RTRH and National Disability Insurance Agency [2022] AATA 205 | Case summary

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

RTRH and National Disability Insurance Agency [2022] AATA 205 | Case summary | Zoe

[46]

RTRH is a participant in the National Disability Insurance Scheme (NDIS). She applied to the Tribunal for review of three National Disability Insurance Agency (Agency) decisions relating to Statements of Participant Supports (SPS) that were instrumental in participant plans that came into effect in 2017 and 2019. Each decision sets out reasonable and necessary supports that were to be funded under the National Disability Insurance Scheme Act 2013 (NDIS Act). These matters were the subject of internal reviews by the Agency.
RTRH is not happy with the level of transport support funding that was approved. She also wants funding to be provided to her for a smart phone stylus device.
In the course of the proceedings, the Agency agreed to RTRH's request for reimbursement funding in respect of the stylus smart phone device. That matter was settled by agreement under s 42C of the Administrative Appeals Tribunal Act 1975 (AAT Act). It being appropriate to do so in the circumstances, the Tribunal decides that the Samsung Galaxy Note 9 Evo (smart phone plus stylus) plus wallet plus invisible glass purchased by RTRH, in the amount of $1575.00, is a reasonable and necessary support that will be funded under the Scheme.
The dispute over transport support funding is the central issue in the proceedings.
As will appear, the nub of the dispute is that RTRH asserts that using her private car for transport is a reasonable and necessary support, and that the running costs of her car, including registration, servicing, maintenance and other costs, should be funded under the NDIS. The Agency disagrees on the basis that RTRH's private car is not a reasonable and necessary support and related costs are everyday costs of living that cannot be funded under the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules).[1]
There is also an issue relating to the Tribunal's jurisdiction in each application. This arises from the procedural and decision-making history of the Agency and the issuing of successive plans for RTRH. As will appear, the issue turns on the construction of statutory provisions at the heart of the NDIS Act relating to the making of participant plans and the review of SPS decisions.
It is important to observe immediately that the NDIS is not an income support or replacement scheme. While schemes of that kind are provided under the Social Security Act 1991 in the form of Newstart Allowance, Disability Support Pension or Age Pension, for example, the NDIS has a very different character. It adopts an insurance-based approach to the provision and funding of services and supports to people with disability. It is guided by objectives and principles[2] that expressly recognise the rights of people with disability and support the exercise of choice in pursuit of individual goals, having regard to the financial sustainability of the NDIS.
Underlying this case are two matters of principle that are of fundamental importance to the operation of the NDIS.
The first is about merits review. Where supports to be provided or funded in a participant's plan are fixed by an administrative decision-making process in which one administrative decision may be replaced by another in a continuum of decision making, does replacing a decision about supports with another change the plan?
The second is about the importance of a participant's experience of disability and their right to make choices in the circumstances of their daily lives. A participant might make choices about daily activities that require equipment or supports about which there is no real choice at all. If those supports are a common everyday expense for people exercising choice without disability, does this bar the provision or funding of the support for the participant under a plan? Where a participant is provided with supports under a plan and the approval of supports involves a choice between available options, however limited, does the participant's preference determine the result?
On close consideration of the legislation and previous relevant cases, I have decided that the answer to each question is No.
Logically, it is necessary to deal with the jurisdiction issue first as the result determines the periods in which the disputed SPSs and RTRH's transport support, in particular, must be considered. For this purpose, it is necessary to consider the factual background and the procedural history. It is also necessary to consider the review provisions of the NDIS Act and the nature of merits review in the Tribunal. In order to assist understanding and expose my reasoning, I will address each of these matters in some detail even though doing so greatly increases the length of this decision. The decision is comprised of the following sections:

[52]

I also find that RTRH has been diagnosed with hypertension and bilateral hip osteoarthritis by Dr Newbery,[7] and Chantelle Carr (podiatrist) reported that RTRH requires podiatric treatment for a high risk foot condition.[8]
RTRH gave evidence of experiencing instability, loss of balance and vertigo. This, too, is accepted. Her report of instability is supported by evidence of Dr Gillespie and Dr Newbery. Dr Newbery gave evidence that RTRH has complained of vertigo and related loss of balance in the past, although the doctor accepted that vertigo is a subjective experience.
For many years, RTRH has had reduced mobility. She is able to walk with the assistance of a walking frame - she uses a wheelie walker. She is able to drive her private car unless her conditions or symptoms flare and prevent her from doing so. With appropriate support, she lives independently and cares for herself. As will appear, her bilateral hip condition restricts the safe range of motion in each hip joint - she is at risk of hip displacement with excessive flexion or adduction.
In 1995, RTRH ceased paid employment as a teacher at Copeland College. She explained that this was done on medical advice.
In 1996, she attempted low level administrative work in the Department of Defence, but this was not satisfactory and she ceased all paid employment in 1997.
Thereafter, RTRH was granted a disability support pension. She transferred to an age pension in or about August 2020.[9]
I understand that RTRH became a participant in the NDIS in September 2015 and that supports were provided and funded under successive 12-month plans from September 2015 and September 2016.[10] No documents relating to such plans and associated SPSs, setting out the reasonable and necessary supports that were approved and funded, have been given to the Tribunal in these proceedings.
RTRH asserts that before she was transferred to the NDIS, she was paid a fortnightly mobility allowance. This ceased when she became an NDIS participant in 2015. On her account, she was paid transport support amounting to $162 per fortnight until September 2017.[11]
On 18 September 2017, a delegate of the CEO issued a plan for RTRH (Plan A).[12] The notice issued in respect of this plan included the following:

[108]

The extent of the Tribunal's jurisdiction in each application is to be determined. There are questions whether the Tribunal has jurisdiction in respect of each SPS approved under Plans A, B, C, D, E, F and G.
In order to address these questions, it is necessary to consider the Agency's submissions about the scope of the Tribunal's review jurisdiction.
The Agency accepts that the Tribunal has jurisdiction under s 103 to review an internal review decision made under s 100(6). The Agency submits that, where a new plan comes into effect under s 37(1), the Tribunal has no jurisdiction to review the SPS approved in that plan unless the approval decision has been subject to internal review under s 100. The Agency argues that where an internal review decision is made to vary or to set aside the SPS originally approved by the CEO and substitute another decision, s 37(2) of the NDIS Act applies and a new plan is required to give effect to that decision. In such circumstances, so the argument goes, while the Tribunal has jurisdiction to review the internal review decision, it does not have jurisdiction to review the SPS that is included in the new plan unless the SPS has been reviewed under s 100 and a further application for review has been made to the Tribunal. The Agency asserts that the Tribunal's jurisdiction is confined to the period during which the CEO's initial approval of the SPS remains effective under the participant's plan that gave it force. In support of these propositions, the Agency relies on elements of the Tribunal's decision in Williamson and National Disability Insurance Agency (Williamson).[91]
Furthermore, the Agency argues that, where the original SPS under review is part of a participant's plan that is no longer in force, the Tribunal cannot extend the effective period of the SPS. For this reason, the Agency maintains that, while the Tribunal may increase the quantum of reasonable and necessary supports that are to be funded by varying or setting aside and substituting the SPS with another, the Tribunal has no jurisdiction or power to determine matters relating to payments or to direct the Agency to reimburse any amount in respect of costs incurred or payments made for supports under a participant's plan that is no longer current. Support for this proposition is drawn from the Tribunal's decision in XXWC and National Disability Insurance Agency (XXWC).[92]
The kernel of these submissions can be accepted, namely that the Tribunal's jurisdiction is conferred by s 103 of the NDIS Act and is confined to review of a decision made under s 100(6) of that Act. That kernel, however, is clothed in submissions drawn from a particular construction of the legislation at the heart of which lies a very knotty issue relating to the operation of s 37 of the NDIS Act and provisions made for review of decisions that are set out in Part 6 of Chapter 4. It is in this context that the first matter of principle arises.
As I comprehend the Agency's submissions, these statutory provisions should be construed with the following effect:

[123]

100 Review of reviewable decisions

(1) The decision‑maker of a reviewable decision must give written notice of the reviewable decision to each person directly affected by the reviewable decision.

(1A) The notice must include a statement:

(a) that:

(i) the person may request a review of the reviewable decision in accordance with this section; or

(ii) if the decision‑maker is taken to have made the reviewable decision because of subsection 21(3) or 48(2) - the decision will be reviewed automatically; and

(b) that the person may seek further review under section 103.

(2) A person who is directly affected by a reviewable decision may request the decision‑maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.

(3) A request may be made by:

(a) sending or delivering a written request to the decision‑maker; or

(b) making an oral request, in person or by telephone or other means, to the decision‑maker.

(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:

(a) make a written record of the details of the request; and

(b) note on the record the day the request is made.

(5) If:

(a) the decision‑maker receives a request for review of a reviewable decision; or

(b) the decision‑maker is taken to have made a reviewable decision because of subsection 21(3) or 48(2);

the decision‑maker must cause the reviewable decision to be reviewed by a person (the reviewer):

(c) to whom the decision‑maker's powers and functions under this section are delegated; and

(d) who was not involved in making the reviewable decision.

(6) The reviewer must, as soon as reasonably practicable, make a decision:

(a) confirming the reviewable decision; or

(b) varying the reviewable decision; or

(c) setting aside the reviewable decision and substituting a new decision.

(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the decision‑maker is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.

(8) ...

[126]

Under s 43(6) of the AAT Act, a decision under s 43(1)(b) or (c) is deemed to be a decision of the person who made the decision under review, with effect from the date that decision had effect or could have had effect.
Thus, when exercising the jurisdiction conferred by s 103 of the NDIS Act, it is the entirety of the CEO's task for the purposes of s 33(2) that must be done again, de novo,[107] and for this purpose the powers conferred upon a reviewer to confirm, to vary or to set aside and substitute the SPS decision are those of the CEO for the purposes of s 33(2). The Tribunal stands in the shoes of the reviewer and makes a fresh decision on the relevant materials placed before it,[108] answering the same questions that were to be answered by the reviewer and by the person who made the primary decision and being subject to the same constraints.[109] Effectively, where the reviewer has confirmed the original decision, it is the original decision that is the operative decision under review by the Tribunal, and where the reviewer has varied or set aside and substituted the original decision it is the decision as varied or substituted that is before the Tribunal on review. The Tribunal is not limited to consideration of matters at the time of the internal review decision, rather it is obliged to consider the totality of relevant matters from the date the original decision first had (or could have had) effect.
With regard to the Tribunal's function, the general approach has been to consider this within the continuum of administrative decision making that is authorised under the particular legislation, where one decision may be set aside and substituted with another on review.[110] Subject to the nature and incidents of the decision under review,[111] the claim or the entitlement of the person is to be considered from the date the original decision had effect under the particular legislation to the date of the Tribunal's decision on review. The ambit of the Tribunal's review is necessarily influenced by the ambit of the steps and decisions prior to the Tribunal's review.[112]
Importantly, the general approach is derived from the statutory function of substituting one administrative decision with another. It is a continuum of this kind that is established under Part 6 of Chapter 4 in the NDIS Act. Under these provisions, an operative decision to approve an SPS under s 33(2) may be varied or set aside and substituted with an internal review decision made under s 100(6), which on further review may be varied or set aside and substituted with a decision of the Tribunal under s 43(1) of the AAT Act.
Following the consent decision delivered by the Full Federal Court in QDKH v National Disability Insurance Agency (QDKH)[113], when dealing with a reviewable decision under s 33(2) of the NDIS Act in this continuum of administrative decision-making, the scope of an internal review under s 100 and a review by the Tribunal pursuant to s 103 and s 25 of the AAT Act, is not limited to particular supports raised previously by a participant. The question to be answered at each level of decision making is the same, and that is framed by s 33(2) of the NDIS Act. Essentially the questions are:

[128]

Just as a reviewer must address these questions when reviewing an approved SPS, so too must the Tribunal when reviewing an SPS internal review decision and, in doing so, it must have regard to the period in which the SPS had or has effect.
A decision to refuse to include a support sought by a participant in an SPS is like any other negative decision in respect of a claimed benefit: it is made at a point in time and, on review, should a decision favourable to the person be made, the person is entitled to recover the cost of the support from the time the support was first capable of being provided or funded under the plan in which the SPS under review was instrumental. There is no express or implied provision in the NDIS Act that requires any different conclusion.
The nature and incidents of a decision to approve an SPS under s 33(2) of the NDIS Act do not, therefore, limit the consideration of a reviewer or the Tribunal to the time when the primary decision was made. The participant's entitlement to reasonable and necessary supports that will be funded under the NDIS commences on the date the SPS was approved and the plan under which it is to be managed came into effect under s 37(1), and it runs to the present unless, in the particular circumstances of each case, the entitlement is exhausted or it comes to an end on cessation of the relevant participant's plan under s 37(3). It is with reference to this period, from the first date of effect to the last date of effect (or the present) of the SPS under review, that the Tribunal must determine the reasonable and necessary supports that will be funded and all other relevant matters under s 33(2).
Importantly, for the purposes of s 37(1) and under ss 33(1) and (2) each participant's plan has two essential components: a statement of goals and aspirations (SGA) prepared by the participant, and an SPS prepared with the participant and approved by the CEO, setting out (among other things) reasonable and necessary supports that will be funded under the NDIS. A plan comes into effect only when the SGA has been given to the CEO and the CEO has approved an SPS. The plan ceases to be in effect only when the requirements of s 37(3) are met.
It is of critical importance, therefore, to determine the date on which a plan and the SPS it contains commenced and ceased to have effect, if at all.
This is to be determined under s 37, which is in the following terms -

[136]

It is very clear that a plan review, necessarily, requires the CEO to facilitate the preparation of a new plan with the participant in accordance with the requirements and provisions set out in Division 2, Part 2, Chapter 3 of the NDIS Act.
The NDIS Act does not give any special meaning to the word facilitate and its ordinary meaning may be applied: to make easier or less difficult; help forward; assist the progress of.[114] On this basis, the phrase facilitate the preparation of a new plan with the participant can readily be understood. Nevertheless, the nature and extent of the CEO's obligation to facilitate with the participant for the purposes of s 49 is not so clear, although the matters about which the CEO must be satisfied under s 32 and s 32A (which set out the CEO's obligation to facilitate preparation of a plan for a new participant) illuminate what may be required. This includes giving the participant a reasonable opportunity to provide any information sought under s 36 or s 50, and addressing all of the matters specified in s 33, including, in particular, the requirements of s 33(2) and (5), and consequentially s 34 and relevant parts of the Rules.
Whatever meaning is given to the word facilitate, this cannot transform the procedure for internal review of a s 33(2) SPS approval decision of the CEO under s 100 in Part 6, Chapter 4 into a plan review under s 48 and s 49. The latter has a broader ambit and a different procedure than the former. Review under s 100 involves merits review of a singular decision made at a point in time in the past in which the reviewer has power to confirm or vary the CEO's decision or to set it aside and substitute a different decision. Provision is made in s 101 for variation of a reviewable decision prior to completion of a review under s 100 (although the circumstances in which this might occur are not clear). Review under s 48 and s 49 involves the preparation of a new plan, prospectively, with the participant which, once it comes into effect, cannot be varied and will continue to have effect, subject only to s 37(3). A review of this kind is clearly distinguished from provisions for review of a reviewable decision under s 100.
Where an SPS approval decision is subject of review under s 100, the reviewer must address afresh the requirements of s 33, s 34 and relevant parts of the Rules in the particular case. Noting that the preparation of an SPS is a collaborative process,[115] the reviewer is required to step into the shoes of the CEO and make the correct or preferable decision about what should be included in the SPS at the time of the CEO's original decision and at the time of the reviewer's decision, subject only to the continuing effect of the plan in which the SPS is instrumental. Thus, whether the reviewer decides to vary or to set aside the reviewable decision and substitute a new decision, the reviewer's decision is taken to be the decision of the original decision-maker, with effect from the date the original decision was made or came into effect. Consequently, the participant is able to recover the costs of supports that were not previously included in the SPS as originally approved.
The substitution of a reviewable decision with a decision made by a reviewer under s 100(6) does not involve the making of a new reviewable decision for the purposes of s 99, rather the reviewable decision is substituted with the decision of the reviewer (or the Tribunal on further review). This does not trigger fresh review rights under s 100(2). It does not involve or amount to the CEO making a new decision under s 33(2), rather it involves a reviewer (or the Tribunal) doing over again the CEO's original approval decision. By operation of s 100(5), the reviewer's decision is made using the powers of the decision-maker, namely the CEO. Under s 100(7), the operation of the original decision is not affected. The decision of a reviewer is taken to be, and has effect as, the original decision of the CEO. Consequently, the contents of an approved SPS may be changed on review, but the plan remains in effect unless and until it is replaced in either of the ways provided for in s 37(3), neither of which are triggered by the variation or substitution of an SPS approval decision on review under s 100.
For the purposes of s 37(1), the SPS approved by the CEO under s 33(2) is instrumental in commencement of the plan under which supports are provided or funded. It is for this reason an approved SPS applies during the period in which the plan in which it is instrumental has (or had) effect. Once that plan ceases in one of the 2 ways authorised under s 37(3), the period in which the approved SPS is operative comes to an end. In such circumstances, the effect of a reviewer's decision, or a decision of the Tribunal, to vary or to set aside and substitute the CEO's SPS approval decision is confined to the period the plan in which it was instrumental had effect.
This does not change if the CEO's decision is varied or substituted under s 100(6). It is the CEO's approval decision that authorises the expenditure of public funding for supports under a participant's plan.
A reviewer's decision to vary or substitute a decision of the CEO to approve an SPS under s 33(2) does not require a new plan to give it effect. A reviewer's decision has effect as or in substitution for the CEO's decision within the plan in which the CEO's original decision was instrumental. There is no provision in Division 4, Part 2, Chapter 3 for replacing a participant's plan in such circumstances. And, under s 37 there is no authority under the NDIS Act for doing so. The bar imposed by s 37(2) on varying a plan once it has come into effect does not authorise the replacement of a plan in any circumstances other than those set out in s 37(3).
Where a replacement plan has come into effect under either of the mechanisms authorised in Division 4, Part 2, Chapter 3, the SPS approved by the CEO in the preparation of the new plan with the participant is a reviewable decision. The Tribunal's jurisdiction to review a decision of this kind is enlivened only where the decision has been subject to internal review under s 100, and an actual or deemed decision has been made under s 100(6). Without this occurring, the Tribunal has no jurisdiction to review it.
Thus, in circumstances where a purportedly new plan has been issued by the Agency consequent upon and for the purposes of giving effect to a reviewer's decision under s 100(6)(b) or (c), s 37(3) is not engaged unless it is established that a new plan has been prepared with the participant under s 48 and s 49, or the participant has given the CEO a new SGA under s 47.
If the provisions of Division 4, Part 2, Chapter 3 are not engaged, the best that can be said of a 'plan' issued to give effect to a reviewer's decision is that it is a reiteration or reissuing of the plan that came into effect with the CEO's original SPS decision. The alternative is that a 'plan' of that kind is not a plan as defined in s 9 and, where it is issued without proper statutory authority or in excess of power under the NDIS Act, it is invalid or a nullity.
Whichever view is taken, where s 37(3) is not engaged, the issuing of such a 'plan' does not replace the plan that was in effect and it does not cause the previous plan to cease to be in effect. Furthermore, it does not trigger new review rights under s 100(2) as a decision under s 100(6) is not a reviewable decision, and it does not curtail the Tribunal's jurisdiction should the reviewer's decision be subject of an application to the Tribunal under s 103.

[141]

Even though the notice refers review of a plan approval decision, the information appears to relate to the review provisions set out in s 100, under which review of an SPS approval decision under s 33(2) may be requested within 3 months and a decision made under s 100(6), whereupon application for further review by the Tribunal may be made under s 103. These provisions do not apply to review of a participant's plan. This suggests that no plan review was undertaken. As I have said, the mechanism for review of a participant's plan is set out in Division 4 of Part 2 in Chapter 3 of the NDIS Act, specifically s 48 and s 49, under which a participant may request review of a plan at any time. The notice provides no information about this mechanism for reviewing a participant's plan.
It is clear that the reviewer decided to vary the CEO's original SPS approval decision, including some supports and excluding others that RTRH wanted. In all likelihood, Plan B was issued to give effect to the s 100(6) decision. This notwithstanding, when the contents of the SPS in Plan A and the terms of the internal review decision on 5 December 2017 are considered against the supports in the SPS in Plan B, it is clear that the SPS in Plan B includes supports and amounts of funding in excess of those specified in the SPS in Plan A as varied by the internal review decision. The SPS in Plan B includes provision of and funding for Assistive technology, Improved life choices and Improved health and wellbeing[120] that are not specified in the reviewer's 5 December 2017 decision or in the SPS included in Plan A. On the materials in evidence, it is not clear how these supports came to be included in the SPS in Plan B and by what process of decision-making.
There are real doubts about whether Plan B was properly made in compliance with the plan review provisions in Division 4, Part 2, Chapter 3. For Plan B to have come into effect, it must have resulted from a plan review procedure under s 48 and s 49. The materials before the Tribunal are not sufficient to establish, one way or the other, if a plan review was undertaken by the CEO in accordance with the requirements of Division 4, Part 2, Chapter 3 of the NDIS Act. It is not clear under which provisions of the NDIS Act Plan B was made and purportedly came into effect.
Considering these matters, it is possible that Plan B was ineffective to the extent that it did not replace Plan A under s 37(3) but rather it was a restatement of Plan A with variations to the approved SPS under s 100(6). If no review of Plan A was conducted for the purposes of and in accordance with Division 4, Part 2, Chapter 3, Plan B could not have come into effect. In those circumstances, without s 37(3) being engaged, Plan A would not have ceased and would have had continuing effect until it was replaced by a plan made under Division 4, Part 2, Chapter 3. Conversely, it is conceivable that the delegate of the CEO who issued notice of the Plan on 5 December 2017 also approved the SPS it contains, and that the internal review process was taken to satisfy the CEO's obligations under s 48 and s 49. In those circumstances, even if there are deficiencies in the process that was followed, Plan B may have come into effect on 4 December 2017 and s 37(3) may have been engaged, rendering Plan A ineffective thereafter.
On balance, considering the degree of uncertainty, I think the better view is that Plan B came into effect on 4 December 2017. I will proceed on that basis.
From this it follows that the Tribunal's jurisdiction in application 2020/2311 runs from 15 September 2017 to 4 December 2017, the date Plan B came into effect.
With regard to application 2020/0754, the Tribunal has jurisdiction to review the 15 January 2020 internal review decision and the original SPS approval decision on 31 October 2019 which was instrumental in Plan E. The Agency asserts that Plan F was intended to give effect to the 15 January 2020 internal review decision, but it contained an error which was corrected in Plan G on 4 February 2020.
Careful consideration of the internal review decision on 15 January 2020 raises a number of difficulties. It is not clear if the reviewer varied or set aside the reviewable decision and substituted a new decision. The terms of the internal review decision expressly refer to a new version of the plan being approved and attached.[121] The attached plan contained an error: the reviewer decided that RTRH's plan should be self-managed, whereas the terms of Plan F refer to it being plan-managed. It is not clear who approved the SPS in Plan F, although the materials point to this being the reviewer.
The present evidence does not establish that a plan review process was conducted under and for the purposes of Division 4, Part 2, Chapter 3, or that the internal review procedure and the reviewer's decision under s 100(6) was part of such a plan review process.
Plan F was sent to RTRH on 15 January 2020. The covering letter was not signed and it contained no information about the plan and her rights of review, it simply attached the plan.[122] This notice does not satisfy the requirements of s 100(1A) that the notice must include a statement that the person can seek review under s 100 and further review under s 103. Those requirements are mandatory.
I am satisfied that Plan F was issued in a manner that did not comply with applicable provisions in Division 4, Part 2, Chapter 3 and, consequently, s 37(3) was not engaged. The better conclusion is that Plan F was a restatement of Plan E with variations made to the SPS originally approved by the CEO on 31 October 2019. The issuing of Plan F did not mean that Plan E ceased to have effect.
With regard to Plan G, the Agency asserts that Plan G was made to correct the error in Plan F and, in such circumstances, the CEO could initiate a plan review procedure to rectify the problem. This may be correct, although one might expect that an error in the wording of an internal review decision may be amenable to correction by the reviewer. There are 2 difficulties with this, however. Firstly, there is no express provision that allows for the CEO to request a review under s 100. And secondly, there is no express provision that permits a reviewer to correct an error in the text of a decision made under s 100(6).
The notice for Plan G was sent to RTRH on 4 February 2020.[123] The covering letter was not signed and the author or sender cannot be identified on the face of the record. The letter contains no information about Plan G or the circumstances in which it came into effect. It does not set out information about who approved the SPS and RTRH's rights of review. The notice does not comply with the requirements of s 100(1A) and, as with Plan F, this suggests that the SPS approval in Plan G is defective.
For Plan G to have effect, it must have resulted from a plan review under s 48 and s 49. The present evidence does not establish that this occurred. RTRH's request on 6 February 2020 for a plan review was rejected on 14 February 2020.[124] In that decision, the delegate does not refer to an earlier plan review being undertaken consequent to the decision on 15 January 2020. The stronger likelihood is that the reviewer took action to correct the error in Plan F and to give effect to internal review decision she made on 15 January 2020. The available evidence does not establish that this was done in a manner that complied with applicable provisions in Division 4, Part 2, Chapter 3. If that is correct, Plan G was not effective as a new plan that replaced Plan E for the purposes of s 37(3).
The preferable conclusion is that Plan G was issued to give effect to the internal review decision on 15 January 2020. In this regard, it was a restatement of Plan E, which remained in effect, albeit that the SPS originally approved by the CEO was varied by the reviewer under s 100(6).
It is conceivable that RTRH's communications with the Agency in respect of the internal review decision on 15 January 2020 and the SPS that was set out in Plan F (which I have found to be defective) amount to a request for internal review under s 100. Proceeding on that basis, the Agency's proposition is that Plan G may be taken to be, in effect, a decision under s 100(6) in respect of the SPS included in Plan F.
This is very problematic. RTRH applied to the Tribunal for review of the 15 January 2020 internal review decision. In addition, she raised concerns about the contents of the 15 January 2020 internal review decision and Plan F with the reviewer, Kristin, and with another Agency officer, Stewart.[125] In all likelihood the documents before the Tribunal do not disclose the full extent of communications between RTRH and the Agency after 15 January 2020. I accept that telephone conversations may have occurred, but the Tribunal has no records of what was discussed. The available materials do not establish that an internal review process was triggered or that a plan review was initiated. What occurred within the Agency in response to RTRH's emails remains opaque.
For all these reasons, I am satisfied that the approval of the SPS included in Plan G on 4 February 2020 was faulty and that no plan review was conducted in compliance with applicable provisions in Division 4, Part 2, Chapter 3 or for the purposes of s 37(3). That being so, Plan G cannot be taken to have reliably come into effect on 4 February 2020. It follows that s 37(3) was not engaged and Plan E did not cease to have effect thereafter.
From this it follows that Plan E, including the SPS approved on 31 October 2019, was not replaced on 15 January 2020 or on 4 February 2020 and it has continuing effect. The Tribunal's jurisdiction in respect of application 2020/0754 commenced on 31 October 2019 and it runs to the present.
With regard to application 2020/2316, the Tribunal has jurisdiction to review the 20 April 2020 internal review decision in which RTRH's claim for back payment of transport support was dealt with in reference to the SPS included in Plan D (which commenced on 3 April 2019 and was replaced by Plan E on 31 October 2019) and previous SPS decisions that were included in Plan A, Plan B and Plan C.
The Agency asserts that the Tribunal's jurisdiction is confined to the period in which Plan D was in effect.
I am satisfied that Plan E commenced on 31 October 2019 following a plan review process under s 48 and s 49, and by operation of s 37(3) this brought Plan D to an end.
The question whether the Tribunal has jurisdiction to review the SPS approval decisions, including the decision made in respect of transport support, in Plan A, Plan B and Plan C turns on the scope of matters that the reviewer had power to decide when dealing with RTRH's internal review request.
The terms of the internal review decision are quite clear, insofar as the reviewer expressly refers to periods covered by Plan A, Plan B and Plan C. It is not necessary to dwell on Plan A as the SPS in this plan is the subject of application 2020/2311. While there is a question about the legal effectiveness of Plan B and whether it brought the SPS in Plan A to an end, the reviewer stated that the SPS in Plan B could not be reviewed as RTRH had not requested review of it within 3 months. This is correct. The present evidence does not establish that RTRH requested internal review of the SPS approval decision on 5 December 2017 that was included in Plan B (with effect from 4 December 2017). The concerns I have discussed in respect of Plan B and the approval decision on 5 December 2017 do not change this finding.
I accept that Plan C was the result of a scheduled plan review conducted when Plan B was purportedly in effect. Regardless of the questions about Plan B, when Plan C came into effect on 20 December 2018, it replaced the previous plan and ended the SPS that was in effect hitherto.
The evidence before the Tribunal does not establish that RTRH requested review of the 24 December 2018 decision that approved the SPS in Plan C (with effect from 20 December 2018) within 3 months. In the request she made for internal review of the 3 April 2019 decision to approve the SPS that was instrumental in Plan D, RTRH sought back payment of transport support funding to 15 September 2017. While her request is not dated, it was made after the 3 April 2019 approval decision and it is well outside the 3 month period specified in s 100(2) that applies to the 24 December 2018 SPS approval decision.
I note in passing that, by accident or by design, there does not appear to be any provision conferring discretion to grant an extension of time for the making of a request for review under s 100(2).
Consequently, with regard to the applications in these proceedings, the Tribunal has jurisdiction to review the internal review and SPS approval decisions that apply during the following periods:

[143]

Before moving on, it is desirable to make some comments about previous Tribunal decisions. I do so with the greatest of respect to those who made them.
Some caution is required when considering paragraphs [23]-[27] in Williamson's case, on which the Agency relies. As the Tribunal said in that case in consideration of the bar on varying a plan in s 37(2), the CEO cannot choose to vary a participant's plan by varying a statement of participant supports without proper authority. Variation of a participant's plan is only authorised for the purposes of s 37(3) under Division 4, Part 2, Chapter 3, whereas variation of the CEO's decision to approve a SPS is authorised under s 100(6). To the extent that the Tribunal in Williamson's case proceeded on the understanding that a decision under s 100(6) might engage the bar in s 37(2) and require a new plan to come into effect under s 37(1), I respectfully disagree where s 37(3) is not engaged.
There is also a real question whether a reviewer lacks power to vary a decision made under s 100(6) for the purposes of s 26 of the AAT Act. The Tribunal in Williamson's case concluded that the CEO has no such power. I note that there is no express provision or power for the CEO to commence an internal review, by the CEO's own motion, where no request is made under s 100(2). I agree with the Tribunal's observation that it may be desirable for any uncertainty about these matters to be addressed by way of amendment of the NDIS Act.
While the Tribunal has jurisdiction to review all aspects of the SPSs that were approved by the CEO and were the subject of internal review decisions on 5 December 2017, 15 January 2020 and 3 April 2020, it has no jurisdiction to review any other SPS that was approved by the CEO during a plan review under s 48 and s 49 and was instrumental in the coming into effect of a replacement plan. To the extent that the Tribunal in Holland's case concluded that, in such circumstances, the Tribunal's jurisdiction ran on despite the commencement of a new plan following a plan review, respectfully, I must disagree with that conclusion and those that have followed it.
I should say now that the sentiments the Tribunal expressed in that case are not difficult to agree with. The serial and confusing nature of decision making and review, of plan making and review, and the administrative complexity this creates is indeed frustrating and, arguably, not consistent with the overarching objects of the NDIS Act. RTRH made extensive submissions about such matters. Nonetheless, such matters do not assist determination of the Tribunal's jurisdiction in these proceedings.
The construction adopted in Ewin's case proceeded on the basis that an internal review decision under s 100(6)(b) of the NDIS Act (to vary an SPS approval decision) did not necessitate the making of a new plan. With this I respectfully agree. The Tribunal in Ewin's case concluded that if the reviewer were to make a decision under s 100(6)(c), this amounts to a new SPS approval decision under s 33(2) whereupon a new plan would come into effect under s 37(1). I have reached a different conclusion. The reason is that the reviewer's decision is taken to be the decision of the original decision-maker, the CEO, and unless s 37(3) is engaged the existing plan has continuing effect. In this regard, a decision under s 100(6)(c) is no different for the purposes of the NDIS Act than any other decision under s 100(6). If anything, the language of s 100(6)(c) underscores the point: the reviewer's decision is substituted for the CEO's decision. In such circumstances, the reviewable decision is replaced with the reviewer's decision, and the reviewer's decision has effect from the date the reviewable decision had effect (subject to any different order or decision in the circumstances of any case). Thus, on this latter point, again with the greatest respect, I must depart from the construction adopted in Ewin's case and those that have followed it.
On the question of reimbursement raised in submissions for the Agency, it is not necessary to say much, other than to observe that should the Tribunal find that a particular support is a reasonable and necessary support that should be funded in an SPS relating to a past period, under s 39 of the NDIS Act the Agency must comply with the SPS and the support is to be funded during that period - the SPS decision becomes a determinative factor in the administration of the scheme.[126] Where a participant has expended money or incurred an unmet liability relating to the acquisition of the support during the period, it is for the Agency to make any administrative arrangements that are necessary for the expenditure of public money to fund the support under the SPS pursuant to the Tribunal's decision and the participant's plan that was in effect during the period. XXWC's case does not stand for any different proposition.

[144]

RTRH provided extensive written and oral submissions in support of her claim for transport support funding in her NDIS Plans. In her submission, her inability to earn income in employment as a result of her disability forced her to rely on the Disability Support Pension and subsequently the Age Pension for her sole income. She argues that both pensions are wholly inadequate and reduce her ability to pay transport costs associated with using her own car. In this regard, she submits that her case must be distinguished from those of other Australians whose ability to earn income is not impeded by disability. The poverty she experiences in these circumstances and her consequent difficulty covering private transport costs, so the argument goes, is directly attributable to her disability.
This is reinforced, RTRH argues, by loss of the mobility allowance she was paid before joining the NDIS. It is her submission that the removal of the mobility allowance caused her to be disadvantaged on becoming a participant in the NDIS. Disadvantage of this kind, in her circumstances, she asserts is impermissible under the NDIS and it needs to be addressed by the provision and back payment of transport support.
It is RTRH's submission that, unlike those other Australians without disability, her transport choices are limited. She asserts that her disability impairs her mobility and this precludes her from safely using public buses. Aside from the distance from her home to the closest bus stop, which she says is beyond the limit of her capacity, she maintains that she cannot access a bus using steps or a steep ramp and she cannot safely mobilise or access seating within such a vehicle. RTRH contends that, for similar reasons, she is unable to use specialist community transport services. She asserts that she has been advised not to do so on medical grounds and, furthermore, that such transport services are not safe and they are not readily accessible to her. She gave evidence that she has advice that such a service might be available to her once per fortnight and this, she argues, is not consistent with her right to make choices about what she does and where she goes on any day.
RTRH contends that the physiological condition of her hips and the instability she experiences as a result of ataxic cerebral palsy and leg length differences are such that she requires a particular arrangement of seating in any transport she uses. She explained that she is at risk of hip displacement if her knees elevate above her hips and, for this reason, she uses a foam wedge cushion when sitting in a motor vehicle to elevate the height of the seat. RTRH asserts that she experiences difficulty accessing and rising from low seats without arm rests and seats that are placed close together in rows that are too narrow for her mobility walker, such as on public and community transport buses, as she requires room and supports to access and to arise from such seats.
RTRH maintains that her private car is an essential mobility aid that enables her to travel independently without risking harmful activities, such as climbing onto or alighting from buses or sitting on low bus seats without arm rests. She asserts that, out of necessity resulting from her disability, she is her own transport provider and, as with any other transport provider, she should be funded for all costs relating to the provision of transport support, including vehicle running costs in addition to the amount of funding (Tier 1) previously approved for transport support, allowing for her to use taxis as required. It is RTRH's submission that the entirety of the cost of reasonable and necessary transport costs she incurs are to be funded under the NDIS. She draws support for this proposition from McGarrigle v National Disability Insurance Agency (McGarrigle).[127] She argues, furthermore, that the costs of using her private vehicle are not day-to-day living costs, unrelated to her disability support needs, rather they are costs incurred directly as a result of her disability support needs that enable her to travel independently. In drawing this distinction, she relies on McKenzie and National Disability Insurance Agency (McKenzie).[128]
Furthermore, RTRH asserts that the risk to her health posed by the public and community transport options contended for by the Agency has been increased by the recent onset of the Covid 19 pandemic. In support of this proposition, she relies on advices issued by the Commonwealth Department of Health. RTRH underscores her concerns about the safety of community transport buses by reference to a recent incident involving such a vehicle in which a person died. She argues that the United Nations Convention of the Rights of Persons with Disabilities (Convention), to which Australia is a signatory, requires measures to be taken to ensure personal mobility with the greatest independence. This, she argues, is consistent with the objects of the NDIS Act and, to the extent that the Agency has published operational guidelines with respect to transport that are not consistent with these objectives and the Convention, they have no legal force and should not be applied.
The Agency rejects these propositions. In the Agency's submission, RTRH's use of her private car is not required as a result of her disability. The Agency argues that, RTRH is able to travel independently and in doing so she chooses to use a private car for everyday activities. In this regard, the Agency asserts, she is no different than any other person who opts to use a private car in the course of everyday activities. The argument proceeds on the basis that the costs RTRH incurs using her private car, including registration, stamp duty, road service membership, insurance, petrol and related services, are costs of everyday living that should not be funded under the NDIS. Support for this proposition is drawn from previous decisions of the Tribunal, including McLaughlin and National Disability Insurance Agency (McLaughlin)[129] and Gelzinnis and National Disability Insurance Agency (Gelzinnis).[130]
In the Agency's submission, RTRH's use of her private car does not enable her to travel independently, rather it proves that she is able to do so. The Agency argues that it is not for the Agency to fund transport support for a participant who is able to mobilise and travel independently and who does not require reasonable and necessary support to do so. The costs RTRH incurs using her private car are no different than the costs any other person might incur using a private car and, so the argument goes, such costs are day-to-day living costs that should not be funded under the NDIS as they are not directly attributable to RTRH's disability support needs.
The Agency asserts that the available evidence does not establish that RTRH has substantial difficulty using public buses or community transport options, including mobility access, mini-bus or flexible bus services. The Agency highlights RTRH's admission under cross-examination that she has not attempted to use public buses or community transport services, including mobility access, mini-bus or flexible transport service provided by the ACT Government, in recent years. The Agency submits that the evidence of RTRH's treating doctors on this point should carry little weight as neither doctor observed RTRH attempting to use public buses or community transport services and both failed to adopt an evidence-based methodology when assessing her capability of using such transport options. The Agency asserts that RTRH's assertions in respect of alleged inability or significant difficulty using public buses and community transport services are not established as facts on the available materials, and they should not be accepted.
The Agency argues that the transport support RTRH seeks is not reasonable and necessary as it duplicates other funded supports, including a foam wedge cushion, the ACT Taxi Subsidy Scheme and public transport services within the ACT, and it does not therefore represent value for money.
Furthermore, it is the Agency's opinion that the available materials are not sufficient to establish that RTRH has experienced disadvantage as a result of the removal or reduction of mobility or transport funding. The Agency relies on a previous decision of the Tribunal, Blattman and National Disability Insurance Agency (Blattman),[131] for the proposition that the correct test is whether the participant has not been able to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by the funding previously provided.

[145]

Before addressing the specific requirements of s 33(2) and s 34 of the NDIS Act, relevant statutory objectives and principles, and applicable sections of the Rules (Part 3, Part 5 and Schedule 1 in particular), there are some aspects of this case that require comment.
Firstly, where it is established that a support surpasses the threshold of satisfaction required by s 34(1), the decision maker must decide if the support is a reasonable and necessary support that will be funded under the NDIS for the purposes of s 33(2). The decision maker may decide that a particular reasonable and necessary support is not to be funded in the particular circumstances of the case.[132]
Secondly, on the facts of this case, RTRH is able to travel independently. For many years she has been able to drive her private car, and this continues presently. During the periods under consideration, RTRH has used her private car without specific support being provided beyond the provision of Tier 1 funding for occasional use of taxis ($160 per fortnight) that was approved in the internal review decisions on 15 January 2020 and 3 April 2020. It is in this context that the second matter of principle arises, concerning the right of a participant to exercise choice and the role this plays in the determination of reasonable and necessary supports that will be funded.
Thirdly, the specificity of the supports sought, and those that are to be provided or funded must be established. This is a fact intensive exercise. Consequently, the nature and extent of RTRH's request for transport support needs to be carefully considered. She has requested a fixed amount of funding per month for transport support using her private car as a mobility aid. As she did not have the benefit of legal representation, some latitude is appropriate when construing the language she has used in pressing her case. RTRH has set out 2 methods for calculating the transport support costs she is seeking. The first method proceeds on the basis of distance travelled, applying the rate (the amount per kilometre) applied by the Australian Tax Office (ATO). The second method refers to 'running costs' and the 'fixed cost' estimate she provided is based upon supporting evidence and her quantification of registration, insurance, road side assistance, servicing, parts and petrol.
As I understand her case, each method is intended to cover the entirety of her motor vehicle costs, as follows:

[147]

Beyond this, RTRH has not provided specific details of costs incurred using her private car in the periods within the Tribunal's jurisdiction.
Fourthly, on many occasions now the Tribunal has accepted the proposition that the cost of transportation is a day-to-day living cost.[136] There is no reason to depart from this conclusion in this case. Transportation is a feature of everyday life for most Australians and the cost of transportation is a cost most adults bear on a day-to-day basis. Commonly such costs relate to the private use of motor vehicles, including fuel, registration, insurance or maintenance for example, or the use of transport services in the form of fares, tickets or passes. Nevertheless, where transport costs are attributable to a participant's disability support needs they may be provided or funded under the NDIS. The factual basis on which RTRH seeks the provision of transport support to cover the running costs of her private vehicle, and the choices that are available to her, are important considerations when deciding if these costs are attributable, in whole or in part, to her disability support needs.
Lastly, while the statutory objectives and principles set out in s 3, s 17A and s 31, and the general principles that guide the taking of action under the NDIS Act that are set out in s 4, in particular, provide an important context for the making of decisions in cases of this kind, the preferences of and the choices made by a participant must be carefully considered, but they may not be determinative. Decision-makers under the NDIS Act, including the Tribunal on review, are bound to make principled decisions under applicable provisions of the NDIS Act and the Rules. This involves making factual findings on the basis of probative evidence, assessing whether statutory thresholds are met, adhering to statutory limits and exercising discretions conferred having regard only to relevant considerations. Within this statutory framework, the choices or preferences of a participant must be considered, but this may not determine the result: the decision-maker must apply the legislation.
In consideration of these matters and the submissions of the parties in respect of the transport support RTRH is seeking, the following questions must be addressed for the purposes of s 33(2) and (5) and s 34:

[151]

There is no question that RTRH's mobility is impaired by her disability. I have set out the conditions from which she suffers at paragraphs [17]-[20] above.
Reports produced by Dr Newbery and Dr Gillespie are in Exhibit 1. Both doctors gave oral evidence and were closely examined on RTRH's mobility and her ability to use bus transport.
Dr Gillespie acknowledged that he had not considered or discussed transport options with RTRH, and he was unable to provide detailed evidence of her ability to access buses. He noted that she was able to drive her own motor car. As an orthopaedic surgeon, his focus was on RTRH's physiological condition and it is in this regard that his evidence is most helpful and illuminating. On his evidence, I accept that RTRH experiences altered gait, instability on her feet, altered resting tone in her leg muscles and arthritic hip pain, each of which makes walking, navigating slopes and steps, and balancing more difficult.
Dr Newbery explained that RTRH's hip conditions would likely prevent her from feasibly embarking onto a bus with her wheelie walker, although this may be possible if the bus is fitted with a wheelchair accessible ramp - even though RTRH does not use a wheelchair, for her to access a bus using a ramp, the ramp would need to be of sufficient width and slope, without steps or lips, to allow her to manipulate her wheelie walker. The doctor examined photographs of a bus containing a ramp,[138] but the photographs were not of sufficient detail to enable him to make a reliable assessment.
Dr Newbery stated that he had observed RTRH experiencing difficulty walking 50 to 100 metres from her car to his rooms, and he considered it unlikely she could walk 1.4 kilometres from her home to a bus stop. His evidence is that RTRH would have difficulty crossing roads.
It was Dr Newbery's evidence that RTRH experiences difficulty walking in confined spaces and getting in and out of chairs. In his opinion, RTRH may experience difficulty accessing seating in a bus if the seats are low or closely ranked, without sufficient space for her wheelie walker. Dr Newbery explained that RTRH needs to avoid sitting in low seats as her hips are less stable with greater flexion (knee above hip height) or adduction, such as occurs when getting in and out of seats. On his evidence, RTRH needs to avoid situations that involve greater flexion or adduction of her hips. The doctor gave evidence that RTRH would likely experience difficulty entering and exiting from a seat without arm rests and noted that if RTRH leaned forward to access a handrail on the seat in front this would increase the degree of hip flexion and adduction, placing her at greater risk of dislocation.
Dr Newbery explained that RTRH's ataxia would likely cause her to experience unsteadiness and difficulty maintaining position while standing and walking, and that this would be exacerbated in confined spaces. It was his evidence that this would likely increase RTRH's difficulty walking in bus aisles and accessing rowed seating in a bus.
Materials produced by Michelle Evans Occupational Therapy are in Exhibit 1. These include assessments Ms Evans reported in respect of RTRH in the period from 24 August 2016 to 12 September 2019. Ms Evans was not called to give oral evidence. Her evidence establishes that throughout this period RTRH has experienced difficulties with mobility.
On 15 November 2018, Ms Evans reported:

[159]

There is no dispute that RTRH is able to drive her private car, and she has done so for many years. The issue for her is that she has struggled financially to cover the costs of using her private car as she relied on a disability support pension and subsequently an aged pension for her sole income, and the level of that income was not sufficient to cover all her costs. Her evidence is that from time to time she could not afford healthy food and struggled to meet her expenses.[146]
There is scant evidence of RTRH's financial circumstances from 15 September 2017 to the present. I accept that she has relied upon a social security pension for her income and that she struggles to cover the running costs of her car. This notwithstanding, it appears that RTRH has owned a number of motor vehicles in recent years and there is no reliable evidence that she experienced financial difficulty acquiring new or replacement vehicles when she chose to do so.
The provision of transport support funding would be likely to reduce pressure on her finances and this may assist her to improve her physical wellbeing and her health, by purchasing healthy food for example. The support would be likely to assist her to maintain transport independence and flexibility of travel in pursuing the increased social or community participation she aspires to engage in. Doing so would be consistent with her SGAs. This is so whether or not pursuit of additional income from part-time employment is a realistic option for a person in her circumstances.
On balance, with regard to the periods I must consider from 15 September 2015, I am reasonably satisfied that the transport support RTRH seeks would probably assist her to pursue the goals, objectives and aspirations set out in the relevant SGAs.
I should say immediately that this conclusion is somewhat artificial as there is no possibility that the transport support RTRH seeks can, in reality, assist her to pursue any goals during periods that are now past and cannot be revisited. Any assistance derived would be prospective, should she be reimbursed for expenses incurred during the past periods.

[163]

Once again, consider s 3.1 of the Rules, the answer to this question is probably yes.
The weight of evidence establishes that RTRH has substantial difficulty using public transport buses, and subsidised specialist community transport services are not readily or sufficiently available to her during the periods I must consider. Consequently, these forms of transport are not realistic alternatives for her. The only other options are using taxis and/or using her own car.
The significant benefit she is likely to derive from each of these options is that she is able to travel without the risks to her safety and the substantial difficulties she faces using public or community transport options. The transport support she seeks will reduce the financial burden of using her car and taxis, which she maintains she cannot afford without the provision of funding. There is a further benefit to RTRH from using her own car when she is able to do so, namely that she can choose to go on a car trip safely and at will, without the uncertainty and delay that might arise if she were to call up a taxi. Any user of taxi services will understand her concerns about delay between booking a taxi and the taxi arriving to collect her. For RTRH there is an additional uncertainty relating to the seating arrangement in the particular taxi and whether this is suitable for her, even with use of her foam wedge cushion. For this reason, I am satisfied that using her own car increases her independence and her ability to travel as and when she chooses.
The details RTRH provided in the Estimated Monthly Travel - Transport Support Roster document[147] are a reasonable estimate of her actual travel during the periods under consideration. I note Ms Evans report that RTRH required additional travel to attend her treating doctors following hip replacement surgery, but the amount of additional medical appointments and related travel is not quantified. On the Estimated Monthly Travel document, she undertook at least 26 journeys with an estimated cost of $170.82 each month, as follows:

[170]

When this estimated monthly cost of using her car is compared with the likely cost of using taxis for this travel, as indicated in the taxi receipts in the materials,[148] her private motor vehicle costs would be substantially lower than the cost of using taxis. On the available receipts, the cost of each journey in a taxi was between $13.00 and $44.30. If the lowest taxi fare is applied to the minimum number of journeys RTRH took in a month, a very conservative estimate of the cost of using taxis would be in the order of $350 per month.
The Agency asserts that the transport support RTRH seeks does not represent value for money because it duplicates another support provided under alternative funding. I do not agree.
With regard to the Agency's proposition that the transport support RTRH has requested duplicates her access to the ACT Taxi Subsidy Scheme, and provision of the support is therefore barred by operation of s 5.1(c) in the Rules, there are 3 things to say.
Firstly, information about the ACT Taxi Subsidy Scheme (Scheme) that is in the public domain suggests that access to the Scheme is only available to eligible people with a disability or a significant mobility restriction that prevents them from using public or community transport. It appears that RTRH may have qualified for membership of this Scheme as subsidies were applied on her taxi receipts dated 3 September 2019.[149] If that is correct, it is consistent with the present evidence and my assessment that RTRH faces substantial difficulties using public and community transport. This stands against the Agency's submissions to the contrary.
Secondly, the Scheme does not cover all the transport costs of members. On the taxi receipts RTRH provided, it appears that a 50 percent subsidy is applied. If this is applied to RTRH's estimated taxi usage, based on her report of journey per month, as I have said, the cost remaining after application of the subsidy would be at least $175, an amount somewhat larger than the cost of the transport support she has requested.
Thirdly, the Scheme cannot be used to fund costs incurred running a person's private car. Consequently, there can be no duplication of the transport support RTRH seeks in respect of her car.
The Agency's assertion that RTRH's ability to use taxis duplicates the transport support she now seeks does not advance the matter. The Agency correctly asserts that RTRH is able to sit in a taxi if she uses her foam wedge cushion, and her use of taxis is not confined to discrete conditions.[150] I am satisfied that RTRH could choose to use taxis for her daily transport needs, but the cost would be greater than using her own car.
I accept that RTRH is not able to drive her car safely or at all when symptoms of her medical conditions flare or when the pain is too much and, in those circumstances, if she needs to travel, she uses a modern taxi with appropriate seating in which she can sit on the foam wedge cushion supplemented with another cushion if necessary. It was Ms Evans' recommendation that options should be provided to assist with the costs of taxis when it is not appropriate for RTRH to drive.[151] Ms Evans' opinion is not contraindicated by other evidence and it is supported by the 14 May 2020 report of Dr Newbery.[152] For this reason, I am reasonably satisfied that the transport support RTRH seeks in respect of using her own car does not duplicate her use of taxis or transport support funding provided for that purpose.
The Agency's submission that the provision and funding of a Roho Love cushion duplicates the transport support RTRH has requested is not made out. The cushion enables her to use her private car and other vehicles, including taxis, reasonably safely, without increasing the risk of hip dislocation. The evidence of Dr Newbery and Dr Gillespie regarding hip flexion and adduction and the risk of dislocation in RTRH's hips is very clear. Dr Newbery gave oral evidence that RTRH may be able to use a wedge cushion,[153] subject to the size and shape of the particular seat. On 9 May 2019, Ms Evans recommended the provision of a cushion for RTRH's car seat "to assist with comfort and support when sitting in her car".[154]
Provision of the cushion makes it safer for RTRH to sit in a variety of seats, including in her car and taxis, but it does not duplicate funding for the cost of RTRH using her car. The Agency does not cavil with the provision and funding of transport support in the form of taxis on the basis that it duplicates the provision and funding of the Roho Love cushion. It has not been explained why a different position is pressed with regard to RTRH's request for support in respect of use of her private car.
Considering these matters, to my mind, the cost of the transport support RTRH seeks is reasonable when the benefits that are likely to be achieved and the cost of alternatives are weighed in the balance.

[185]

There is no evidence that RTRH's use of her private car is a risk to her or to others. Section 5.1(a) does not apply.
Under s 5.1(b), the transport support will not be provided or funded if it is not related to RTRH's disability. The connection between the support sought and the disability that is conveyed by the words related to is not confined to one that is direct, immediate or causal. On the evidence of Ms Evans and Dr Newbery, I am satisfied that RTRH's use of her private car may be related to her disability. The connection is established because she faces substantially difficulties using public or community transport services, although she is able to use private transport services such as taxis. It is safer for her to use her private car when she is capable of doing so, as this poses less risk of exacerbating her bilateral hip condition. That being so, I am satisfied that s 5(1)(b) does not apply.
For reasons I have explained, the transport support RTRH seeks in respect of her use of her private car does not duplicate other supports provided delivered under alternative funding through the NDIS. The funding provided for RTRH to use taxis is additional and different to the transport support she is seeking in respect of her use of her private car. For this reason, s 5.1(c) does not apply.
With regard to s 5.1(d), as I have said, I accept that transportation costs are within the ambit of everyday living costs for most Australians. In many regards, RTRH's use of her private car in the course of her everyday activities, such as travelling to shops, is no different than any other person who uses a private car. The transport support funding RTRH seeks is a day-to-day living cost, but this is not the end of the matter.
It is important to maintain a steady eye on the test to be applied when deciding if the exclusion in s 5.1(d) applies in the particular circumstances. The test is whether the day-to-day living costs are not attributable to the participant's disability support needs. It is not whether the living cost is one the participant would incur regardless of her disability.[162] The exclusion in s 5.1(d) does not set out a but for test of this kind. It does not invite speculation about the kinds of day-to-day living costs a participant might incur absent disability; nor does it require a comparison between the kinds of day-to-day living costs a participant might incur and those anyone else might incur. The day-to-day living costs are those of the participant. Where these are not attributable to the participant's disability support needs, they will not be funded under the NDIS. This is a factual matter to be decided on the available evidence. Once the test is satisfied, if the day-to-day living costs are not attributable to the person's disability support needs, and they are not within the carve out in s 5.2, the exclusion applies.[163]
I note the Agency's Including Specific Types of Supports in Plans Operational Guideline - Transport (Transport Guideline) includes the following:

[187]

As can be seen, this Guideline does not accurately refer to the test in s 5.1(d) of the Rules insofar as it makes no reference to the threshold test in that section, namely living costs that are not attributable to the participant's disability support needs. Instead, the Guideline applies a blanket bar to the funding of day-to-day living costs, subject only to the carve out in s 5.2. To this extent, the Guideline exceeds what the legislation expressly provides and, in that regard, for that reason, I will apply the legislation and not the Guideline.
Day-to-day living costs that are attributable to the person's disability support needs do not enliven the exclusive bar in s 5.1(d). Section 5.2 illuminates this point and narrows the content day-to-day living costs in s 5.1(d) by carving out additional living costs that are incurred solely and directly as a result of the participant's disability support needs and costs that are ancillary to another funded support that the participant would not otherwise incur. These carve outs are described inclusively and, where it is established that a day-to-day living cost is attributable to a participant's disability support needs, the exclusionary effect of s 5.1(d) does not apply.
The phrase disability support needs is not given any special meaning in the NDIS Act or the Rules. It can readily be understood to refer to the support a person needs as a result of disability.
It can be accepted that RTRH's disability support needs include transport support. This includes the use of taxis when she is unable to drive herself because of her disability.
RTRH asserts that using her private car is a disability support need. In her submission use of her private car is directly related to her disability and it is the lowest cost option available to her. There is some force to this assertion. Nevertheless, the generality of the assertion does not address the precise factual circumstances that must be considered. Like any other person who uses a private car in their daily activities, RTRH uses her car by choice within the constraints of her health and her financial capability. The point of difference is that, because of her disability, RTRH has fewer transport options than others. Her choices are confined to her own car, taxis and possibly public or community transport services should such services provide suitably equipped vehicles with sufficient frequency in close proximity to RTRH's home at some time in the future.
RTRH contends that, absent her disability, she would not maintain and drive a private car. This is no more than a hypothesis raised without evidence; it is unsupported speculation that cannot be accepted as a fact. The hypothesis may be possible, but the independence RTRH's enjoys through using her private car points to a different possibility: that she would enjoy the independence of using her private car in any event. The extent of RTRH's disability support needs is a factual matter to be determined on the available evidence. The task involves an assessment of her disability support needs in the actual circumstances at the particular time. It does not extend to hypothetical considerations, such as what her disability support needs might be if she could not drive her own car.
RTRH has used her car during the periods I must consider since 15 September 2017 without the provision of support under the NDIS. The costs RTRH incurs using her car in everyday activities, such as travelling to shops for example, are day-to-day living costs. These are costs that are not solely and directly attributable to her disability support needs. They are costs of living.
That said, RTRH's disability support needs include obtaining medical and therapeutic treatments from treating doctors, therapists and pharmacies. The costs she incurs travelling for these purposes are solely and directly attributable to her disability support needs. Those costs, which may be difficult to quantify accurately, are not within the terms of s 5.1(d). They are additional day-to-day living costs that are solely and directly attributable to RTRH's disability support needs.
RTRH's case was not put on this basis and, perhaps for this reason, the transport support she is seeking is not tailored in this way. Rather, her case is put in respect of all running costs of her private car. Nevertheless, I have carefully examined the available materials and I am compelled to conclude that some of the costs RTRH incurs using her private car are attributable to her disability support needs.
On the information RTRH provided to Horizon Therapy Services,[166] she travelled to obtain treatment from her doctor once each month and from her pharmacist 4 times per month, amounting to a total of 42 kilometres per month. On her calculation, applying a rate of $0.68 per kilometre, this amounts to $28.56 per month. Considering the medical conditions underlying RTRH's disability, and the symptoms she endures, I have no difficulty accepting that these costs were incurred undertaking journeys for the purposes of attending medical appointments or obtaining treatment that are solely and directly related to her disability support needs. They may be taken to be additional living costs within the terms of s 5.2(a) of the Rules that are, therefore, excluded from day-to-day living costs under s 5.1(d).
Weighing all of the evidence, and having carefully considered the submissions each party has made, I am reasonably satisfied that RTRH's use of her private car for the purposes of obtaining treatment and her use of taxis when she is unable to use her car are reasonable and necessary supports that will be funded under the NDIS during the following periods:

[193]

The final matters to be dealt with relate to RTRH's submissions about disadvantage, the Convention and the Sars-Cov-2 Covid 19 pandemic.
It is RTRH's submission that she has suffered disadvantage through removal of mobility allowance or transport support funding that was previously provided to her, from which she paid the costs of using her private car. This is submission is made in the broad without supporting evidence.
The principle of no disadvantage is dealt with in s 10.9.1 and s 10.9.2 of the Guidelines.[168]
RTRH has not provided the Tribunal with detailed financial records or other relevant materials in support of her assertion of disadvantage. Without such materials and evidence, there is no proper basis for the Tribunal to make relevant factual findings. The bald assertion of disadvantage following a change, even a reduction, in supports or the level of support funding is not enough. Evidence to establish the facts of the particular disadvantage suffered is required.
On the available materials, RTRH used her private car at all times, before and after the reduction in funding she asserts. The evidence before the Tribunal does not establish that after becoming a participant in the NDIS, RTRH was unable to achieve the same level of social or economic participation, or that she was unable to maintain the ability to undertake the same range of activities, that she achieved previously. It may be accepted that reduction in public funding may have affected her financial circumstances to some degree, but the degree cannot be ascertained without evidence and without evidence it is not possible to determine if disadvantage has been suffered.
Insofar as her submission relates to the removal of transport support funding from one plan to another under the NDIS, any such change is not within the terms of the no disadvantage policy. Decisions of that kind are made under the NDIS Act, whereupon the participant may exercise rights conferred under s 100 (and s 103) to request review of such a decision. In part at least, that is what RTRH has done.
RTRH has made extensive and voluminous submissions in respect of the nature of the NDIS, the provisions of the NDIS Act and the Rules, and the conduct of the Agency, about which she is highly critical. She has also made submissions about the rights of people with disability under the Convention. These submissions are made personally and generally.
I have read, listened to, and carefully considered all the matters that RTRH has raised.
Many of the matters she has raised in these submissions are not best directed to the Tribunal. Some of the criticisms RTRH has made about the complexity of the NDIS and the way in which the Agency administers it may reflect her experience. It will be apparent by now from matters I have dealt with relating to the Tribunal's jurisdiction, above, that there are some procedural issues arising from the construction the Agency has adopted which add to the complexity of the NDIS and which may cause some confusion and increased difficulties for participants.
Finally, RTRH made submissions about the increased risks of people with disability from the Sars-Cov-2 Covid 19 pandemic, as advised by the Department of Health and the effect this has had, for her, avoiding the increased risk of exposure to infection.
It can be accepted that the risk of infection necessitates avoidant action. So much is abundantly clear from public health orders that have been made by the ACT Government from time to time. It can also be accepted that RTRH may have a greater risk than someone without disability.
These considerations do not, however, compel any different outcome in this case. There is simply no evidence to support the proposition that the pandemic is a factor that compels provision of the transport support funding RTRH seeks for use of her private car during the periods under consideration.

RTRH and National Disability Insurance Agency [2022] AATA 205 (9 February 2022)

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Judgment (253 paragraphs)

RTRH and National Disability Insurance Agency [2022] AATA 205 (9 February 2022)

Legislation Cited (6)

Cases Cited (6)