NATIONAL DISABILITY INSURANCE SCHEME - applicant a participant in the NDIS - autism spectrum disorder - intellectual disability - reasonable and necessary supports - transport costs - taxis - whether total cost should be funded - what is reasonable to expect families, carers, informal networks and the community to provide - decision under review affirmed

National Disability Insurance Scheme Act 2013 ss 3, 4, 34(1), 209

National Disability Insurance Scheme (Supports for Participants) Rules 2013

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

1. Liam McGarrigle is a 20-year old man who has autism spectrum disorder and intellectual disability. He became a participant in the National Disability Insurance Scheme (NDIS) in October 2013. He lives with his parents and younger sister outside Geelong.
2. Mr McGarrigle attends a group program at Encompass Community Services (Encompass) in Geelong on three days each week. His participation in the program is funded by the NDIS. On the other two weekdays he works at Karingal Kommercial (Kommercial), a disability enterprise in Geelong. He is unable to use public transport but can travel independently by taxi. He uses taxis to go to Encompass or Kommercial each morning, and home on three afternoons each week. A support worker funded by the NDIS picks him up on the other two afternoons and takes him to a gym and then back home.
3. Mr McGarrigle's father works full-time in the Geelong CBD. His mother is his primary carer. She gave up her career as a library administrator after he was born. She now works 30 to 33 hours a week at a local general store. She describes herself as his "unofficial PA"; she coordinates his supports, looks after his finances, drives him to appointments, does his shopping and cooking, and his laundry, and is on-call "24/7" in case he has a "meltdown". Not surprisingly, even with respite care for two nights each month and camps and overnight stays on four weekends each year, meeting his needs can be overwhelming at times. She has a history of "mental health issues" for which she takes medication.
4. Mr McGarrigle seeks review of a decision by the National Disability Insurance Agency (NDIA) to fund $11,850 for "transport to access daily activities". This amount represents approximately 75 per cent of the annual cost of $15,850 for taxis and transport by the support worker.
5. The NDIA submits that $11,850 is a reasonable contribution to Mr McGarrigle's transport costs. For Mr McGarrigle it is submitted that funding for a contribution only, rather than the full cost of transport, is incompatible with the objects of the National Disability Insurance Scheme Act 2013 (the Act).
6. Mr McGarrigle and his parents attended the Tribunal hearing. Ms McGarrigle spoke on his behalf.

The history of Mr McGarrigle's plans and funding for transport costs

1. As a participant in the NDIS, Mr McGarrigle has a participant's plan prepared by the NDIA which includes a statement of his goals and aspirations, and a statement of participant supports that specifies the reasonable and necessary supports that will be funded under the NDIS: s 33.
2. A number of plans have been prepared for Mr McGarrigle since he became a participant in the NDIS. Some time was spent during and after the hearing trying to clarify how varying amounts for transport in different plans were calculated, the reasons for the variations, and what forms of travel they covered.
3. Mr McGarrigle is entitled to a subsidy of 50 per cent of the cost of taxis under a scheme funded by the state government, which is taken into account in calculating the cost of transport for the purposes of his NDIS plans.

The first plan: 2 December 2013 to 1 December 2014

1. Mr McGarrigle's first plan commenced on 2 December 2013 and was to be reviewed by 1 December 2014. Under the heading "Assistance with travel/transport arrangements" it provided:

(i) taxi travel to and from Encompass & Kommercial (equivalent to 8 return trips)

(ii) Kilometres for support staff to gym and home two afternoons a week plus support staff travel "for Liam to go out on a regular basis (respite)" and support staff to attend for in-home support

1. It is not clear how much of item (ii) above was allocated to travel to the gym and home on two afternoons a week. The NDIA has advised that the structure of plans has changed over time and the additional funding for support staff travel is now included in a different part of the plan.
2. The first plan was amended four times over the months following its implementation. The reasons for the amendments are not relevant here. The transport costs and the breakdown did not change. For reasons which are not clear, the full amount allocated for transport was not used.

The second plan: 2 December 2014 to 1 December 2015

1. Mr McGarrigle's second plan commenced on 2 December 2014 and was to be reviewed by 1 December 2015. Under the heading "Other transport fares" it provided:

(i) Taxis to programs 5 mornings a week and three evenings per week (equivalent to 8 return trips)

(ii) Support worker to gym then home twice per week (at 78 cents per km)

1. Information provided by the NDIA indicates that the cost of taxis increased in the second plan in line with a 12.5 per cent increase in taxi fares in Victoria in May 2014. The cost of transport by the support worker was not specified in the plan but the NDIA advises it was calculated at $1964.04.
2. Ms McGarrigle told the Tribunal that, over the course of the second plan, close to the full allocation for transport was used, and so she asked for the same amount in the third plan.
3. It is not in dispute that Mr McGarrigle's first two plans included funding for the full cost of his transport to and from Encompass and Kommercial. However, the NDIA submits that this reflected an interim arrangement to allow for NDIS participants' transition from state-based funding schemes, and the policy since late 2015 has been to fund a contribution only.

The third plan: 21 November 2015 to 20 November 2016

1. Mr McGarrigle's third plan commenced on 21 November 2015 and was to be reviewed by 20 November 2016. It allocated $8,000 for "transport to access daily activities" for the purpose of:

Contribution towards support with transport; Taxi - to group based activities 5 mornings a week and three evenings a week x 50 weeks for support for a shared taxi with the use of a M40 card.

Support Worker Kms - Transport from day activity to gym and then home twice a week.

1. The basis for the allocation of $8,000 is not clear from the plan but, according to the decision currently under review (see below), it represented 50.8 per cent of the total cost of $15,850, calculated by reference to the Geelong Taxi website. (If that is so, it is not clear how the mileage for the support worker was calculated but nothing really turns on this).
2. On 4 November 2015, Ms McGarrigle asked the NDIA to review the allocation for transport. On 6 January 2016, a reviewer decided that it should be increased to $11,850. She gave her reasons as follows:
   • Geelong Taxi website cost calculator estimated Liam's Monday - Friday taxi costs to be $15,850 (including use of taxi card subsidy but not including any shared rides).
   • The $8,000 contribution in Liam's plan represents 50.8% of the estimate. This left $7,850 transport costs to be borne by yourselves. I believe this is an onerous expectation, given that Liam is only on a part pension, you already provide significant informal and financial support for him and you have another teenager to support.
   • The increase to $11,850 represents a 75% contribution to the estimated costs of Liam's weekday transport, leaving approximately $4,000 to be borne by yourselves.
3. It is not entirely clear how the amount of $15,850 was arrived at. The NDIA advised at the hearing that it covered taxi fares only but, in submissions after the hearing, the NDIA advised that it was calculated on the basis of 10 taxi trips per week to cover the support worker's costs. I will proceed on the basis that it represents the full cost of transport by taxi and by the support worker.
4. For Mr McGarrigle it is submitted that the plans and information provided by the NDIA show that funding for his transport has been "inconsistent, unclear and uncertain". That may be a fair comment but it is not to the point of this review. I have to determine whether transport is a reasonable and necessary support for the purposes of the Act and, in particular, whether funding for a contribution, rather than the full cost, can and should be provided.

The National Disability Insurance Scheme Act 2013

1. Subsection 34(1) of the Act provides that the Tribunal must be satisfied of each of the following when specifying in a participant's plan the reasonable and necessary supports that will be funded:
   • (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 the community to provide;
   • (f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
     • (i) as part of a universal service obligation; or
     • (ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
2. In these proceedings, the NDIA submits that a contribution towards Mr McGarrigle's transport costs must satisfy all of the criteria in subsection 34(1), but that the Tribunal should not be satisfied that the full cost meets subsections (a), (b) or (e).
3. I am not persuaded that subsections 34(1)(a) and (b) can be read in the way contended for by the NDIA. They refer in general terms to the assistance that "the support" will afford. In my view, it does not make sense to say that part-funding for a support assists a participant but full funding does not. It is not in dispute that transport is a support that will assist Mr McGarrigle to pursue his goals and aspirations and to participate in activities that will facilitate his social and economic participation by supporting him to attend the day program and engage in employment. I am satisfied that transport for Mr McGarrigle meets subsections 34(1)(a) and (b). The amount of funding to be provided is a different question.
4. Subsection 34(1)(e) is different from subsections (1)(a) and (b). In requiring that account be taken of what it is reasonable to expect of families and others to provide, it contemplates that funding or provision of a support may be reduced, or may not be funded or provided at all.
5. In the decision presently under review, the reviewer stated that transport meets all the criteria in subsection 34(1). Although the decision does not explicitly refer to subsection 34(1)(e), it is implicit that the reviewer considered it reasonable for Mr McGarrigle's family to bear some of the cost of transport, either directly or by reducing his need for transport, for example by "seeking appropriate local activities that would also meet [his] needs".
6. Nothing on these proceedings turns on the language used by the reviewer but it may be observed that, in deciding that the original allocation of $8,000 was "onerous", the reviewer stated that she had taken into account that Mr McGarrigle "is only on a part pension". The difficulty with this approach is that a participant's financial circumstances are not a consideration in subsection 34(1). The NDIS is not a form of income support (like the Disability Support Pension payable through Centrelink) and is not means-tested. Whether a participant can afford the cost of a support themselves is not a consideration. If it were, support could be refused on the basis that the participant, or his or her family, could afford to meet the cost themselves.

1. Central to the decision in this case is whether less than the full cost of a support that satisfies the provisions of subsection 34(1) can be funded.
2. As the Tribunal has noted in previous decisions, the importance of ensuring the financial sustainability of the NDIS is emphasised throughout the Act and in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules) made by the Minister under s 209 of the Act.
3. Subsection 3(3)(b) of the Act provides that, in giving effect to the objects of the Act, regard is to be had to "the need to ensure that the financial sustainability of the [NDIS]".
4. Subsection 4(17)(b) provides that "it is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with..." the principles in s 4, having regard to the need to ensure the financial sustainability of the NDIS.
5. Section 180A requires the Board of the NDIA to nominate an actuary whose duties include preparing an annual report in accordance with s 180B concerning the financial sustainability of the NDIS.
6. Rule 1.3 of the Supports for Participants Rules provides that, in giving effect to the objects of the Act which are particularly relevant to reasonable and necessary supports, "regard is to be had to the need to ensure the financial sustainability of the NDIS".
7. All that said, the interaction between the provisions concerning financial sustainability of the NDIS and the provisions of subsection 34(1) is not clear.
8. For Mr McGarrigle, it is submitted that references to the need to ensure the financial sustainability of the NDIS go to the broad objects of the Act, such as the object in subsection 3(1)(a), to give effect to Australia's obligations under the Convention on the Rights of Persons with Disabilities. It is submitted that considerations of financial sustainability cannot be relied upon to refuse funding for the full cost of a support that meets subsection 34(1). It is submitted that subsection 34(1) has inbuilt checks to ensure the financial sustainability of the scheme such as the requirement that a support represents value for money, and that it in effect covers the field concerning funding in a particular case. Further, that funding the full cost of Mr McGarrigle's transport is consistent with the insurance-based principles on which the NDIS is founded (see subsection 3(2)(b)).
9. I do not agree that it follows, because the CEO (and so the Tribunal) is satisfied of all of the matters in subsection 34(1), that a support must, or should, be fully funded. Subsection 34(1)(e) specifically requires consideration of what it is reasonable for families and others to provide. Moreover, rule 2.5 requires regard to be had to the financial sustainability of the NDIS in respect of individual plans. It provides:

In administering the NDIS and in approving each plan the CEO must have regard to objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans (emphasis added).

1. Nor is it necessarily incompatible with the objects of the Act to fund less than the full cost of a support. The need to ensure the financial sustainability of the NDIS is relevant to the performance of any function and the exercise of any power under the Act, and its objects are given effect by, among other things, having regard to financial sustainability of the scheme.

1. In accordance with s 209 of the Act, the Minister has made rules about a range of matters required or permitted by the Act, or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act. The Supports for Participants Rules deal with the assessment and determination of reasonable and necessary supports.
2. Rule 1.2 states that the objects of the NDIS Act which are particularly relevant to the assessment and determination of the reasonable and necessary supports that will be funded are:
   • (a) supporting the independence and social and economic participation of

(b) providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;

(c) enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.

1. As set out above, in giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS: rule 1.3.

Rule 3.4 - what it is reasonable for families and others to provide

1. For the purposes of deciding whether funding or provision of a support for a participant (other than a participant who is a child) takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, rule 3.4(b) provides that the following must be considered:
   • (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 care 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 independence and other outcomes;

1. In all cases, the desirability of supporting and developing the potential contributions of informal supports and networks within a participant's community must be considered: rule 3.4(c).
2. There is nothing to suggest that there is any risk to Mr McGarrigle's wellbeing arising from his reliance on family members and others to transport him to and from Encompass and Kommercial or anywhere else. Nor is there any reason to question their suitability to provide him with transport. However, it is submitted that the requirement to make up the shortfall in funding, whether financially or by transporting him themselves, puts the wellbeing of his family members at risk.
3. For Mr McGarrigle it is submitted that, if he has to rely on his mother for transport, she will have to reduce her hours or give up work altogether, or the family will have to fund the shortfall in transport costs themselves, all of which would place an additional burden on them and put the sustainability of the present caring arrangements and his mother's wellbeing at risk. It is submitted it is not reasonable to expect the family to meet the shortfall in funding for transport occasioned by the NDIA's decision.

1. Part 5 of the Supports for Participants Rules sets out "general criteria for supports, and supports that will not be funded or provided". Rule 5.1(d) relevantly provides that a support will not be provided or funded under the NDIS if:

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

1. "Day-to-day living costs" in rule 5.1(d) are not confined to rent, groceries and utility fees; they are examples and not an exhaustive list. Transport is an incidental cost of everyday life for most people and, in my view, can be considered a day-to-day living cost for the purposes of rule 5.
2. Rule 5.2 provides:

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 the 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. For Mr McGarrigle it is submitted that the cost of transport to and from Encompass and Kommercial relates solely and directly to his disability. Further, that the cost is ancillary to his funded supports and necessary in order for his plan to have effect. It is submitted that, as it meets all of the criteria in subsection 34(1) of the Act, the cost of his transport should be funded in full.
2. I do not accept that it follows, because a day-to-day living cost meets the descriptions in rule 5.2(a) or (b), that is should be funded in full (or even at all). Rule 5.2 is not mandatory; it provides discretion to fund such a cost ("which may be funded").

1. Following Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, the Tribunal should apply government policy unless there is good reason not to do so.
2. The NDIA has provided the Tribunal with a document titled 'Participant transport fact sheet'. It states:

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; funding takes into account any relevant taxi subsidy scheme; and it does not cover transport assistance for carers to transport their family member with a disability for everyday commitments.

1. Under the heading "Expected levels of transport support", the fact sheet states there are "three levels of supports for transport assistance" which are "used to provide a transport budget for participants". They are:
   • Level 1 - The NDIS will provide up to $1,539 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access.
   • Level 2 - The NDIS will provide up to $2,377 per year for participants who are currently working or studying part-time (up to 15 hours a week), participating in day programs and for other social, recreational or leisure activities.
   • Level 3 - The NDIS will provide up to $3,326 per year for participants who are currently working, looking for work, or studying, at least 15 hours a week, and are unable to use public transport because of their disability.

Exceptional circumstances - participants can receive higher funding, up to $6,000 per year, if the participant has supports (mainstream, informal or funded) in their plan that enables their participation in employment.

1. According to a NDIS fact sheet titled 'Mobility Allowance and the NDIS', the levels of funding align with the Mobility Allowance previously available to participants from Centrelink, responsibility for which has been transferred to the NDIS.
2. The NDIA has also referred the Tribunal to a document titled 'Work Practice - Guide to Funded Supports, Operations Branch, version 2.1, date released 01/10/2015' (Work Practice document) which is stated to be read in conjunction with the Act, the Supports for Participants Rules and relevant Operational Guidelines. The status of the document is not altogether clear, and the NDIA advises that it is still in draft form, but I accept that it reflects NDIA policy.
3. In relation to transport, the Work Practice document states that a participant may receive up to $6,000 if he or she "has supports (mainstream, informal or funded) in their plan to enable outcomes of economic participation by way of employment, training or study" and "could not maintain or increase their current employment or study activities without further support" or "the higher level of support would enable the participant's primary carer to increase their own employment or returned to work". Funding above $6,000 per year requires "Site Manager approval".
4. A further internal document titled 'NDIA - Plan Review - Conversation Tool' (Conversation Tool) supplements the Work Practice document and is in the form of a checklist for staff when preparing a participant's plan. In relation to transport funding it states:

Funding should never equate to the total funding required for transport - it is only ever a contribution.

1. The basis for this instruction is not clear. It does not appear to be based on the Act or the Supports for Participants Rules, or the policy reflected in the 'Participant transport fact sheet', and I have not taken it into account in this decision. It appears to be at odds with an assessment of an individual participant's needs. It also suggests that, even if Level 1, 2 or 3 funding under the policy would satisfy an individual's needs for transport, the full amount should not be funded. For the reasons set out below, I do not accept that funding for less than the full amount of Mr McGarrigle's transport is incompatible with the objects of the Act but that conclusion has nothing to do with the instruction in the Conversation Tool.

1. The NDIS 'Operational Guideline, Planning and Assessment - Supports in the Plan - Interface with Transport' (the Guideline) concerns whether a support is most appropriately funded by the NDIS or more appropriately funded by other systems. It therefore relates primarily to the application of subsection 34(1)(f) but it is included for completeness. It provides that the NDIS will be responsible for:
   • (a) Supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport, and
   • (b) Modifications to a private vehicle (i.e. not modifications to public transport or taxis), and
   • (c) The reasonable and necessary costs of taxis or other private transport options for those not able to travel independently or use public transport.
2. The Guideline provides that the NDIS will not be responsible for matters concerning accessibility or lack of public transport, or transport infrastructure.

1. There may be supports which, by their nature, are rendered of little or no benefit if only partly funded. There may be supports which, by their nature, cannot be provided or supplemented by families or other informal supports. However, I am not persuaded that transport is a support of that kind. Nor am I persuaded that a policy by which a substantial part of the cost of transport is met, rather than the full cost, is inconsistent with the objects of the Act.
2. In every case an individual participant's needs for support have to be considered in light of his or her circumstances and the relevant legislation and relevant policy.
3. I accept that it would impose an additional burden on Mr McGarrigle's parents if they have to transport him to and from Encompass and Kommercial 25 per cent of the time, or meet the shortfall in funding. The shortfall amounts to the equivalent of two and a half - realistically three - trips each week in addition to the transport they already provide him at other times during the week and on weekends.
4. I accept that it may add to the demands already placed on Mr McGarrigle's parents if one of them has to drive him on those extra trips each week, or they have to make some other arrangement that does not rely on funded transport. I accept that any additional burden has the potential to affect their wellbeing. However, in my view, the decision to provide funding for 75 per cent of the cost of Mr McGarrigle's weekday transport takes into account what it is reasonable for families generally, and his family in particular, to provide. In setting an amount above the amounts usually payable according to NDIA policy, I am satisfied that it recognises the burden on his family and potential risk to their wellbeing in a way that takes into account what it is reasonable to expect families and others to provide by way of transport or by alternative arrangements.
5. I am satisfied that the transport is a reasonable and necessary support for Mr McGarrigle within the meaning of subsection 34(1). I do not accept that funding for less than the full cost of his transport is inconsistent with the Act. I am satisfied that the decision to fund 75 per cent of his weekday transport costs strikes an appropriate balance between what is reasonable and necessary for him and the overall financial sustainability of the NDIS
6. For these reasons I affirm the decision under review.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Mr S Fagg, National Disability Insurance Agency