Mulligan v National Disability Insurance Agency

Mulligan v National Disability Insurance Agency | Case summary | Zoe

[46]

On 26 February 2025, the solicitors for the respondent advised the Tribunal that attempts had been made to contact the applicant, and his mother, whom they understood was assisting with the application, to confirm whether they would be calling any witnesses at the hearing. They advised that they had not had success in making contact and requested the Tribunal to list the matter for a directions hearing to confirm with the applicant whether he intended to proceed with the application and if so whether he intended to call any witnesses. On 3 March 2025, the Tribunal held a directions hearing. The solicitor for the respondent appeared. The applicant did not appear. The respondent solicitor advised that no contact had been made with the applicant or his mother and it was unknown whether the hearing was proceeding or whether the applicant intended to call any witnesses. The Tribunal contacted the applicant by telephone during the directions hearing. He advised that he was happy to discuss the matter by phone but he did not have access to his computer. He said he was unaware that the directions hearing had been scheduled for that day and he was unaware that the hearing had been scheduled to take place from 5-7 March 2025. He was advised that the hearing would be proceeding on those dates. He advised that he would give evidence as well as his mother and grandmother. The respondent advised that it intended to call evidence from Mr Stretton (Occupational Therapist). The applicant indicated he would be ready to proceed to hearing on 5 March 2025.
The hearing commenced on 5 March 2025 by Microsoft Teams video. Ms Dempster appeared as counsel for the respondent. The applicant did not appear. The applicant's grandmother was present. She advised she would be available to give evidence at 2pm on that date. She was unaware of the whereabouts of the applicant. An email was received from the applicant's mother advising she was unlikely to attend the hearing because of her work commitments. Attempts were made to contact the applicant, those attempts were unsuccessful. The respondent advised the Tribunal that over the course of the proceedings, the applicant had not indicated that he intended to engage with the evidence filed.
The Administrative Review Tribunal Act 2024 (Cth) (ART Act) came into effect on 14 October 2024. Subsection 106(1) of the ART Act provides that the Tribunal may make a decision in a proceeding without a hearing in certain circumstances. Section 106(5) provides:

[67]

The evidence in relation to these conditions is limited. In a Neuropsychological Assessment Report, dated 5 September 2022, prepared by Dr Louise Barrett she states that during a background interview with the applicant he stated:
- his mood is generally "average," however he is "anxious all the time." He reported having "depression, anxiety, PTSD and stress" however was unsure if these have been formally diagnosed - he thought that "someone said I have them."
- He was suicidal in 2019 after a period of bullying. He reported that he attempted suicide "sixteen times" and then later reported it was "sixteen times a week." He reported that his mother was aware of this.
- He said, "things aren't too bad at the moment" and he did not have any intention of acting on thoughts of dying or hurting himself. He agreed he would tell his mother he was feeling like this again.
- He has never been diagnosed with ADHD or autism spectrum disorder but thinks he may have "a bit of that."
In a separate interview with the applicant's mother, she said:
- She feels he experiences depression, anxiety, PTSD, and stress - however he does not have any formal diagnoses for these.
- She strongly feels he would benefit from thorough assessments to document diagnoses (or lack thereof) of the above.
In September 2022, the applicant's GP referred the applicant to Canberra Health Services Virtual Access Mental Health Intake at the Canberra Hospital (Access). In a report from Access dated 6 December 2022, it states:
- Since Sept 2022, contact with [the applicant] and mother has been attempted without success.
- Last contact was 25/10/22 with mother who advised [the applicant] was now living with a friend. Access encouraged [mother] to call Access MH back when she is in touch or with [the applicant]. No contact received since then.
- Letter of engagement also sent to GP on 3/11/2022 advising care will be closed within two weeks if nil ongoing contact with [the applicant].
- Call attempted today 06/12/2022 to [the applicant and mother] with no success.
- Plan - for MDTR for closure given lack of engagement.[22]
The same report refers to the following history taken from the GP referral:
- As a result of the applicant's heart condition, he missed a significant amount of schooling and was in a learning support unit at college with significant learning difficulty and impairment to executive functioning.? PTSD due to trauma from repeated hospitalisations and surgeries.
- History of being bullied at school.
- History of anxiety and depression.
- History of engagement with CAMHS South and private psychology and Next Step.
- History of engagement with NDIS - though GP referral notes and DIA rejected claim for support which GP does not feel is appropriate.
- History of self-harm by cutting.
- No suicide attempts as per GP referral.

[69]

There is no evidence that the applicant has a formal diagnosis of anxiety, depression, or PTSD. However, the evidence indicates that the applicant has suffered from anxiety and depression and that he has a psychosocial impairment resulting from those conditions.
As a result of that psychosocial impairment, the applicant was referred to Access in September 2022. That service made numerous attempts to contact the applicant with no success. At that time no further concerns were raised by the applicant's GP, mother, or family and therefore the care from that service was finalised. In a letter to the applicant's GP, Dr Haynes, dated 3 November 2022, Access advised her that the applicant could be re-referred at any time in the future if there were any ongoing concerns about his mental health.[24] There is no evidence of any re-referral or ongoing concerns about the applicant's mental health.
In a report dated 10 May 2022, prepared by Ms Madeline Franklin, psychologist from Next Step service, she says that she assessed the applicant on 19 April 2022. At that time, he told her that his main problems were socialising and trusting others which has involved feeling nervous and panicked in social situations and which led to avoidance of engaging with others and making new friends. She said the applicant agreed to engage in a programme of psychological interventions focusing on changing behaviour to embrace anxiety and learn based on fact, specifically around building up confidence to make new friends and talk more in social situations. At that assessment, the applicant reported thoughts of wanting to end his life in response to a breakdown of a relationship. He reported he had not acted on the thoughts or started making any preparations to access means. His intent to act on these thoughts was 1/10 and he reported he has good friends who supported him and he could reach out to if he is distressed. He reported things he is looking forward to and was aware of the impact it would have on others.[25]
When the applicant was assessed by Mr Stretton on 18 January 2024 the applicant advised that he was not certain whether he had received any of the treatment recommended by Ms Franklin but did not think he had. During that assessment the applicant made no mention of suffering from anxiety, depression or PTSD.
It can be seen from the evidence that he has not undertaken any psychological or psychiatric assessment or treatment. Therefore, the Tribunal finds that any psychosocial impairment that the applicant may currently be suffering from attributable to anxiety, depression or PTSD is not permanent for the purposes of the NDIS Act.
1. Learning/cognitive disorder
In the report prepared by Dr Cordina, cardiologist, dated 15 October 2020, she states that whilst the applicant's congenital heart disease does not affect his ability to perform his activities of daily living, he is likely to have some neurocognitive issues that will affect his ability to plan and be organised. He also has some learning difficulties which is commonly associated with this kind of congenital heart issue.[26]
Dr Barrett, clinical neuropsychologist, conducted a neuropsychological assessment of the applicant in August 2022. In her report dated 5 September 2022, she notes that the applicant has a reported history of learning difficulties and anxiety and further that he undertook the majority of his primary and early secondary schooling in a learning support unit, however completed mainstream schooling for senior years.[27] Under the heading 'opinion', Dr Barrett states:

[92]

Dr Haynes states in her report dated 8 November 2021, that the applicant has reduced social awareness and needs assistance with interpreting social cues. He is easily upset with a lot of stimulation.[38] In her report dated 9 November 2021, Ms Denham records that the applicant is reported to become dis-regulated at times and has a decreased ability to independently manage his emotions at this time.[39]
In her carer statement, the applicant's grandmother states that he has a girlfriend, but she did not think he had any other friends. She says he depends on his girlfriend for all peer support and she sees their relationship as co-dependent and dysfunctional. She says that the applicant interacts with others when it suits him and has benefit to him. He does not interact if asked to join a social occasion such as dinner, to communicate on plans and his involvement. He retreats to his room.[40] She also says that the applicant has difficulty managing his emotions and disappointment. He is prone to anger, angry outbursts and shows aggression. He has broken things in the home and has hit and damaged walls. He has been verbally abusive and threatening.[41]
In Mr Stretton's report of 18 January 2024, he says he observed the applicant to interact appropriately during the assessment and to engage in reciprocal social conversation. He reports that the applicant's observed behaviour was within socially acceptable limits. The applicant told him he has a small network of friends and his partner with whom he interacts most frequently. He participates in online gaming and uses social media applications such as Facebook.[42]
In assessing whether the applicant has a substantially reduced functional capacity in respect of social interaction, the Tribunal must focus on the bundle of tasks forming the activity of social interaction rather than individual tasks. Whilst the Tribunal accepts what Dr Haynes and the applicant's grandmother says about some of the limitations associated with the applicant's social interaction, overall, he does not have a substantially reduced functional capacity to undertake social interaction. He does have a small group of friends and maintains a relationship with his girlfriend. He is able to interact with the community and he has held positions of employment. He is capable of behaving within the limits accepted by others. He may have some difficulty coping with feelings and emotions but not when he is comfortable. Accordingly, the Tribunal finds that the applicant does not have a substantially reduced functional capacity to undertake social interaction with respect to his cognitive impairments.

[93]

As stated above the formal neuropsychological assessment of the applicant conducted by Dr Barrett in August 2022 showed that whilst many of the applicant's cognitive abilities are within normal limits which should allow him to engage in learning and paid work, he does have weaknesses in attention, working memory, vocabulary and visual learning. In her feedback report dated 20 September 2022 to the applicant she provided him with a number of key strategies that he could use to assist him with these weaknesses. By using these strategies, his cognitive strengths, as well as hard work she was of the opinion that he should be able to study in an area he liked and obtain employment in that area.[43]
The applicant did complete mainstream schooling in his senior years [with support]. He undertook the majority of his primary and early secondary schooling in a learning support unit.[44]
The applicant's grandmother says in her carer statement that the applicant learns better by doing. Anything that does not include some form of kinaesthetic learning finds him tiring and dozing off. He also needs to understand purpose and value - like most learners - and needs this explained and demonstrated. He needs repetition and guidance until he demonstrates competence.[45]
The applicant's grandmother also states in her carer statement that the applicant has engaged LEAD employment services to help him find employment and he has the support of a mentor. He has held two previous jobs but has not been kept on. It is her belief that this is a result of a mix of things: lateness to, or tardiness at work; poor personal presentation and hygiene and not following instructions. She does not state that he lost his employment as a result of learning difficulties.
Mr Stretton asked the applicant specifically to explain how he learned the new tasks involved in the paid positions he has held and how long it took him. The applicant advised that he felt he was competent after a few days with both jobs, particularly when being shown how to do a task rather than just being told. He said he had received feedback from the Southern Cross Club that he was working at a slower than expected pace.[46] The applicant advised Mr Stretton that he does have memory problems and often forgets to do things at home and requires reminding. According to Mr Stretton, the applicant did not display any obvious impairment to his cognition or ability to learn new information on a basic functional level, although Mr Stretton did not conduct formal cognitive testing. The applicant was able to read and answer the questions on the WHODAS standardised assessment without assistance. He was able to explain how he uses Google Maps to find his way to new places and how he uses the internet to submit job applications.[47]
Mr Stretton further reported that the applicant was able to remain engaged and was able to concentrate for the duration of the assessment[48] (which took place over a two-hour period).[49]
Ms Denham says in her report of 9 November 2021, that she observed the applicant to require assistance with comprehending and providing appropriate responses to complex questioning; understand, organise and prioritise complex instructions; focus and maintain attention and regulate and sustain alertness.[50]
The evidence establishes that the applicant has some difficulties with learning. However, Dr Barrett has noted strategies for the applicant to utilise when he is learning new tasks. (The evidence indicates that he already uses some of these strategies to learn). She reports that the applicant has a lot of great cognitive strengths, and if he adopts the strategies, she has recommended he should be able to overcome the learning difficulties that he has. He has had paid employment and he should be able to obtain employment in the future.
The Tribunal finds that the applicant does have functional difficulties in relation to learning as a result of the cognitive impairments, but these difficulties are not at a point which amounts to a substantial functional capacity in respect of learning. The applicant can learn, understand and remember new things. He can also practise and use new skills.[51] Accordingly, the Tribunal finds that the applicant does not have a substantially reduced functional capacity in respect of learning.

[94]

The applicant's GP, Dr Haynes, states in the Access Request - Supporting Evidence Form, dated 8 November 2021, that the applicant does not require assistance to be mobile.[52]
In her report dated 9 November 2021, Ms Denham says that in the home and in the community the applicant is independent with his endurance fluctuating based on his health at the time. He uses nil aids for mobility.
Mr Stretton, occupational therapist, records in his report of 18 January 2024 that the applicant was observed to mobilise inside and outside his home safely and independently without the use of a walking aid and with intact balance. He was observed to complete sit to stand transfers safely and independently. He was observed to negotiate three steps without difficulty. The applicant reported to Mr Stretton that he mobilises within his home and outside independently without a walking aid. He is able to walk on flat ground for a couple of hours around a shopping centre without much difficulty but becomes breathless when negotiating a lot of stairs or walking up an incline. The applicant reported that he completes all transfers independently including chair, shower, toilet, bed and car. The applicant is able to drive a motor vehicle, he is also able to take public transport. He was able to explain where the bus stops are and how he gets to places he visits regularly. He is able to use Google maps to navigate new locations without assistance.[53] Mr Stretton concludes that the applicant is independently mobile and no support for mobility is required.[54]
The Tribunal has determined that the applicant does not have any physical impairment based on his congenital heart condition. Based on the evidence, it is clear that the applicant is able to easily move around his home and the community. He can manage all transfers independently, he is able to get out and about and use his arms and legs with no assistance.[55] Accordingly, the Tribunal determines that the applicant does not have a substantially reduced functional capacity to engage in the domain of mobility as a result of the cognitive impairments.
1. Self-care
In the carer statement provided by the applicant's grandmother she expresses her concerns about the applicant's capacity to engage in appropriate self-care. She says:
- the applicant demonstrates poor personal hygiene and daily living skills, decision making and completing actions around daily tasks. He requires prompting for showering, teeth cleaning, washing of clothes and room cleaning. He does not do his own cleaning, washing, folding, ironing, or putting items away. He eats in his room and leaves scraps in his room which creates 'some pretty poor odours.' His room, clothes and belongings are not well maintained by him.[56]
- the applicant showers irregularly and does not seem to clean his teeth. His toileting and cleaning of any residual mass is poor. He seems oblivious to poor hygiene levels.[57]
- if the applicant is not provided with meals, he defers to convenience food and takeaways.[58]
Ms Denham records in her report that the applicant requires prompting to initiate showering, bathing and grooming as well as dressing in appropriate clothing.[59]
Mr Stretton says the applicant has the physical and cognitive capacity to complete household tasks such as meal preparation and cleaning however lacks the motivation to do so without prompting. The applicant reported to Mr Stretton that his grandmother usually prepares all meals for him although he is able to prepare simple things for himself. He previously had a therapy goal to cook twice a week for his family and he was able to achieve this. His grandmother plans all meals and completes the grocery shopping. He is able to shop for small incidentals as required.[60]
The applicant reported to Mr Stretton that he manages his own personal care tasks without physical assistance but admitted that he requires prompting to shower and perform grooming tasks such as teeth brushing.[61] Mr Stretton reports that the applicant requires prompting to do certain tasks related to self-care due to low motivation related to his cognitive impairments. Mr Stretton says that electronic reminders would assist the applicant to remember when tasks need to be completed. He would then need to be motivated to act on the reminders. If the applicant used the electronic reminders and acted on them, he would not require prompting.[62]
The Tribunal accepts the evidence of the applicant's grandmother that his functional capacity to engage in all aspects of self-care has some limitations. However, he is capable of attending to his personal care, hygiene, grooming, eating and drinking and health. He can independently get dressed, shower or bathe, eat and go to the toilet.[63] The Tribunal accepts that he has low motivation to do these tasks related to his cognitive impairments and requires prompting to perform them.
In Foster at [64] the Full Court held:

[97]

In the carer statement prepared by the applicant's grandmother she says:[65]
- The applicant seems oblivious to his poor hygiene levels and can get angry/dismissive when asked to manage this.
- The applicant does not sleep well. He is not aware of the impact his late-night behaviour such as gaming, talking loudly, going out, has on others in the household.
- It is an everyday task to remind him, follow up and then do the tasks if he does not.
- For some months she was having to remind him of medical appointments, take vital medications and get his blood tested regularly.
When the applicant was assessed by Ms Denham in August 2021, he reported that he required moderate assistance to manage; day-to-day purchases, banking, major purchases and budgeting. He also reported that he required moderate assistance to prepare his medications in advance in separate dosages.[66]
In his report of 18 January 2024, Mr Stretton said that the applicant advised him of the medications he takes, what they are for and said that he monitors his own prescriptions and replenishes them independently as required.
Mr Stretton says the applicant has sufficient literacy and numeracy skills to manage his own basic affairs. His grandmother plans all meals and completes the grocery shopping. He is able to shop for small incidentals as required, he is able to use cash or a debit card to pay for purchases. He is able to wash his own clothes using the washing machine and described how to use it but said his grandmother usually does his washing. He tidies his own room when asked. His grandmother does all of the other household cleaning. He is able to mow the lawn when asked but needs to take a couple of breaks whilst doing so. He receives the DSP fortnightly into his own bank account. He knows how much he receives and what expenses he has on a fortnightly basis. He pays his own bills and is able to make his own appointments and attend alone.[67]
Where the evidence of Ms Denham and Mr Stretton differs, the Tribunal prefers the evidence of Mr Stretton on the basis that Ms Denham's report was prepared based on information provided in August 2021, whereas Mr Stretton's report was prepared on more recent information obtained in January 2024. The information obtained by Mr Stretton is more current and relevant to the applicant's current circumstances.
Self-management connotes a cognitive capacity to organise one's life, to plan and make decisions, and to take responsibility for oneself.[68] The Tribunal accepts that the applicant's grandmother provides him with assistance with some activities that fall within the domain of self-management. However, the Tribunal finds that the applicant does have the capacity to engage in the tasks associated with self-management and that he does not have a substantially reduced functional capacity to self-manage as a result of his cognitive impairments.
1. Summary paragraph 24(1)(c)
The respondent contends, and the Tribunal finds, that the applicant does not satisfy Rule 5.8 in any of the activities of substantially reduced functional capacity because he does not require the assistance of assistive technology, or another person to engage in those activities.
In her carer statement the applicant's grandmother described many difficulties that she observed as a result of the applicant residing with her, particularly in the areas of self-care and self-management. However, based on the Tribunal's assessment of the applicant's functional capacity to undertake the activities referred to in paragraph 24(1)(c), there are very few activities that the applicant could not actually do. He does require prompting to do some activities, but this does not enable him to reach the threshold for substantially reduced functional capacity listed in paragraph 24(1)(c).
In her carer statement the applicant's grandmother said that the applicant had engaged LEAD employment services to help him find employment and he had the support of a mentor.[69] The applicant has had previous paid employment and as at January 2024 he had registered with Hays Recruitment and was actively seeking employment.[70] The applicant's grandmother noted that the applicant's behaviour (sleeping and eating) was better when he was employed.[71]
The respondent and the Tribunal acknowledge that the applicant requires some support as a result of his cognitive impairments. However, the fact that he needs some support does not qualify him for access to the NDIS. Accordingly, the Tribunal determines that the applicant's cognitive impairments do not result in substantially reduced functional capacity in any of the activities referred to in paragraph 24(1)(c).

[99]

The Tribunal has determined that the applicant has a psychosocial impairment and cognitive impairments that are permanent. Accordingly, paragraph 25(1)(a) is satisfied.
Paragraph 25(1)(b) requires the Tribunal to be satisfied that the provision of early intervention supports is likely to benefit the applicant by reducing his future needs for supports in relation to disability.
Based on the carer statement provided by the applicant's grandmother it appears that the supports requested for the applicant's cognitive and psychosocial impairments are allied health therapy supports to assist with skill development for self-care tasks and self-management particularly in the area of prompting. As indicated by Mr Stretton in his report, electronic reminders would assist the applicant to remember when tasks need to be completed and if he was to use these and act on them, he would not require prompting.[72]
In relation to finding employment the applicant has engaged employment recruitment agencies who have also provided mentoring.[73]
In relation to his psychosocial impairment the evidence is that the applicant was referred for psychological assistance with the Access Mental Health Team, but due to his lack of engagement the referral and assessment did not proceed. It was assumed that he no longer required mental health services. On 3 November 2022 letters were sent to the applicant and his GP, Dr Haynes advising that he could be rereferred back to access mental health at any time in the future for assessment and management.[74]
According to Mr Stretton the applicant is not currently engaged in any treatment. He attends fortnightly appointments with his DES provider, which should continue until he is settled into paid employment.[75]
The Tribunal concludes that there are no early intervention supports which would reduce the applicant's future needs for support. Therefore, the requirements of paragraph 25(1)(b) are not met. Having concluded that the applicant does not meet the requirements of paragraph 25(1)(b), the Tribunal is not required to consider paragraphs 25(1)(c) and (d).
1. Conclusion - section 25
The applicant does not meet the early intervention requirements set out in section 25 that would enable him to become an NDIS participant under that section.

At a glance

Court

Decision date

Source

Judgment (104 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (7)

Henderson-Kelly and National Disability Insurance Agency (NDIS) [2025] ARTA 490 (29 April 2025)