Productivity Commission said (at 184):

The Commission does not favour a blanket 'yes' or 'no' response to the question of whether individuals with chronic health conditions would be covered by the scheme. Rather, the answer should be informed by whether the NDIS is the most appropriate system to meet the person's needs.

1. To this end, s 34(1) of the Act provides that one of the matters of which the CEO must be satisfied before specifying in a participant's plan the reasonable and necessary supports that will be funded is that:

(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i) as part of the universal service obligation; or

(ii) in accordance with reasonable adjustments required under law dealing with discrimination on the basis of disability.

1. Before coming to s 34(1), however, a person must first satisfy the disability requirements in s 24(1) and become a participant in the NDIS. In other words, whether supports for a person with a chronic health condition are most appropriately funded by the NDIS or are more appropriately funded by the general health system is not a question for s 24(1).

1. Considering the meaning of "disability" in s 24(1)(a), Mortimer J in Mulligan No 2 said at [16]:

One matter the Act is not concerned with, at least in terms of access to the NDIS as a participant, is how a person came to have a disability. Whether it be through birth, disease, injury or accident, all persons who meet the access criteria can be participants, and all persons with disabilities may be assisted in other ways contemplated by Ch 2 of the Act.

1. Mortimer J observed that the separate function conferred on the NDIA by s 13 "indicates the Act intends a wide concept of 'disability'" and that "people with a disability" is not to be construed as limited to people who meet the access criteria: at [17]-[18].

1. Section 13 provides that the NDIA may provide general support to, or in relation to, people with disability who are not participants. By s 13(2), general support means:

(a) a service provided by the [NDIA] to a person; or

(b) an activity engaged in by the [NDIA] in relation to a person, that is in the nature of coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.

1. The expressions "person with disability" and "people with disability" ("persons with disabilities" in the UN Convention) are used in the Act in diverse contexts including its objects and principles, provision of notices to "a person with disability" in s 7, and the membership of the Advisory Council, the majority of whom must be "people with disability": s 147(5). Those provisions do not suggest that "disability" is synonymous with participants.

1. In support of the contention that Mr Mulligan does not have a disability for the purposes of s 24(1)(a), the NDIA submits that he requires only those supports within the Tier 2 functions of the NDIS. We do not think that submission advances the position contended for. Tier 2 equates to "funding to persons or entities to enable them to assist people with disability to participate in economic and social life" in s 8. The Act is clear that supports of this kind may be provided to people who, although not participants, are nevertheless people with disability.

1. In our view, 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.

1. Despite the intention that a subset of people with disability will meet the access criteria and be eligible for funded supports, in our view, "disability" in s 24(1)(a) cannot be read down in the way contended for by the NDIA. We find that Mr Mulligan has a disability for the purposes of s 24(1)(a).

1. The NDIA submits that the need to ensure the financial sustainability of the NDIS is "an essential underpinning of the scheme, and a guiding principle in setting relevant limitations in the scheme's application". The NDIA contends that "disability" in s 24(1)(a) must be read in light of the potential consequences for the financial sustainability of the scheme if given the meaning contended for on behalf of Mr Mulligan.
2. The financial sustainability of the NDIS is of critical importance if it is to meet its objectives. The need to ensure its financial sustainability is a recurrent theme throughout the Commission's report and in the legislation. To this end, the Act provides that, when giving effect to the objects of the Act, or performing any function or exercising any power under the Act, regard must be had to the need to ensure the financial sustainability of the scheme: s 3(3)(b), s 4(17).

1. The Productivity Commission recognised the need for "mainstream" services to retain responsibility for services for all people, including those with disability, as an important aspect of ensuring the financial sustainability of the scheme. Considering the intersection of the NDIS and the health system, the Commission recommended that primary care and hospital-based services, and medical and pharmaceutical products, should remain outside the scope of the scheme. This clear intention to delineate the respective responsibilities of the health system and the NDIS is seen in s 34(1)(f) and in the Rules.

1. Even then, the Commission recognised (at 182) that "it is likely that some ambiguity will remain around the respective responsibilities of the health and disability system" particularly "which system is responsible for meeting the support needs of individuals with a chronic health condition".

1. There are implications for the financial sustainability of the NDIS if persons who were not intended to be participants can meet the access criteria. Section 32 requires the CEO to facilitate the preparation of a plan for each participant. While no guarantee of funded support, preparation of plans is itself resource-intensive. Nonetheless, the requirement to have regard to ensuring the financial sustainability of the NDIS cannot of itself require a construction of "disability" in s 24(1)(a) that is not supported by, or is at odds with, other provisions.

(b) the impairment or impairments are, or are likely to be, permanent;

1. When Mr Mulligan's application was before the Tribunal previously, the NDIA accepted, and we were satisfied on the medical information before us, that his ischaemic heart disease and cardiomyopathy, and his lumbar disc injuries, were permanent impairments.

1. We remain satisfied that Mr Mulligan's ischaemic heart disease and cardiomyopathy, and associated Conn's syndrome, are permanent impairments.

1. In these proceedings, Mr Mulligan provided additional evidence about his disc injury and his sciatica. In particular, he gave evidence about his discussions with three neurosurgeons and his general practitioner. For the following reasons, we are now of the view that his lumbar disc impairment and associated sciatica is not, or is not likely to be, permanent. That conclusion has important implications in particular for our consideration of whether Mr Mulligan satisfies s 24(1)(c).

1. In his undated report in support of Mr Mulligan's application for access to the NDIS, Dr Ferguson responded to the question: "Are there any clinical medical treatments that would remedy [the impairment]". In relation to Mr Mulligan's heart condition, he wrote "No improvement expected". In relation to Mr Mulligan's "multiple level disc (lumbar) injury" he wrote: "Surgery".

1. Mr Mulligan gave evidence that his original back injury in 1983 resolved with physiotherapy over about one month. He had a recurrence of back pain in 1993 while putting his son into a car seat in the back of the car. Again, the pain resolved with physiotherapy over about one month.

1. In 2012, Mr Mulligan had a recurrence of back pain while attempting to lift an object in his back yard. He gave evidence that his doctor referred him to a neurosurgeon who asked if he would accept surgery. Mr Mulligan said he would. In the meantime, he had conservative treatment including cortisone injections after which the neurosurgeon said there was nothing further he could do for him. The reasons are not clear. Mr Mulligan gave evidence that, in any event, by February 2014 when he was involved in a car accident, he was "asymptomatic"; he "knew the problem was there but it wasn't causing any great distress".
2. In February 2014, Mr Mulligan's car was hit from behind. He was working at the time and the workers compensation insurer accepted liability for his injury. Mr Mulligan gave evidence that his specialist advised that the accident had exacerbated his back condition. For reasons which are not available to us, the insurer has declined to pay for surgery.
3. Mr Mulligan gave evidence, which we accept, that his sciatic pain has worsened since the car accident and he has been in pain every day since. He takes Endone twice a day and six Panadol Osteo tablets. He has lost all sensation in his left and right toes and the ball of his left foot. As a result, he tends to rely on his right leg and walks with a limp. He uses a walking stick "on a daily basis".
4. Mr Mulligan gave evidence that he has seen two neurosurgeons since the car accident. He told us that the first advised that he needed a spinal disc decompression for which there were "no guarantees" but it would be "the best bet". According to Mr Mulligan, the second neurosurgeon said "exactly the same thing".
5. Mr Mulligan told us that he understands that, "without intervention", his condition is permanent. He gave evidence that, in light of the insurer's refusal to cover the cost of surgery, he has asked his general practitioner to put him on a waiting list for surgery in the public system; if he could, he would have the operation "tomorrow" so that he could get back to work. Whether that is actually possible would remain to be seen.
6. Spinal conditions are not Dr Carter's specialty but he gave evidence as a general physician that, depending on the cause, conservative treatment for sciatica usually works. Although a treatment of last resort, surgery can be successful.

1. Rule 5.4 provides that an impairment is, or is likely to be, permanent only if there are no known available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy it.
2. For Mr Mulligan it was submitted that there can be no guarantee of a successful outcome to surgery and that his evidence amounts to no more than his hope for a successful outcome.
3. We have not seen reports from the neurosurgeons but, given that Mr Mulligan has apparently accepted their advice and wishes to undergo surgery, it is reasonable to conclude that it has some prospects of success. In any event, until the outcome of surgery is known, we are not satisfied that his sciatica is, or is likely to be, permanent.
4. It was submitted for Mr Mulligan that, if we determine that his sciatica is not, or is not likely to be, permanent, that does not preclude it from being taken into account in determining whether he satisfies the other disability requirements. In our view that cannot be correct. If it were, a person with a permanent impairment which has no effect on functioning could satisfy s 24(1) as long as he or she has another impairment which substantially reduces functioning in a relevant area even if it is only temporary.

(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:

1. Mr Mulligan concedes, and we are satisfied, that he does not have substantially reduced functional capacity to undertake communication, social interaction or learning. He maintains that he has substantially reduced functional capacity to undertake mobility, self-care and self-management.

1. Our finding that Mr Mulligan's lumbar disc impairment is not, or is not likely to be, permanent has important implications for our findings in relation to his functional capacity to undertake activities in the areas of mobility and self-care.
2. We have already said that we heard evidence from Mr Mulligan in these proceedings that we had not heard previously, or not in such detail, concerning the effects of his sciatica and his heart condition on his functional capacity for mobility and self-care. The evidence shows that, to the extent that Mr Mulligan's functional capacity is reduced in those activities, his sciatica features prominently in limiting his capacity. We are satisfied that, with regard to his capacity for mobility, it plays at least equal part with his heart disease. With regard to his capacity for self-care it plays by far the greater part.

1. As to the meaning of substantially reduced functional capacity, Rule 5.8 of the Rules provides:

An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management... if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. The relevant Operational Guideline states at cl 30:

... commonly used items could include glasses, walking sticks, nonslip bath mats, simple adapted kitchen utensils and dressing aids. Commonly used items also include items such as bathroom grab rails, hand rails installed at stairs and age-appropriate child safety locks.

A person is usually considered to be unable to undertake an activity effectively due to their impairment if they cannot safely complete a task within an acceptable time period. The person may complete the task more slowly or in a different manner to others and still be considered to be effective in the task.

1. In Mulligan No 2, Justice Mortimer said at [77] that Rule 5.8 does not necessarily exhaustively define the concept of "substantially reduced functional capacity":

As a deeming provision, r 5.8 has the effect of mandatorily including some people in the category of persons with substantially reduced functional capacity if the criteria in r 5.8(a), (b) or (c) are met. In that sense, a decision-maker must turn his or her mind to whether an applicant falls within the deeming effect of r 5.8. That is not necessarily the end of the exercise in terms of s 24(1)(c). The statutory task remains to consider whether a person's functional capacity is substantially reduced in any of the six specified areas.

1. It is not in dispute that Mr Mulligan was diagnosed with heart failure in 1994. In 2006, he was diagnosed with chronic ischaemic heart disease and underwent surgery to have two cardiac stents inserted. Following this surgery, he was diagnosed with depression which he says has not completely resolved.

1. There is no doubt that Mr Mulligan has serious heart disease and associated cardiomyopathy. Despite his cardiomyopathy remaining generally stable since 2002, he has been hospitalised on at least 20 occasions since then, including six occasions in the past year. He says, and we accept, that any of the occasions when his heart becomes arrhythmic is potentially fatal. From time to time he suffers panic attacks and has reduced his social and recreational activities for fear of provoking a life-threatening episode.

1. In Mulligan No 1, we determined that Mr Mulligan did not have substantially reduced functional capacity in undertaking mobility. Taking into account the additional evidence now before us, we have come to the same conclusion in these proceedings but for somewhat different reasons.

1. In a written statement filed in the earlier proceedings, Mr Mulligan stated that he can become "quite breathless very easily" even just walking up his short driveway which is sloped. He stated that movement makes his breathlessness worse and he cannot walk more than about 100 metres without becoming short of breath.

1. Mr Mulligan also described the "terrible pain" in his legs which prevent him walking "for more than about 50 metres without the pain becoming too much", and the difficulty he has with activities of daily living on account of the pain.

1. The transcript of the first hearing shows that Mr Mulligan gave evidence that he becomes breathless walking uphill and "on the flat". He said:

... [I] got very breathless... walking up the steps from Town Hall station to George Street [coming to the hearing] and I had to stop and hang onto the step for a little while there to get my breath back ...

1. Asked by the Tribunal if he could walk 100 metres without stopping if he went at a slower pace, Mr Mulligan said:

Well, I probably could but I guess I would stop halfway, have a bit of a rest but, yes, coming down George Street this morning I was very self-aware of how slow I was going compared to the rest of the traffic out on the street and I had people sort of zipping past me and I stuck over to the extreme left of it because I was walking slowly just so that I wouldn't get totally out of breath before I got here.

1. Mr Mulligan described one occasion when a friend left a trailer in his driveway and he had to move it in order to get his car out. He "lifted the trailer, pushed it out to the roadway" and then found he could not breathe. He thought he was going to die but slowly got some breath back and his wife, who saw what was happening, helped him back into the house where he could sit down.

1. Describing his work with the Samaritans, Mr Mulligan gave evidence he was employed as a community support worker. He worked mainly with people with autism and schizophrenia, and others with varying degrees of intellectual disability who were living independently in the community. His job was to support them in their day-to-day life. He would call on them to check how everything was at home, what food they had, what they were eating, and whether they had any problems. He would take them shopping, to doctors' appointments and to various entertainment programs such as outings to the art gallery and barbecues. He would drive from his home to work where he would pick up a work car and drive to clients' houses.

1. Mr Mulligan gave evidence that the Samaritans employed him knowing he had heart problems and they were "very good about it"; he was never put in a position that would jeopardise his health and he could work at his own pace. He was able to go at "a very very casual pace" when out with clients; it might take him twice as long as everyone else walking around a gallery but there were opportunities to rest, for example sitting down for a coffee. It could take him about half an hour to get through the shopping complex because he would have to stop and, if he had pushed himself, he would be "totally out of breath". On one occasion at the shopping centre, he "lost two clients" who "sprinted ahead" of him and "it didn't go down too well at work". At that point, he decided it was time to take some time off and "do something" about his back.

1. Mr Mulligan confirmed that he took leave of absence in March 2014 because of his sciatica and not on account of his heart condition. In response to questions by the Tribunal he said:

Yes. Yes. Not the heart problem. See, the work that I was doing it didn't overly tax me with my clients and ... because [I was] the person in charge on the day I could run most things at my - my own pace.

Mr Mulligan's oral evidence at the second hearing

1. Giving evidence at the second hearing, Mr Mulligan said his sciatica "creates a great difficulty" walking and lifting his left leg. He has difficulty walking up stairs and up an incline. If he is lying down, he has difficulty getting out of bed. We accept that evidence.

1. Describing his shortness of breath, Mr Mulligan gave evidence that it can take a long time to be able to breathe normally with physical activity; walking between 50 and 100 metres is "extremely difficult" and he often has to stop and take a breath. It can take five minutes to get his breath back and sometimes he has to sit down for 15 minutes; there have been occasions when he cannot get his breath back and an ambulance has been called. Mr Mulligan said he handles flat areas "a lot better than inclines"; he can manage "probably five stairs" and then has to stop. He acknowledged that "of course it's been impacted by having the sciatica as well" which prevents him walking more than 50 to 100 metres without resting.

1. Mr Mulligan gave evidence that activities such as lifting bags of groceries can result in shortness of breath. When he goes shopping with his wife, he leans on the trolley and she will generally lift the shopping into the car; when they get home his son will help take the groceries inside. He gave evidence that lifting things above shoulder height causes shortness of breath and he is restricted in his capacity to help with the housework. He uses a stick vacuum cleaner to vacuum one room before having a rest. In describing his limitations, it was evident that much of the difficulty Mr Mulligan has is due to the sciatic pain that comes with bending or lifting. Taking into account Ms Hedditch's evidence (below), we are satisfied that his sciatic pain plays a prominent part in the difficulty he has with tasks such as shopping and housework.

1. Mr Mulligan confirmed that he stopped working for the Samaritans because of the pain caused by his sciatica and not on account of his shortness of breath. He confirmed that he could do the job even with heart failure, and the shortness of breath associated with it, because "it didn't put any great tax" on his physical ability.

1. Ms Hedditch visited Mr Mulligan at his home in April 2014. She provided a written report of her assessment and gave oral evidence by telephone at the first hearing. She was not called to give evidence at the second hearing.

1. Ms Hedditch assessed the effect of Mr Mulligan's shortness of breath and sciatic pain on his ability in areas of mobility and self-care.

1. In her written report, Ms Hedditch described Mr Mulligan's severe shortness of breath as "significantly limiting" and said he had debilitating pain in his legs that he could only relieve temporarily with painkillers, stretching, hot baths, and sitting. He also had panic attacks, and numbness and a burning sensation in both feet due to nerve damage. He perceived his back and leg pain as "crippling" and reported that it prevented him from lifting heavy weights and walking more than "500 metres". (We accept Mr Mulligan's evidence that this should read 50 metres).

1. As to Mr Mulligan's mobility, Ms Hedditch reported that he "mobilised independently" but with a discernible limp; he used a walking stick for outdoor mobility when his pain (our emphasis) is particularly bad and he has not taken any pain relief. He was able independently to complete transfers to the toilet and bed "but with difficulty due to pain, weakness and shortness of breath from sciatica and heart disease".

1. Ms Hedditch reported that she observed Mr Mulligan become short of breath and flushed after walking up his nine metre-long ascending driveway and after walking 100 metres on level ground. She observed that he had to rest after negotiating two flights of stairs and carried heavy items with difficulty. He was unable to bend down to the floor because of his back pain and he reported pain after sitting for 30 minutes or driving for more than one hour. His breathlessness was exacerbated when carrying heavy items such as heavy shopping bags or completing activities above shoulder height.

1. Ms Hedditch reported that Mr Mulligan could feed himself and manage his medication independently. He bathed and dressed independently but with some difficulty because of his restricted movement. He could complete toileting independently but leaned against the top of the toilet and the wall to overcome his restricted movement. The pain caused significant sleep disturbances which made him fatigued and affected his energy levels.

1. Mr Mulligan told Ms Hedditch that his wife does most of the cleaning and laundry. He could do light household duties and, with rests, could use their lightweight vacuum cleaner. He occasionally helped hang out the washing but took "more than an acceptable time to complete the task" and needed frequent rest breaks. He and his wife shared meal preparation and he would sit if he was experiencing pain. They completed larger shops together but he could not carry heavy items and he used the shopping trolley to "manage pain symptoms and conserve energy".

1. Mr Mulligan told Ms Hedditch he feels breathless and fatigued, and his heart rate increases, after mowing three lengths of the backyard. On one of the last occasions he mowed his lawn, he continued despite his symptoms and was unable to settle his breathing and heart rate for eight hours. His symptoms were compounded by a panic attack.

1. Ms Hedditch recommended Mr Mulligan use aids to help conserve his energy and to compensate for his reduced range of movement in his lower legs. As well as a toe dryer, sponge, sock aid, shoe horn and an "Easi-reacher", she recommended he use an over-toilet aid for toilet transfers, and a bed stick to help in and out of bed transfers. She recommended a damaged roller mechanism on the sliding shower panels be repaired, and that he have assistance with lawn mowing. She also recommended he be referred to a pain clinic to manage his pain, and to a disability employment service for help with a job capacity evaluation and a supported return to work.

1. Giving evidence by telephone, Ms Hedditch said she thought Mr Mulligan's capacity for mobility and self-care was substantially reduced. That said, her opinion was that Mr Mulligan could complete tasks such as getting to the toilet and to bed, and bathing and dressing, without assistance, but was not doing them in the most effective way. She said the recommended aids would make his life easier, and would reduce his pain and conserve his energy.

1. Mr Mulligan gave evidence that he uses an "Easi-reacher" but he does not use any of the other aids recommended by Ms Hedditch. At the first hearing, he said he was not averse to using them and would try "anything that helps". At the time of the second hearing, for reasons which are not entirely clear, Mr Mulligan was not using any of the recommended aids.

1. Dr Carter visited Mr Mulligan at home on 8 September 2015 at the request of the NDIA. Given his specialty as a general physician and endocrinologist, it is not clear what particular expertise Dr Carter was expected to bring to the task of assessing Mr Mulligan's functional capacity in the relevant areas of activity. In so saying, we do not intend any disrespect to Dr Carter. As a general physician, he is well-placed to comment in general terms about a range of conditions but he does not suggest he has specialist expertise in ischaemic heart disease or cardiomyopathy, or in assessing functional capacity.

1. Dr Carter was provided with documents including reports from Dr Trevillian, Dr Bastian, Dr Ferguson and Ms Hedditch, before his visit. His written report is before the Tribunal.

1. With reference to Mr Mulligan's heart conditions, Dr Carter reported:

... Mr Mulligan becomes very breathless after walking on a flat area for 25 - 50 metres, such that he needs to have a rest for 5 minutes before continuing the walk. He has learnt to cope with this disability and the area which most bothers him is that he is unable to maintain his lawn and garden in a state that he would wish. He is only able to use the lawnmower for three traverses across the width of his property before he has to stop because of breathlessness. However, he is able to drive his car and can assist his wife shopping and is able to help with housework and he finds that he is able to vacuum one room at a time. He does not get angina with exertion but does occasionally get angina when sitting at home watching TV. His combined heart disease is sufficiently severe that he has had 6 admissions to hospital in 2015.

1. Considering the activities in s 24(1)(c), Dr Carter concluded in his report that Mr Mulligan had either no, or no "significant", reduction in functional capacity in any area by reason of his impairments save for in relation to mobility where he concluded that, by reason of his cardiomyopathy, Mr Mulligan did have substantially reduced functional capacity. Dr Carter wrote:

... there is a reduction in functional capacity due to the fact that he becomes breathless after walking on the flat for 25-50 metres and he has significant difficulty mowing his lawn due to breathlessness after pushing the mower for 3 traverses across his backyard.

1. Dr Carter said, based on Rule 5.8(a), he concluded:

Since Mr Mulligan is unable to "participate effectively or completely" in mowing his lawns due to breathlessness associated with cardiomyopathy, I would conclude that he has "substantially reduced functional capacity" with respect to mobility.

1. Dr Carter's conclusion about Mr Mulligan's substantially reduced functional capacity for mobility requires close consideration.

1. Giving evidence before the Tribunal, Dr Carter said Mr Mulligan greeted him at the door when he arrived and they walked a short distance to the dining room table. Mr Mulligan told him he was able to drive his car for about one hour before stopping and having to stretch his legs. Dr Carter said he had the impression, from what Mr Mulligan told him, that he could stop and walk around for five minutes and then get back in the car and keep driving. Mr Mulligan told him he could drive his wife to do the shopping and walk around the supermarket with her and assist in getting groceries back to the car, and he could vacuum one room at his own pace.

1. Dr Carter said he gained the impression that Mr Mulligan could do virtually anything around the house provided it was at his own pace. He had "worked out over the years what he could do without getting distressed" and, apart from the lawn mowing and the gardening, there was nothing that he indicated he really could not do.

1. The Tribunal asked Dr Carter by what measure he assessed Mr Mulligan as having "substantially reduced functional capacity with respect to mobility". Dr Carter said that he had regard to Rule 5.8(a) ("If the person is unable to participate effectively or completely in the activity") and, "taking it literally", because Mr Mulligan could not participate completely in mowing his lawn, he felt "there was no alternative" but to reach that conclusion.

1. Asked what he considered comprised mobility broadly, Dr Carter said he would interpret it as being able to get around for activities of daily living, walking around the house and garden and shops, "not climbing a mountain" or "walking 18 holes of golf". In that context, he said, Mr Mulligan is able to walk but not as far as he used to; he has to stop after 25 to 50 metres walking on the flat but otherwise he had the impression that Mr Mulligan could walk around the house and around the shops at his own pace.

1. Dr Carter gave evidence that he did not regard Mr Mulligan as having a problem with mobility; rather "a cardiac problem" was limiting him. He thought Mr Mulligan has a problem mobilising "as much as he would like to mobilise because of shortness of breath". We understand Dr Carter was drawing a distinction on medical grounds between a mobility problem relating to lower limbs, joints, muscles and so on, and one relating to a cardiac condition. We do not think the distinction relevant for our purposes because we have to consider the functional impact of an impairment.

1. Mobility is not defined in the Act but it is a commonly used term that should be given its ordinary meaning.

1. We understand mobility to mean the ability of a person to use his or her arms and legs in order to move around the home to undertake ordinary activities of daily living including the ability to undertake activities such as getting out of bed and out of chairs, moving around the house to the bathroom and toilet and using the bathroom and toilet. It includes the ability to leave the house and go out, for instance to work or shopping or to social occasions.

1. It is difficult, on the information before us, to determine the extent to which Mr Mulligan's mobility is limited by his shortness of breath and the extent to which his sciatic pain limits his mobility. However, we are satisfied that his sciatica plays a substantial part in limiting his capacity for walking distances, negotiating stairs and undertaking activities such as lifting heavy weights.
2. We accept that Mr Mulligan has substantially reduced functional capacity to mow his lawn. We accept that he has to stop from time to time to regain his breath when walking more than about 100 metres, in particular when walking up an incline, and when walking up flights of stairs. We accept that strenuous activities such as trying to shift a trailer by himself causes breathlessness and he has to rest and regain his breath.

1. However, we are not satisfied that Mr Mulligan's functional capacity is substantially reduced in the activity of mobility as distinct from in particular activities that require mobility. His capacity for mobility has to be viewed in the context not only of what he cannot do but also what he can do, even if with limitations.

1. Mr Mulligan is able to walk as long as he takes rests as necessary. He is able to negotiate stairs, with rests. The evidence is not that he requires such frequent or lengthy rests that he is unable effectively to complete his walk or climb stairs, even if he is slower than many others. Other than using a walking stick because of his back and leg pain, he does not require assistive technology or help from another person to complete most activities involving mobility.

1. Mr Mulligan's evidence was that he was able to do his work with the Samaritans even with his heart condition. He could work 27 hours each fortnight as long as he could go at his own pace. The very nature of his work helping others, visiting them at home and taking them on outings relied on his capacity for mobility. He was able to drive himself to and from work, and drive clients around. He could go in and out of the shopping centre and places like the art gallery.

1. Mr Mulligan's evidence is that he can undertake these activities without assistive technology, equipment other than a walking stick, or home modification. He is able safely to complete these tasks or activities within an acceptable time period even if he does so more slowly or in a different manner from others. He does not usually require assistance from other people to mobilise.

1. For these reasons we are not satisfied, on the information before us, that Mr Mulligan has substantially reduced functional capacity in the activity of mobility

1. The relevant Operational Guideline describes self-care as "eg. daily showering, bathing, dressing, eating, toileting and grooming; and/or special health care needs attended to by self, family members or carers": cl 30.

1. In his written statement, Mr Mulligan said his sciatic pain affects him "in almost everything" he does:

... be it sitting, bending, standing, walking, carrying heavy things, lifting things and sleeping and trying to dress myself. Even going to the toilet I have difficulty with. It can take me a very long time to do things because of the pain I suffer and my shortness of breath and risk of having a panic attack.

My wife gives me a lot of help in a lot of what I do each day such as shopping and cooking and putting things away and getting things out above head height and dressing me and doing the laundry. Cooking can be painful for me because of all the standing in the same position aggravates my sciatica. So I sit down a lot however, that has its limitations because you can't do all your cooking sitting down, so I am quite reliant on my wife to help me cook and prepare meals. Bending towards the oven and taking things out of the oven can really cause me a lot of pain so I rely on my wife. I can't even vacuum by myself. I cannot mow the lawns without risking having to go to hospital. My wife helps carry shopping bags because I can't carry them. Carrying the washing out is impossible for me because the washing is too heavy and too far to carry. Also, the motion of putting my hands up on the line causes sharp pains in my back. I also have to have her help to dress me from the waist down. This includes, helping me put my underwear, pants, socks and shoes on. Anything below the waist when I have to bend over I need help.

1. Giving evidence at the second hearing, Mr Mulligan said that showering "is again a little bit difficult". He said it takes him a lot longer to shower and it is a lot more difficult to attend to anything below the waist because it requires bending. He said when showering, "from the waist up that's fairly okay". He can wash his hair and upper body but he uses a loofah to scrub his feet and legs. When he gets out of the shower, drying from the waist up is "relatively easy" but anything below the waist requires adaptation. By way of example, he said he dries his legs by pulling a towel from front to back; when drying his feet and toes he lifts his left leg onto the edge of the bath, drops the towel into the bath, then pulls the towel between his toes; it is more difficult with the left foot than the right.

1. As for dressing, Mr Mulligan gave evidence that dressing himself above the waist is "fine". When putting on underwear and trousers he supports himself against a wall and manoeuvres into them; he needs help from his wife putting on his shoes and socks. He has some difficulty with toileting and he leans on the wall in order to sit down on the seat; he can "usually accommodate" using toilet paper.

1. In response to questions from the Tribunal about whether it was his sciatica or his shortness of breath that limited him, Mr Mulligan said that he gets short of breath if he has to bend to do something. We accept that evidence but we are satisfied that, to the extent that he is limited in his functional capacity for self-care, it is his sciatica that limits him, with his shortness of breath being an additional factor rather than of itself reducing his capacity.

1. In her written statement, Mrs Mulligan said Mr Mulligan's back became worse after the car accident in February 2014 and, since then, he has been in severe pain and walks with the help of a walking stick. She said that, due to his heart failure, "he gets very short of breath quite quickly after even a mild activity". Sometimes she can "hear him in the garden swearing and cursing at himself when he is in pain. I think he goes outside as he doesn't want me to know and to upset me".

1. In relation to personal care, Mrs Mulligan said that some mornings her husband cannot get out of bed due to the pain particularly in his left leg; she has to gently help move his legs and help him get up. He finds it hard to sleep at night on account of the pain in his legs. She said:

Dale has difficulties putting on his shoes and socks because of both his leg problem and heart condition. Bending over and lifting his leg causes him extreme pain. I generally help but must be very gentle and only lift up his ankle a bit to put on his sock. If I accidentally lift his leg he cries out in pain. When the pain is really bad I also have to help Dale pull up his pants and underpants. Dale can dress himself from the waist up without my help.

Sometimes I help Dale with showering because he can't bend down to wash his feet and legs, and has difficulties washing his back. He really doesn't like taking my help, he's a very proud man, but he has no choice. However he won't let me help him when he is going to the toilet.

1. Mrs Mulligan went on to describe the difficulties Mr Mulligan has with household activities. Although it is not clear what she attributes these difficulties to, she refers only to his sciatic pain and not to his heart condition.

1. We accept Mr Mulligan's evidence that he has difficulty with activities relating to self-care. We accept that it he has to adapt in order to wash and dress himself below the waist. We accept that his wife helps him from time to time. We are satisfied that, usually, he manages, even if with some difficulty, without assistance from his wife

1. However, in our view the evidence is clear that Mr Mulligan's difficulties in activities of self-care are overwhelmingly due to his sciatic pain and not his breathlessness. We accept that he experiences shortness of breath when bending below the waist but we are not satisfied that his shortness of breath itself reduces his functional capacity.

1. For Mr Mulligan, it is submitted that the term "self-management" includes such things as shopping for oneself, cooking, maintaining the home and the yard, and cleaning, and that his capacity for that activity is reduced. The NDIA submits that "self-management" should be understood in the sense described in the Productivity Commission Report as follows:

"Self-management" is a term employed in the Victorian Disability Act 2006. According to the Victorian Department of Human Services (2009), self-management includes being in control of one's behaviour, insight, memory and decision making. For example, the ability to independently make decisions, including decisions with medium to long-term implications or to make long-term plans.

1. The relevant Operational Guideline describes self-management as "planning and organising daily life and managing household personal finances". In contrast, self-care is described in terms of activities to do with personal care, hygiene, grooming and feeding oneself.

1. We prefer the interpretation of self-management contended for by the NDIA. In our view, activities such as shopping for oneself and cooking are more appropriately viewed as relating to self-care. Self-management connotes a cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself. So understood, nothing in the information before us suggests that Mr Mulligan has reduced capacity for functioning in any area of self-management.

1. We are not satisfied on the information before us that Mr Mulligan has substantially reduced functional capacity to undertake self-management.

(d) the impairment or impairments affect the person's capacity for social or economic participation;

1. In the earlier proceedings, the NDIA submitted that Mr Mulligan retained substantial capacity for social and economic participation and did not meet s 24(1)(d). We did not agree. We accepted that Mr Mulligan retained substantial capacity for social and economic participation but the test is only that a person's capacity be affected, not that it be affected to any particular degree.

1. We accept that Mr Mulligan's heart impairment affects his capacity for economic participation. He was able to work full time up until his heart condition forced him to reduce work and he went on to a disability support pension. Since then, he has not been able to work full-time.

1. For completeness we would add that it does not appear that Mr Mulligan's heart condition affects his capacity for social participation. Rather, it appears that the depression he suffers from time to time as a result of his heart condition and sciatic pain reduces his interest in seeing friends and joining in social activities. As we find he satisfies this requirement in any case, it is not necessary finally to determine this question.

1. We accept that Mr Mullligan's sciatica affects his capacity for economic participation at present but, because we are not satisfied that it is, or is likely to be, a permanent impairment, we have not considered it under this criterion.

1. We are satisfied that Mr Mulligan meets s 24(1)(d).

(e) the person is likely to require support under the National Disability Insurance Scheme for the person's lifetime.

1. Neither the Act nor the Rules offer guidance on the interpretation of s 24(1)(e). The relevant Operational Guideline states at cl 38 that s 24(1)(e) requires a delegate to consider whether:

1. the person is likely to require support of a kind that is funded or provided under the NDIS; and
2. the support is likely to be required for the rest of the person's lifetime.

1. The NDIA accepts that Mr Mulligan will need access to general supports for the rest of his life. The NDIA contends, however, that s 24(1)(e) requires consideration of whether the supports sought by an applicant are of a kind that would be reasonable and necessary within the meaning of s 34(1). We do not think that interpretation can be correct.
2. There does not appear to be any basis for reading "support" in s 24(1)(e) differently from "supports" elsewhere in the Act. In relation to s 24(1)(e), the Operational Guideline states at cl 39:

It is important to note that this test can include consideration of a person's likely need for both general supports provided under the NDIS and reasonable and necessary supports funded through the NDIS.

1. Further, s 33(2) provides that each participant must have a plan prepared with the assistance of the NDIA which includes a participant's statement of goals and aspirations and a statement of participant supports approved by the CEO that specifies, among other things:
   • (a) the general supports (if any) that will be provided to, or in relation to, the participant; and
   • (b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme;

1. It is clear that a person may be a participant in the NDIS without necessarily receiving general supports or reasonable and necessary supports.
2. If the interpretation contended for is correct, each person who applies to become a participant in the NDIS would, at the same time, have to identify the funded support or supports he or she requires. A decision-maker would then have to determine whether each satisfies the provisions of s 34(1). That would, in effect, impose an additional disability requirement into s 24(1).

Once a person is determined to be a participant within the meaning of the Act, a plan must be prepared for that person (see Pt 2 of Ch 3 of the Act). It is at this stage that a decision must be made, pursuant to ss 32 to 33 about what "supports" the person needs and, in particular, what "reasonable and necessary supports"... will be funded under the NDIS.

It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.

I do not see how one support need identified by an applicant should be so relevant to the question whether she or he is eligible to be a participant in the scheme. Notoriously, the needs (whether day-to-day, or on a longer term basis) of a person with a disability may be subject to change. The determination of what kind of assistance a person should receive under the NDIS is the subject of an entirely separate aspect of the legislative scheme, and one which is relevant only after a person has been found to be a participant.

1. It is difficult to know what to make of s 24(1)(e). It is easier to say what it does not mean than what it does mean. Given that it is one of the disability requirements, its purpose must be to distinguish that subset of people with serious and permanent disabilities who are intended to be the beneficiaries of funded supports. However, as we have determined that Mr Mulligan does not satisfy s 24(1)(c), it is not necessary for us finally to determine whether he satisfies s 24(1)(e).

1. In summary, we are not satisfied that Mr Mulligan's sciatica is, or is likely to be, permanent. It follows that he cannot satisfy s 24(1)(b), and so cannot satisfy the disability requirements, on the basis of that impairment.
2. It remains to consider whether Mr Mulligan satisfied the disability requirements by reason of his heart condition.
3. 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).
4. 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).
5. We are not satisfied that Mr Mulligan's heart disease results in substantially reduced capacity to undertake mobility, self-care or self-management.
6. 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.
7. 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.
8. There is no evidence before us to support a finding that Mr Mulligan's capacity to undertake self-management is substantially reduced
9. It follows that Mr Mulligan does not satisfy s 24(1)(c).
10. 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).
11. We affirm the decision under review.

I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Professor R McCallum AO, Member.