Ewin and National Disability Insurance Agency [2018] AATA 4726 (21 December 2018)

1. Mr Ewin became a participant of the NDIS in November 2016.[1] The NDIS operates under the NDIS Act and its regulations. The National Disability Insurance Agency (NDIA) is the Commonwealth government agency responsible for administering the NDIS.
2. Mr Ewin is employed full-time as a senior lawyer with the ANZ Bank. He is 51 years old and lives with his wife and two primary-school aged children in Alphington, Victoria.
3. In 1981 Mr Ewin became an incomplete paraplegic due to a medical condition (transverse myelitis) which caused inflammation of his spinal cord. Mr Ewin's incomplete paraplegia limits his lower limb function and he cannot walk independently. Mr Ewin is able to weight bear. Mr Ewin uses a manually-propelled wheelchair for mobility.[2]
4. Since 2012, Mr Ewin has also suffered from shoulder impingement syndrome which may, at times, cause him pain and impact his ability to propel his wheelchair when carrying heavy items, lift items and support his own weight on crutches.

1. Since becoming a participant of the NDIS, four successive NDIS plans have been put in place for Mr Ewin as follows:

Date of NDIA covering letter confirming approval of statement of supports

1. On 11 April 2017 Mr Ewin lodged an application with this Tribunal for review of an internal review decision made by a reviewer (who is a delegate of the CEO)[3] on 27 March 2017 (Internal Review Decision).[4] In the Internal Review Decision, the reviewer did not specify the statement of participant supports (or plan) that was the subject of her review, although it was preceded by a letter to Mr Ewin from a different delegate of the CEO who decided that a decision had been made that the NDIA would undertake a review relating to Mr Ewin's plan on 30 January 2017. Mr Ewin also states in his internal review request form that he sought a review about: "NDIS Plan (NDIS numbered 430208235)" and when Mr Ewin was prompted to provide the date that the NDIA made its decision, he inserted, "19 December 2018".[5] Both of those references are to Mr Ewin's First Plan.

1. The approved statement of participant supports in the (12-month) First Plan for Mr Ewin included:
   • (a) $4,000 to fund an allied health professional or therapist to assist him to meet his goals of assistive technology and assessment of home modifications;
   • (b) $1 for funding for bathroom modifications - quote to be obtained;
   • (c) $6,458.90 (for support coordination); and
   • (d) $5,226.75 to purchase low risk equipment for equipment up to the value of $1,000 and home maintenance (specifically house cleaning, gardening and guttering).
2. The approved statement of participant supports forming part of the subsequent (12-month) Second Plan for Mr Ewin contained the previous supports referred to in paragraph [12], with the addition of:
   • (a) a new support of $1,300 for a manual wheelchair and repairs;
   • (b) an increase to the approved level of funding for low risk equipment and home maintenance by $999.05; and
   • (c) an increase to the approved level of funding for home modifications (specifically, grab rails) to $150.
3. The approved statement of participant supports forming part of the (six-month) Third Plan for Mr Ewin included:
   • (a) $13,271.13 for assistive technology (including for a manual wheelchair, repairs and seat cushion);
   • (b) $2,000 to fund the provision of an allied health professional or therapist to assess and provide support regarding assistive technology and home modifications;
   • (c) $150 for hand grab rails;
   • (d) $3,292.10 for support coordination; and
   • (e) $2,760.68 for low risk equipment up to the value of $1,021 and for home maintenance.
4. The approved statement of participant supports forming part of the (six-month) Fourth Plan (i.e. current plan) for Mr Ewin included:
   • (a) $1,300 for assistive technology repairs;
   • (b) $2,020.30 for an allied health professional or therapist to assess and provide support regarding assistive technology and home modifications;
   • (c) $150 for hand grab rails;
   • (d) $3,321.70 for support coordination; and
   • (e) $3,464 for low risk, low cost equipment up to the value of $750, and for house cleaning and gardening.

1. Mr Ewin's goals and aspirations, which have not altered over the course of his four successive plans, are described as follows:[6]

My First Goal is:

During this plan: To continue living at home with my family in a safe and supported environment.

My Second Goal is:

During this plan: To continue to be engaged in the workforce and wider community activities.

My longer term goals and aspirations are:

Goal: To optimise my health and wellbeing.

Relates to: Health and wellbeing.

Summary of reasons why Mr Ewin seeks funding for specified transport costs and why the NDIA has resisted inclusion of those supports

1. Mr Ewin previously received a mobility allowance from Centrelink before commencing as a participant of the NDIS. The mobility allowance was cancelled on 19 December 2016. He said he used this allowance to pay for his petrol to drive to and from work. He has expressed concern about being financially disadvantaged as a result of the transition to the NDIS.
2. Mr Ewin is permitted to use public transport free of charge at any time. Mr Ewin acknowledged that he could use public transport for some of his travel. However, he contends that for other travel he is unable to do so because public transport is unavailable, inaccessible or impractical on account of his imcomplete paraplegia. He explains that this is the case when:
   • (a) accessible public transport is unavailable for certain routes;
   • (b) public transport becomes impractical when it is raining, as he and his clothes become wet and soiled from the rain itself and as the water from the wet pavements and ground splashes up onto him, particularly his sleeves, from the wheels of the moving wheelchair; and
   • (c) public transport becomes impractical at times when he needs to carry certain items, for instance, his ANZ laptop and work files when he is travelling between work and home; or his lawn bowls equipment and bowls wheelchair when he is travelling to attend lawn bowls competitions or tournaments for recreational purposes.
3. The NDIA is sympathetic to Mr Ewin's position. However, it considers that the transport costs incurred by Mr Ewin are day-to-day living costs, and those costs should not be funded as supports under the NDIS.
4. The NDIA also considers that the lack of inaccessible public transport available to Mr Ewin for certain categories of travel is the responsibility of the transport infrastructure authority, and not appropriately funded under the NDIS.[7]
5. The NDIA considers that the need for Mr Ewin to carry items that would make it difficult for him to travel from his workplace by public transport, arises as a consequence of his personal choice to take work home in order to spend more time with his children in the evenings and his personal preference to work from hard copy rather than soft copy documents. The NDIA considers that these costs are incurred as part of Mr Ewin's work arrangements and as such, are not the responsibility of the NDIS.
6. The NDIA contends that Mr Ewin's employer is responsible for providing him with reasonable adjustments required because of his disability or under its flexible workplace policies. The NDIA contends that if the ANZ Bank provided him with an ANZ laptop for him to keep at his home on an indefinite basis, it would eliminate the need for him to transport the computer and work files between work and his home, because he could access his work documents electronically or print off the work documents at his home. After the conclusion of the hearing, Mr Ewin submitted a copy of an email from ANZ Bank stating that ANZ staff members were not permitted to connect their workplace laptops with third-party printers.
7. The NDIA contends that Mr Ewin could obviate the need to take hard copy work files home by adopting an alternative work practice of working from soft copy documents. Alternatively, the NDIA suggested that Mr Ewin could also ask ANZ Bank to arrange to install one of its printers indefinitely at his home to allow him to print hard copies (from the soft copy documents accessible from the ANZ laptop).
8. The NDIA also considers that alternative supports in the form of carry bags or satchel attachments for Mr Ewin's wheelchair would be a more cost-effective way to allow him to carry the items while travelling to and from work on public transport.
9. Mr Ewin contends that the attachments suggested by the NDIA would not solve the problem with respect to carrying his items as they are heavy and bulky, rendering it unsafe for him to travel in the wheelchair with the items inside the carry bags or sachet attachments. Mr Ewin contends that the increased weight would make it difficult for him to wheel up inclines. He also contends that it would create a risk of theft of the items if one of the suggested carry bags or sachet-attachments were used.
10. The ANZ work files are A4-sized stiff cardboard files which appear to contain about 200 or 300 pages of A4-sized documents. Mr Ewin's wife, Ms Nicki Greenberg, gave evidence that she was not aware how many of these files Mr Ewin would bring home on the nights he was planning to work at home. Mr Ewin provided the Tribunal with an image of two of those work files stacked on top of a desk.[8]
11. The installation of a power-assist device, SmartDrive MX2, was considered as a means by which Mr Ewin could be assisted to power his wheelchair as required when carrying the items. However, Mr Ewin contends that it would be unsafe for him to use this device during peak hour, due to the increased number of people on the footpaths and the difficulty he would have navigating around them, using this device.
12. At the hearing, Mr Ewin said he had not made inquiries with his employer, ANZ Bank, about whether it would be prepared to provide him with an ANZ laptop to keep at home. Mr Ewin said that he had not been working with the ANZ Bank for long and held concerns about whether any such request may affect whether they would offer him a subsequent contract. At the time of the hearing, Mr Ewin gave evidence that he was working on a 12-month contract.
13. The Tribunal sought an update from Mr Ewin about his employment status before handing down its decision. Mr Ewin confirmed that his employment status since the hearing had changed. He reported that he was no longer working under a contract and had been made a permanent employee of the ANZ Bank in the same role.

Documentary material before the Tribunal and written submissions

1. On 12 December 2017, Mr Ewin lodged with the Tribunal a set of documents including statements of lived experience by Mr Ewin and Ms Greenberg; reports by an occupational therapist, Dr Lisa Chaffey; and a report by an orthopaedic surgeon, Dr Eden Raleigh.
2. The parties lodged a number of written submissions in this application including:
   • (a) on 12 December 2017, Mr Ewin lodged his statement of position (Mr Ewin's SOP);
   • (b) on 24 January 2018, the NDIA lodged its statement of facts and contentions (NDIA's SFIC);
   • (c) on 2 March 2018, Mr Ewin lodged submissions in closing (Mr Ewin's Closing Submissions);
   • (d) on 16 March 2018, the NDIA lodged closing submissions (NDIA's Closing Submissions);
   • (e) on 26 March 2018, Mr Ewin lodged submissions in reply (Mr Ewin's Closing Submissions in Reply);
   • (f) on 7 December 2018, the NDIA lodged further written submissions (NDIA's Further Submissions);
   • (g) on 10 December 2018, Mr Ewin lodged further submissions (Mr Ewin's Further Submissions);
   • (h) on 13 December 2018:
     • (i) Mr Ewin lodged further submissions in reply (Mr Ewin's Further Submissions in Reply); and
     • (ii) NDIA lodged further submissions in reply (NDIA's Further Submissions in Reply).
3. Documentary evidence before the Tribunal included:
   • (a) webpages providing information about the Job Access: Employment Assistance Fund (EAF);[9]
   • (b) ANZ documents outlining its policies and procedures applicable to ANZ staff in relation to flexible work practices and inclusion of persons who have a disability including the, "ANZ My Flexibility Employee Guide - Guidelines to successfully implanting and maintaining flexible work arrangements" (ANZ My Flex Guide) and the further ANZ documents referred to in paragraph [[[10]](2018_4726.html#_Ref5329958 > 31 Principles relating to plans

The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

(a) be individualised; and

(b) be directed by the participant; and

(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and

(da) if the participant and the participant's carer agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f) support communities to respond to the individual goals and needs of participants; and

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i) maximise the choice and independence of the participant; and

(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

1. Section 31 of the NDIS Act sets out a number of principles that apply in the development of an NDIS plan for an NDIS participant. The purpose of the plan is to state how the funds provided for the participant's supports are to be managed. The plan is the instrument under the scheme that governs what funding the participant is entitled to receive in respect of the supports referrable to the period of the plan. Each plan must have in it an approved statement of supports and, in fact, a plan does not take effect until a statement of supports forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act.
2. Section 33 of the NDIS Act sets out certain matters that must be included in a participant's plan, including the participant's statement of goals and aspirations (s 33(1)) and a statement of participant supports, which is prepared with the participant and approved by the CEO (or his or her delegate) in accordance with s 33(2).
3. Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether or not to approve the statement of participant supports under s 33(2), must;
   • (a) have regard to the participant's statement of goals and aspirations;
   • (b) have regard to relevant assessments conducted in relation to the participant;
   • (c) be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
   • (d) apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;
   • (e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
   • (f) have regard to the operation and effectiveness of any previous plans of the participant.
4. Section 34(1) of the NDIS Act provides as follows (emphasis added):

For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide;

(f) the support is most appropriately funded or provided through the [NDIS], 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 a universal service obligation; or

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

1. Section 35 of the NDIS Act allows for NDIS rules to prescribe a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided,[17] or for declaring particular reasonable and necessary supports or general supports that will or will not be provided or funded, either generally or for prescribed participants.[18]
2. Rules have been prescribed and are in force, namely, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules). Section 33(5)(d) of the NDIS Act requires that those Support Rules be applied in the making of a decision to approve a statement of participant supports.
3. The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] as follows:

The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Support Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

1. Schedule 1 of the Support Rules requires the CEO of the NDIA to have regard to certain matters in relation to reaching a state of satisfaction with respect to s 34(1)(f); namely that supports are most appropriately funded or provided under the NDIS.
2. Section 37(2) of the NDIS Act provides that a participant's plan cannot be varied after it comes into effect, but it can be replaced under Division 4 of the NDIS Act. Section 37(3) provides that the plan ceases to be in effect when it is replaced by another plan under Division 4 or when the participant ceases to be a participant, whichever occurs first.
3. Section 48(4) of the NDIS Act provides:

The CEO may, on the CEO's initiative, conduct a review of a participant's plan at any time.

1. The NDIA provided the Tribunal with an extract from its internal operational guidelines, namely, Operational Guidelines (Guidelines).[19] The Guidelines describe (in clause 3.1) that they provide:[20]

...detail and guidance to decision makers on how to apply the law in the context of the NDIS, and helps the NDIA to interpret its functions and powers when making decisions or recommendations affecting members of the public.

1. The extract provided to the Tribunal in the T-Documents comprised of Chapter 10 (Planning) and a section of Chapter 12 (Including specific types of supports in plan) which deals with transport_._
2. The Tribunal also notes the references to the provision of funding for participant transport as appearing in the NDIS Price Guide - Victoria, New South Wales, Queensland, Tasmania (Valid from: 1 July 2018) (NDIS Price Guide) (similar to earlier versions of this publication) which states as follows (emphasis added):[21]

Transport Support (Support Category 1.02)

Transport enables participants to access disability supports outside their home, and to pay for transport that helps them to achieve the goals in their plan. Transport supports generally do not have price controls; however, participants should use the least expensive transport that meets their needs. Transport funding is paid fortnightly in advance to self-managed participants. Funding transport assistance is limited to those who cannot use public transport due to their disability. If the participant has questions about their transport support, providers may direct them to the NDIS factsheet available on the NDIS Website.

1. At the end of that paragraph in the NDIS Price Guide, there is a footnote containing a link to the NDIS website as follows: https://www.ndis.gov.au/document/participant-transport-funding-informati. This link is an NDIS Fact Sheet published on its website dated "May 2017".
2. The Tribunal has considered the role that executive policy in general should play in the decision-making process in this Tribunal, as addressed by the Federal Court of Australia in the following relevant authorities.
3. The Full Court of the Federal Court in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake) considered the function of policy in the decision-making process of this Tribunal. In the majority judgment (Bowen CJ and Dean J), it was held that (emphasis added):

[69] Ordinarily ...an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy.

[70] ...In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant fact for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.

1. Upon being remitted to the Administrative Appeals Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake No 2), Brennan J made the following further observations (emphasis added):

[on page 644] Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.

...

[on page 645] When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.

...

1. The Tribunal notes that in the recent decision in G v Minister for Immigration and Border Protection [2018] FCA 1229 (G v MIBP), Mortimer J considered extensively the leading authorities relating to the use of executive policy in the decision-making process including the decisions of Drake and Drake (No 2).[22] The Tribunal notes and agrees with Mortimer J's condensation of the relevant principles arising from these authorities in G v MIBP, as follows (emphasis added):

[201] It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:

• A decision must not be "so truncated by a policy as to preclude consideration of the merits of specified classes of cases" (Drake No 2 at 640);
• A decision-maker must not "abdicate" her or his exercise of power to the terms of the policy (Nevistic:[23] Frank J at 642, Deane J at 646; Lockhart J at 651-652; Gray[24] at 205-206; Hneidi[25] at [42]);
• The policy should not "superimpose" a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute (Green[26] at 9);
• The policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context (Green at 10); and
• A policy statement should not be applied so as to prejudice a Tribunal's independent assessment of the merits of the case (Gray at 211).

[202] There may be circumstances where the value of equality of treatment that policy can support, and the legitimate role for the executive in forming policy to guide statutory power that is based on political considerations, prevail over the interests of the individual, or individual justice. So much can be accepted as an appropriate consequence of the relationship between different branches of government.

[203] Nevertheless, the core authorities to which I have referred make it clear that if, and when, the AAT makes a decision on the merits review which has this outcome, it is a conscious choice, being fully aware that it has a choice, and having carefully and thoroughly considered whether an outcome of that kind is the correct, or the preferable, decision in the circumstances of that individual.

[204] Finally, I consider it is clear from Drake (No 2) and from Gray, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task. It will be an error of law if it fails to do so, or if it misunderstands or misconstrues the content of the policy in a way that is material to the exercise of power in its review: Gray at 2018; Drake (No 2) at 645-646, Elliot v Minister for Immigration and Multicultural Affairs [2007] FCAFC; 156 FCR 559 at [23]-[23], [41]-[42], Braganza v Minister for Immigration [2003] FCAFC 170 at [31]. To say this much is not to contradict the statements I have set out in [201] above, which are all directed to the appropriate limits on the role of executive policy, once taken into account.

1. In order to determine whether it is appropriate for the Tribunal to apply the Guidelines in making its own decision on review in this application, while bearing in mind the principles arising from the Federal Court authorities referred to above, the Tribunal is required to determine whether the relevant parts of the Guidelines sought to be relied on by the NDIA are lawful, or whether their application would produce an unjust decision in the circumstances of this application.
2. The Tribunal has applied these broad principles as set out in paragraphs [81] to [82] below in considering the executive policy issued relevant to transport supports.

Provisions in the NDIA Guidelines about transport supports

1. Chapter 12 of the Guidelines deals with specific types of supports in NDIS plans. Relevantly, these Guidelines provide as follows:[27]

12. Transport

Transport supports include supports that enable participant's to build capacity to independently travel, including through personal transport-related aids and equipment, or training to use public transport.

A participant's transport supports may also include the reasonable and necessary costs of taxis or other private transport options for participants who are not able to travel independently, as well as transport to and from school for students.

...

When considering whether transport is a reasonable and necessary support, the NDIA must consider, amongst other matters, whether the support is related to the participant's disability...

A support will not be provided or funded under the NDIS if it relates to day-to-day living costs (rule 5.1(d) of the Supports for Participants Rules).

Day-to-day living costs may include rent, groceries or utility fees, however, this is not an exhaustive list. Transport is an incidental cost of everyday life for most people and, therefore, can also be considered a day to day-to-day(sic) living cost (see McGarrigle and NDIS [2016] AATA 498 at [46]).

However, the day-to-day living costs which the NDIS will not fund do not include the additional living costs that are incurred by a participant solely and directly as a result of their disability support needs (rule 5.2(a) of the Supports for Participants Rules).

These additional living costs (i.e. those incurred by a participant solely and directly as a result of their disability support needs) may be funded under the NDIS if they relate to reasonable and necessary supports.

...

12.2 Transport and considerations relating to adults

A participant will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty due to their disability.

...

There are generally three levels of funding support for transport. The levels are used to provide a transport budget for participants. In exceptional circumstances, participants may receive higher funding if the participant has either general or funded supports in their plan that enable their participation in employment.

Level

• the NDIS will provide up to $1,606 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access.

• the NDIS will provide up to $2,472 per year for participants who are currently working or studying part-time (up to 15 hours per week), participating in day programs and for other social, recreational, or leisure activities.

• the NDIS will provide up to $3,456 per year for participants who are currently working, looking for work or studying, at least 15 hours per week, are unable to use public transport because of their disability.

1. The Tribunal considers that the above section of the Guidelines is broadly consistent with the NDIS legislative regime, except for the last part of clause 12.2 of the Guidelines, which seeks to establish three caps applicable to the level of funding that are to be provided to a participant. These funding caps depend on the participants' personal circumstances (i.e. the degree of the participant's involvement in work and study activities). The Tribunal considers that the Federal Court in McGarrigle has established that the correct approach when a request has been made by a participant to receive funding for a particular support, is for a determination is to be made as to whether the support is reasonable and necessary and if such a determination is made, the provisions of the NDIS Act require the support to be funded in full.[28]
2. The imposition of caps, as the last part of clause 12.2 seeks to do, may operate to deliver only partial funding to a participant in circumstances where the total cost of certain travel determined to be a reasonable and necessary support exceeds the value of the nominated caps.
3. For this reason, the Tribunal will not apply this last part of clause 12.2 of the Guidelines, or the NDIS Fact Sheet as referred to in paragraph [72], to Mr Ewin's case as it considers it inconsistent with the relevant legislative provisions and in some cases (depending on the circumstances), may produce an unjust result.

Should the transport costs specified by Mr Ewin be funded?

1. Firstly, the Tribunal will deal with the substantive issue about whether the transport costs specified by Mr Ewin, or some of them, should be funded as a support under the NDIS. As mentioned above, this will require a consideration of the factors set out in s 33(5) of the NDIS Act (see paragraph [61]), including whether this support is reasonable and necessary on account of meeting all of the criteria under s 34 of the NDIS Act.

Section 34(1)(a) - Whether proposed support will assist Mr Ewin to pursue his goals, objectives and aspirations

1. Mr Ewin's goals and aspirations are stated in identical terms in his four successive NDIS plans and include: to continue living at home with his family in a safe and supported environment; to continue to be engaged in the workforce and wider community activities; and to optimise his health and wellbeing.
2. The reviewer who made the Internal Review Decision on 23 March 2017 was satisfied that the requirement under s 34(1)(a) of the NDIS Act was met. After Mr Ewin made this application, the NDIA altered its position. The NDIA contends that this requirement is not met because it is difficult to discern the nexus between the funding sought by Mr Ewin for transport and his goals. The NDIA contends that Mr Ewin was able to drive an unmodified car and independently use public transport. The NDIA contends that it was not the case that he was unable to access work or community activities because of his disability and needed assistance to enable him to travel. The NDIA states that there was no evidence that the funding would assist Mr Ewin to live at home and be engaged in the workforce. Instead, the funding would assist him financially, as he would not be out of pocket for particular trips he made using his car.
3. Mr Ewin relied upon the guidance that was provided by the NDIA in its Guidelines as follows:[29]

It is important to note that the NDIA does not need to be satisfied that the funding, or provision of a support, will specifically result in the achievement of a participant's goals, objectives or aspirations. Rather, the support simply needs to assist (i.e. aid, support or contribute) to the participant to achieve their goals.

1. Mr Ewin contends that funding of travel to undertake household tasks such as shopping and to take his children to sporting activities would assist his first goal of continuing to live at home with his family. Further, he contends that funding his travel to engage in work, to attend the DSR board meetings and DSR mentoring and to visit extended family members would clearly assist Mr Ewin in his second goal of being engaged in the workforce and wider community activities. Finally, Mr Ewin contends that funding his travel to bowls and on family holidays assisted his third goal of optimising his health and wellbeing.
2. Mr Ewin's goals and aspirations are expressed in broad terms. The Tribunal considers that the provision of funding to Mr Ewin to undertake the travel specified in paragraph [1] in his private vehicle, will assist him to meet his second and third goals, by removing the disincentives that Mr Ewin would otherwise face if he was required to undertake that travel by public transport, being that travelling to those places by public transport would either be impractical, inconvenient, or in some cases, not possible because of his disability.
3. Accordingly, the Tribunal concludes that the mandatory requirement under s 34(1)(a) is met in Mr Ewin's case with respect to the specified travel.

Section 34(1)(b) - Whether the support will assist Mr Ewin to undertake activities, so as to facilitate his social and economic participation

1. The NDIA contends that the requirement under s 34(1)(b) of the NDIS Act is not met in Mr Ewin's case, for the same reasons that they are not met under s 34(1)(a), as set out in paragraph [[[30]](2018_4726.html#_Ref529458 > Value for money

3.1 In deciding whether the support represents value of money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of the alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

...

1. Mr Ewin contends that the most cost-effective way of supporting him is to fund him under the NDIS for the cost of using his private vehicle for the specified travel.
2. Having reference to r 3.1(b), the Tribunal considers that support in the form of funding Mr Ewin's travel by private vehicle for each of the travel categories referred to in paragraph [1] is likely to be of a long-term benefit to him, albeit mainly in a financial sense, but also by providing him with a more convenient means by which to achieve his goals and aspirations. However, it was less clear to the Tribunal how those supports could be said to substantially improve his life stage outcomes. Mr Ewin presently has a reasonable standard of independence, being able to drive independently and weight bear to allow for ease of transfers from his wheelchair into and out of his car. The Tribunal considers that even without the provision of the requested support, Mr Ewin will achieve the same life stage outcomes. While the Tribunal has considered these factors they have not significantly influenced its decision about whether the various categories of travel represent value of money.
3. The factor regarded by the Tribunal as most relevant to the circumstances of this application was the consideration under r 3.1(a); being whether there are comparable supports which achieve the same outcome at a substantially lower cost.

Comparable support for all Travel Categories: taxi/hire care or provision of carer to drive the participant

1. Mr Ewin contends that when he is unable to use public transport, the cost would be significantly higher if he were to use a taxi, hire car or a carer to drive him. The Tribunal accepts this contention. This alternative support would deliver the same outcome but not at a substantially lower cost.

Comparable support for Travel Category 1: Luggage Carrier

1. Specifically, Mr Ewin contends that the Luggage Carrier would not serve as an alternative support, based on Dr Chaffey's evidence.
2. Mr Ewin gave evidence to the effect that his belongings would simply fall off the Luggage Carrier when he travelled over uneven terrain. The Tribunal accepts that if items such as a laptop and/or work files were resting on the Luggage Carrier, and were not affixed or attached in some way, while Mr Ewin was wheeling, it is likely that they would fall off. This may cause damage to the laptop. It may also cause the work files containing sensitive information to be lost. Importantly, the Tribunal accepts Dr Chaffey's evidence to the effect that this may create a hazard or risk to Mr Ewin as his visibility of the surface in front of him may be obscured. There is also a risk that it may place undue weight out in front of his wheelchair, distorting the balance of the weight on the wheelchair as he travels.
3. The NDIA contends:[33]

...A luggage carrier may not be necessary if the Applicant does not transport files home. Dr Chaffey agreed that if the current weight that the Applicant carries in his backpack is maintained, he would remain stable in his wheelchair: [Transcript] 133.13-20. The reasons against fitting a luggage rack are not persuasive. For example, the Applicant contends that the files would be susceptible to theft. Given that the luggage carrier would be placed directly in front of the Applicant's feet, it seems unlikely that luggage could be stolen while the Applicant sat in his wheelchair. The risk of theft would be ameliorated if the luggage was otherwise attached to the chair, which Dr Chaffey said was possible: [Transcript] 135.10.

1. For the reasons set out in paragraph [100], the Tribunal does not consider the luggage stand is a comparable support that is capable of achieving the same outcome of transporting Mr Ewin's laptop and work files safely without posing a risk to Mr Ewin in the safe wheeling of his wheelchair.

Comparable support: power-assist device to be attached to wheelchair

1. Dr Chaffey states in her report that it would cost approximately $9,500 to add a power-assist device designed to electronically power Mr Ewin's manual wheelchair. She provided details of this device in her report. Her evidence was that although it would assist Mr Ewin to push the wheelchair, it was not suitable for use in crowded places or on uneven surfaces, because it did not have a sophisticated speed control and did not enable sensitive increases or decreases in speed.
2. The Tribunal has accessed the manufacturer's User's Manual for the SmartDrive MX2+ which is publically available online (Manual).[34] The intended use of this device specified in the Manual is set out as follows:

The Max Mobility SmartDrive Wheelchair Power Assist device is exclusively intended to provide auxiliary power to manual wheelchairs to reduce the pushing power needed by their users, including paediatrics, with a user weight of 30 to 331 lbs (14-150 kgs). It is intended to be used by users capable of operating and maneuvering a powered and manual wheelchair, ultimately empowering them through enhanced mobility...

1. The Operating Conditions are described in the Manual as follows:[35]

The SmartDrive is designed for typical operating conditions encountered by a manual wheelchair user on a daily basis. Max Mobility recommends restricting the use of this device to indoor and light outdoor use....

The total weight of the SmartDrive assembly is 13.5 lbs (6.1 kg). This weight should be included in calculating the on-board weight of the wheelchair...

1. There are a number of warnings and safety precautions set out on pages 1 and 2 of the Manual including the following (emphasis added):

Always pay close attention to the surface that you are operating your wheelchair, whether your SmartDrive is on or not, as the front casters of your wheelchair can get stuck in cracks, ruts, holes, ledges, etc. Running into these obstacles can cause you to tip out of your chair.

...

Do not operate over significantly rough terrain, very slick surfaces, extreme slopes, or loose ground. This may cause a loss of traction, leading to injury or damage to your SmartDrive and void the warranty.

The SmartDrive is not designed to drive up or down large curbs/steps. Only perform this maneuver when absolutely necessary and always ask for help. Also be sure to turn OFF the power assist [via Push Tracker] before maneuvering.

Use extreme caution when operating a SmartDrive attached wheelchair when near streets. Consider turning OFF the power assist [via Push Tracker] to reduce risk.

When crossing major roads, intersection, railway crossings or highways as well as when you drive steep, long slopes you should always consider having somebody accompany you in the interest of your safety.

...

Riding over curbs or obstacles can cause tipping and serious bodily harm. Turn OFF the power assist [via Push-Tracker] when attempting to ride in these situations...

...

Use caution when operating a SmartDrive attached wheelchair indoors or in crowded/confined areas. Consider turning OFF the power assist (via Push Tracker] to reduce the chance of collision, damage or injury.

1. Based on the information provided by the manufacturer in the Manual for this device, the Tribunal does not accept the evidence of Dr Chaffey that this device should not be used on uneven surfaces because it did not have a sophisticated speed control and did not enable sensitive increases or decreases in speed. The Manual details three different modes of operation of the device. All three modes suggest that once the user is trained and skilled in using the device, they will have a great deal of control over the speed at which the device will push the wheelchair, control of deactivating the operation of the device, and/or braking as and when required, when using it on a manual wheelchair.
2. The Tribunal finds that this device is suitable for "typical operating conditions encountered by a manual wheelchair user on a daily basis" as indicated by the manufacturer in the Manual. However, the Tribunal is satisfied that the device's suitability is most likely confined to using the device indoors and for "light outdoor use". The Tribunal considers that the device is able to be used safely on uneven surfaces, but it is not suitable for significantly rough terrain (see highlighted text in the Manual as indicated at paragraph [106]). The Tribunal does not consider that small bumps or cracks in a pavement constitute significantly rough terrain. The Tribunal considers that the reference to significantly rough terrain was intended to refer to an unsealed bumpy or rocky surface.
3. Separately, based on the specifications in the Manual, the Tribunal is satisfied that the device is not suited, and may present a risk, when used in crowded places (see highlighted text in the Manual as indicated at the end of paragraph [106]).
4. For the travel that Mr Ewin is required to do between Southern Cross Station and Docklands when travelling to and from work during peak hour when significant crowds are likely to be present, particularly coming out of the station, the Tribunal considers that the use of this device by Mr Ewin would be potentially unsafe and unsuitable. For this reason, the Tribunal does not consider the SmartDrive MX2+ to be a comparable support that will deliver the same outcome.

Comparable support for Travel Category 5: online grocery shopping

1. With respect to the specified weekly travel by Mr Ewin in his private vehicle between his home and his local supermarket to do the grocery shopping for his family, the NDIA identified that the online shopping and delivery service offered by the major supermarkets could be used by Mr Ewin as a comparable support to achieve the same outcome.
2. Mr Ewin gave evidence that he and his wife had trialled online grocery shopping about five or six years ago. He recalled being charged a delivery fee of between $7 and $14. His experience was that the supermarket failed to deliver all of the items ordered, requiring a trip to be made by him or his wife to the supermarket to buy the missing item. Mr Ewin said he recalled that online shopping was sometimes more expensive than shopping in person at the supermarket. Mr Ewin said he does not consider using this service as a cost-effective alternative to transport funding.
3. The Tribunal notes that a prominent consumer organisation, CHOICE, published results of a test undertaken by it of the online shopping services offered by Australia's leading supermarkets, including Woolworths.[36] The Tribunal considered this information probative because it was covert testing that had been undertaken recently (i.e. at some time around mid-2018). Mr Ewin's evidence about online shopping was based on only his experience that dated back five or six years ago, which the Tribunal considered unreliable given the significant passage of time.
4. The test undertaken by CHOICE involved it placing orders with the three major supermarkets offering online shopping services under a pseudonym and using a shopping list "as close to identical as possible" and by repeating each order twice. Scores were given for a range of factors including performance.[37]
5. The test results indicate that Woolworths received a performance score of 95%. They also indicate that a "good point" in relation to Woolworths was that "only one out of 62 items was not delivered but a suitable replacement was delivered instead". The Tribunal also notes some "bad points" indicated in the test results, such as the availability of items varied depending on which store filled the order and also one of the two orders arrived with the elevated temperature of refrigerated goods, including chicken (which rose to 11 degrees).
6. The Tribunal understood from Mr Ewin's evidence that he mainly shopped for the family's "staples" when he was at the supermarket, as his wife shopped for the family's fresh produce from the Queen Victoria Market each week. On that basis, it would seem to matter less if there was an elevation in temperature of the goods during the delivery process. Mr Ewin clarified in his Further Submissions that he purchased refrigerated goods such as small goods and meat products. However, this could be readily addressed by his wife buying those items at the Queen Victoria Market given that she shopped there most weeks for the family's fresh produce.
7. Mr Ewin contends in his Further Submissions that the CHOICE survey suggests that on average he could expect to have an item not delivered once every second shop. Mr Ewin said this would cause inconvenience to him and that he would need to contact the service provider about it. The Tribunal considers that the time Mr Ewin would save by using the online shopping service, instead of needing to attend the supermarket personally, is likely to make up for any minor inconvenience to him of needing to send an email or call the supermarket on average once a fortnight to report a missing item, so they may deliver to him a replacement.
8. Despite the potential for a minor inconvenience of this kind, the Tribunal is nevertheless satisfied that online shopping is a support that would deliver the same outcome as Mr Ewin shopping in person, putting aside some negligible variances that may occur at times and bearing in mind that when the Tribunal is applying the various considerations, it is doing so to reach a decision about whether the support is "reasonable" and "necessary".
9. The next consideration is whether this support is available at a substantially lower cost. The funding requested by Mr Ewin to drive to his local supermarket is low, i.e. a four kilometre round trip (4km x 66c/km) = $2.64 per trip. Mr Ewin states in his Further Submissions that for the weekly supermarket shop, he would usually spend between $120 and $180. Mr Ewin did not provide any supporting documentary evidence. However, the Tribunal is prepared to accept Mr Ewin's oral evidence in this regard. Mr Ewin contends that he would sometimes (but not always) meet the $150 free-delivery threshold applicable if he shopped at Coles, but not the $300 free-delivery threshold applicable if he shopped at Woolworths. The Tribunal also accepts this evidence.
10. The Coles website provides the following information in answer to the question, "How much will a delivery cost?":[38]

Delivery costs can vary depending on location, time of day and length of delivery window chosen. Generally most metro delivery fees range between $4 and $18. If you have signed up and are logged in you can view delivery fees and times for your area.

1. Woolworths charge between $3 and $12 depending on the size of the order. The $3 charge applies for orders up to $149.99 and $9 applies for orders up to $199.99.[39] Woolworths adopts a "same pricing" policy as indicated by the following assurance on its website, "You won't pay anymore for an item online than in store".[40]
2. The Coles website provides the following information in answer to the question, "Are the website prices the same as in store?":[41]

Our online pricing is based on the in-store price that customer orders are picked and delivered from. There may be some variation on supermarket prices between states, remote locations and on certain items including fresh produce, tobacco and some promotional products. In order to view accurate pricing for your collection point or your delivery address, you will need to log in at shop.coles.com.au and enter your address.

1. Based on the current delivery fees in the context of Mr Ewin's typical expenditure each week and the product pricing policies adopted by Coles and Woolworths in respect of online shopping, the Tribunal is not satisfied that the cost of this support would be substantially lower than funding Mr Ewin's travel by private vehicle.

Comparable support for Travel Category 1: bag or sachet wheelchair attachment

1. The Tribunal must consider whether the wheelchair bag and sachet attachments, such as the products shown in Exhibits "R3" and "R4", tendered by the NDIA, and the further product information about a product called the "black box" as identified by the Tribunal,[42] would enable Mr Ewin to transport the ANZ laptop and/or work files and personal effects to and from work. Mr Ewin's personal effects include a lunchbox, drink bottle, wallet, bicycle pump, hat, pocket knife, permits, pens passes, railway ticket, handkerchief and spectacles (Personal Effects).
2. At the moment, Mr Ewin uses a backpack to carry his Personal Effects, which he places over his shoulders in the usual way while he is using the wheelchair.
3. Mr Ewin contended that the information about the "black box" (i.e. the picture and brief description of it) was limited and it was not possible for the Tribunal to be satisfied as to its appropriateness as an alternative support on the available information. Neither Mr Ewin nor the NDIA provided any further product information to the Tribunal in relation to the "black box" after the link was provided to the parties.
4. The information identified by the Tribunal about this product was sourced from the website of the British company, Gerald Simonds Healthcare Ltd. It illustrated a compartment made out of durable fabric that dropped down from the front edge of the seat of wheelchair and attached under the base of the seat. Once fitted, the compartment was positioned underneath the seat and was able to be accessed by the person in the wheelchair reaching down below the front edge of the seat. The compartment has an opening at the front consisting of a square flap that folds downwards when opened.
5. The description for the "black box" is stated as follows:

Black Box is an easy to fit, waterproof carrying bag that fits under your wheelchair. Available for both rigid and folding frame chairs, they can remain fitted when wheelchair is folded. The Black Box can be fitted to almost any wheelchair within 30 seconds and, once fitted, becomes a secure storage compartment with integral document/wallet holder, fitted key fob and pen loop. They also come complete with carrying handles for separate use as a holdall. The unique positioning of the Black Box will not affect the wheelchair's balance or centre of gravity.

1. In Mr Ewin's Further Submissions he contended as follows:

[13] Based on the information that is available, the Applicant provides the following comment:

1. The Applicant is concerned that the black box device will not be capable of being attached to his chair. It appears that it is attached by a thick strap which sits under the cushion and travels right around to the back, and that it wraps right around the seat area from front of the seat to the back. On the Applicant's chair there is no gap where the seat meets the backrest, so there is nowhere the strap can get around to in order to be fitted. The Applicant refers to Annexure A, which is a photograph of this part of his wheelchair;
2. In addition, the Applicant's wheelchair has a protruding frame under the seat area where it appears the black box device will be located. In the Applicant's view, in addition to the concerns above, it is clear that the black box would not be capable of being fitted in the manner/location shown in the images the Presiding Member has provided. The Applicant refers to Annexure B, being a photograph of this part of his wheelchair.

1. The Tribunal considers that Mr Ewin has made an assumption about the attachment mechanism for this carrying device which is not apparent from the image. It is not clear from the photograph what mechanism is used for fitting this attachment. It may be as Mr Ewin has suggested, but it may not.
2. The manufacturer had made representations that it can be fitted to almost any wheelchair within 30 seconds. Even if there is a problem fitting it in the usual way to Mr Ewin's wheelchair (whatever that may be), perhaps due to an absence of a gap at the back of the seat of the wheelchair as suggested by Mr Ewin, options could be explored to attach the compartment in a customised way, for instance, by it being sewn or glued into place, noting the attachment is made out of tent-like canvas fabric and is therefore, adjustable (unlike a product made out of hard material).
3. Furthermore, the Tribunal was not persuaded that the presence of the cross bar at the rear of the base of Mr Ewin's chair would prevent the black box from being fitted onto his chair. If that cross bar was positioned at the front or in the mid-line of the chair this might be a plausible reason as to why it could not be fitted. However, this is not the case.
4. The Tribunal prefers the information provided by the manufacturer about its suitability for foldable wheelchairs, over the concerns raised by Mr Ewin. The manufacturer's indication that that a "black box" would not affect the wheelchair's balance or centre of gravity seemed to the Tribunal to be inherently plausible given the positioning of the attachment.
5. For these reasons, the Tribunal does not accept that there is a known reason at the present time as to why this attachment could not be used by Mr Ewin to carry his Personal Effects, leaving room in his backpack to carry his lap top on his back, should the ANZ Bank fail to provide it to him under its extensive flexibility or inclusion policies, which the Tribunal considers to be most unlikely.[43]
6. Photographs of the ANZ laptop were provided to the Tribunal by Mr Ewin. It is an IBM ThinkPad. Mr Ewin was asked at the hearing at the Tribunal how much it weighed. He did not know and this information was not subsequently provided after the hearing. The Tribunal followed this up with Mr Ewin before handing down its decision. Mr Ewin informed the Tribunal in his Further Submissions that his ThinkPad weighed 4.91lbs (2.23kg). From the photograph provided, it appeared to be between 1.5cm and 2cm thick.
7. At the hearing, Mr Ewin gave evidence about why it would be a problem for him to carry his laptop and/or his work files on his lap while using his wheelchair. He said:

Well, it would significantly reduce my functionality, and so the result of that would be that I wouldn't be able to traverse a lot of the things that I can do without carrying those things on my lap. I wouldn't be able to go up any sort of steep-ish or even mild incline, I wouldn't be able to navigate gutters or rough terrain, it would just be impossible. It would be impossible for me to carry even a laptop without files on my lap to get home.

Are there alternatives to carrying those items on your lap?---Not that I'm aware of.

Could those items go in your bag?---Well, no, they couldn't. They probably wouldn't fit, and the weight would basically pull me back and make it unstable.

...

Impact you, having something on your lap?---Well, there's a significant risk that they would fall off at some point. I would hit a crevice or a crack or a bit of a gutter or a train track or, I mean, a thing that's sticking up on the footpath. So, manhole covers, arm - you know, there's hundreds of things that are there, and all would need to happen is I would strike that, and my chair would deviate or possibly even come to a complete stop, and everything would just fly of my lap. In addition to that, having items or bulky items on my lap means I can't lean forward to push, and so I wouldn't be able to have the power to navigate upward inclines. Even things like coming off the road and getting up a gutter... a cross-over gutter to get up back onto the footpath again, would not be possible if I can't lean forward and drive the wheels forward to get up there.

1. Mr Ewin said "it would be verging on too heavy" for him to carry his laptop alone in his backpack although he seemed to accept it would be possible if he sacrificed other things that he would usually carry to reduce the overall weight he was carrying.[44]
2. At the hearing, Dr Chaffey was asked whether "any other different bags" could be attached to Mr Ewin's wheelchair to enable him to carry the laptop. Her response was as follows:[45]

No, my recommendations - well, my alternative was a luggage rack at the front which is not a viable alternative. But a backpack is also a viable - well, is also another option, but no, I haven't thought of any other bags.

1. However, as explained in more detail in paragraphs [250] to [277], the Tribunal is satisfied that arrangements could be made that would obviate the need for Mr Ewin to transport a laptop and work files between his work and home. The Tribunal considers that it is appropriate that the ANZ Bank fund the equipment required (i.e. ANZ laptop and printer to be kept at his home) in order to establish such an arrangement. Furthermore, the Tribunal considers that at the very least, the ANZ should provide Mr Ewin with a printer to keep at this home indefinitely to obviate the need for him to carry the bulky work files.
2. In the former case, the Tribunal considers that Mr Ewin would be able to carry his Personal Effects in the same way as he does presently, being in his backpack as he demonstrated at the hearing.
3. In the latter case, the Tribunal considers that Mr Ewin would be able to transport the laptop and his Personal Effects to and from work in one of the following two ways:
   • (a) Mr Ewin's Personal Effects could be transported in his current backpack in the usual way and his laptop could be carried in a lightweight laptop bag resting on his lap, with the standard shoulder carry strap from the laptop bag shortened, and once Mr Ewin is seated, he could place it over his head and down, so that it extends from one side of his lap, horizontally around across the back of his buttocks and around to the other side of his lap (to stop it falling off should Mr Ewin encounter a bump in the pavement); or
   • (b) Mr Ewin's Personal Effects could be transported in a "black box" to be fitted underneath the wheelchair seat and his laptop could be carried in his backpack.
4. Mr Ewin has stated in his Further Submissions that he would not be able to transport the laptop resting on his lap with the shoulder strap on a laptop bag being used in the usual way (i.e. over one shoulder), because it would get in the way of his arms when he is trying to push the wheels. He said there would be slack in the strap and it would flop around and get in the way.
5. Mr Ewin also contended that having the laptop sitting on his lap will not allow him to push his wheelchair with power as it will prevent him from leaning forward (as it is in the way). He contended that it is essential to be able to lean forward when in the motion of pushing the wheels as weight needs to be forward to allow the chair to be pushed with power, so it does not tip backwards. He also said he would be unable to "jump up" small steps such as curbs with anything sitting on his lap as this would require significant power and movement to clear the step with the front wheels and then clear the step with the rear wheels.[46]
6. The laptop is only 2.23kg in weight and between 1.5 cm and 2 cm thick.[47] The Tribunal considers it untenable that an increase or decrease in weight of 2.23kg on any one day would result in any noticeable difference in the overall weight that Mr Ewin is required to propel, even when taking into account Mr Ewin's shoulder impingement issues and the matters he has referred to in evidence and in his Further Submissions. No evidence was given by Mr Ewin as to places en route from Southern Cross Station to Docklands or from his home to Alphington Station where he would be required to "jump up curbs". The Tribunal does not accept that Mr Ewin needs to propel his wheelchair "with power" or "significant power" in this journey, particularly as he will be wheeling from Southern Cross Station to Docklands during peak hour when, on his own evidence, there are crowds present. Instead, the Tribunal expects that Mr Ewin will need to be careful to wheel at a slow and steady pace in such peak-hour crowds.
7. The Tribunal does not accept that the presence of a laptop, being a flat object, and laptop bag on his lap, which taken together is likely to be about 3 cm thick and weighing about 3kg, would obstruct Mr Ewin from leaning forward to a significant degree in order to generate sufficient power to enable him to wheel to and from his home to Alphington Station and from Southern Cross Station to Docklands. On Mr Ewin's journey to and from work, the distance that Mr Ewin is required to propel his wheelchair is not great. There is no steep incline(s) identified by Mr Ewin on that route. For most of the journey, Mr Ewin will be transported either by the train or a tram. The Tribunal considers that this is particularly so if any additional weight was centred on Mr Ewin and the wheelchair as he was travelling (such as by carrying the items in the manner described in paragraph [141(a)]).
8. For these reasons, the Tribunal considers that the provision of a "black box" (and the cost of any customised fitting service) and a lightweight laptop case with an adjustable shoulder strap, are both comparable supports which achieve the same outcome at a substantially lower cost than funding the costs of Mr Ewin transporting those items and himself by private vehicle.

Comparable support for Travel Category 9: car roof rack and roof box to carry luggage

1. In relation to Travel Category 9, the NDIA contends that Mr Ewin and his wife would be able to achieve the same outcome of transporting the members of their family (two adults and two children), their luggage, Mr Ewin's standard-use wheelchair, lawn bowls wheelchair and the bowls equipment, in one car to travel to Apollo Bay for their family holidays by using a car roof rack and aerodynamic car roof box to store the family's luggage to allow enough room at the back of Ms Greenberg's SUV for the wheelchairs and bowls equipment.
2. Ms Greenberg gave evidence that she thought that she was able to take the wheels off and fit the two wheelchairs into the boot of her car. Later on in her evidence, Ms Greenberg was more doubtful about whether this was possible without the wheels needing to be in the cabin of the car. Ms Greenberg said that this was not a possibility in Mr Ewin's car and he would need to transport one of the wheelchairs in his backseat.[48] However, the Tribunal notes that Mr Ewin gave evidence he was able to fit his two wheelchairs in the boot of Ms Greenberg's car (a Subaru Forrester SUV),[49] if the luggage was stored elsewhere, and that he had done so previously.[50] The Tribunal accepts the evidence of Mr Ewin in this regard.
3. Mr Ewin and Ms Greenberg gave evidence that they were concerned that they would be unable to lift their luggage onto the roof of the car to transport it in a roof box.
4. The Tribunal accepts that Mr Ewin is likely to have difficulty lifting the luggage up onto the roof, based on the medical evidence before the Tribunal as to his physical limitations in relation to the use of his lower limbs. These limitations require him to hold onto a support to remain steady on his feet and also in relation to his shoulder condition.
5. However, the Tribunal does not accept that Ms Greenberg would have difficulty doing so, being able-bodied.[51] Ms Greenberg gave evidence that she went to the gym regularly. The Tribunal notes that Ms Greenberg is most likely to be below average height; however, the Tribunal considers that she would be able to stand onto the floor of the car (just inside the door) when lifting the items to give her more height as a person does when they are washing the top of their car. The Tribunal considers that it would be well within Ms Greenberg's capabilities to lift the family's luggage into a roof box, particularly if the luggage was packed into smaller sized bags to make it easier for her to lift. A step accessory, to fit over a car tyre, may also be purchased for about $99 to assist Ms Greenberg to step up and place the luggage in the roof box.[52]
6. The prices of a common brand (e.g. Rhino) car roof rack and roof box are publically available.[53] The total cost of a standard model roof box (i.e. MasterFit Roof Box 410L) and a Rhino roof rack is in the vicinity of $1,000. This particular Rhino roof box is offered for sale with a manufacturer's warranty of five years.[54] The Tribunal infers from the length of the warranty period that the expected duration of such a product is at least five years or if it does happen to develop a fault during this time, the manufacturer will remedy such fault under the warranty. Accordingly, the Tribunal finds that Mr Ewin and Ms Greenberg would have the use of this product for at least five years.
7. In Mr Ewin's Further Submissions, he raises some concerns about using a roof box as an alternative support. At [3], Mr Ewin contends:

In addition to this evidence the Applicant notes the following difficulties:

a. The roof boot will need to attached(sic) to the roof racks when used, and removed afterwards. The Applicant and his family will not be physically able to put the roof boot on the roof each time they need to travel with it. It cannot be left on the roof all of the time as it will be too high to get into underground car parking for many locations.

b. The roof boot is a bulky item when it is not attached to the roof. The Applicant does not have a place to store it when it is not in use. The Applicant uses his garage to park both cars and there is not enough room with both cars parked to store a roof boot whilst allowing access to the cars in his wheelchair.

c. There is an additional cost of petrol as a result of drag caused by the roof boot. This is referred to in a Choice article - www.choice.com.au/transport/cars/accessories/buying-guides/car-roof-boxes. An overseas road test assessed the increased fuel load from luggage on the roof at 21% - https://www.edmunds.com/fuel-economy/we-test-the-tips-part-ii.html .

1. In light of the dimensions of the roof box (i.e. length 1,910 mm; width 810 mm and height 420 mm) and its weight (18kg), the Tribunal accepts that it would be difficult for Ms Greenberg to single-handedly attach the roof box onto Mr Greenberg's car before going on their biannual family holidays to Apollo Bay or to remove it upon their return. Although the roof box only weighs as much a standard-sized suitcase filled with items, the Tribunal acknowledges that it is bulky in size and would be awkward for a person of Ms Greenberg's stature to lift on and off the top of a car without the assistance of another person to help keep the box steady or to provide additional lifting power during this process.
2. However, Mr Ewin gave evidence that some members of his bowls club live in Alphington. He also said that at times he will drive his team mates to "away" games as part of the carpooling which occurs at the club. Given the frequency at which Mr Ewin says he plays "away" games, the Tribunal considers that it would be relatively easy for Mr Ewin to organise for one of his team mates who he has to offered to give a lift to for an "away" game, to meet him at his house before they depart so they may assist Ms Greenberg four times a year to place the roof box onto the rack or to remove it, before and after their biannual trips to Apollo Bay. The Tribunal considers it reasonable to expect Ms Greenberg and his team mates who are to receive free transportation from Mr Ewin in his car, to provide such support to Mr Ewin.
3. Mr Ewin also raised a concern about not having a place to store the roof box while it is not being used due to a lack of space. The Tribunal considers that the storage issue may be resolved by the purchase of the storage rack fittings which may be installed on the wall of Mr Ewin's garage in a place out of the way, where the roof box may be stored between the biannual family holidays. Those fittings are available at a cost of $109.00.[55]
4. Mr Ewin contended further that using the roof rack and roof box would lead to increased fuel costs. Mr Ewin referred to a CHOICE article in his Further Submissions. The Tribunal notes that a test result in this article indicated that having a roof box attached to a car would increase fuel use by 12.1%. Specifically, the CHOICE article states:

Keep in mind that your car uses more fuel when it has a roof box attached - our test car used 12.1% more fuel with the roof box fitted than without.

1. In Mr Ewin's Further Submissions, he referred to an alternative statistic of 21% increased fuel load from luggage on the roof, as reported by the overseas tester, Edmonds. However, the Tribunal does not consider this to be an applicable statistic as it refers to a test performed with luggage on a roof rack and not luggage stored inside an aerodynamic roof box. The Edmonds article itself makes this distinction in the following statement (emphasis added):

Additional Notes on Aerodynamics Luggage: Putting luggage on the roof of a vehicle hurts economy significantly because it represents an aerodynamic double-whammy. Objects on the roof increase the "frontal area" presented to the wind. The presence of such objects also spoils the aerodynamic shape of the vehicle, resulting in an increase in the coefficient of drag. Often we hear this in the car as wind noise. These two factors are compounded because the drag force acting on an object is equal to the frontal area times the drag coefficient. A rounded aerodynamic roof pod is better than exposed luggage.

1. On the travel spreadsheet dated 7 February 2018, Mr Ewin estimated that he would make family trips to Apollo Bay biannually at the cost of $594 per year, applying a suggested rate of 66c/per km. Based on that estimate, the cost of the requested support to fund Mr Ewin to take a second car on these family holidays over a five-year period is $2,970.
2. The Tribunal finds that the cost of purchasing a roof rack and roof box such as the standard model referred to above; a step accessory; the storage rack fitting; and to reimburse Mr Ewin the 12.1% of his petrol costs for the Apollo Bay trips, keeping in mind the distance between Alphington and Apollo Bay and current petrol prices, are likely to be no to be no more than $1,500 in total (on a generous estimate). The cost of these alternative supports are substantially less than (i.e. about half the cost of) funding Mr Ewin to use a private vehicle to transport those items for a period of five years (being the minimum expected duration of the roof box and roof rack).

1. Taking into account the matters set out in paragraphs [124] to [160164], the Tribunal considers that the funding requested for Travel Category 1 and 9 do not represent value for money because for each of those supports, the Tribunal considers there to be comparable supports which would achieve the same outcome, for a substantially lower cost.
2. For the remaining travel categories, the Tribunal considers that there was insufficient evidence before it to conclude that there was a comparable support which would achieve the same outcome for a substantially lower cost. The Tribunal is satisfied that the requirement under s 34(1)(c) is met in respect of the remaining categories of travel specified by Mr Ewin.

Section 34(1)(d) - Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice.

1. In relation to this requirement, the Support Rules provide as follows:

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a) published and refereed literature or any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

1. The Tribunal has closely considered the statements of lived experience by Mr Ewin and Ms Greenberg, and also the oral evidence given by them at the hearing, in addition to the recommendations of Dr Chaffey and her reasons for making those recommendations.
2. In the present case, and at a general level, the provision of funding to Mr Ewin to travel by car in circumstances where it is not possible for him to do so by public transport, would certainly be beneficial to Mr Ewin and effective in terms of maximising his independence by allowing him to engage in a range of social and economic activities.
3. The Tribunal accepts that the funding requested by Mr Ewin for travel by private vehicle, if provided, is likely to be efficient and beneficial if public transport is either unavailable or inaccessible for some of that travel. It will make the difference between Mr Ewin participating in certain social or economic activities or not, including those associated with Travel Category 1, 2, some trips in 3 where the "away" games are held in a suburb on the Hurstbridge train line, 4, 6, 8 and 9. In relation to those categories of travel, the Tribunal considers that the requirement under s 34(1)(d) is met.
4. However, as expanded upon below, the Tribunal considers that this requirement is not met with respect to other trips in Travel Category 3 where the "away" games are held in a suburb not on the Hurstbridge train line and Travel Category 5 and 7, as the Tribunal is satisfied that Mr Ewin would still undertake the same level of work and social activities referred to in those categories, without the provision of funding for transportation by private vehicle.
5. In relation to Travel Category 5, Mr Ewin said he would usually take about four reusable shopping bags to do the weekly grocery shop for his family at his local supermarket which is at Woolworths in Ivanhoe. This supermarket is two kilometres from his home. Mr Ewin gave evidence that but for his disability, he would take public transport to do the grocery shopping.
6. Under cross-examination, Mr Ewin conceded that if he caught public transport to go to the supermarket, he would need to catch the train and then walk a distance to get from the train station to the supermarket, although he said it was not far. Mr Ewin accepted that using public transport to undertake the grocery shopping would be "more inconvenient" than taking his car, including for a person who did not have a disability. Mr Ewin agreed that if someone drove to the supermarket with their car and parked in the supermarket carpark, they would not have to carry their groceries much at all. Mr Ewin said he did not agree that it would be heavy for a person to carry the groceries, because he said they could use a buggy.
7. The Tribunal does not accept Mr Ewin's evidence that but for his disability, he would take the train and walk to do the family's weekly grocery shop. The same applies in respect of shopping in any other location, including in the CBD or at Northland shopping centre. The Tribunal considers that a person in the community who has a car (as Mr Ewin does), and is capable of driving (as Mr Ewin is), would typically drive to their local supermarket if it were two kilometres away, to undertake their weekly grocery shopping, particularly when undertaking the task of shopping for a family of four. A person would also drive to other locations if their intention was to shop, as the purchased items would require transportation back to the person's home, particularly if the items are bulky or heavy. The Tribunal considers this to be so even if a person had a commitment to using public transport as a general rule.
8. The Tribunal considers that the provision of this support is not effective or beneficial because the Tribunal does not accept Mr Ewin's evidence that but for his disability, he would catch public transport to do his weekly grocery shopping or other shopping, whether it be in the CBD or at Northland shopping centre.
9. The Tribunal has also carefully considered whether the same would apply in the case of Travel Category 3, as the Tribunal considers that most people living in Melbourne who own a car and participate in midweek evening or weekend sporting activities, regardless of whether or not they had a disability, are likely to drive to and from their sporting activities in a car for convenience.
10. Mr Ewin gave evidence that he played the Saturday "away" games in the "Northern wedge" including in Whittlesea, Hurstbridge, Diamond Creek, Fairfield, Rosanna, Ivanhoe, Bundoora and Kew.[56] Dr Chaffey said that Mr Ewin had told her he plays the "away" games at Greensborough, Eltham and Bundoora. Mr Ewin also gave evidence that there was a winter and summer mid-week competition after work which is what he was referring to as the 'mid-week, two times a month' trips in the table at paragraph [34] of these Reasons [57]r Decision.57 Mr Ewin said at the hearing that he participated in this competition on a Wednesday night, after having some initial difficulty remembering what night it was on, giving rise to doubt about whether Mr Ewin regularly played in this competition as he had c[58]imed to do.58 Mr Ewin gave evidence that he also participated in a weekly Thursday night bowling competitio[59]at Darebin.59
11. Taking into account all of the various bowling activities, Mr Ewin's responsibilities arising from a demanding full-time job as a senior lawyer, and his responsibilities to DSR, his responsibilities as a father with the commitment he stated in his evidence to spending time with his children, and his sharing in the performance of the household tasks, the Tribunal is not satisfied that Mr Ewin plays all of the bowls "away" games for which he has claimed a reimbursement.
12. For this reason, although the Tribunal accepts in principle that the cost of Mr Ewin travelling to some of those games (depending on the location) should be funded under the NDIS, as expanded upon below, the Tribunal considers it appropriate that Mr Ewin provide particulars of those trips to the NDIA and should seek to reach agreement with it about the total distance of those trips for the relevant period, and an estimate of travel for future travel, in accordance with the Tribunal's observations at paragraph [321] below.
13. The Tribunal has taken into account that the specific locations where Mr Ewin's "away" games occur are broadly in the same region of Melbourne where Mr Ewin lives. The Tribunal notes that some of the suburbs referred to by Mr Ewin and Dr Chaffey (based on reports from Mr Ewin), specifically, Darebin, Ivanhoe, Rosanna, Greensborough, Eltham, Diamond Creek and Hurstbridge, are on the same train line as Alphington Station (i.e. the Hurstbridge train line). The Tribunal considers a person without Mr Ewin's disability would be able to walk without difficulty from one of those stations to the local bowls club while carrying a set of lawn bowls.
14. Although it is likely to require more time for a person to take the train than to drive (according to Google Map searches which provide estimates for the time it will take to travel that route by public transport and by car), it is nevertheless tenable (although barely, given Mr Ewin's significant work, family, sporting and DSR commitments), that but for Mr Ewin's disability he might catch public transport from Alphington Station to the bowls clubs in a suburb which is on the Hurstbridge train line.
15. On this basis, the Tribunal finds that the cost of Mr Ewin driving his car to the "away" games at a bowling club that is located in suburb in which the station for that suburb is on the Hurstbridge train line, is an additional cost that he incurs solely and directly as a result of his disability needs. The Tribunal is satisfied that the provision of funding to reimburse Mr Ewin for his travel by private car on these particular trips is an effective and beneficial support to Mr Ewin.
16. Conversely, the Tribunal is satisfied that Mr Ewin's travel by car to "away" games at bowls clubs located in the suburbs not on the Hurstbridge train line is not an additional cost incurred by him solely and directly as a result of his disability needs. The Tribunal considers that Mr Ewin would have driven to those clubs by car for (time) convenience, regardless of whether or not he had a disability, not being on a direct train line to Mr Ewin's local train station and particularly given Mr Ewin's other life commitments and responsibilities referred to above, as well as the fact that a number of those games took place or are due to take place in the evening, when public transport services start to decrease in frequency (especially involving indirect connecting public transport services). For this reason, the Tribunal considers that the provision of support to Mr Ewin in the form of funding to reimburse him for the cost of travel by car to clubs not in a suburb on the Hurstbridge train line, is not effective or beneficial because Mr Ewin would have (or will) travel by car regardless of his disability.
17. In relation to Travel Category 7, Mr Ewin has requested funding to attend the offices of the DSR on the basis that there is no accessible transport to the DSR's offices in Fitzroy. Mr Ewin said the closest train station was Victoria Park Station in Abbotsford. However, he said it would be too far for him to wheel to the DSR offices (20 minutes) and also when he made the return trip he would have difficulty getting up the ramp back onto Victoria Park Station. Mr Ewin also said there was no accessible tram service to DSR's offices. Dr Chaffey's evidence supported the position contended for by Mr Ewin.
18. The Tribunal notes that Victoria Park Station as listed on the website of Public Transport Victoria (PTV) as "wheelchair inaccessible".[60] The Tribunal accepts that the distance between this station and DSR's office would present a problem with respect to Mr Ewin wheeling for 20-minutes each way, based on the evidence given by Mr Ewin in relation to his shoulder condition, which the Tribunal accepts. The Tribunal is satisfied that it would be difficult for Mr Ewin to travel that far (and back again after the meeting).
19. Mr Ewin gave evidence that while there was a tram service near DSR's offices, there was no "super stop" that he could use to get on or off the tram. Dr Chaffey also gave evidence to this effect.
20. When preparing these Reasons for Decision, the Tribunal identified from PTV's network map for tram route 96 that a tram service operates along Nicholson Street which passes through Fitzroy. There is a stop on the corner of Johnston Street and Nicholson Street (Stop No.13) which is marked with a wheelchair symbol.[61] The legend at the bottom of this map shows that the wheelchair symbol stands for an "accessible stop".
21. According to Google Maps, DSR's office is 700m from Stop No.13 on tram route 96.
22. However, the Tribunal has also considered further information published by PTV about the accessibility of its trams.[62] This information indicates that aside from "super stops" (which are referred to by the PTV as "accessible stops"), its tram network includes "low floor trams" which it states: "make travel safer and more comfortable, improving accessibility for all customers". The publication states that "some low floor trams have buttons that alert the driver to activate the 'bridging plate' to bridge the gap between the tram and the platform" (emphasis added). The publication indicates there are more than 130 low floor trams on Melbourne's tram network and that the PTV aim to run all services on tram routes 19, 96 and 109 with low floor trams.
23. The link to the information referred to in paragraphs [183] and [185] was provided to Mr Ewin in November 2018 and he was given an opportunity to comment on it. Mr Ewin lodged further submissions and evidence in December 2018 which indicated that the "super stop" at Stop No.13 on tram route 96 was only recently constructed and those construction works were due to be completed [63] 16 September 2018.63 Mr Ewin notified the Tribunal that he wished to withdraw the part of his claim for support for this category of travel as explained at [6] of his Further Submissions, as follows:

[6] The Applicant has trailed the superstop, and no longer seeks funding for transport to and from DSR, except where it is raining and except for the period from the initial start date of the plan, to the date the superstop was opened.

1. On this basis, the Tribunal will consider Mr Ewin's claim for support of this travel category as confined by him on 7 December 2018.
2. Mr Ewin's evidence (as confirmed by Dr Chaffey based on reports from Mr Ewin), was that the meetings at DSR would finish late into the evening. The Tribunal also notes that if Mr Ewin were to use public transport to return to his home in the evening from DSR offices, he would have to travel back into the city by tram and catch a train from the city to Alphington Station.[64] By comparison, the Tribunal notes that a Google Maps search indicates that if Mr Ewin was to drive, the journey by road is 5.6km and estimated to take only about 12 minutes.
3. Given Mr Ewin's significant life commitments with respect to his work, family, DSR and bowls activities, the Tribunal considers that it is implausible that Mr Ewin would choose to use the time-consuming public transport option referred to above, in preference to driving his car, in the event that he did not have his disability and particularly given that those meetings finish late into the evenings. The Tribunal is satisfied that Mr Ewin's stated commitment to using public transport when it is an option, does not extend as far as he has suggested to using public transport, over travel by car, in these circumstances.
4. For this reason, the provision of funding under the NDIS to reimburse Mr Ewin for the cost of travel under Travel Category 7 by car is not effective and beneficial, as Mr Ewin would have made (or will make) those trips by car regardless of his disability.

Section 34(1)(e) - Whether the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide

1. The Tribunal bears in mind the following guiding principles established under s 31 of the NDIS Act in considering whether this requirement is met:

The preparation, review and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

...

(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

...

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community;

...

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

...

(i) maximise the choice and independence of the participant.

1. The Tribunal has also taken into account r 3.4 of the Support Rules the following mandatory considerations:

(b)...:

(i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and

(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

(A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide are for their parents, siblings or other relatives or be required to limit their educational opportunities); and

(iii) the extent to which informal supports contribute to or reduce a participant's level of independent and other outcomes;

(c)... the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

1. Chapter 10 of the Guidelines state as follows (emphasis added):

The community has general expectations about the supports which could be reasonably provided by family or primary care givers. The NDIS may fund supports that are needed as a direct result of a participant's disability, but is not intended to displace the ordinary role of parents, families and carers.

The ongoing capacity of family and carers is critical to the wellbeing of some participants. The amount and intensity of support required, and other factors such as illness and ageing can place a carer's wellbeing at risk and compromise their capacity to continue in their caring role.

The NDIA understands that sustaining informal support (for example, by providing respite) can be an integral component of meeting a participant's needs and will aim to increase the participation of participants within the context of their families and existing support networks.

1. The Tribunal considers that this section of the Guidelines is not inconsistent with the provisions under s 31 of the NDIS Act or r 3.4 of the Support Rules. The Tribunal has applied the principle highlighted in the above paragraph, in deciding whether the requirement under s 34(1)(e) of the NDIS Act has been met in Mr Ewin's case, with respect to what support it is reasonable to expect Mr Ewin's wife and the community (specifically, Mr Ewin's bowls club team mates) to provide to Mr Ewin.
2. In order for the Tribunal to decide what is reasonable for Ms Greenberg to provide by way of support to Mr Ewin, the Tribunal will take into account the existing commitments of Ms Greenberg arising from her own work responsibilities and her present family-related responsibilities that she shares with Mr Ewin.
3. Ms Greenberg is an author and illustrator and works virtually full-time (i.e. from 9am to 3.25pm). She also shares, with Mr Ewin, the care of their two primary-school aged children. Ms Greenberg undertakes most of the cooking for the family. They both do the shopping - Mr Ewin, the weekly shopping for staples at the local supermarket and Ms Greenberg, the weekly shopping for fresh produce at the Queen Victoria Market. Funding is provided under the NDIS to Mr Ewin for home maintenance services to be undertaken, on Mr Ewin's behalf, at the family home.
4. Both Mr Ewin and Ms Greenberg are both involved in taking their children to extracurricular activities. Ms Greenberg does the lion's share of transporting or accompanying the children to their activities and to school, or the "kid wrangling" as Ms Greenberg described it.
5. Mr Ewin has a demanding full-time job at the ANZ Bank as a senior lawyer where he says he needs to bring work home at times. Mr Ewin's evidence was that he works at least 40 hours per week in this job. He also spends many hours in his week engaged in lawn bowls and has a further significant involvement in activities twice a month at DSR.
6. In light of these existing family and other commitments, the Tribunal does not consider it reasonable to expect Ms Greenberg to take a significant role in providing support to Mr Ewin in the form of driving him on a frequent basis to a number of his social or work activities. Ms Greenberg already has a lot on her plate with her present role in looking after their children and to meet the demands of her own career and personal activities, which all serve to maintain Ms Greenberg's and her family's general wellbeing.
7. The Tribunal is also mindful of the overarching principle of providing supports to allow NDIS participants to maximise their independence so far as reasonably practicable - refer s 31(i) of the NDIS Act. The Tribunal expects that Mr Ewin would consider his independence greatly reduced if his wife was expected to and began driving him from one place to another, whenever he was unable to catch public transport or it was impractical for him to do so.
8. The Tribunal must balance this with a consideration under s 34(1)(e) of the NDIS Act, which stems from the overarching consideration of the financial sustainability of the NDIS, when deciding what supports are reasonable and necessary. The Tribunal considers that it is reasonable to expect that Ms Greenberg, as a member of a married couple, should provide Mr Ewin with some support in relation to travel, by collecting him from Kooyong Station to drive him to her parents' home for their fortnightly family dinner. This will support Mr Ewin to overcome the steep hill between Kooyong Station and Ms Greenberg's parents' home in Malvern, which Mr Ewin states would be difficult for him to wheel up, particularly with his shoulder condition. Evidence was given that Ms Greenberg usually arrived earlier at her parents' place for those dinners. Even so, it is reasonable to expect that Ms Greenberg will step out for a moment when Mr Ewin arrives at Kooyong Station so she may collect him and bring him back to join the family dinner. This was put to Mr Ewin at the hearing and he did not express resistance to this proposition.[65]
9. The Tribunal also considers that once a year, when Mr Ewin is due to participate in the lawn bowls tournaments in Bendigo, that it is reasonable to expect that will drive Mr Ewin and transport his bowls wheelchair and equipment to Southern Cross Station so that he may catch the V/Line train to Bendigo. When he reaches Bendigo, the Tribunal considers it reasonable to expect that one of his team mates will meet him at the train station and drive him a short way to the bowling green in Bendigo where the tournament is held. The same expectations (in reverse) apply with respect to the return journey. Mr Ewin gave evidence that he has on occasion taken his team mates as passengers in his own car for some "away" games. In light of this, the Tribunal considers it is reasonable to expect that they will return the favour once each year for the annual Bendigo tournaments.
10. Mr Ewin gave evidence that he had not ever asked his lawn bowls team mates to help him in this way. Mr Ewin said he was concerned about scratching the car of others when loading or unloading his wheelchairs. The Tribunal accepts this risk may be present. However, it may be ameliorated by placing a blanket down when those items are loaded and unloaded into a car to protect the surfaces of the car, as suggested by the NDIA.
11. The degree of travel that the Tribunal considers is reasonable to expect Ms Greenberg or Mr Ewin's team mates to assist him with is minimal. For this reason, the Tribunal does not consider that by an objective measure it impinges on Mr Ewin's independence. The Tribunal is satisfied that it reflects the normal degree to which members of a couple will assist each other to get around (for instance, when one member of a couple will drop off or pick up another member of a couple at the airport), or to which team mates in a bowling club might help each other out (as Mr Ewin's team mates do when they are engaged in their usual carpooling activities from which Mr Ewin's team mates have derived a reciprocal benefit in the past, according to Mr Ewin's evidence).

1. Accordingly, the Tribunal considers that the support requested in the form of Travel Category 4 and 6 does not meet the requirement under s 34(1)(e) of the NDIS Act, but all other travel categories do meet this requirement.

Section 34(1)(f) - Whether the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other service systems

1. As a preliminary point, the Tribunal considers that based on the wording of s 34(1)(f) of the NDIS Act, its task when assessing whether the requirement under this provision is met, is to consider whether the supports (in this case, funding the costs of Mr Ewin using a private vehicle for the requested travel), as distinct from any comparable supports that might be identified in the process of assessing whether the requirement under s 34(1)(c) is met, is a support that is most appropriately funded under the NDIS.
2. In considering this requirement under s 34(1)(f), the Tribunal is also required to assess whether the supports (not the comparable supports) are not more appropriately funded 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 as part of a universal service obligation, or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability (Other Service Systems).
3. The Tribunal will return to the issue of the comparable supports identified and whether they should be provided by Mr Ewin's employer as a separate consideration which should be taken into account. The Tribunal has addressed this factor at paragraphs [249] to [270] below.

Whether transport supports sought by Mr Ewin are most appropriately funded under the NDIS

1. Rule 3.5 of the Support Rules provides that Schedule 1 to the Support Rules sets out matters to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, and not more appropriately funded through Other Service Systems.
2. Paragraphs 7.21 and 7.22 of Schedule 1 deal specifically with transport as a support.
3. Paragraph 7.21 of Schedule 1 makes clear that there are three different types of transport supports for which the NDIS will be responsible. They are set out in sub-paragraphs 7.21(a), (b) and (c).
4. Taking each in turn, paragraph 7.21(a) of Schedule 1 states that the NDIS will be responsible for "supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport". The Tribunal considers that this provision was intended to catch, in the main, the provision of mobility aids (wheelchairs being a prime example) and training required to use them; or, alternatively, training for participants to use public transport, which will enable participant's to mobilise and travel independently. Consistent with this provision, Mr Ewin has recently been provided with $13,271 in funding under the NDIS to acquire a customised lightweight manual wheelchair.
5. Paragraph 7.21(b) of Schedule 1 states that the NDIS will be responsible for "modifications to a private vehicle". Mr Ewin's evidence is that he does not require any modifications to his car. He is able to operate it without modification and does so on a regular basis.
6. Paragraph 7.21(c) of Schedule 1 provides that the NDIS will be responsible for the "reasonable and necessary costs of taxis or other private transport options for those not able to travel independently". The Tribunal interprets this provision as referring to the cost of using a taxi or private transport options operated by someone other than the participant (for instance, a hire car or an Uber car). For this reason, the Tribunal does not consider this provision applies to the types of transport supports sought by Mr Ewin in this case. He is able to drive his car independently and has no requirement to be transported in private vehicles operated by others.
7. Accordingly, the Tribunal considers that none of the transport supports sought by Mr Ewin are expressly included as a type of support that the NDIS will be responsible for by application of paragraph 7.21.
8. Next, the Tribunal will consider whether the transport supports are expressly excluded as a type of support for which the NDIS will not be responsible by application of paragraph 7.22 of Schedule 1 of the Support Rules.
9. Paragraph 7.22 provides as follows:

The NDIS will not be responsible for:

(a) ensuring that public transport options are accessible to a person with a disability, including through the funding of concessions to people with disability to use public transport; or

(b) compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or

(c) transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).

1. The only category of travel for which funding is sought by Mr Ewin, for the costs of using his private vehicle which may arise as consequence of wheelchair inaccessibility, are;
   • (a) the trips to take his children to swimming at Ruyton Girls School on Selbourne Road in Kew, which fall under Travel Category 8;
   • (b) potentially, other trips Mr Ewin makes to take his child to netball in Macleod which also fall under Travel Category 8; and
   • (c) potentially, other trips Mr Ewin makes to attend his "away" bowls games under Travel Category 3.
2. The qualification of "potentially" is made, because there was no evidence before the Tribunal about the precise location of the venue for the netball games or "away"' bowls games (other than a reference to the suburbs they take place in). In relation to the "away" games, Mr Ewin gave evidence that he had not made those inquiries as he had accepted that he was going to have to drive to get there.
3. Evidence was provided by Mr Ewin in relation to public transport options for him and his child to travel to Ruyton Girls School. He said there is a train service to Glenferrie Station in Hawthorn which connects with tram that runs along Glenferrie Road in Kew terminating at Cotham Road. Google Maps indicates that the tram route that Mr Ewin was referring to was tram route 16. Stop No.79 on tram route 16 stops at the corner of Wellington Street and Glenferrie Road in Kew which is a very short distance from Ruyton Girls School. Mr Ewin's evidence was that those services were inaccessible to him travelling in a wheelchair. The Tribunal accepts this evidence. The PTV website confirms that Glenferrie Station in not "wheelchair accessible"[66] and confirms that Stop No.79 is not an accessible stop; and also that this line is only partly-serviced by low floor trams.[67]
4. Accordingly, at least with respect to the trips that Mr Ewin previously undertook to take his child to swimming at Ruyton Girls School, the Tribunal considers that although there was a public transport option available, it was inaccessible to him travelling in a wheelchair.
5. The Tribunal has considered whether any of the three subparagraphs in 7.22 of Schedule 1 of the Support Rules apply to Mr Ewin's request to fund his trips by private vehicle to his child's swimming at Ruyton Girls School. The Tribunal considers the wording of the sub-paragraphs in 7.22 is not particularly clear. However, in the Tribunal's view, those sub-paragraphs appear to be confined to expressly excluding the NDIS from being responsible for the provision or funding for supports that will take the form of rendering presently inaccessible public transport, accessible (i.e. under subparagraph (a) for instance by the funding the concessions that are presently available to persons with disabilities using public transport, or under subparagraph (b) or (c), the cost of installing a lift at an inaccessible railway station or building a new ramp which is less steep).
6. The Tribunal does not interpret any of the subparagraphs in clause 7.22 as expressly excluding responsibility under the NDIS for travel by private vehicle that is necessary on account of particular public transport options being wheelchair inaccessible.
7. In light of paragraphs [209] to [223], the Tribunal does not consider that the transport supports sought by Mr Ewin are either expressly included or excluded as a responsibility under the NDIS by application of paragraphs 7.21 or 7.22 of Schedule 1 to the Support Rules.
8. Subject to the Tribunal's view as set out in paragraph [80] to [82], the Tribunal has taken into account paragraphs 10.3.9 and Chapter 12 of the NDIA Guidelines, noting that most of it reflects the rules and principles established by the provisions of the NDIS Act, Support Rules and Schedule 1 to those rules, as relevant to transport as a support.
9. The Tribunal also notes an agreement reached by the members of the Coalition of Australian Governments (COAG) describing the delineation of where respective responsibilities lie as between the NDIS and Other Service Systems. This agreement was recorded in a document entitled COAG Principles to Determine the Responsibilities of the NDIS and Other Service Systems (COAG Principles) dated 27 November 2015_.[68]_
10. Of relevance to Travel Category 1 and 2, the COAG Principles set out the following in relation to employment-related supports:
    1. Employment services and programs, including both disability-targeted and open employment services, will continue to be responsible for providing advice and support to:
       1. people with disability to assist with preparing for, finding and maintaining jobs; and
       2. employers to encourage and assist them to hire and be inclusive of people with disability in the workplace (e.g. support, training and resources, funding assistance to help employers make reasonable adjustments, and incentives for hiring people with disability, such as wage subsidies).
    2. Employers will continue to provide work-specific support to people with disability related to recruitment processes, work arrangements and the working environment in line with the Disability Discrimination Act 1992, including workplace modifications, work-specific aids and equipment, and transport within work activities.*
11. The NDIS will be responsible for supports related to daily living that a person would require irrespective of the activity they are undertaking (including personal care and support and transport to and from work) consistent with the NDIS individualised approach to funding.
12. The NDIS will be responsible for reasonable and necessary supports additional to those required by reasonable adjustment, that assist people with disability to take part in work where the person's impairment has an impact on their functional capacity and/or productivity and the person is unlikely to be able to find or retain work in the open market, including with the assistance of employment services.
13. The NDIS will be responsible for funding individualised assistance to support a person with disability to take part in work where the person's impairment has an impact on their functional capacity and/or productivity and where these supports are additional to the needs of all Australians and additional to what is required by reasonable adjustment, such as training on dress, workplace relationships, communication skills, punctuality and attendance, and travelling to and from work. **
14. The NDIS and the employment system will work closely together at the local level to plan and coordinate streamlined services for individuals requiring both employment services and disability services recognising that both inputs may be required at the same time or through a smooth transition from one to the other or across service systems.
15. In light of the above, the Tribunal considers that putting aside for a moment the other requirements under s 34(1), the transport supports sought by Mr Ewin for the various categories of travel is most appropriately funded under the NDIS.

Whether supports are more appropriately funded through the Other Support Systems

1. The Tribunal considers that the provision of funding for transport by Mr Ewin by private vehicle for the various categories specified by him are not more appropriately funded through Other Support Systems.
2. Specifically in relation to Travel Category 1, the Tribunal does not consider that the NDIS should fund Mr Ewin's travel costs to make the journey to and from work using his car for the reasons set out in paragraph [249] to [270] below. However, the Tribunal does not consider it appropriate that the ANZ Bank meet the travel costs of Mr Ewin to make some of his trips to and from work by private vehicle, as it is not satisfied that the ANZ Bank's flexibility and inclusion policies extend to funding supports of this type. Similarly, the EAF scheme does not appear to be directed at meeting costs of that kind. This is reflected in the COAG Principles by the reference to the employer funding travel "within" work and the further reference to employers being responsible for supports in relation to "work arrangements".

Supports expressly excluded under Part 5 of the Support Rules

1. The Tribunal's next task is to consider whether the transport supports sought by Mr Ewin are expressly excluded by application of r 5.1 of the Support Rules. Rule 5.1 identifies supports that will not be funded or provided under the NDIS and r 5.2 provides two exceptions to the exclusion identified in r 5.1(d), as set out below:

General criteria for supports

5.1 A support will not be provided or funded under the NDIS if:

(a) it is likely to cause harm to the participant or pose a risk to others; or

(b) it is not related to the participant's disability; or

(c) it duplicates other supports delivered under alternative funding through the NDIS; or

(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs).

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b) costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur.

1. It was undisputed in this case that Mr Ewin is capable of using his wheelchair and driving a car independently. An important issue arose in relation to some categories of travel as to whether they should not be funded under the NDIS under r 5.1(a) of the Rules on the basis that they "do not relate to his disability"; or under r 5.1(d) on the basis that they formed part of Mr Ewin's day-to-day living costs. Further, the NDIA contends that the exception under r 5.2(a) to the exclusion under r 5.1(d) did not apply; namely, Mr Ewin did not incur "additional living costs that are incurred solely and directly as a result of [his] disability support needs".
2. In respect of r 5.1(d), the Tribunal accepts the NDIA's contention that the cost of transportation is a day-to-day living expense. Almost all Australians are required to bear their own daily living costs associated with travel, whether it be the cost of catching public transport, taxis, ride-sharing services or the cost of maintaining a car, motorcycle, bicycle or other mode of travel. The question that arises is whether Mr Ewin's travel costs are attributable to his disability support needs or in respect of the exceptions to r 5.1(d) as set out in r 5.2(a), whether they are additional costs he has incurred solely and directly as a result of those needs. The Tribunal will now consider whether this is the case with respect to each of the travel categories.
3. In relation to Travel Category 1, on days Mr Ewin plans to work from home in the evening he contends that he is required to use his private vehicle to drive to and from work in order to transport his laptop and work files. Mr Ewin said he needs to work from home in the evenings from time to time because it allows him to spend time with his children and also because he would not be seen in a good light by his employer if he did not do so.
4. Mr Ewin contends that he is unable to carry the laptop and/or work files while using his manual wheelchair and so it is his disability which prevents him from catching public transport at those times and results in his need to travel by private vehicle.
5. As mentioned above, the NDIA contends in response that the reason Mr Ewin needs to carry the laptop and work files home is not because of his disability but because of his personal choice to spend more time with his children and therefore, more appropriately characterised as a flexible work arrangement.
6. The Tribunal accepts that if Mr Ewin was required to transport a laptop and work files, it would place his safety or the safety of the items at risk. There did not seem to be an identifiable solution in relation to carrying both the laptop and work files, while using his current model manual wheelchair. Mr Ewin is likely to have to make the transition to a motorised wheelchair which is suitable for navigating through crowds during peak hour travel while carrying those items. The Tribunal acknowledges that, understandably, Mr Ewin may perceive this as a step in the direction of reducing his independence. Mr Ewin said himself in evidence, that he does not see himself as disabled and that he is functioning. Dr Chaffey indicated in her evidence that she discussed with Mr Ewin the option of the power-assist device but the impression gained by the Tribunal from her response was that Mr Ewin was not keen to take up this option.
7. Returning to the reasons for Mr Ewin's need to transport those items, expressed as his desire to maintain his professional standing and to see his children in the evening, the fact remains that he would be unable to transport both of those items because of difficulties carrying them using his current wheelchair. The Tribunal is satisfied that these difficulties arise because of his disability. The reasons he wants to transport those items are centrally focused on his continued social and economic participation in the community.
8. On these bases, the Tribunal does not consider that the 'exclusion' under paragraph 5.1 applies to Mr Ewin in respect of Travel Category 1, because the exception in r 5.2(a) applies.
9. However, as referred to in paragraphs [255] to [270] below, the Tribunal does not accept that it is necessary for Mr Ewin to take his laptop and work files to and from work, because a comparable support, which will achieve the same outcome at a substantially lower cost, is to provide him with those items to keep at his home on an indefinite basis. The Tribunal considers this comparable support is more appropriately provided by the ANZ Bank under its flexibility policies or inclusion policies, as expanded upon below.
10. In relation to Travel Category 2, the Tribunal is satisfied that the exclusion under r 5.1 does not apply because the additional cost of Mr Ewin needing to travel by car when it is raining, is incurred due to his disability, as he would otherwise become wet and soiled being unable to hold an umbrella while wheeling his chair; and the water would spray up from his wheelchair wheels onto his suit and his sleeves.
11. In relation to Travel Category 3, the Tribunal is satisfied that the exclusion under r 5.1 applies in respect of the trips from Mr Ewin's home to the bowling clubs in suburbs not on the Hurstbridge train line, because the Tribunal has found that Mr Ewin would have undertaken this travel by car in any event, regardless of whether he had his disability - refer paragraph [179] above. Conversely, the Tribunal is satisfied that the exclusion under r 5.1 does not apply in respect of trips from Mr Ewin's home to bowling on the Hurstbridge train line.
12. In relation to Travel Category 4, the Tribunal is satisfied that putting aside the support that is reasonable to expect others to provide to Mr Ewin to undertake the travel to Bendigo annually for a bowls tournament, the exclusion under r 5.1 does not apply as it is a day-to-day living cost that is an additional living cost to Mr Ewin incurred because of his disability needs. Mr Ewin is unable to avail himself of any public transport options for this travel because he is not able to transport the bowling wheelchair and equipment while he is using his everyday wheelchair because of his disability.
13. In relation to Travel Category 5, the Tribunal is satisfied that the exclusion under r 5.1 applies because Mr Ewin would have undertaken this travel by car in any event, regardless of whether he has a disability. For that reason, they are not additional costs incurred solely and directly due to his disability needs.
14. In relation to Travel Category 6, the Tribunal is satisfied that the exclusion under r 5.1 does not apply on the basis that Mr Ewin could not make the trip using public transport because of the steep hill south of Kooyong Station. Accordingly, the cost of travelling by car represents additional costs incurred solely and directly as a result of his disability needs.
15. In relation to Travel Category 7, the Tribunal is satisfied that the exclusion under r 5.1 applies with respect to the claimed travel that took place after 16 September 2018 as Mr Ewin has been able to travel by accessible public transport from that date. For the travel to DSR that took place prior to 16 September 2018, the Tribunal is satisfied that the reason Mr Ewin travelled by his car was for convenience only (i.e. to save him time), and not on account of a need to overcome an obstacle that arose because of his disability needs. For this reason, the exclusion under 4 5.1 applies to Mr Ewin's travel prior to 16 September 2018.
16. In relation to Travel Category 8, for travel where public transport in inaccessible, the Tribunal is satisfied that the exclusion under r 5.1 does not apply because the cost of travel by car was attributable to his disability needs for the reasons outlined above at paragraphs [220] and [221].
17. In relation to Travel Category 9, putting aside other considerations such as comparable supports, the Tribunal is satisfied that the exclusion under r 5.1 does not apply because the additional cost of Mr Ewin needing to take a second family car to Apollo Bay for the family holidays is attributable to his disability support needs, in that he needs the extra car space to transport his second, bowls, wheelchair.

Other considerations as to whether supports are reasonable and necessary - intersection with the responsibilities of Mr Ewin's employer in relation to provision of comparable supports

1. The Tribunal is not bound to consider only those factors identified under s 34(1) of the NDIS Act, as expanded upon in the corresponding rules, in deciding whether a support is a reasonable and necessary support.
2. The Tribunal considers that a further relevant consideration in assessing whether a support is reasonable and necessary in this application, is whether the comparable supports identified above, i.e. to provide Mr Ewin with an ANZ laptop and ANZ printer so he may keep them at his home indefinitely, is a support that should be funded by the ANZ Bank. This would obviate the need for Mr Ewin to transport those items to and from work, thereby rendering support in the form of funding for Travel Category 1 unnecessary.
3. Mr Ewin was asked at the hearing whether he was aware of any reason why ANZ Bank would not be able to provide him with an ANZ laptop to leave at his home, to which Mr Ewin responded, "I don't know". Mr Ewin was asked whether he would be able to access the same ANZ internal database (as he could when he was in ANZ Bank's office), if he were provided with an ANZ laptop to use permanently at his home.[69] Mr Ewin gave the following evidence:

Probably but I'm not quite [sure] whether I'd have enough - whether I'd need to use my computer to log in or not. I don't - I'm not aware of that. I haven't thought about it.

1. Mr Ewin said he had not asked ANZ Bank to provide him with a laptop at home to enable him to work at home at night. Mr Ewin was asked whether there was a reason why he had not done so. The following exchange between Mr Ewin and NDIA's counsel took place at the hearing as he answered this question:[70]

Mr Ewin: Well, apart from not knowing what their attitude is, and I suppose not wanting to cause them aggravation.

NDIA's Counsel: When you say cause them aggravation, what do you mean by that?

Mr Ewin: Well, what I mean is that I'm doing my job like everyone else is doing their job within that organisation. People are using their laptops the same as I'm using it. So I haven't thought about it but I didn't - I mean, in my current, I suppose, employment status, I would want to be trying to do, you know - be seen to be doing the right thing by them. And so I don't know whether they'd have an attitude about that or not. I haven't really thought about a second laptop, to be honest. It's certainly never been suggested, so I haven't been able to prepare, like, a response for that, to be honest.

1. The Tribunal also notes the exchange that took place following questions asked of Mr Ewin by the Tribunal:[71]

Member: Is it your position that you would - before you would make a request of your employer, particularly with being on the status of a contract worker at the moment, you would prefer to make the trip in your car rather than make that request of your employer?---

Mr Ewin: I think that's right but also for me - I mean, I don't really identify as particularly disabled and so I will manage to do what I need to do, you know, within the confines of, you know, how I am, if that makes sense. So for me it's really - the things that have been raised today are quite alien to me in that I can function, you know, on a normal basis without, you know, special assistance being provided by the employer because I'm able to simply drive in and undertake what I need to do through that mechanism. So for me I'm not - I don't need special assistance because I don't need it, I'm doing it, I'm functioning.

Member: I suppose the NDIA might say well, there's special assistance that - whether or not we call it special, at the moment you're seeking assistance or you're seeking assistance in the form of funding for the private transport- - -?---

Mr Ewin: Yes.

Member: - - -from the NDIA?---

Mr Ewin: Yes.

Member: So in that way you're seeking assistance but not from your employer - - -?---

Mr Ewin: Yes.

1. At the hearing, Mr Ewin was asked whether he would still prefer to drive to and from work instead of making a request of the ANZ Bank to assist him by providing a laptop, to which he responded:[72]

Well, I mean, I didn't say I wouldn't but, I mean, it's - it's something I haven't really thought about so I don't know whether they would provide it. I mean, I'm happy to ask them, I suppose, and see - explore that.

1. In Victoria, where Mr Ewin resides, the Disability Discrimination Act 1992 (Vic) (DDA) applies to prohibit discrimination against persons with disabilities in a number of different areas, including with respect to employment. Mr Ewin's employer is responsible to ensure that reasonable adjustments are made to provide him with equal access to his employment, in comparison to a person who does not have Mr Ewin's physical disabilities.
2. Mr Ewin gave evidence that ANZ Bank had a "very strong diversity policy". At the hearing, the Tribunal requested that Mr Ewin provide a copy of ANZ's inclusion plan or policy to the Tribunal for its consideration. The Tribunal followed up this request in November 2018 as no such documents had been received by Mr Ewin. The Tribunal also asked Mr Ewin to provide further resources available on the ANZ intranet that were referred to in the ANZ My Flexibility Employee Guide.[73]
3. In response to this follow up request by the Tribunal, Mr Ewin subsequently provided the following ANZ documents to the Tribunal on 10, 11 and 14 December 2018:
   • (a) Making ANZ accessible to all: Accessibility and Inclusion Plan 2016-2018 (Inclusion Plan);[74]
   • (b) Webpages from ANZ MaxConnect intranet as follows:
     • (i) Flexibility at ANZ;[75]
     • (ii) Flexibility at ANZ: An Implementation Guide;[76]
     • (iii) Line Manager Guide;[77]
     • (iv) Employee Guide;[78]
     • (v) Success Factors - Summary;[79]
     • (vi) Technology Centre (showing the content for this link was being updated);[80]
     • (vii) Technology - Apply for tools (also showing the content for this link was being updated);[81]
     • (viii) Flexible Working Arrangements - Global Policy (Global Policy);[82]
     • (ix) Real Life Stories;[83]
     • (x) FAQs (Frequently Asked Questions); and
   • (c) Change over Computer Request and New Computer Request form.[84]
4. The ANZ Bank My Flexibility Employee Guide is sub-titled, "Guidelines to Successfully Implementing and Maintaining Flexible Work Arrangements", indicating a commitment by this organisation to achieving the outcome of flexible working arrangements for its employees. This guide lists nine "ANZ Flexibility Options" and one of them is "Flex Place" which is described as follows:[85]

Flexible location - working from another location (home, different office etc) on an agreed regular basis. Note: Ad hoc flexible locations can exist without formal proposals in place.

Anyone can request flexibility for any reason. Arrangements are agreed on an individual basis between an employee and their line manager. They may be permanent or time-bound and will vary depending on an employee's role, business need, geography and available technology.

1. The Guide explains how this flexibility at ANZ evolved:[87]

Flexibility has evolved from being a benefit to support employees with children to a critical lever for attracting and retaining top talent, improving business performance and driving agility in how organisations service customer needs.

1. One of the benefits for ANZ and its employees as listed as, "Improved productivity - employees can complete their work in the most efficient way with a focus on results not 'face time'".[88]
2. The Guide outlines the steps involved in an employee making a formal flexibility request. Part of the process for Step 2 (Discuss and Agree) is described as follows:[89]

Line managers are required to consider the proposal while taking into account the requirements of the role, team and customers in addition to any legal requirements and technology constraints. You and your line manager may need to be creative and open minded in finding a win-win arrangement, even if the original proposal is not possible.

1. The following section of the Guide prompts a consideration of the implications of the proposed solutions including the following:[90]

Technology impacts e.g. If working remotely or from varied locations, what access do you need to additional technology, systems, and tools?

...

Cost implications - will the proposed arrangement entail additional cost to the business (e.g. provision of new technology) or to you (e.g. investment in home-office requirements, suitable broadband etc.)?

1. The ANZ "People Manager Guide" requires the managers to take the following approach:[91]

Be a Coach, not a Gatekeeper

Gatekeeper's view flexible work options as a privilege - only accessible to employees if the Gatekeeper believes they deserve it. For the Gatekeeper, Flexibility is the exception, not the norm. 'Coaches' perceive flexibility as a way to effectively manage a top performing team. They see flexibility as a way of managing work life challenges and customer expectation, through setting and managing expectations for all stakeholders.

While the options will necessarily vary, ANZ believes that ALL roles can be done flexibly.

1. The NDIA contends that Mr Ewin should not be funded for Travel Category 1 because his employer should provide him with an ANZ laptop and ANZ printer to keep at his home indefinitely, which will obviate the need for him to transport those items to and from work.
2. Further, the NDIA contends that Mr Ewin may apply for financial assistance through a Commonwealth Government scheme, EAF. The NDIA tendered webpages from the www.jobaccess.gov.au website outlining how the EAF scheme works.[92] In this document, there is a link to the EAF Guidelines.[93]
3. Having considered those webpages and the EAF Guidelines, the Tribunal is unable to identify any aspect of the EAF scheme that would render Mr Ewin ineligible to apply for and to receive financial support under this scheme to fund the installation of an ANZ laptop and ANZ printer indefinitely at Mr Ewin's home. The measure adopted under the scheme is whether the requested support will help the person with a disability to do their job or improve their work productivity. The provision to Mr Ewin of keeping a laptop and printer at his home indefinitely would improve his productivity, as he will have uninterrupted access to work from home in the same way that he works in the office, without the present obstacle of needing to transport the laptop and work files items to and from home while travelling in his wheelchair. The scheme expressly contemplates the provision of funding for special equipment in the workplace and for information devices. The Tribunal notes that financial caps are applicable. However, the cost of a ThinkPad and printer does not exceed those caps. The Tribunal notes it takes 10 days for an assessment to be undertaken.
4. At the hearing, Mr Ewin gave evidence that he was unaware of the EAF scheme. He said he was not aware if he was eligible to participate or whether he would be granted such financial assistance under this scheme. There is no evidence before the Tribunal that Mr Ewin, or ANZ Bank on Mr Ewin's behalf, has at any time made an application for access to funds under this scheme.

1. In the Inclusion Plan, the ANZ Bank makes the following broad statement:[94]

...

Workforce diversity and harnessing a variety of perspectives helps us to serve our customers better and compete effectively. A workforce able to meet customer needs in our domestic markets and across the regions in which we operate is essential. Providing our 50,000 employees with access to the right capabilities and tools to drive performance and connect with customers is fundamental to the way we operate.

...

We are making our products, services, workplace and culture welcoming and supportive of people with a disability. Creating a workplace that is welcoming and accessible for staff of all abilities in turn provides ANZ with insight into customer needs of those with a disability, their carers and families.

Our commitment to attracting, including and helping people with disability to progress is reflected in the global policies, frameworks and governance mechanisms we have in place.

...

Our workplace flexibility policies recognise and support the needs of our employees with disability as well as carers requiring flexible work arrangements.

1. In the Inclusion Plan the CEO of ANZ Bank makes the following statement:[95]

...

ANZ's Accessibility and Inclusion Plan has been in place since 2008 and we've had some great successes along the way...We continue to set targers for the employment of people with disability across ANZ's network with a strong focus on building longer term career opportunities. More recently we've partnered with the Attitude Foundation, reflecting a shared desire to change community attitudes and behaviour to empower people with disabilities to participate in every aspect of political, social, economic and cultural life.

...

1. The Inclusion Plan reports that 89.5% of ANZ's employees with a self-disclosed disability utilize ANZ's flexible working options.[96]
2. In the Inclusion Plan, ANZ's Chief Human Resources Office makes the following statement (emphasis added):

...

We want to be known as the employer of choice for people with disability - a place where people can give their best, where there is equal access and opportunity for everyone and where leaders embrace an inclusive leadership style that drives and supports innovation and creativity.

To do this we will focus on inclusive recruitment practices, addressing environmental access issues, providing support to staff and line managers and measuring disclosure of disability and caring responsibilities in our annual employee survey. One of our key recent initiatives has been the introduction of all roles flex. We have mainstreamed working flexibly in Australia, New Zealand, Bengaluru and Hong Kong by making this available to anyone, for any reason. We are not working to implement this across our other geographies.

...

1. In the Inclusion Plan, the ANZ Bank provides specific commitments relating to its stated objective of, "ANZ has an inclusive culture where employees with disability and employees who have carer responsibilities feel support and included":[97]

...we will continue to benchmark and improve the process for providing workplace adjustments for employees with disability.

All roles are flexible at ANZ - flexible working is available to anyone, for any reason.

...

1. ANZ, in its Global Policy published on the ANZ MaxConnect intranet, states as follows:

...

Flexibility at ANZ is defined as a set of working practices and arrangements for employees and managers which can be used to facilitate productivity, agility, connectivity, career success and wellbeing of our staff. Flexible working arrangements define when and where work gets done at ANZ. It will mean something different to everyone as circumstances and priorities change and, therefore, require continuous collaboration between employee and line manager to ensure they are effective and continue to meet customer needs and priorities.

...

1. The Tribunal notes the last question in the FAQs, namely, "who funds additional equipment needs that may be required when working from home or telecommuting?". The answer provided by ANZ is:

ANZ will provide necessary equipment for telecommuting such as computer equipment. A laptop is typically the more suitable option if the staff member roams between multiple work sites.

The staff member is to fund other necessary home related equipment such as internet access, electrical safety switches, smoke detectors, fire blanket or fire extinguisher and first aid items.

...

1. The Tribunal notes that a laptop is typically the equipment that will be provided by ANZ where an employee roams between multiple worksites. Given Mr Ewin's disability and his request to work from home to spend more time with his children, the commitments stated by the ANZ as set out above, would suggest that the ANZ would support Mr Ewin by providing him with home-based equipment that he requires (being the laptop and printer) on an indefinite basis, were Mr Ewin to ask for it. In turn, the ANZ Bank or Mr Ewin may seek assistance by applying for and obtaining funds to cover the cost of such products under the EAF scheme.
2. For these reasons, it seems that this would provide comparable supports to Mr Ewin that would achieve the same outcome of enabling him to spend more time with his children and to improve his professional standing with the ANZ Bank, without him needing to transport those items between work and home. These comparable supports are more appropriately funded by Mr Ewin's employer. This is so as part of the ANZ Bank meeting its general obligations to make reasonable adjustments under the DDA to provide equal access to employment to Mr Ewin as other senior lawyers at ANZ Bank who do not have a disability, or as part of complying with ANZ Bank's own very extensive and enabling flexible workplace or inclusion policies offered to all of its employees. The Tribunal notes that the "provision of new technology" is specifically contemplated by ANZ Bank as being an additional cost to the business of a flexible workplace arrangement that might be entered into with its employees - see paragraph [263].

In conclusion, are the supports reasonable and necessary supports?

1. For ease of reference, the table below summarises the Tribunal's findings as contained in paragraphs [83] to [277] in relation to each of the categories of the travel against the various considerations referred to above:

Travel Category 3 - Trips to clubs in suburbs on Hurstbridge train line

Travel Category 3 - Trips to clubs not in suburbs on Hurstbridge train line

Expressly excluded under Part 5 of the Support Rules?[98]

1. Accordingly, the Tribunal concludes that Travel Category 2, some trips in Travel Category 3 to "away" games at clubs located in suburbs on the Hurstbridge train line, and Travel Category 8 meet all of the requirements under s 34(1) of the NDIS Act and are not otherwise excluded under Part 5 of the Rules. Travel Category 1, other trips in Travel Category 3 to "away" games at clubs located in suburbs not on the Hurstbridge train line, Travel Category 4, 5, 6, 7 and 9 do not meet all the requirements under s 34(1). The other trips in Travel Category 3 to "away" games at clubs located in suburbs not on the Hurstbridge train line, Travel Category 5 and 7 and are also excluded by operation of Part 5 of the Support Rules.

1. In relation to the jurisdictional issue referred to in paragraph [5], at the time of the hearing the Tribunal was concerned about whether it might be confined to making a decision that would only have an effect on the travel undertaken by Mr Ewin during the three-month period of operation of the First Plan. The parties were alerted to this as potential issue to allow them the opportunity to make submissions to the Tribunal on this point.
2. The parties addressed this issue in their closing submissions which the Tribunal has carefully considered since the hearing.[99] The Tribunal has also undertaken an extensive review of the NDIS legislative regime and relevant case authorities. The Federal Court case authorities were limited in number given that the NDIS is still a relatively new scheme. The Tribunal has formed a view about the scope of the Tribunal's powers in relation to the review presently before it under the NDIS Act, as set out below.
3. Mr Ewin has had four distinct NDIS plans; each with a different (although broadly similar) approved statement of participant supports covering four separate periods, as set out in the table appearing in paragraph [10].
4. In effect, both parties contend that the Tribunal's jurisdiction extends to it making a decision that will relate to Mr Ewin's travel costs for the combined period of the First Plan and Second Plan. It was contended that the implementation of the Second Plan should be characterised as a variation to the First Plan in order to implement the Internal Review Decision and as such, the operational decision under review by this Tribunal should be taken as a decision that related to travel between 19 December 2016 (the commencement date of the First Plan) though to 26 March 2018 (the scheduled review date of the Second Plan).
5. The Tribunal was unable to identify any Federal Court decisions providing authoritative guidance in relation to this jurisdictional issue in the context of the NDIS.[100] The Tribunal has closely examined the legislation to seek to determine the extent of its power in the present application.
6. Going back to the source of the Tribunal's general jurisdiction, relevantly, s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) states that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
7. Division 6 of the AAT Act deals with the Tribunal's decision on review. Section 43(1) of the AAT Act provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision; and shall make a decision in writing affirming, varying or setting aside the decision under review and if the latter, make a decision in substitution or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
8. In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 (Control Investment), Justice Davies sitting as the President of the Tribunal observed as follows (emphasis added):[101]

Mr Morris submitted that the word "may" in s 43 of the Administrative Appeals Tribunal Act imports an element of discretion so as to authorize the Tribunal to limit its function as it sees fit. But the provision "For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ..." is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.

1. The Tribunal also notes the general observations of Deputy President McCabe and Member Bygrave in Re Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865, at [19] (emphasis added):

[21] The Tribunal is a creature of statute. It does not have an open-ended power to review any administrative decision that is the subject of a complaint. Section 25 of the AAT Act states the Tribunal only has jurisdiction to review a decision if an enactment designates that decision as a reviewable decision. As it happens, there are now over 450 different enactments that include provisions investing the Tribunal with power to review particular decisions. One of those enactments is the Social Security Administration Act 1991 (Cth) (the Administration Act). Subsection 142(1) of the Administration Act gives the Tribunal jurisdiction to review decisions made by the Secretary or the Chief Executive Officer of Centrelink or an authorised review officer (the 'first tier review' before the SSCSD) and subsection 179(1) provides the General Division of the Tribunal jurisdiction to review a decision after it has been reviewed by the SSCSD.

[22] Once the Tribunal is satisfied there is a reviewable decision and it has jurisdiction, it is not ordinarily concerned with what was decided by the original decision-maker or the SSCSD. The Tribunal conducts a fresh review on the merits, which means it generally reconsiders all of the evidence - which in most cases will include evidence that has become available since the date of the original decision - and takes submissions from the parties with a view to reaching the correct or preferable decision on the material before the Tribunal. There are some reviewable decisions which require a different approach. For example, in some cases, the decision must be made having regard only to evidence that was available at a fixed point in time. But those exceptions do not apply in this case.

[23] A proper understanding of the Tribunal's role in the decision-making process shows why it does not matter if the original decision (or the SSCSD decision) was wrong, or if it was affected by legal error, provided there was a reviewable decision within the meaning of the AAT Act. The Tribunal is often said to 'step into the shoes of the original decision-maker' upon review. In the course of the review process, it exercises all of the original decision-maker's powers and is subject to the same legal constraints. When the Tribunal makes its decision, the decision takes effect as the decision of the original decision-maker: subsection 43(6) of the AAT Act.

[24] The effect of the framework of Australian administrative law is to incorporate the Tribunal's review process into each agency's decision-making, at least in relation to those decisions which are declared to be reviewable decisions of that agency. Even if the original decision-maker (or an intermediate decision-maker where there are several steps in the process) has run into trouble, the Tribunal provides a convenient and effective mechanism for the decision-making to be corrected and (at least in a legal sense) perfected before the extended decision-making process is finalised: see, for example, Secretary, Department of Social Security v Alvaro [1994] FCA 1124 at [16] - [17] per von Doussa J.

[25] Courts and Tribunals have consistently given a wide interpretation to the expression reviewable decision. The leading authorities are Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 per Brennan J and (on appeal to the Full Court) Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1. In the Tribunal proceedings in Brian Lawlor, Brennan J concluded there would be a reviewable decision within the Tribunal's jurisdiction if the decision-maker went through a decision-making process with the intention of exercising the relevant power. His Honour looked to the fact of a decision as a consequence of a decision-making process, as opposed to evaluating the quality or efficacy of that decision: at [180]. The Full Court essentially agreed with this approach, although Bowen CJ (with whom Smithers J agreed) cautioned against looking into the intentions of the decision-maker. Bowen CJ said it was enough if there was in fact a decision made in purported exercise of the power in the relevant enactment: at [16]-[17].

[26] There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal's decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem - even a fundamental problem - encountered during the course of the original decision-making process, the Tribunal can set things to right.

1. Section 103 of the NDIS Act provides as follows (emphasis added):

Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).

1. The reviewer is a delegate of the CEO and is a person who was not involved in making the original decision made by a different delegate of the CEO to approve the statement of supports in the participant's plan.
2. The reviewer derives his or her powers under s 100(6) of the NDIS Act. Under this provision, the reviewer is required to make a decision confirming, varying or setting aside the reviewable decision, and in the latter case, to substitute it for a new decision.
3. The NDIS Act is specific about the type of decisions made by the NDIA that are reviewable by the reviewer through an internal review process under s 100 of the NDIS Act. The reviewable decisions are specified in s 99 of the NDIS Act.
4. Section 99 of the NDIS Act (in item 4 of the table in s 99(1)), sets out that a decision made by the CEO under s 33(2) of the NDIS Act to approve the statement of participant supports in a participant's plan, is a reviewable decision.
5. A reviewer who undertakes an NDIA internal review under s 100 of the NDIS Act has the power to do one of three things:
   • (a) a reviewer has the power to confirm the decision under review, in this case being the original decision by a delegate of the CEO to approve the statement of supports in a participant's plan. If such a decision is made by the reviewer, the plan (containing the unaltered approved statement of supports) may be left to run its course undisturbed and the participant must be provided with (or funded for) the supports as included in it for the period of operation of that plan; or
   • (b) a reviewer has the power to vary the decision under review. If such a decision is made by the reviewer, the approval of the statement of supports in a participant's plan will remain intact, subject to the variations made by the reviewer to add, remove or modify some of the individual supports included in the original approved statement of supports. The original plan (containing the approved statement of supports) may be left to run its course; however, for the period of operation of this plan, the participant must be provided with (or funded for) supports to the extent that they reflect the variations made by the reviewer to the statement of supports in the original plan; or
   • (c) a reviewer has the power to set aside the decision under review. This will have the effect of setting aside altogether the approval given for the statement of supports in the participant's plan, meaning the plan would no longer have effect. The reviewer would then substitute a new decision for the decision he or she has set aside. The new decision of the reviewer will be a decision to approve a new statement of supports in a participant's plan. If such a decision is made by the reviewer it will trigger the operation of s 37(1) of the NDIS Act, provided the CEO has received the participant's goals and aspirations as required by s 37(1)(a) of the NDIS Act. This will mean that a new plan will come into effect for the participant on the day the reviewer decides to set aside the decision under review and in substitution, decide to approve the new statement of supports in a participant's plan.
6. This Tribunal considers that in light of the observations in Control Investment, the effect of s 43(1) of the AAT Act (in conjunction with the wording in s 103 of the NDIS Act), empowers the Tribunal to exercise such powers as the reviewer (as referred to in the above paragraph). Accordingly, the Tribunal on review may itself affirm, vary or set aside the original decision by the delegate of the CEO to approve the statement of supports in a participant's plan. In the case of the latter, the Tribunal may substitute the decision it has set aside for a new decision to approve a new statement of supports in a participant's plan. In the Tribunal's opinion, this will trigger the operation of s 37(1) of the NDIS Act, provided the NDIA has received the participant's goals and aspirations as required by s 37(1)(a), and a new plan will come into effect for the participant by force of s 37(1).[102]

Decision under review before the Tribunal in this application

1. By letter dated 19 January 2017, the NDIA informed Mr Ewin that his NDIS plan had been approved.[103] This letter attached the Frist Plan and Mr Ewin was informed that it started on 19 December 2016 (one month before this letter was sent to him), and also that the First Plan was scheduled for review on 19 December 2017. The NDIA informed Mr Ewin that "this decision" had been made in consideration of the information supplied to the NDIA and as discussed in their conversations. Mr Ewin was also informed that the relevant delegate of the CEO was satisfied that the supports specified in the plan were reasonable and necessary under s 34 of the NDIS Act.
2. Mr Ewin lodged an application for internal review.[104]
3. By letter dated 13 February 2017, a delegate of the CEO wrote to Mr Ewin to acknowledge his "written request to the National Disability Insurance Agency (NDIA) for a review of your plan on 30 January 2017".[105] The delegate advised Mr Ewin that she had made a decision under s 48(2) of the NDIS Act that it was appropriate for a review to be conducted in relation to Mr Ewin's plan and that a representative from the NDIA would be in touch with him to arrange a meeting to discuss the review.
4. On 23 March 2017, another delegate of the NDIA, i.e. the reviewer, telephoned Mr Ewin to "review the reviewable decision".[106] The entry on the reviewer's file note states:

Decision OVERTURNED. New information available, small changes in QTY of support to reflect context Need to be made.

Review then conducted over the phone 23/3.

Results:

Change in Domestic support: ...

1 hour per week increased to 1.5 hours per week.

New wheelchair...

Inclusion of light weight frame custom manual chair.

Inclusion of Maintenance of wheelchair for both the manual chair and a sports chair that the participant owns.

Transport Request - Request to fund level 3 transport - Original decision UPHELD...

...

Plan Amended to include above support.

1. Written confirmation of the reviewer's decision was provided to Mr Ewin under cover of her letter dated 27 March 2017. At the beginning of this letter, the reviewer states (emphasis added):

On 30\01\2107 you requested an internal review of the [made decision (sic)] by the National Disability Insurance Agency (NDIA) to decline your request to review funded supports in your plan relating to Transport, Domestic support and Assistive technology including Maintenance budgets.

I have reviewed this decision. I have amended this decision in relation to increasing the level of domestic support and including an assistive technology (AT) maintenance budget.

1. At the beginning of the reviewer's letter to Mr Ewin dated 27 March 2017, she states that Mr Ewin had requested internal review of a decision made by the NDIA "to decline [Mr Ewin's] request to review funded supports in [his] plan relating to Transport, Domestic support and Assistive technology". However, this cannot be right because a different delegate of the CEO advised Mr Ewin in her letter dated 13 February 2017 (see paragraph [298]) that this was what she had decided to do. It is also evident from the file note of the subsequent conversation on 23 March 2017, between Mr Ewin and the reviewer that the internal review comprised a substantive review of Mr Ewin's supports (and whether they should be funded under the NDIS). The Tribunal is satisfied that the reviewer mistakenly mischaracterised the request that Mr Ewin had made for an internal review.
2. Accordingly, the Tribunal considers that in March 2017, the reviewer was reviewing a decision by the delegate of the CEO under s 33(2) of the NDIS Act to approve a statement of participant supports for Mr Ewin which formed part of Mr Ewin's First Plan. This statement of participant supports as it existed at that time did not include any funding for private transport costs, assistive technology maintenance, and included a lesser amount of funding for the provision of domestic support.
3. The reviewer stated twice (in her file note and in the letter recording the Internal Review Decision), that she had made a decision to amend the decision. The Tribunal understands this to constitute a decision by her to vary the reviewable decision, as she had the power to do under s 100(6)(b) of the NDIS Act. The variation made by her to the statement of supports comprised of increasing the level of domestic support to Mr Ewin by half an hour each week, and by adding an assistive technology budget as a further support. There is no suggestion by the reviewer that she was setting aside the reviewable decision, as she also had the power to do under s 100(6)(c) of the NDIS Act.
4. This characterisation aligns with the NDIA's description of the decision under review before this Tribunal, as given in its Closing Submissions:

...the internal review decision dated 27 March 2017, insofar as it varied the decision made on 19 January 2017 to approve a statement of participant supports.[107]

1. A decision under s 33(2) is a reviewable decision under s 99(d) of the NDIS Act. The reviewer had power to review this reviewable decision under s 100(6) of the NDIS Act. Mr Ewin sought review by this Tribunal of the Internal Review Decision under s 103 of the NDIS Act.
2. Separately, the NDIA contends that Mr Ewin's Second Plan was approved[108] in order to "give effect and utility to the terms of the internal review decision" and that "Counsel is instructed that this is the [NDIA's] current practice, and is the most appropriate option available at this point in time due to limitations in the [NDIA's] business systems which prevent the [NDIA] from making variations to existing plans".
3. The NDIA's position is at odds with the Tribunal's view as to how the scheme is intended to work. In this case, the reviewer made a decision to vary. In accordance with the Tribunal's views as set out in paragraph [294(b)], there was no further step the NDIA was required to take under the provisions of the NDIS Act to "give effect and utility" to the decision to vary the reviewable decision. The approval for the statement of supports (albeit varied) remained in place, and accordingly, the plan continued to have effect and would have continued to operate, except for the CEO's subsequent decision on his or her own initiative to replace the First Plan, with the Second Plan.
4. It is a separate matter that the NDIA's computer system was unable to deliver, at an administrative level, the effect of the variations to be made to the approved statement of supports, which the reviewer under the NDIS Act has the power to make. In this case, the implementation by the NDIA of the Second Plan was commenced by force of s 37(1) when a new statement of supports was approved by a delegate of the CEO, following a review initiated by the CEO.
5. The Tribunal notes that there has been no further requests for review made by Mr Ewin under s 100(2) of the NDIS Act, or applications to the Tribunal under s 103 of the NDIS Act, in relation to the decision of the delegate of the CEO to approve a new statement of supports for Mr Ewin's Second Plan (or for that matter, the Third Plan or Fourth Plan).
6. However, the Tribunal considers that the absence of such further internal reviews (and Tribunal applications) in relation to the statements of supports in the successive plans, does not limit the "coverage" of the effect of the decision made by this Tribunal in this application. The Tribunal, in making this decision, does so standing in the shoes of the reviewer, setting aside the original decision of the delegate of the CEO and substituting it for a new decision to approve a new statement of supports which includes the current supports and also the additional support sought by Mr Ewin which was central to this application. Having done so, in the Tribunal's opinion, a new plan containing the new statement of supports for Mr Ewin's will take effect by force of s 37(1) of the NDIS Act. The second and only other requirement under s 37(1) has already been met; namely, that the CEO has received the participant's statement of goals and aspirations.

When will the Tribunal's decision take effect

1. The next question that arises is when the Tribunal's decision will take effect and what period will it cover.
2. The Tribunal notes ss 43(5A), (5B) and (6) of the AAT Act provide that (emphasis added):

Section 43

...

(5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.

(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.

...

(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

1. In accordance with the first half of s 43(6), the decision by this Tribunal to set aside the reviewer's decision and substitute it for a new decision is taken to be the decision of the reviewer.
2. Taking into account the reference in s 43(6) to "unless the Tribunal otherwise orders", irrespective of the default position that applies under this provision, the Tribunal considers that it has the power to otherwise order the period during which its decision (deemed to be the reviewer's decision) has effect.
3. The reviewer was initially reviewing a decision in relation to a statement of supports contained in the First Plan that commenced on 19 December 2016, and the NDIA and Mr Ewin have continued since that time to be in dispute about whether transport funding should have been included in Mr Ewin's First Plan and successive plans. In accordance with the second part of s 43(6), the Tribunal considers that it is appropriate to order that the new plan (which will come into force by operation of s 37(1) of the NDIS Act as a consequence of this Tribunal's decision to set aside the original decision of the delegate of the CEO to approve the statement of supports in the First Plan and to substitute it with a new decision to approve a new statement of supports), will have effect as from 19 December 2016 until the present time and continuing until such time as this plan is replaced by another, noting the Tribunal has extended the review date on the statement of supports until 22 December 2019 - see paragraphs [316] to [318] of these Reasons for Decision.

Extending the review date in the statement of supports

1. The Tribunal in making its decision, must consider what review date should be included in the new statement of supports, being an essential element of any statement of participant supports as required by s 33(2)(c) of the NDIS Act.
2. Before the dispute arose about whether the transport costs specified by Mr Ewin should be funded, the NDIA formed a view that an appropriate notional period for an NDIS plan for Mr Ewin was 12 months. This was the notional period the NDIA set for the First Plan and the Second Plan.
3. Given Mr Ewin's condition is stable; and his employment and family circumstances are stable; the Tribunal considers it appropriate to adopt the previous approach that was adopted by the NDIA of setting a notional period for the operation of the plan of 12 months. Accordingly, the Tribunal considers it appropriate to include a review date in the new statement of supports of 22 December 2019 (i.e. 12 months from the date of this decision).

1. Mr Ewin contends that funding under the NDIS for the costs of travel by him using a private vehicle should be based on the ATO prescribed rate of 66 cents per kilometre. The Tribunal was unable to identify in the NDIA submissions any dispute about this being an appropriate rate to apply, however, it acknowledges that the NDIA has issued guidance in the Guidelines that if transport is considered as a reasonable and necessary support for a participant, one of three different levels of funding should apply.
2. The Tribunal accepts that the ATO prescribed rate of 66 cents per kilometre is an appropriate measure by which to quantify Mr Ewin's costs, given that this was a quantification of the cost of running a car arrived at by the Commonwealth Government for taxation purposes. For the 2018-19 income year the ATO has adjusted this figure to 68 cents per kilometre; so the increased rate is to be applied from 1 July 2018 onwards.[109]
3. The Tribunal was concerned by Mr Ewin's expectation that he should not have to maintain records of his travel in order for funding to be provided to him under the NDIS. Given that funds to be distributed under the NDIS are public monies, the Tribunal considers it appropriate that Mr Ewin provide particulars of and maintain a travel logbook to record details of his travel for the trips to be funded under the NDIS including dates, times, the location of origin and destination, reason for travel and for future travel, odometer readings. Mr Ewin should also obtain and keep records of the lawn bowls competition draws or his applications for registration in the competitions. Mr Ewin should produce them to the NDIA to enable the NDIA, upon request, so that the NDIS administrator may satisfy itself that Mr Ewin has undertaken the travel for which he will be funded by public monies as a consequence of this decision.

1. For the reasons set out above, the Tribunal sets aside the Internal Review Decision made on 27 March 2017 and in substitution, sets aside the decision of a delegate of the CEO of the NDIA on 19 January 2017 (which varied the statement of participant supports forming part of Mr Ewin's plan under the NDIS that commenced on 19 December 2016), and in substitution, approves a new statement of participant supports that:
   • (a) specifies the following reasonable and necessary supports for Mr Ewin as from 19 December 2016:
     • (i) funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and work on days when it is raining or forecast to rain, to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance of 672km per annum;
     • (ii) funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and lawn bowls "away" games that he plays on Saturdays or as part of the Darebin night competition, Darebin midweek competition or for tournaments held for players with disabilities; provided those "away" games are held at a bowls club located in a suburb on the Hurstbridge train line (Eligible Journeys). Mr Ewin's costs of the Eligible Journeys are to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance to be agreed between the NDIA and Mr Ewin within 21 days of Mr Ewin providing full particulars, in accordance with paragraph [321], of the Eligible Journeys undertaken by him from 19 December 2016 to 21 December 2018; and as projected, from 22 December 2018 to 22 December 2019;
     • (iii) funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and the location of his child's or children's weekly swimming lessons or netball games, to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance of 864km per annum;
     • (iv) $1,500, to be used to purchase an aerodynamic roof rack and/or fittings to be fitted onto Ms Ewin's wife's car; a standard-sized roof box; a step accessory; a storage rack fitting; and to reimburse Mr Ewin 12.1% of his petrol costs for the biannual trips to Apollo Bay undertaken while the roof box is in use, subject to the provision of tax invoices confirming purchase of the petrol at the commencement of those journeys; and
     • (v) $350, to be used for the purchase of a "black box" compartment; the cost of any customised fitting required to be made to Mr Ewin's chair and a lightweight laptop bag with adjustable shoulder strap; and
     • (vi) continuation of the provision or funding of all current ongoing supports (i.e. excluding any one-off supports that have already been provided to Mr Ewin), at the same level, as listed in paragraph [15] of these Reasons for Decision; and
   • (b) extends the review date of the statement of participant supports to 22 December 2019.
2. The Tribunal reserves the question of quantification of the distance referred to in paragraph [322(a)(ii)] above. Either party has liberty to apply in the event that they are unable to reach agreement within 21 days after Mr Ewin has provided the required particulars.

I certify that the preceding 323 (three hundred and twenty three) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]......................................................................

[1] Mr Ewin was granted access as a participant to the NDIS on 7 November 2016 - refer T-Documents T6/20. On 17 May 2017, the NDIA lodged a set of documents with the Tribunal in accordance with its obligations under s 37 of Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).

[2] Refer T-Documents T7/25 and Mr Ewin's Statement of Lived Experience lodged on 12 December 2017 (Mr Ewin's Statement).

[3] In these Reasons for Decision, the Tribunal's reference to "CEO" is a reference to the Chief Executive Officer of the NDIA.

[6] Refer T-Documents T8/33 (page 3 of the First Plan) and page 6 of the Fourth Plan lodged with the Tribunal on 7 November 2018.

[11] Refer Exhibits "R3" and "R4" and webpage downloaded by the Tribunal and provided to the parties on 14 November 2018 for comment.

[12] Refer Exhibits "A5" and "A6".

[13] The Manual was requested from Dr Chaffey at the hearing - refer Transcript P-134. It was not produced. The Manual was subsequently downloaded by the Tribunal from the manufacturer's website and provided to parties on 14 November 2018 for comment.