First question of law: failure to respond to the claim as put
66 Rule 5.8 of the Rules defines the circumstances in which a person must be taken to have "substantially reduced functional capacity" for the purposes of s 24(1)(c) of the Act. Whether the content of r 5.8 exhausts the concept of "substantially reduced functional capacity" in s 24(1)(c) is not a matter which need be determined in this appeal.
67 Rule 5.8 operates expressly by reference to each of the activities in s 24(1)(c)(i) to (vi). It requires the decision-maker to look, as a matter of factual assessment, at the outcome or effect of a person's impairment on the performance of each, and any, of those six activities. If the outcome or effect is any of the outcomes or effects specified in r 5.8(a), (b) or (c), the deeming effect of r 5.8 operates.
68 In the present appeal, there were no submissions that r 5.8(c) was relevant to Mr Mulligan's situation. There was but slight reference to para (c) before the Tribunal. The terms of r 5.8(c) are directed at persons with a higher or greater level of incapacity. Unlike r 5.8(a), the concept of participation under r 5.8(c) is not qualified by the words "effectively or completely". And unlike r 5.8(b), there are no qualifications such as "usually requires". Rather r 5.8(c) is directed towards people who are not able, at all, to perform any one of the six activities in s 24(1)(c).
69 There is no doubt that the issue of whether Mr Mulligan's impairments met the threshold in s 24(1)(c), read with r 5.8, was the subject of detailed submissions on Mr Mulligan's behalf before the Tribunal. The submissions, which were in evidence on the appeal, state at [34] that it was contended Mr Mulligan met the criteria in s 24(1)(c)(ii), (iv), (v) and (vi). Under separate subheadings and in some detail, the submissions then set out why it was contended that was so. Those submissions should be set out in full:
Mobility
The Applicant relies on Mr Mulligan meeting subsection 24(1)(c)(iv). It is the Applicant's contention that Mr Mulligan's impairments of cardiomyopathy and back impairments result in substantially reduced functional capacity in relation to his ability to mobilise. It is this restriction on his mobility that has also led to substantially reduced functional capacity in the areas of self-care and self-management.
The evidence from Laura Hedditch (occupational therapist), Mr Mulligan and his doctors reveal a substantial functional reduction in mobility. Mr Mulligan becomes breathless after walking 100 metres and is prevented from walking more than 500 metres due to severe lower back and leg pain. His mobility is further restricted when walking up a gradient. His breathlessness is exacerbated when he is carrying heavy items (such as shopping bags) or completing activities above shoulder height.
He is unable to bend safely or comfortably without experiencing significant pain. He is in constant pain from his sciatica from which he must also frequently take rest. Not only is his mobility extremely curtailed and restricted but it is contended he is unable to mobilise safely or within an acceptable time period. He is at all times at risk of being suddenly hospitalised, particularly if he mobilises too quickly. He is in constant pain from his sciatica from which he must also frequently take rest. In the future it is very likely he will require a wheelchair (T14/47).
It is contended that Mr Mulligan would benefit significantly from assistive technology if something suitable was available. However, the only assistive technology available is likely to be a wheelchair which is at this time unsuitable, though likely in the future when his condition worsens. To exclude him from the criteria because there is no suitable technology currently available notwithstanding that he has substantially reduced functional capacity would be the incorrect interpretation of the NDIS Act and Rules.
The Applicant notes that the evidence is that Mr Mulligan usually requires the day to day assistance of his wife in performing tasks that involve mobility, such as doing the shopping and carrying groceries, vacuuming, laundry and house maintenance. It is contended that these fall within both "mobility" and "self-management". It is submitted that he meets Rule 5.8(b).
The evidence is that Mr Mulligan is unable to move about the community by foot for a distance of more than 100 metres and must rely on a car to travel any further without gravely risking his health and another hospitalisation. He is unable to perform other tasks involving movement, for example pushing a lawn mower. The Applicant therefore contends he meets Rule 5.8(a).
Self-Management
Additionally the Applicant contends that Mr Mulligan has substantially reduced functional capacity in regards to his self-management (s 24(1)(c)(vi)).
Clause 18.b of the Operational Guidelines - Access - Disability Requirements provides examples of what self-management includes:
• Self-management (planning and organising daily life and managing household personal finances), ...
The Applicant submits that Mr Mulligan meets Rule 5.8(b) in that he is unable to participate effectively in self-management without assistance. The Applicant contends that self-management includes being able to complete food shopping, laundry, house cleaning and maintenance of his garden in accordance with the terms of his lease with the Department of Housing.
The occupational therapist report details the assistance that Mr Mulligan requires from his wife. This includes with activities such as food shopping, laundry, house cleaning and maintenance of his garden. His capacity in regard to doing his laundry is limited and takes more than an acceptable time to complete the task. He is unable to mow his lawns safely or within an acceptable time period or without the risk of being hospitalised. He is also unable to complete larger shops without his wife and cannot carry heavy grocery items.
Mr Mulligan needs rest breaks when cleaning his home and sometimes is completely unable to complete his domestic duties such as vacuuming without the assistance of his wife. He takes more than an acceptable time to complete his washing and is unable to mow more than three lengths of his lawns without becoming breathless and fatigued and must present himself to hospital if he cannot settle his breathing within 15 minutes.
Self-care
The Applicant relies on Mr Mulligan meeting subsection 24(1)(c)(v). It is the Applicant's contention that Mr Mulligan's impairments of cardiomyopathy and back impairments result in substantially reduced functional capacity in relation to his ability to self-care.
The Operational Guidelines - Access - Disability Requirements at 18.b provide examples of what self-care includes:
(e.g. daily showering, bathing, dressing, eating, toileting and grooming; and / or special health care needs attended to by self, family members or carers)
The Applicant submits that Mr Mulligan is unable to participate effectively in self-care activities without equipment and therefore meets the description in Rule 5.8(a). The occupational therapist report lists activities that Mr Mulligan cannot do properly and requires assistance with including drying his feet properly; lower limb dressing such as putting on shoes; and difficulties with toileting such that it is difficult for him to complete toilet hygiene. She lists a number of pieces of equipment that will assist Mr Mulligan to complete self care activities.
Social interaction
The Applicant contends that Mr Mulligan meets the requirements in subsection 24(1)(c)(ii). That is, his impairments result in substantially reduced functional capacity in relation to social interaction.
Mr Mulligan states that he has difficulties with social interaction because he cannot socialise in a lot of activities he previously participated in with his friends, such as watching a football match, because of a risk of exacerbating his heart condition. Riding his motorcycle with his group of motorcycling friends poses the same risk and also seriously aggravates his sciatica.
He sold his motor bike because his back pain was so great that he feared a panic attack which could affect the stability of his heart, resulting in him losing control of his motor bike and harming other people.
Mr Mulligan has also experienced difficulties in his relationship with his wife because of the loss of his mobility: he has become increasingly needy and reliant on her, causing pressure and strain on their relationship. His circumstances have resulted in periods of depression. He must also avoid emotionally high stress situations so as not to bring on another acute episode of hypertension. In her report, Laura Hedditch, occupational therapist writes:
Mood and Behaviour
Violet reported that Mr Mulligan's mood has changed since his sciatica emerged last year. He stated that he was once a "very laid back" person and confirmed that he has become more frustrated and angry secondary to the constant pain he is experiencing.
In relation to substantially reduced functional capacity for social interaction the Applicant contends Mr Mulligan meets Rule 5.8(a) and (c).
(Emphasis in original.)
70 In its reasons, the Tribunal reproduced and, it can be inferred, understood the deeming effect of r 5.8 of the Rules. It then examined whether Mr Mulligan met s 24(1)(c) of the Act only through the prism of r 5.8, and then, in my opinion, only through the prism of r 5.8(a). In other words, the question the Tribunal asked itself was not whether Mr Mulligan had a "substantially reduced functional capacity", but rather, whether he met the terms of r 5.8 and then only r 5.8(a).
71 In the single paragraph (at [46]) where the Tribunal deals with what was, in substance, the major issue in its review, the only references to what Mr Mulligan can do are references concerning what he can or cannot do without assistive technologies - aids such as handrails, shower grab rails and an "Easi-reacher".
72 Even on its approach to r 5.8(a), the Tribunal does not address the totality of the evidence which was before it about the level of Mr Mulligan's need for assistive technologies. Previously, the Tribunal had noted (at [41]) the evidence of the occupational therapist that:
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 get in and out of bed. She recommended a damaged roller mechanism on the sliding panels in the shower 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.
73 It also noted (at [44]) Ms Hedditch's recommendation that although Mr Mulligan is independent in mobility and self-care "with difficulty, and with pain, and he expends a lot of energy in compensatory strategies", she recommended "aids would make his life easier, and would reduce his pain and conserve his energy".
74 Yet in that part of its decision where it was required to consider whether Mr Mulligan's impairments resulted in substantially reduced functional capacity to undertake any of the specified activities, the Tribunal did not address any of this evidence, even by reference to r 5.8(a). It may have rejected it, or given it little weight, but it did not say so.
75 At the end of [46] of its reasons, the Tribunal notes the aids it has referred to in that paragraph (handrails, shower grab rails, Easi-reacher) are "commonly used by many people". It appears to incorporate that observation into its reasons for determining that Mr Mulligan does not have a substantially reduced functional capacity for any of the six activities in s 24(1)(c) of the Act. It is unclear why, at that level of generality, this observation could be seen as necessarily a disqualifying feature so far as the criterion in s 24(1)(c) is concerned. The statutory concept of "substantially reduced functional capacity" requires no assessment by the decision-maker of how common the reduction in functional capacity might be, or whether the way in which the reduced functional capacity manifests itself is something that can be seen in a certain number of people. The Tribunal has, in my opinion, placed a gloss on the statutory requirements in s 24(1)(c). If the Tribunal intended to refer to that part of r 5.8(a) that excises "commonly used items such as glasses", it needed to do so expressly, and to explain how the aids to which it referred were in its opinion caught by this excision.
76 Further, nowhere does the Tribunal address what was on any view a significant aspect of the evidence: namely the amount of assistance Mr Mulligan claimed to receive from his wife. Such assistance is the express subject matter of r 5.8(b), but is not addressed by the Tribunal at all, despite the evidence given on this issue and the submissions made about it.
77 I note that the Tribunal appears to have approached the concept of "substantially reduced functional capacity" in s 24(1)(c) as if it is exhaustively defined by r 5.8. That is not necessarily the case. 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. Whether or not this constitutes a separate error by the Tribunal need not be determined, for it is clear that even within the terms of r 5.8, the Tribunal only examined para (a) and not para (b), although they were both relevant and relied upon by Mr Mulligan.
78 I do not accept the respondent's submissions that the Tribunal's reasoning about s 24(1)(c) discloses no more than a failure to refer to pieces of evidence, or contentions. Nor do I consider the Tribunal's global finding legally sufficient. Rather, I consider the Tribunal has failed to grapple with the statutory question posed by s 24(1)(c), on the evidence and material before it. It can be accepted that the Tribunal made a conclusionary finding about s 24(1)(c), but it did not do so by reference to each of the legislative criteria set out in para (c). It did not do so by reference to each of the deeming provisions in r 5.8(a) and (b). It did not do so by reference to the evidence about the assistance provided to Mr Mulligan by his wife. It did not do so by reference to the evidence of the occupational therapist. Instead, it selected two or three aspects of the evidence, at a general level, and reached a conclusion based only on those aspects, including, in my opinion, one aspect (the use of aids "commonly used by many people") which was a gloss on the statutory threshold.
79 I do not consider the Tribunal performed the task the statute required of it. In MZYTS at [46] the Full Court said:
Although in one sense this might be described as a "failure to consider" most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; 262 ALR 569; 113 ALD 1; [2010] HCA 1 at [64] (Kirk) best described as a "functional exercise" (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example "a failure to consider", may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.
80 As I have noted, characterisation of legal error on judicial review, or in an appeal pursuant to s 44 of the AAT Act, is something on which reasonable legal minds may differ. A failure to consider submissions which are relevant to the statutory question is a case in point. What underlies the reasoning and outcome in a case such as Dennis Willcox, in my respectful opinion, is a recognition that the submissions which were overlooked, or not considered, were material to the statutory task of the decision-maker. Where that is the case, it is highly likely that the decision-maker will not have performed the statutory task required. That conclusion is, in a sense, independent of the argument that a party's submissions were not considered, although the failure to consider submissions may be the cause. In such circumstances, what matters is that the content of the submissions concerned matters material to the review of a decision by the Tribunal, and to its task of arriving at the correct or preferable decision on the material and evidence before it. That is why, in my respectful opinion, the more appropriate characterisation of the error is a constructive failure of jurisdiction, or a failure to conduct the review required by the statute. That is the approach taken by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 in passages set out between [44]-[52] of the Court's reasons. There, French, Sackville and Hely JJ said:
It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself.
…
The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision.
…
It was submitted for the respondent that the intermarriage issue was somehow subsumed in the generality of the tribunal's finding that, although the applicant would be subject to some discrimination if he returned to Iran, the discrimination would not amount to persecution and that proper protection would be forthcoming from the authorities in Iran. In this connection the respondent cited a passage from the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf at [91] where reference was made to "a finding at a higher level of generality than the question of specific incidents". Such findings it was said could well explain why a decision-maker would make no detailed finding about a particular incident.
….
We respectfully disagree with this contention. As appears from the review of material put before the tribunal, the failure by the tribunal to consider the evidence about S's marriage and the repercussions flowing from it and the contentions based on that evidence, amounted to a failure to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The tribunal therefore in our opinion, failed to discharge its duty of review and made a jurisdictional error.
81 In other circumstances, a failure to consider submissions made by a party may be characterised as involving a denial of procedural fairness. There is no bright line between these characterisations, and in many circumstances either may be available. It will often be the case that where the content of submissions made on behalf of a party is not adequately dealt with by a decision-maker, there is a failure to accord procedural fairness to that party. This was recognised by the majority of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]. The majority held at [25] that in some circumstances, the failure may be "more" than a failure to accord natural justice, as indeed the majority found to be the case with the claim by Mr Dranichnikov that he was a member of a specifically defined social group for the purpose of his protection visa claim. In Dranichnikov, the tribunal's failure to consider, with sufficient particularity, the nature of the social group to which Mr Dranichnikov contended he belonged meant, in the majority's view, that the tribunal had constructively failed to exercise its jurisdiction because (just as in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11) it had not afforded Mr Dranichnikov a review of the kind contemplated by the function conferred on the tribunal under the Migration Act 1958 (Cth): Dranichnikov at [32].
82 I do not consider the Tribunal can be said to have turned its mind, as the statute requires, to the question whether, on all of the evidence and material before it, Mr Mulligan had a substantially reduced functional capacity to undertake any of the activities set out in s 24(1)(c)(i) to (vi) of the Act, read with r 5.8 of the Rules. Rather, it turned its mind, as demonstrated by its reasons, to some of the evidence and part of the statutory question. Characterising this as a constructive failure to exercise its jurisdiction is an alternative description to characterising it as a failure to complete or perform a statutory task. Either way, the Tribunal's decision is affected by a legal error of sufficient substance and materiality to justify its decision being set aside.
83 The respondent's invitation to the Court to examine the transcript of the hearing before the Tribunal, and the way submissions were put on behalf of Mr Mulligan at the hearing, does not assist the respondent. The statement of reasons given by the Tribunal is the location for its findings on material questions of fact, its references to the evidence on which those findings are based and its reasoning process. As I have noted at [63]-[65] above, what is said, and not said, in the reasons provides the source for findings, and inferences, about how the Tribunal approached its task.
84 While it is correct to point to a sequence of paragraphs in the Tribunal's reasons where it sets out the evidence given by the witnesses on the review, and which (as I have already said) appears to reflect the Tribunal's acceptance of that evidence, the problem is the Tribunal then does not appear to employ, evaluate or consider significant parts of that evidence in its analysis whether Mr Mulligan satisfied any part of s 24(1)(c) or not. The Tribunal does not employ its factual findings in its assessment.