Barling and National Disability Insurance Agency
[2021] AATA 4358
•24 November 2021
Barling and National Disability Insurance Agency [2021] AATA 4358 (24 November 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/6948
Re:Gary Barling
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:24 November 2021
Place:Adelaide
The reviewable decision made by the National Disability Insurance Agency on 30 October 2020 is varied as follows:
(i)Mr Barling is to receive funding to purchase a new Volkswagen Caravelle.
(ii)Mr Barling is to receive funding for the modification of the Volkswagen Caravelle for front passenger conversion for wheelchair accessibility.
..............................[Sgnd]..........................................
Member I Thompson
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports to allow for funding for a vehicle and modifications – decision under review varied
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634.
National Disability Insurance Agency v WRMF [2020] FCAFC 79.
McGarrigle v National Disability Insurance Agency [2017] FCA 309.
Masson v Parsons (2019) CLR 554, 572.
Ewin and National Disability Insurance Agency [2018] AATA 4303.
McPherson and National Disability Insurance Agency [2018] AATA 4303.
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] 248 CLR 378, 390.
McKenzie v National Disability Insurance Agency [2019] AATA 3275.
Gelzinnis v National Disability Insurance Agency [2021] AATA 3970.
Secondary Materials
National Disability Insurance Scheme Operational Guideline, “Including Specific Types of Supports in Plans Operational Guideline – Vehicle modifications
Planning Operational Guideline, Appendix 1-Table of guidance on whether a support is most appropriately funded by the NDIS
REASONS FOR DECISION
Member I Thompson
24 November 2021
The Applicant, Gary Barling, became a participant in the National Disability Insurance Scheme (NDIS) in 2016. He is 48 years old and has Friedreich ataxia, a neurological degenerative condition, together with other complications. Mr Barling resides alone in a rental property in regional Victoria. In his words: “Independence through living by myself is the most important thing in my life.”[1]
[1] Exhibit 7, para 3.
In his application to the Tribunal, Mr Barling sought funding in his NDIS plan for the provision of a vehicle together with a front row passenger wheelchair conversion. In that way, he would have adequate transport to enable him to access health care, family and the community.
The Respondent, the National Disability Insurance Agency, (the Agency) contends that the legislation does not permit the funding of the purchase of a vehicle as a reasonable and necessary support. Mr Barling submits that the Agency does have this statutory power. The Agency accepts that it has the authority under legislation to fund modifications to a private vehicle and, if Mr Barling had his own vehicle, it would fund such modifications.
Mr Barling uses a wheelchair for mobility and requires assistance with most aspects of daily care. Associated with Friedreich ataxia he suffers from severe cardiomyopathy which causes light-headedness, nausea, loss of appetite, general weakness and fatigue, together with excessive fluid retention. He has profound impairments in his hearing and speech. Mr Barling has a compromised immune system, severe scoliosis, urinary frequency and infections, together with pressure sores in the hip and ankle and fungal irritations in his groin. The severity of Friedreich ataxia has led to social isolation with a significant negative impact on his mental health.[2] Mr Barling requires and receives a high level of daily support from carers and support workers.
[2] Ibid, paras 83 – 121.
Mr Barling’s NDIS plan includes funding for supports which include assistance with self-care and transport, allied health therapies, support coordination and assistive technology. The plan does not provide for a vehicle which is modified.
BACKGROUND
Mr Barling’s current NDIS plan was approved on 30 October 2020 with a review date due on 30 October 2021. Mr Barling’s NDIS plan specifies two short term goals as follows:
“To have a vehicle to have the ability to access the community where possible and to be able to go for a drive”
“To have sufficient supports for waking hours during the week (an additional 2 hours) and weekends (an additional 4 hours) and for more frequent sleepovers when needed.”[3]
[3] Exhibit 56, T18, p 136.
Mr Barling’s NDIS plan also includes medium and long term goals, to have safe, unassisted access to his back and front yards, to have access to regular therapy for pain relief and improved mobility, and to continue to receive support for continence supplies.[4] By consent of the parties, the plan review date was varied from 30 October 2021 to 30 December 2021.[5]
[4] Ibid, T18, pp 136 – 137.
[5] Noted 3 November 2021 in accordance with s 26(1)(b) Administrative Appeals Tribunal Act 1975 (Cth).
The issue in this review arises out of the first short-term goal, to have a vehicle to enable Mr Barling to access the community.
Both the short-term goals and medium-term goals in the current plan are identical to those in a preceding plan which commenced on 23 April 2020.[6] Mr Barling requested an un-scheduled review of that plan under section 48 of the National Disability Insurance Scheme Act 2013 (the NDIS Act) and a plan was approved with a commencement date on 15 September 2020 and a review date on 15 September 2021. Mr Barling requested an internal review of that plan under section 100 of the NDIS Act on 17 September 2020.[7] The internal review was concerned with additional funding for assistance with self-care activities together with funding for a vehicle with modifications. Mr Barling’s request for funding for assistance with self-care activities was granted. However his request for funding for a vehicle with modifications was not granted.
[6] Ibid, T17, p 119.
[7] Ibid, T8, p 73.
A delegate of the Agency’s Chief Executive Officer wrote to Mr Barling on 30 October 2020 with an explanation of the result of the internal review. In relation to the request for funding for a vehicle with modifications, the delegate explained that the support could not be provided because rule 5.1 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) prevents the funding of such a support. The delegate referred to the National Disability Insurance Scheme Operational Guidelines (the Guidelines) which state that funding for the purchase of a motor vehicle is generally not provided by the NDIA.[8] The letter added:
“In your review you requested funding for a motor vehicle and modifications to allow you to access the community with greater independence and freedom, and increase your participation in daily living tasks such as shopping. While it is acknowledged that access to a vehicle with modifications may be beneficial for the previously stated reasons, as outlined in the Operational Guidelines of the National Disability Insurance Agency funding for the purchase of a motor vehicle is generally not provided by the NDIA. This is because funding for the purchase of a motor vehicle relates to day-to-day living costs that are not attributable to a participant’s disability support needs under Part 5.1 (d) of the Supports for Participants Rules. Many individuals choose to purchase a motor vehicle for convenience of transport and these costs are the responsibility of each individual. As the cost of a motor vehicle is not an additional living cost incurred solely and directly as a result of your disability support needs, not an ancillary cost to another support, this support does not meet Part 5.2 of the Supports for Participants Rules and cannot be funded by the NDIS.
As the request for costs associated with the purchase of a motor vehicle cannot be funded in your NDIS plan, the NDIA will not fund modifications until a suitable vehicle which can be modified has been identified.… You have the choice to use your flexible core funding in your NDIS plan to fund provider costs associated with transporting you to and from NDIS funded community-based activities of your choosing.”[9]
[8] Ibid, T1A, pp 7-13.
[9] Ibid, T2, p 53.
The reasons put forward in Mr Barling’s application to the Tribunal to review the NDIA decision are:
“[He] is in great need of a motor vehicle. He lives in rural Victoria with limited access to transport. He is wheelchair bound.
Currently he is constantly left abandoned at home without transport unable to access the community, family and medical supports.
Both his physical and mental health is significantly compromised by the NDIS decision.
It is reasonable and necessary that an Australian in 2020 not be denied basic access outside his residence to seek community participation, social interaction and healthcare.”[10]
[10] Ibid, T1, p 4.
The Tribunal hearing took place by Microsoft Teams on 27 and 30 August 2021. Mr Barling was represented by Mr Farrands QC. Ms Maharaj QC represented the Agency. Oral evidence was given by Mr Barling, his carer Mr Pickett, and two occupational therapists, Associate Professor Corben and Ms Houston. Numerous medical reports, allied health reports and other documents were received into evidence.
Friedreich ataxia
In an affidavit dated 30 August 2021, Mr Barling summarised key aspects of his background.[11] He was 7 when he was diagnosed with Friedreich ataxia. He was examined and assessed at the Royal Children’s Hospital in Melbourne. By the end of his adolescence, his gait, coordination, speech and writing had deteriorated significantly. He worked in casual positions for several years after turning 15. He completed high school and went to university where he graduated with a Bachelor of Commerce in 1997, followed by an honours degree. He commenced a Doctorate of Philosophy which he subsequently discontinued because of his disability.
[11] Affidavit of Gary David Barling, 30 August 2021, pp 1-2.
Mr Barling underwent surgery when he was 20 because of scoliosis which is related to Friedreich ataxia. Prior to the operation he used a wheelchair on occasions at university although he mostly relied on a forearm crutch and the physical support of others for mobility. The operation involved the insertion of rods in his back in order to straighten his spine and to try to reduce the curvature. By that time he was effectively wheelchair bound. In 2006 he could no longer work and he was obliged to rely thereafter on a disability support pension. In 2010 he could no longer transfer safely from his wheelchair into a vehicle and he became dependent on public transport. In 2016 he became a participant in the NDIS which he described as improving his levels of support to the point that, in his words:
“I am able to be clean, safe and, at most times, as healthy as I can be. However, due to the progression of my Friedreich ataxia, I am no longer (since 2016) been able to travel by taxi without experiencing debilitating side effects which outweigh most benefits I could obtain from such journeys.” [12]
[12] Ibid, para 15.
In a report written by Dr Helprin[13], a cardiologist, Friedreich ataxia is described as:
“…an autosomal recessive inherited disorder characterised by progressive gait and limb ataxia, dysarthria, areflexia, loss of vibratory and position sense, and a progressive motor weakness of central origin. Additional features include hypertrophic cardiomyopathy and diabetes.”[14]
[13] Exhibit 31.
[14] Ibid, p 3.
Dr Helprin refers to vestibular dysfunction as an important aspect of the condition, stating: “Disturbance of the vestibular system can cause symptoms such as vertigo, nausea and vomiting. The Cerebellum which is affected in Friedreich’s Ataxia impairs balance.” [15]
[15] Ibid, p 5.
Associate Professor Corben coordinates the Friedreich Ataxia Clinic at the Monash Medical Centre. She has known Mr Barling for 16 years. In a letter dated 8 January 2021, she described Friedreich ataxia as a neurological condition which is rare, slowly progressive, incurable and devastatingly debilitating.[16] A person with this condition loses their capacity to walk. She wrote that although the condition is progressive, it tends to stabilise after the first 20 years and hence she considers that Mr Barling’s current functional status will probably not change significantly. She confirmed that Mr Barling has significant cardiomyopathy which means that he has energy reserves which are so limited that the most simple ordinary activities cause him fatigue. His visual impairment and hearing impairment are related to Friedreich ataxia. He is prone to breathlessness, swelling of his limbs and fatigue. Mr Barling depends on a wheelchair for mobility. Having used a manual wheelchair for many years he was prescribed full-time use of a motorised wheelchair in May 2019.
[16] Exhibit 11.
Request for a modified vehicle
Mr Barling provided a statement in support of his request. He wrote:
“This personal statement is to express the beneficial impact that having a vehicle would have on my life. I feel I can better describe this from my perspective as someone with the personal experience of a severe physical disability. This complements the professional observations of my situation.
Over the last 10 years, due to my disability (primarily not being able to transfer into a car), my liberties have sharply diminished. While I am thankful for the necessary support hours to remain comfortable at home, the isolation is oppressive, and I feel anxious and forlorn on most days. My quality of life, at best, is poor and I cannot envisage anything to which I can look forward.
To imagine my existence, one must be in my shoes. My days consist repetitively of the same routine. Assistance to get out of bed, shower, dress, eat, check emails, eat lunch, again check emails, or work on a project, toileting if required, eat, undress and be put to bed. My only scenery is from within the confines of my unit. These days meld into one and my existence does not encompass the myriad of emotions that a human can discover. The dark days are many, bereft of wonder, happiness, calm or simply a sense of hope that this imprisonment will break into a day of difference. In effect, I feel captive in my own house.
For a very small proportion of adulthood, I was partly able to delve into the richness of life. Never did I entertain the thought that this would be my fate. In hindsight, if I had, the time attaining my degree and post-graduate studies in IT at University would have been filled with experiencing an array of life that is now closed to me.
Tutoring, marking, writing for government websites, and designing apps for over 15 years, the subtle growth of illness denied the chance for a steady flow of income. I have a loving family, but they are unable to finance a car on my behalf. The dream of obtaining my own independence through a vehicle is all but gone. Through the NDIS, I dearly hope it could be realised. With so many difficulties, it is truly my only avenue.
The weather conditions need to be perfect for me to leave the house and venture into the open elements unprotected. In such a scenario I am susceptible to sickness, possibly resulting in long periods of inferior health or worse. Hyper-sensitive skin (due to cardiac medication) means I burn badly after 10 minutes. If I become dehydrated, replenishing my body with a 1.5 litre limit per day liquid restriction is difficult.
My vision and speech are weak on good days and deteriorate when I am lethargic. My hearing is particularly affected by my disability. The problem is the effect of background noise. It is like trying to interpret different languages with an omnipresent din. Noises as subtle as air conditioners, coffee machines and mobile phones make communication impossible. Indeed, areas with discordant noise are often anathema to me. As a naturally social person, to be repelled because of communication issues is a contradiction that creates an insurmountable dilemma. Yearning for contact, yet unable to fully engage is indescribably frustrating.
From the ages of 17-37 years, passenger travel and being able to remain stationary and view the world from a car was something I loved doing. It is still something I would love and, importantly, it is completely within my abilities. Being able to see my surroundings and take them in, at my leisure from the front seat of a vehicle, would be life changing.
From the front seat position within a van, I can hear and be understood, while protected from harsh weather conditions. In this travelling position, I have felt most relaxed, comfortable and in control. In other parts of a van, it is like being tossed around in the boot - as I cannot hear or see anything. I sometimes feel excruciatingly uncomfortable, and at times in pain from rough driving. I am much like a parcel, being carried from one point to another.
Realistically, the front seat is the closest I am ever going to get to most community access. I understand that I should have more intimate opportunities for civic participation, but I accept it as a terrific compromise for a deadlocked and stultifying situation. It would open unimagined opportunities for my everyday life in the future; interaction with others, relaxing, exposure to new scenery and being comfortable would bring hope and a sense of purpose to get up each morning. I dream about planning my daily activities, through the freedom of travel.
I have friends and family in places such as Port Fairy, Ballarat and Adelaide. Their houses are accessible, and they are happy to accommodate me, however, I have not managed to visit anyone in the past 10 years. Public transport is either non-existent, unaffordable, or extremely difficult to manage. It involves coordinating taxis and often more than one train route with departure times requiring extra nights of accommodation.
The current COVID-19 crisis has brought the effects of isolation to the fore. This has been my life for the last 10 years and, and unless there is a circuit-breaker, will be, for the rest of it. I wonder at it all; after three months people were shocked and agitated from home isolation. They are still allowed to collect a takeaway meal or coffee, go to the supermarket, go exercise or for a drive. These are the simplest things, considered as basic necessities, most take for granted - and a lot demand as a right. For me, this is a dream I long to experience and but a portion of the same civil liberties as everyone else.
With this focus, in terms of my request being reasonable and necessary, I believe it is. There are only two stark alternatives - one is to refuse the request and the status quo remains. This leaves me with an unsustainable ennui. The second is to assist me with a vehicle, providing a sense of purpose to get up each morning, to live a life of greater interaction, connection, and opportunity.”
LEGISLATION AND GUIDELINES
The NDIS is established by the NDIS Act. The Agency administers the NDIS.
The objects and general principles are set out in the NDIS Act and they give guidance to the interpretation of the provisions in the statute.
In giving effect to the objects, regard must be given to, amongst other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”[17]
[17] NDIS Act, ss 3(3)(b) & (d).
The decision of the CEO by way of approval of a plan under s 33(2) of the NDIS Act is a reviewable decision[18], and thus reviewable by the Tribunal in accordance with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
[18] Ibid, s 99.
Section 34(1) of the NDIS Act provides that, for the purposes of specifying in the statement of participant supports the reasonable and necessary supports that will be funded under the scheme, the CEO must be satisfied that:
(a) the support will assist the participant to pursue the goals, objectives and aspirations 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 is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, Agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 34(1) is one of the many provisions in the legislation which governs the NDIS. The legislation is comprehensive. Section 34(1) must be interpreted in the context of the entirety of the legislation. The objects and principles of the Scheme, which are set out expressly in the NDIS Act, apply to the interpretation of s 34(1) and that section must be interpreted in conformity with those principles and objects.
The Support Rules deal with the assessment and determination of “reasonable and necessary supports” that will be funded under the Scheme. The Support Rules form part of the legislation.
The NDIS Operational Guideline, “Including Specific Types of Supports in Plans Operational Guideline – 7. Vehicle modifications” (the Supports Guideline) provides information about various types of modifications and guidance as to the criteria which the NDIA must consider in determining whether the proposed modifications are suitable. The Supports Guideline states that modifications should generally be suitable for a participant’s anticipated long term requirements. Relevantly, the Supports Guideline states:
The NDIA will generally not fund:
·the purchase of a motor vehicle;
·regular insurance, registration or running costs;
….
It is well-established authority that the Tribunal should apply operational guidelines and government policy unless there is good reason not to do so.[19]
[19] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634.
THRESHOLD ARGUMENT
At the commencement of the hearing, Counsel for the Agency contended that the Tribunal does not have the power under the NDIS Act and the Support Rules to approve a statement of participant supports which includes funding for the purchase of a vehicle. According to this submission, the Minister is authorised to make rules that prescribe what will not be funded under the NDIS. The Support Rules strike a balance between the types of support which will be funded and types of support which will not be funded. In this way, the needs of the maximum number of participants will be addressed in accordance with the need to maintain the financial sustainability of the NDIS. The Support Rules therefore preclude funding of “certain types of major capital funding of purchases of some items – specifically, purchases of major assets like vehicles and homes.”[20] In relation to transport, rule 7.21(c) permits funding for the hire, not the purchase, of vehicles.
[20] Respondent’s closing submissions, 13 September 2021.
On behalf of Mr Barling it was submitted that there is statutory power to fund the purchase of a vehicle. That power exists on a proper interpretation of the philosophy and purpose of the NDIS Act, the statutory provisions and the Support Rules together with the Agency’s Guidelines. It was submitted that earlier decisions of the Tribunal recognise explicitly the existence of the statutory power.[21]
[21] Applicant's closing submissions, 4 October 2021.
The starting point of the Agency’s submission was that the task of statutory interpretation must be undertaken in the context of the statute as a whole. Counsel cited passages from three decisions of the High Court: Project Blue Sky Inc v Australian Broadcasting Authority[22]; CIC Insurance Ltd v Bankstown Football Club Ltd[23] and SZTAL v Minister for Immigration and Border Protection[24]. As the High Court stated in Project Blue Sky:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.”[25]
[22] (1998) 194 CLR 355 (Project Blue Sky).
[23] (1997) 187 CLR 384.
[24] [2017] HCA 33; 263 CLR 1.
[25] Project Blue Sky, at [69].
It is important to note that there is express provision in the NDIS Act for the objects of the legislation and the general principles which guide actions under the legislation. Those objects and general principles provide guidance about the interpretation of the legislation. Specifically in the relation to the NDIS Act, the Federal Court (Flick, Mortimer and Banks-Smith JJ) in National Disability Insurance Agency v WRMF[26] noted:
“In dealing with legislation such as the Act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non-existent. In its structure, it does more than ‘ordinary’ legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. It is always necessary to ensure that constructional choices, and construction, are undertaken paying sufficient regard to the legislative scheme as a whole, for that forms the context for any particular provision: see R v A 2 [2019] HCA 35; (2019) 93 ALJR 1106 at [32] – [34] (Kiefel CJ and Keane J), [124] (Bell and Gageler JJ). In the case of the Act, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important.”
[26] [2020] FCAFC 79, at [138].
Part 1 of the Support Rules refers to the objects for the NDIS, which will have particular relevance to the rules about supports for participants. They include objects in s 3 of the NDIS Act about supporting the independence, social and economic participation of people with disability, providing reasonable and necessary supports and enabling choice and control in setting goals and planning and delivery of funded supports. Part 1 of the Support Rules also sets out principles for the NDIS, which are particularly relevant to these particular rules. They are in s 4 of the NDIS Act and include, relevantly:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(11) Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(13)The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected…
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
Rules 3.5, 3.6 and 3.7 of the Support Rules refer to the supports that are to be funded or provided through the NDIS. Rule 3.5 refers to Schedule 1 of the Support Rules (the Schedule) regarding the matters to be taken into account in considering the funding of supports through the NDIS or other service systems. It is derived from s 34(1)(f) of the NDIS Act. The Schedule commences in this way:
The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
Note: The considerations set out in this Schedule are derived from the Principles to determine the responsibilities of the NDIS and other service systems, agreed to by the Council of Australian Governments, and dated Friday 19 April 2013. That document also includes principles relating to aged care. They are not relevant to this Schedule, but are given effect to in section 19 of the Act, and the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.
The note to rule 7.3 confirms that the considerations in the Schedule reflect the “Principles to determine the responsibilities of the NDIS and other service systems” agreed to and documented by the Commonwealth, State and Territory governments on 19 April 2013 (the COAG Agreed Principles). Those principles are set out in the document and they provide detail about the broad object at s 3(1)(f) of the NDIS Act, which is to “Facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability”.
It is important to be clear about the purpose of the Schedule, as Counsel for the Agency relies upon the rules within that Schedule as a basis for its submission about restrictions on the funding of certain items of capital expenditure. The first three rules in the Schedule refer to limits on NDIS supports, considerations which the CEO must take into account about the responsibilities of the NDIS vis-a-vis other service systems, with the proviso that the Schedule does not seek to impose obligations on the other service systems. The other service systems are many and varied. They include, and are not necessarily confined to, other branches of the Commonwealth Government, state and territory governments, service systems within state governments, local governments, statutory authorities, and non-government entities.
On the question of whether supports are most appropriately funded or provided through the NDIS or through another service system, ten service areas are specified in the Schedule, of which one is transport and another is housing and community infrastructure. The Agency’s submission in this review focuses on transport and housing and community infrastructure and not on the others. The other eight areas of support services or systems are health (excluding mental health), mental health, early childhood development, child protection and family support, school education, higher education and vocational education and training, employment and justice. The considerations which are specified in each one of the ten service areas must be taken into account by the CEO of the Agency to decide whether a support should be provided or funded by the NDIS or by another service system.[27] Within each system of service, the rule provides a brief and broad description of the responsibility which the NDIS has for certain supports and broad description of the supports for which the NDIS does not have responsibility. The note to rule 7.3 indicates that these delineations of system responsibilities are taken from the COAG Agreed Principles. Those delineations are reflected further in appendix 1 in the National Disability Insurance Scheme – Operational Guidelines – Planning (the Planning Guideline)[28].
[27] Exhibit 52, National Disability Insurance Scheme (Support for Participants) Rules 2013 (Cth), Schedule 1, rule 7.2.
[28] Exhibit 56, T21.
In outlining the supports which are most appropriately funded through the NDIS and supports which are not most appropriately funded through the NDIS, the Schedule provides descriptors that are not defined by the cost of capital items. They are not defined by the cost of non-capital items. They are not defined by costs that are defined as recurrent cost or as once-only costs.
Appendix 1 to the Planning Guideline[29] provides further detail and clarification about the broad parameters of system responsibility for each of the service areas that are specified in the COAG Agreed Principles and in the note to rule 7.3 of the Schedule. In Appendix 1 the responsibilities for each service area are divided into three columns which are (i) supports generally funded by the NDIS; (ii) supports which, dependent on their purpose, may be funded by the NDIS or other parties; and (iii) supports generally funded by other parties. Those supports are not defined and classified according to cost and they are not defined according to classification and differentiation between capital items and noncapital items. Rather, they are described in general terms by the type of support. In accordance with the Planning Guideline, the NDIS has funding responsibilities for various types of assistance with transport, while other parties have responsibilities for assistance with other aspects of transport. The responsibility for funding support for transport varies according to the particular policy. Those areas of policy are health, mental health, child protection and family support, early childhood development, school education, higher education and training, employment or transport itself. The type of transport support is specific to the area of policy. For example, in the policy area of health, assistance with transport is a support which is generally funded by the NDIS and it is described as “specialist transport to and from medical appointments required as a result of the participant’s disability (where no other transport option is appropriate)”. In the policy area of school education, the responsibility of other parties for funding assistance with transport is described as “transport for school activities (e.g. excursions, sporting carnivals) or responsibilities of transport providers (e.g. reasonable adjustments to buses).”
[29] Exhibit 54.
The Planning Guideline Appendix 1 includes a table on transport as a discrete policy area, which specifies supports which are generally funded by the NDIS and supports which are generally funded by other parties. The supports which are generally funded by the NDIS are:
·Training and support to use public transport where these needs arise from a participant’s functional impairment.
·Aids and equipment including vehicle modifications to a private vehicle and associated maintenance, driver assessment and training.
·Community transport, taxi and other private transport costs for participants with ongoing functional impairments which make public travel unfeasible or inappropriate.
The supports which are generally funded by other parties are:
·Concessions for public transport – including where a full concession is offered.
·Public transport systems.
·Modifications to public vehicles such as buses or taxis.
·Disability parking schemes. [30]
The column headed “Supports which, dependent on their purpose may be funded by the NDIS or other parties” is blank.
[30] Ibid, p 707.
The Agency’s submission turned to consideration of the rules relating to transport and accommodation (housing and community infrastructure). Support Rule 7.21 is directed to the broad responsibilities which the NDIS bears for funding supports for transport. Support Rule 7.22 concerns the broad responsibilities which the NDIS does not have for transport assistance. Support Rules 7.19 and 7.20 are concerned with housing and community infrastructure.
Counsel for the Agency referred to the rules relating to “certain major items of capital expenditure”[31]. It was submitted that the Support Rules do not authorise the funding of those major items, specifically the purchase of vehicles and the purchase of houses. The submission continued that the decision-maker does not have a discretion and cannot fund the provision of a vehicle for Mr Barling as the legislative scheme has ruled it out.
[31] Respondent’s closing submissions, para 17.
Counsel for the Agency submitted that funding for expenditure for modifications to vehicles and houses is permitted. Funding for the purchase of aids and equipment is permitted as they can be described as smaller capital items. This submission delineates funding for purchases of vehicles and houses from all other items of capital expenditure. It is based upon an interpretation of the NDIS Act and the Support Rules that are said to illustrate competing policy and funding considerations in the legislation. Those competing considerations require a balance between the financial sustainability of the Scheme and the actions which are required to support the independence and participation of people with disability.
Transport
Rules 7.21 and 7.22 of the Support Rules (under the heading “Considerations relating to whether supports are most appropriately funded through the NDIS”) describe broadly the responsibilities which the NDIS has for transport and the matters for which the NDIS is not responsible in relation to transport, as follows:
7.21 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 (ie 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.
7.22 The NDIS will not be responsible for:
(a) ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or
(b) compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
(c) transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
In closing submissions the Agency submitted that the responsibility of the Scheme to fund modifications to a “major capital item”, as opposed to the purchase of the asset itself, is reflected in the terms of rule 7.21(b). However, while rule 7.21(b) clarifies the distinction between responsibility for modifications to a private vehicle versus responsibility for modifications to public transport or taxis, it does not address the question of funding for the purchase of a private vehicle.
The funding for the acquisition of a private vehicle for a participant in the Scheme is not mentioned in rule 7.21. Significantly, it is not mentioned in rule 7.22 as one of the matters for which the NDIS does not have responsibility.
Further, the Agency submitted that rule 7.21(c) provides for funding of recurrent costs of alternative transport for people who cannot travel independently so that the reasonable and necessary costs of NDIS participants who require access to taxi services is a responsibility of the NDIS. According to this submission, the meaning of “other private transport options” should be drawn from the meaning of “taxis”.
Rule 7.21(c) is not concerned with modifications. It is directed to the responsibility which the NDIS has for the reasonable and necessary costs incurred by people who are not able to travel independently. Accordingly, participants in the NDIS who have the appropriate funded support in their plan will be able to use that funding to cover the costs of taxis “or other private transport options”. Because the term “private vehicle” is not used in rule 7.21(c), whereas the term “private vehicle” is used in rule 7.21(b) it is contended by the Agency’s counsel that “private transport options” takes its meaning from “taxis” and does not include private vehicles. As a taxi is a vehicle for public hire, it is contended that “other private transport options” should be interpreted as ride share operators such as Uber or vehicles for hire which are said to be private in the sense of being exclusive to the user or hirer, with a public element because they are available, like taxis, to members of the public. Intermingling the concepts of private and public uses, this submission suggests that the privacy of the transport option attaches to the exclusivity of the use by the hirer. The vehicles generate recurrent costs to the user for each trip which, as well, is quite distinct from a capital investment. As recurrent costs are involved with each use, rather than a capital investment, Counsel submits that this reinforces the Agency’s submission about the correct interpretation of rule 7.21(c) and provides further support for the proposition that the NDIS is responsible for funding for modifications rather than payment for a vehicle as a capital asset.
Counsel for Mr Barling submitted that “other private transport options” in rule 7.21(c) should not be read down by reference to “taxis”. Rather it should cover any transport option which has “a private characteristic”.[32] The words should be given their natural and ordinary meaning, noting the comments of the High Court in Masson v Parsons[33]:
“a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning.”[34]
[32] Applicant’s closing submissions, paras 65-74.
[33] (2019) CLR 554, 572 (Masson).
[34] Ibid, at [26].
The Agency’s proposition seeks to confine the NDIS responsibility for reasonable and necessary transport costs under rule 7.21(c) to those which are publicly available for private or exclusive use. The Tribunal does not accept the Agency’s interpretation of rule 7.21(c). There will be innumerable circumstances in which an NDIS participant might have difficulty and not be able to travel independently because of a particular disability. There will be innumerable situations in which a taxi may be a suitable form of travel. There will be innumerable situations in which a transport option other than a taxi will be suitable. The other transport options will be one or more of a countless number depending upon a participant’s impairments and circumstances, the nature, duration and distance of the journey and the availability of various types of transports. Each individual case will depend on its own unique features. The characteristic of the private transport option will be variable and the multiplicity of variations is indeterminate. So long as the cost of a taxi or private transport option is reasonable and necessary, the NDIS will bear responsibility for the cost. Rule 7.21(c) is not confined in the way in which the Agency contends.
There is a particular limitation which is specified in rule 7.21(c). It is the inability of an NDIS participant to travel independently. Hence the rule provides that the NDIS will be responsible for funding the reasonable and necessary costs incurred by the participant in accessing a transport option which is operated, facilitated, or supported by somebody other than the participant. It might be operated by a provider such as a taxi service. It might equally be a particular type of variable transport option provided by someone such as a friend, family member or carer. Whether or not it is a reasonable and necessary cost for which the NDIS is responsible will depend on the circumstances of the individual case.
The Tribunal does not accept that on the proper construction of rule 7.21(c) the “other private transport options for those not able to travel independently” takes its meaning from “taxis” such that the other private transport options are restricted to vehicles for public hire, ride share operators such as Uber.
Counsel for the Agency referred to rule 7.19, regarding the responsibilities which the NDIS has for housing and community infrastructure, versus rule 7.20, regarding the responsibilities which the NDIS does not have for housing and community infrastructure. It was contended that the rules do not provide for the Scheme to fund the purchase of a house. In the context of an NDIS plan with funding for accommodation, a participant’s plan may include an amount for periodic payments which are the equivalent of rent in certain situations within the scope of rule 7.19.
Rules 7.19(b) and (c) refer to home modifications. Rule 7.21(b) refers to modifications to a private vehicle. Counsel went on to suggest that this provides further force to the argument that funding of modifications to a major capital item, such as for a house or car, is permitted whereas the purchase of the asset itself is not permitted.
The Agency sought support for its contention by reading rule 7.21(c) in conjunction with rule 7.19(d). The former relates to costs incurred by an NDIS participant in accessing taxis and private transport options. The latter relates to certain costs to NDIS participants within integrated housing and support models, which Counsel described as funding for recurrent disability-related costs. Interpreting both of those rules as relating to recurrent costs purports to reinforce the Agency’s proposition that major capital investment is precluded by the Support Rules.
Plainly, the Scheme assumes responsibility for modifications to private dwellings and to private vehicles in situations where all of the requirements under the NDIS Act and the Support Rules are met. Clearly also, the modifications which are authorised are those which reflect the specific attributes and requirements relating to a person’s disability. They will be specific to the individual participant and their circumstances.
Significantly, rule 7.22 sets out situations regarding transport for which the NDIS is not responsible. They are matters which relate to public transport and infrastructure. They do not mention private vehicles. In closing submissions, Counsel for the Agency relied on two previous decisions of the Tribunal to support its construction of rule 7.21. The first of those decisions is Ewin and National Disability Insurance Agency[35] in which the Tribunal, comprising Member Parker, considered an application by a participant in the NDIS for funding for costs of travel using his privately owned car for specified journeys, including travel between home and work, travel between home and sporting activities, and travel between home and his children’s recreational activities. Significantly in that case it was not disputed that the applicant was capable of using his wheelchair and driving a car independently.[36]
[35] [2018] AATA 4726 (Ewin).
[36] Ibid, at [232].
Counsel for the Agency referred to the following passage in Ewin regarding rule 7.21(c):
“The Tribunal interprets this provision as referring to the cost of using a taxi or private transport options operated by someone other than the participant (for instance, a hire car or an Uber car). For this reason the Tribunal does not consider this provision applies to the types of transport supports sought by Mr Ewin in this case. He is able to drive his car independently and has no requirement to be transported in private vehicles operated by others.”[37]
[37] Ibid, at [214].
However, the transport supports which were under consideration in Ewin are not similar to those under consideration in this review, in fact they were markedly dissimilar, and the reasoning in that decision does not advance the Agency’s contention about rule 7.21.
The second decision of the Tribunal which Counsel for the Agency relied upon is McPherson and National Disability Insurance Agency.[38] In that case, the applicant’s disability affected his mobility and capacity to access the community. He was a participant in the NDIS and he requested funding from the NDIS for a private motor vehicle. He was already in possession of a second hand private motor vehicle which was purchased for him with the assistance of his local council. That vehicle was modified for wheelchair use which enabled the applicant to travel in it as a passenger. As the modification did not enable him to drive the vehicle he stated that his independence was limited because he had to rely upon a family member, friend or carer to drive. In order to enhance his independent access to the community he requested the NDIS fund a private motor vehicle that was fully modified for him to drive. The Tribunal, comprising Member Dr Bygrave, noted that he did not have a current driver’s licence and that it would be speculative to decide whether the funded support was reasonable and necessary. There was no evidence about his potential to obtain a driver’s licence. There was insufficient evidence about the type of modifications that would be required.
[38] [2018] AATA 4303 (McPherson).
In this matter, Counsel for the Agency suggests that the Tribunal in McPherson “…endorsed the proposition that the Respondent was not to pay for a vehicle as a capital asset, only for the modification.”[39] Reliance was placed upon the following passage in the Tribunal’s reasons:
“Having regard to the Support Rules, I find that funding a private motor vehicle for Mr McPherson is not consistent with Rule 5.1(b), which stipulates a support will not be funded under the NDIS if “it is not related to a participants disability.” In accordance with Rule 7.21(b), I am satisfied that this means the NDIS will fund any modifications to a motor vehicle that would enable Mr MacPherson to drive independently, but not pay for the capital asset of the vehicle. This is also consistent with the Supports Guideline, which states the NDIA will generally not fund the purchase of a motor vehicle.”[40]
[39] Respondent's closing submissions, para 33.
[40] McPherson, at [47].
The Agency sought to interpret the reasoning in McPherson as authority for the proposition that it asserts in this case, being the blanket proposition that the NDIS is not permitted to pay for a vehicle as a capital asset, but is only permitted to pay for the modification. That interpretation of the reasoning in McPherson is not correct as the Tribunal resolved that the findings of fact did not meet the requirements of rule 5.1(b) and in turn the requirements of rule 7.21(b). The Tribunal came to the conclusion that in the particular circumstances of the applicant’s request for funding for a private motor vehicle, a finding that it was a reasonable and necessary support as defined in s 34(1) of the NDIS Act could not be made.
The Tribunal in McPherson noted the provision in the Supports Guideline which states that the NDIA in general will not fund the purchase motor vehicle. In the concluding passage, the Tribunal highlighted the task in the particular circumstances of that review:
“The insertion of the words ‘in general’ in the Supports Guideline reinforces the requirement for me to consider the merits of Mr McPherson’s particular circumstances. Based on the evidence before the Tribunal, I am not satisfied that Mr McPherson’s situation is sufficiently unusual or unique that it would be appropriate for the NDIS to provide funding for private motor vehicle.” [41]
[41] Ibid, at [62].
McPherson is not authority for the proposition that the NDIS is not permitted to pay for a private vehicle as a capital asset. The decision leaves the possibility open. It notes that in general the NDIA will not fund the purchase, and departure from that principle will depend upon the individual circumstances of the applicant. If those circumstances are “sufficiently unusual or unique”, it is open to a Tribunal to determine that the funding for a private motor vehicle should be provided by the NDIS.
Both parties filed short supplementary submissions following the recent decision of the Tribunal (Member Dr Bygrave) in Gelzinnis and National Disability Insurance Agency[42] concerning a request by an NDIS participant for funding to purchase a new motor-vehicle. The question of the power to fund the purchase of a motor vehicle was not argued in that review. The Tribunal proceeded on the basis that there is power under the statutory and rule-based criteria to fund the purchase of a motor vehicle and ancillary costs but in the circumstances of that case those criteria were not met. It follows that Mr Barling’s Counsel submits that the decision in Gelzinnis supports the contention that the Agency has the power to fund the purchase of a vehicle. It also follows that the Agency’s Counsel submits that the threshold issue was not considered in Gelzinnis and the decision is of no assistance in this matter in resolving that question.
[42] [2021] AATA 3970 (Gelzinnis).
Financial sustainability
The Agency’s submissions on the threshold issue emphasised the importance of financial sustainability in the NDIS. In particular it was submitted that:
“…Parliament had regard to financial sustainability, in devising the legislative scheme; and the Minister had regard to financial sustainability in prescribing the Rules. In other words, protecting the financial sustainability of the Scheme is embedded into the legislated framework, including the Rules – and this must be heeded as a policy consideration when construing the Act and the Rules. An interpretation of clause 7.21 of the Rules which is consistent with this consideration, is therefore consistent with the Act as a whole.” [43]
[43] Respondent's closing submissions, para 36.
According to this part of the submission, the Minister protects the financial sustainability of the Scheme by deciding not to fund “certain types of major capital funding of purchase of some items – specifically, purchase of major assets like vehicles and homes.”[44] Specifically, therefore, the NDIS Act and the Support Rules do not permit capital expenditure involving the purchase of a vehicle. It is submitted that the Support Rules permit funding of certain types, such as modifications to vehicles and houses, and the fact that those expenditures may exceed the cost of purchase is not relevant or at least does not detract from the primary proposition; namely that major capital funding for vehicles and houses is not permitted.
[44] Ibid, para 4(d).
The Agency’s submission about the importance of the financial sustainability of the Scheme highlights that it is one of the matters which is expressly referred to in the objects section of the NDIS Act. Section 3(3) of the NDIS Act provides that, in giving effect to the objects of the Act, regard is to be had to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c) the broad context of disability reform provided for in:
(i) the National Disability Strategy 2010 – 2020 as endorsed by COAG on 13 February 2011; and
(iii) the Carer Recognition Act 2010; and
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
The significance of the requirement for financial sustainability is reflected in other sections of the NDIS Act. For example, one of the general principles guiding actions under the Act is the need to ensure the financial sustainability of the Scheme (s 4(17)(b)).
Part 6A of Chapter 6 of the Act provides for annual reports by a scheme actuary into the financial sustainability of the NDIS. Section 180B, which is in Part 6A, provides:
180B Duties of scheme actuary
Duties relating to annual financial sustainability report
(1) The scheme actuary must do all of the following each time an annual report is being prepared by the Board members under section 46 of the Public Governance, Performance and Accountability Act 2013:
(a)assess:
(i)the financial sustainability of the National Disability Insurance Scheme; and
(ii) risks to that sustainability; and
(iii) on the basis of information held by the Agency, any trends in provision of supports to people with disability;
(b)consider the causes of those risks and trends;
(c)make estimates of future expenditure of the National Disability Insurance Scheme;
(d)prepare a report of that assessment, consideration and estimation;
(e)prepare a summary of that report that includes the estimates described in paragraph (c).
Duty to make quarterly estimates of future expenditure
(2) At least once each quarter, the scheme actuary must make estimates of the future expenditure of the National Disability Insurance Scheme and advise the CEO of the estimates. For this purpose, quarter means a period of 3 months starting on 1 July, 1 October, 1 January or 1 April.
Note: The CEO must give the Board a copy of the advice under subsection 159(7).
Duty to provide information and advice on request
(3) The scheme actuary must, on request from the Board or the CEO, provide actuarial information or advice.
Duty to report concerns to Board
(4) If the scheme actuary has significant concerns about the financial sustainability of the National Disability Insurance Scheme, or the risk management processes of the Agency, he or she must report those concerns to the Board as soon as reasonably practicable.
The financial sustainability of the Scheme is referenced also in s 209(3) of the NDIS Act which provides that in making the NDIS Rules “…the Minister must have regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.”
In giving effect to the objects of the NDIS, Support Rule 1.3 provides that “regard is to be had to the need to ensure the financial sustainability of the NDIS”.
Four categories of rules are set out in a table under s 209(8) of the NDIS Act. The Agency’s closing submissions highlight that Category A rules require the highest level of approval. Category A rules include rules which are made for the purposes of ss 33 and 35 of the NDIS Act. Section 33 provides for matters that must be included in a participant’s plan. Section 35 provides for the making of NDIS rules regarding funding or provision of reasonable and necessary supports or general supports. Under s 209(4) the Minister is prevented from making Category A rules unless the Commonwealth and each host jurisdiction have agreed to the making of the rules. A state or territory becomes a host jurisdiction pursuant to s 10 of the NDIS Act.
The Support Rules are made for the purposes of ss 33 and 34 of the NDIS Act. The Agency suggests that because Support Rules are Category A rules, they provide for the need to ensure the financial sustainability of the NDIS as a policy consideration, and they have “an important role in making important policy decisions to manage financial impacts.”[45] The proposition which the Agency then advances is that the financial capability of the Scheme is ensured by “making rules which preclude the funding of the purchase of certain major capital items, specifically the purchase of vehicles or homes.”[46]
[45] Ibid, para 41.
[46] Ibid, para 43.
Counsel for the Agency correctly identifies that there are constraints within the Scheme which reflect an endeavor to find a balance between its beneficial purpose and its financial sustainability. Reference was made to the interaction of the Act and Support Rules in the judgment of Mortimer J in McGarrigle v National Disability Insurance Agency[47]:
“The rules are legislative instruments to be made by the Minister: see s209. Section 209, subss (4) to (7) constrain the rule— making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.”[48]
[47] [2017] FCA 309 (McGarrigle).
[48] Ibid, at [43].
It is clear from the sections of the NDIS Act which have been outlined that the financial sustainability of the NDIS is a critical matter, with provisions in the legislation for its preservation, measurement and maintenance. Counsel for the Agency sought to interpret the provisions of the legislative scheme so as to define what can be funded and what cannot be funded by reference to the cost of the capital expenditure. On that interpretation, large capital expenditure is ruled out and smaller capital expenditure is permitted. Large capital expenditure is interpreted as expenditure for the purchase of a motor vehicle and purchase of a house. Small capital expenditure is interpreted as expenditure on items such as expenditure on wheelchairs, equipment and modification to a home or a car and it is permitted. Definition of a small capital expenditure in contrast to a large capital expenditure by reference to the quantum of spending is not forthcoming.
Can a line be drawn in relation to what the Scheme can fund and what the Scheme cannot fund by reference to the cost of the particular capital expenditure? As an example, which can be drawn from Mr Barling’s case itself, the Agency contends that funding the cost of the vehicle is a major capital expenditure that is not permitted under the legislative scheme, yet funding the cost of the modification is not a major capital expenditure and is permitted, even though the cost of modifying the vehicle is double the cost of buying it. If this appears to be a perverse consequence, it can be explained and understood according to Counsel’s closing submissions because:
“The fact that the funding of a modification to a vehicle or house may be high in some instances and even higher than the costs of the purchase in some cases… is not to the point as far as the construction of the Act and the Rules specifically 7.21 goes - as the legislature and the Minister when making the Rules in their wisdom had to draw the line somewhere and they drew the line on what will be funded and what will not, it is in the manner we contend, given the terms, context and competing purposes behind the Scheme.”[49]
[49] Respondent's closing submissions, para 4(d).
Mr Barling’s closing submissions contended persuasively that the Agency’s submission is a “back-solve of what the Agency itself (rather than any derivation of policy arising from the legislation and rules) conceives to be a ‘desirable result’ for the NDIS.”[50]
[50] Applicant's closing submissions, para 82.
The need for financial sustainability of the Scheme is clear from the legislation and the rules. It is also quite clear, however, that there is no provision in the legislation and the rules that prohibits funding for the purchase of a vehicle. Counsel for Mr Barling referred to the High Court’s guidance, about stretching statutory interpretation too far:
“…The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statutes purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.”[51]
[51] Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378, 390 at [25] – [26], per French CJ and Hayne J.
The Tribunal does not accept the Agency’s contentions about financial sustainability in the context of the threshold issue. They more closely resemble a set of assumptions or unwarranted conclusions about the operation of the statutory scheme.
Threshold issue - Summary
A massive nationwide change in the provision of disability services was enacted under the NDIS Act. The inception and implementation of the NDIS resulted in a transformation of inter-governmental responsibilities which is reflected in part through the COAG Agreed Principles, the Support Rules Schedule 1 and the Planning Guideline. The context is both historical and also contemporary with provision for new and broad interfaces between complex and multiple service systems.
In giving effect to the objects of the legislation, s 3(3)(c)(i) of the NDIS Act specifies that regard must be had to the National Disability Strategy 2010 – 2020 which was in place at the time the legislation was enacted. The Strategy, which was an initiative of COAG, commenced at a time when the Productivity Commission had not completed its enquiry into a National Disability Insurance Scheme. Section 3(3)(c) of the NDIS Act refers to the broad context of disability reform outlined in the Strategy. The essence of the Strategy is a whole of government approach, inclusive of commonwealth, state, territory and local government, to enhance coordination of systems, practices, programs and services across key policy areas which affect people with disability, their families and carers.
Support Rules 7.21 and 7.22 are directed to the broad responsibilities which the NDIS bears for funding supports for transport in contrast to the broad responsibilities which the NDIS does not have in transport assistance. It is clear that the considerations in each of the policy areas which are specified in Schedule 1 of the Support Rules relate to delineation of responsibilities between the NDIS and other parties. It is clear that the delineation of those responsibilities relates to processes of disability reform which are summarised in the National Disability Strategy 2010 – 2020. That document is specifically mentioned in the objects of the NDIS Act. The development and articulation of the delineation of responsibilities is set out in the COAG Agreed Principles which are specifically mentioned in the introductory paragraphs of Schedule 1 of the Support Rules. In turn, those Support Rules proceed to give broad definition to the division of responsibilities between the NDIS and other service systems. Beneath the Support Rules and consistently with them, the Planning Guideline provides a further breakdown of the delineation of supports and the funding responsibility for those supports.
The Support Rules set out the broad categories of responsibilities between and within service systems. In their purpose, function, and language they do not purport to prohibit NDIS funding for certain capital expenditure, undefined in dollars but corralled into two categories namely motor vehicles and houses. In fact, the Support Rules are directed to defining and providing clarity about boundaries within a federation for the distribution of responsibilities between numerous service systems. Within the governance arrangements there are measures for accountabilities and coordination which take account, among other things, of the overall necessity for the financial sustainability of the Scheme.
The Supports Guideline states that the NDIA will generally not fund the purchase of a motor vehicle. It does not say that the NDIA will never fund the purchase of a motor vehicle. On the correct interpretation of the statutory criteria and the rules, funding for the acquisition of a vehicle is not prohibited. The Tribunal does not accept the Agency’s submissions concerning the statutory construction and the statutory context in this case.
The next question is whether funding for the particular vehicle which Mr Barling has identified is a reasonable and necessary support, coupled with the associated question of whether or not the funding for the front passenger conversion for wheelchair access is a reasonable and necessary support. In its supplementary Statement of Facts, Issues and Contentions filed shortly before the hearing, the Agency withdrew its earlier contention that there is an alternative to the front seat modification to a vehicle.[52] In making that concession the Agency took into account opinions expressed by Associate Professor Corben in reports which became available between the time of its initial Statement of Facts, Issues and Contentions and its supplementary statement.
[52] Exhibit 4, para 17.
Consideration of these issues involves an analysis of the evidence and the applicable provisions of the legislation.
EVIDENCE
Gary Barling
Mr Barling gave evidence by video link. He also provided a detailed affidavit which was admitted into evidence. His evidence is not contested. He has high levels of support throughout the day and evening for practically every activity of living. He has numerous appointments which he needs to keep to maintain his health. His enjoyment of life includes using a computer to keep up-to-date with current issues and historical matters, watching movies and documentaries, listening to music and to podcasts. He is unable to go outside without assistance, however if assistance is available he enjoys spending time in his backyard and he enjoys the company of his two cats. Travelling to appointments both locally and in Melbourne is stressful and exhausting.
As a result of reaching an advanced stage of Friedreich ataxia, Mr Barling accepts the opinion of the medical specialists that a change in his functional status is not likely. He depends on a powered wheelchair for mobility and Mr Pickett is his primary support worker.
Mr Barling’s cardiomyopathy causes him to experience weakness, light-headedness, nausea, loss of appetite, fatigue from simple daily activities and excessive fluid retention. He has profound impairments in hearing and speech. The sounds which he processes are distorted which makes it difficult for him to identify and translate speech. His own speech is weak and often unintelligible to others, particularly those who do not know him well. He has a Phonak Pen which is a 2 way device which acts as an amplifier and wireless microphone to assist with communication. It is effective in quiet environments and it is also expensive, with intricacies in setting up and putting it away. Mr Barling’s vestibular impairment causes nausea, disorientation and fatigue especially when travelling in wheelchair taxis and in trains.
As a result of Friedreich ataxia, Mr Barling’s immune system is compromised which puts him at risk of life threatening conditions. It is difficult for him to clear fluid or mucus in his chest or throat. He suffers from urinary frequency and urinary tract infections. He has severe scoliosis as a result of his disability and despite surgery in 1994 this condition has worsened with adverse effects on his posture, comfort and upper torso mobility. He is prone to breathlessness and also swelling in his limbs if he cannot change his posture from time to time.
Mr Barling expresses his appreciation for the support which he receives to enable him to remain comfortable at home. However he describes his isolation as oppressive and it has a significant impact on his mental health. He has consulted counsellors and psychologists and he understands that the issue of isolation must be addressed in order to enhance his mental well-being. His social isolation is a result of the severe impact on his mobility caused by Friedreich ataxia. He feels depressed and he suffers from insomnia, tearfulness and anhedonia. “The dark days are many, bereft of wonder, happiness, calm or simply a sense of hope that this imprisonment will break into a day of difference.”[53]
[53] Affidavit of Gary David Barling, para 117.
Michael Pickett
Mr Pickett has known Mr Barling for about 40 years. They were together at primary school. He is now Mr Barling’s primary carer in a role which commenced in May 2019. Mr Pickett gave evidence at the hearing by video link. His evidence is not contested. He provides care for about 40 to 50 hours per week. Mr Pickett’s basic routine commences with arrival at Mr Barling’s apartment at 7:45 AM and remaining with him until 5:00 PM, usually 5 days per week. He provides comprehensive disability support. He assists Mr Barling to get out of bed in the morning and he remains with him throughout the day. He provides support with Mr Barling’s self-care, hygiene, health, medication, preparation and consumption of meals and fluids, mobility, appointments and safety. Although Mr Pickett is the primary carer, Mr Barling has other support workers on shifts during the evenings and weekends. He is alone at home between 10:00 PM and 7:45 AM the next morning unless he is unwell and requires support overnight.
Mr Pickett considers that Mr Barling has a positive, great outlook on life. Nonetheless, his needs have reached a high level and together with the inability to access the community, a noticeable deterioration has occurred in Mr Barling’s mood and demeanour. Mr Pickett gave evidence about Mr Barling’s difficulties with transport services including taxis, trains and trams. Mr Pickett accompanies Mr Barling to medical appointments. Mr Pickett would be the primary driver of a modified vehicle if one was available and he confirmed his preparedness to drive Mr Barling to appointments which are scheduled in the vicinity of 200 to 230 per year. As Mr Pickett said in evidence, “nothing would make me happier to be contributing to help Gary with his condition to give him the best chance in extending his life.”[54]
[54] Transcript of evidence, pp 62 -63.
Medical evidence
Dr Jonathan Duffy has been Mr Barling’s general medical practitioner for 11 years. He works closely with a cardiologist, Dr Roger Peverill, in the management of Mr Barling’s medical conditions. In a letter dated 12 October 2020 Dr Duffy wrote that Mr Barling’s disability causes him to experience symptoms of low blood pressure which include light headedness, nausea, loss of appetite, and general weakness. A further consequence of the disability is the fine balance required to prevent blood pressure from becoming too low and preventing fluid retention. Dr Duffy anticipates that the current situation will continue.[55]
[55] Exhibit 56, T12, p 83.
Dr Peverill is a consultant cardiologist to the Friedreich Ataxia Clinic, Monash Health. He confirmed in a report dated 18 August 2021 that Mr Barling has:
“…a severe dilated cardiomyopathy, a recognised complication of Friedreich ataxia, as evidenced by the size of his heart chambers, and the amount of ventricular contraction assessed by echocardiography. As a result of his cardiomyopathy he has experienced fluid retention, and this has resulted in peripheral oedema and lung congestion. At times he experiences nausea when he is motionless and this may be a result of gut congestion. For some years he has been on varying doses of diurectics and a fluid restriction to try to control his fluid overload. His blood pressure tends to be on the low side.”[56]
[56] Exhibit 23.
Dr Peverill confirmed that cardiomyopathy is the major source of mortality in Friedreich ataxia.[57]
[57] Exhibit 12.
Allied health Evidence
Associate Professor Louise Corben is the coordinator of the Friedreich Ataxia Clinic at the Monash Medical Centre. She works at the Murdoch Children’s Research Institute and with the Victorian Clinical Genetic Service. She has extensive experience as an occupational therapist in the area of Friedreich ataxia.[58] Presently she coordinates the clinical care of all clients who receive occupational therapy assessments and services at the clinic. She coordinates clinical research and conducts clinical trials. In the first 15 years of her work at the clinic she provided occupational therapy services. She gave evidence by video link about the work of the clinic which provides services to around 130 people every year from all over Australia. The clinic is a specialist multidisciplinary team comprising doctors and a range of allied health service providers. There is a smaller satellite clinic in Brisbane.
[58] Exhibit 24. Associate Professor Corben’s current appointments are:
(1)Research: Medical Research Futures Fund (MRFF) Next Generation Clinical Researcher (Career Development Fellow), Bruce Lefroy Centre, MCRI; Team Leader, clinical research, Bruce Lefroy Centre, MCRI. Founding member of the Australian Friedreich Ataxia Stem Cell and Gene Therapy Consortium.
(2)Clinical: Coordinator, Friedreich ataxia clinic, Bruce Lefroy Centre for Genetic Health Research, MCRI. Research Consultant, Occupational Therapy Department, Monash Medical Centre
Academic: Honorary Principal Fellow (Associate Professor), Department of Paediatrics, University of Melbourne. Adjunct Senior Research Fellow, Department of Psychological Sciences, Monash University.
In giving evidence Associate Professor Corben described Friedreich ataxia as a progressive neurological condition which is inherited with the onset of the condition noticeable around the age of 10. It is progressive into adult life and affects a person’s control of arms, trunk, legs, vision, hearing and speech. In addition to the neurological component the condition is associated with a cardiac component. There is significant morbidity and mortality related to cardiomyopathy associated with Friedreich ataxia. Associate Professor Corben described how it targets vestibular nerves and auditory nerves as well as the cerebellum. A consequence is a significant reduction in sensory input which makes it difficult to process information. She described the considerable problem of trying endlessly to correct the vestibular optic reflex which becomes exhausting and induces nausea and dizziness: “it’s a physiological response to the body trying to make sense of the sensory information it’s receiving”.[59] While there is presently no cure, research and trials are underway for potential cures. In addition, Associate Professor Corben emphasised the need for rehabilitation in accordance with research evidence which demonstrates the benefits of intensive therapy. This includes physiotherapy and hydrotherapy in efforts to address deconditioning and reduce the effects of spasticity.[60]
[59] Transcript of evidence, p 67.
[60] Ibid, p 75.
It is clear that the condition requires specialist assessment and coordination of care. Associate Professor Corben said that Mr Barling’s health is fragile, he must continue to receive the necessary medical care for his condition and “if he is unable to attend his medical appointments he won’t survive.” [61]
[61] Ibid, p 70.
Rule 5.1 of the Support Rules provides that a support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day to day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
Rule 5.2 of the Support Rules states:
The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
It is helpful to recite a passage from the Full Court of the Federal Court in National Disability Insurance Agency v WRMF[85]:
“... there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term ‘participant’ to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself.”[86]
[85] [2020] FCAFC 79.
[86] Ibid, at [151].
The Agency accepted that a front row conversion would be a reasonable and necessary support which is capable of being funded by the NDIS. That circumstance would only arise on the Agency’s submission if Mr Barling has a vehicle.[87] By approaching the case in this way it followed that the Agency had little to say or challenge in response to the questions which arise in consideration of the evidence relating to each subsection of s 34(1) of the NDIS Act. In that sense, the evidence in relation to those subsections was largely unchallenged.
Whether the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
[87] Respondent closing submissions, para 57.
Mr Barling’s NDIS plan has two short term goals. The first one is to have a vehicle which would enable him to access the community where possible. In order to achieve the goal he set out his aspiration to work with therapists to explore options for a suitable vehicle and to undertake and complete assessments. He envisaged support from his support coordinator to link in with appropriate therapists.[88]
[88] Exhibit 56, T18.
In his NDIS plan Mr Barling noted that the progression of his disability has diminished his ability to work and to be involved in community activities. In the past he has participated in the community in various ways which included conducting his own radio program on a community network, participation on the management committee of an advocacy association, writing and tutoring.
In a report provided to the Agency, occupational therapist Ms Russell acknowledged that the provision of the vehicle with appropriate modifications would assist Mr Barling to pursue the goals and aspirations in his NDIS plan. Ms Russell wrote:
“The means of transportation for Gary is no small request as he has stated, however, this is a fraction of his supports in comparative [sic] with immeasurable benefits. Access to a controlled environment for transport will truly empower and enable Gary to reach his goals. Specialist appointments or massage for pain relief and mobility can be booked with assurance that transport will no longer be an issue, major disruption or stopper to any of Gary’s planning. This will further the maintenance required for Gary’s ongoing health and well-being. The psychosocial benefits are immeasurable, breaking from the confines of total isolation to simply view the ocean, visit friends or family, attend functions and actively participate in the community.”[89]
[89] Ibid, T1B, p 26.
The Tribunal is satisfied that the requirement in s 34(1)(a) is met both in relation to the funding for the vehicle and the funding for the modifications to that vehicle.
Whether the support will assist the participant to undertake activities, to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
Mr Barling’s GP, Dr Duffy, wrote in a letter dated 9 February 2021 that Mr Barling’s mental health:
“… is impacted by his limited opportunities for mental stimulation resulting from his being unable to leave the house. It is my opinion that his physical and mental health would greatly benefit from being able to visit places that would lift his mood, without being reliant on a taxi to do so.” [90]
[90] Exhibit 13.
Dr Clarke, psychologist, confirmed that the provision of a modified vehicle which enables Mr Barling to sit in a front passenger position is likely to improve his quality of life and his mental health.[91]
[91] Exhibit 14.
While Associate Professor Corben disclaimed expertise in neuroscience and psychiatry, she is clearly in a position to observe problems that some people with Friedreich ataxia experience with development of depression. In recounting her observations over the years of working with Mr Barling, she told the Tribunal:
“When I first met Mr Barling he was a very active, engaged person completing his own PhD, involved in community organisations. He had an avid interest in music. His understanding and knowledge of music was and continues to be wonderful. He attended concerts, he was very social and had a wide social network. And I know that engaging with his mother in particular has always been an important part of it. I think it has been a matter of great concern to us to watch him withdraw into his home due to not being able to access public transport, and again we have said to him, we have discussed with him the problems associated with that, but more importantly his hearing and his visual impairment have – physically he hasn’t necessarily progressed in terms of his physical function, but speech, hearing and vision certainly have deteriorated significantly making him even more isolated. And I think for that reason alone the importance of him even getting out of the house and engaging again in the community, he’s 48, it’s – I cannot underscore the importance of that in terms of his mental health which again affects his physical health.”[92]
[92] Transcript of evidence, p 70.
Mr Pickett confirmed in evidence that provision of a suitable vehicle would enable Mr Barling to visit family and friends both locally, in regional areas and also in Melbourne. Mr Barling has friends in Wangaratta who have recently built a house which has provision for wheelchair access for Mr Barling.
The proposed support of having a vehicle and having it modified will facilitate and enhance Mr Barling’s social participation and activities in the community. This requirement is satisfied.
Whether 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: s 34(1)(c) of the NDIS Act
As indicated above, Mr Barling has an extensive schedule of health and allied health services which are not optional. The estimated frequency of those attendances is based upon past and present experiences. To a degree there may be an underestimate of some visits, for example his evidence is that the current frequency of visiting the general medical practitioner may be in the region of 30 appointments rather than 24 as indicated in the schedule. Also his pathology visits have increased recently. Nonetheless, the schedule is reliable and indicative information about the nature and frequency of accessing the services.
Rule 3.1 of the Support Rules, provides further guidance as follows:
Value for money
3.1 In deciding whether 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, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Mr Barling’s cardiologist, Dr Peverill, confirmed in a letter dated 6 April 2021 that travelling in the front seat of a vehicle is beneficial for Mr Barling’s health compared with travelling in the back seat of a vehicle.[93] This is a consequence of Mr Barling’s vestibular impairment and the need to reduce the major risk of nausea, vomiting and fatigue which, in turn, are related to his severe cardiomyopathy. In addition, Mr Barling’s significant hearing impairment impedes his capacity from the back seat to communicate effectively with the driver.
[93] Exhibit 15.
Dr Peverill and Associate Professor Corben jointly provided a written opinion which made a number of important points about Mr Barling’s specialist assessments and treatment.[94] At that time in February 2021 they considered that Mr Barling should not attempt to travel by public transport from Warrnambool to Melbourne because of the risk to his health and well-being. Moreover they confirmed that Mr Barling should not use any form of public transport. They wrote:
“Public transport for Mr Barling should never be an option either locally or beyond Warrnambool. Mr Barling has a significant cardiomyopathy which is directly related to his neurodegenerative condition, Friedreich ataxia. Public transport options necessitates Gary to remain seated and restrained in his wheelchair which in turn is restrained by both sash belts and floor tiedowns. Prolonged sitting in an upright position without the capacity to shift his position may exacerbate Gary’s already compromised blood pressure which could have a sudden detrimental effect on his fragile cardiac status. A functional consequence of vestibular impairment associated with Friedreich ataxia is that excessive vehicular movement (forces transmitted by swaying, turning, sudden stop/start’s, uneven road surfaces etc) inevitable in a train or the back of a wheelchair accessible taxi can be noxious to someone with Friedreich ataxia. In particular excessive vestibular stimulation can induce nausea and significantly increases fatigue. Not surprisingly and consistent with this condition, Gary finds that excessive movement such that is experienced in train or taxi travel, can induced negative symptoms. Moreover, if needing to use a wheelchair accessible taxi Gary is unable to hear the driver from the back of the taxi due to his profound hearing impairment. This is not only isolating but poses a safety risk if Gary needs to communicate with the driver regarding his needs. Gary could well deteriorate medically during such a journey. Not only does every effort need to be made to mitigate this possibility he needs to be able to communicate with those around him.”[95]
They considered that the appropriate course to mitigate these risks is the provision of a modified vehicle which is specifically prescribed for Mr Barling to enable him to travel safely.
[94] Exhibit 12.
[95] Ibid.
The evidence clearly establishes that the proposed supports will provide benefits for Mr Barling in his health and his well-being. Those benefits are likely to endure beyond the short-term and will be of value in the long term. The evidence does not suggest that changes in technology are anticipated which would detract from the financial value of the current proposals for funding the supports. The quoted costs for acquiring the vehicle and modifying it are not challenged and there is no suggestion that cheaper alternatives are available or suitable. The proposed supports will reduce Mr Barling’s need for transport by train and taxi and the benefits will be significant in addressing his continuing need for safe access to health and allied health services.
The Agency has not presented actuarial evidence or any other evidence about financial sustainability in the context of s 34(1)(c). Such evidence, if it was presented, could bear upon the question of whether the requested supports do or do not represent value for money. The Agency, however, relies upon its interpretation of the NDIS Act and the Support Rules as discussed in the analysis of the threshold question.
In her detailed occupational therapy assessment, Ms Russell considered the financial issues and Mr Barling’s health issues in relation to different kinds of conversion to a vehicle which include options of a front row conversion, a second row conversion or a third row conversion.[96] She also considered the costs of hiring a vehicle, purchasing a second hand vehicle or purchasing different types of a new vehicle. In conclusion, she recommended a standard front row passenger wheelchair conversion. At the time of her assessment it was anticipated that the implementation of the recommendation would require test drives with a specialist firm in vehicle modifications, Automobility, and subsequently they took place.
[96] Exhibit 56, T1B.
The Tribunal is satisfied that the requirement of value for money is met both in relation to the acquisition of the vehicle and the modifications to it.
Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act
In relation to affective, beneficial and current good practice, the Support Rules provide:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Dr Peverill’s expertise includes experience as a sessional cardiologist, adjunct senior lecturer at the Monash University Department of medicine, grants reviewer, grants recipient, recipient of various scholarships and awards, sole and joint author of 30 original research publications, and author of numerous journals, articles, letters and case reports in his profession.[97] Associate Professor Corben has 40 years of experience working as an occupational therapist with approximately 20 years’ experience in the field of Friedreich ataxia. Her professional responsibilities presently cover a range of clinical, research and academic commitments which include her current involvement as the coordinator of the Friedreich Ataxia Clinic at the Monash Medical Centre. Both individually and with others, she has contributed to more than 100 publications about Friedreich ataxia together with authoring book chapters, abstracts and reports, research publications through numerous funded grants, editorial and review roles, interstate and international research collaborations, service on government and non-government working groups, project roles in research areas and international recognition for coordination and development of clinical management guidelines and clinical research in Friedreich ataxia.[98]
[97] Exhibit 23.
[98] Exhibit 24.
In oral evidence, Associate Professor Corben described the way in which the Friedreich Ataxia Clinic generally conducts its assessments. Some clients who live in regional and remote areas in Victoria, and some of those who live interstate, were eligible for funding to assist them to travel to the clinic and access accommodation overnight. In effect, the clinic is operating now in a hybrid manner. Those who can attend in person are doing so and those who are not able to travel are attending by tele-health. Associate Professor Corben confirmed that Mr Barling last travelled to the clinic for neurological assessment in 2018 and for cardiac assessment in 2019. Presently his condition is managed by his general medical practitioner, Dr Duffy, in conjunction with Associate Professor Corben and Dr Peverill. The restrictions in the past 18 months which have been caused by the Covid 19 pandemic have had a detrimental effect. Ideally clients attend the clinic in person. When that cannot occur a tele-health, virtual clinic is provided. This is not ideal as many of the clients have difficulties talking, understanding and being understood. Moreover, there is no ability to conduct a physical examination.[99]
[99] Transcript of evidence, p 74.
In their joint letter, Dr Peverill and Associate Professor Corben confirmed their view about the application of best practice through Mr Barling’s use of a modified vehicle. It will be effective and beneficial for him in various ways which they confirmed will include the capacity to:
“…increase his independence and community participation, and develop his capacity to actively take part in his community. Most importantly it will enable him to leave his home in order to access critical health care or activities beneficial to his mental health and well-being. This is particularly important in providing every opportunity to maintain both the quality and longevity of his life for as long as reasonable.” [100]
They confirmed their expert opinion that the access to the requested supports is necessary for critical health management.
[100] Exhibit 12.
The report by Dr Helprin was referred to earlier in paragraphs 15 and 16 above. He is a consultant cardiologist from whom the Agency’s solicitors sought an independent report. He has extensive general medicine experience in work in major teaching hospitals in the greater Sydney region. He has clients who are participants in the NDIS and he is experienced in working with allied health professionals. He was provided with Mr Barling’s various medical and allied health reports including reports by Associate Professor Corben and Dr Peverill. He noted that those reports strongly supported Mr Barling’s request for the purchase of a motor vehicle to enable him to attend medical specialists, general medical practitioners and allied health services. He regarded the reports as rational and reasonable. He noted that a modified vehicle would provide a positive functional outcome for Mr Barling through improved access to professional and allied health appointments together with access to family, friends and the community, which would contribute to improvements in his physical and mental health. Dr Helprin wrote that the provision of a modified vehicle would have a positive impact on Mr Barling’s mental health, as “his dignity and independence would be improved and his morale would be boosted.”[101] In the provision of a modified vehicle Dr Helprin noted that assessment by an occupational therapist would be essential with a particular focus in the early stages.
[101] Exhibit 31.
The Tribunal is satisfied that the supports will be effective and beneficial for Mr Barling. Their provision would be a reflection of best practice in accordance with the expert opinions of Associate Professor Corben, Dr Peverill and Dr Helprin.
Whether 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: s 34(1)(e) of the NDIS Act
Mr Barling pointed out that he left his house on only six occasions in 2020, due to his concerns about problems with the taxi service. Of the six occasions when he left home, five related to urgent medical treatment for tooth infection, hearing problems, blurred vision and bladder infections. From April this year he has attended appointments more frequently and, despite misgivings, he has used taxis to do so.[102]
[102] Affidavit of Gary David Barling, paras 125 – 126.
Mr Barling’s mother is elderly and he cannot rely on her or his siblings to transport him. The type of support that he needs is well beyond the capacity of family members and informal networks to provide. He cannot rely on the support of family members, carers and informal networks to provide him with the type of transport supports which he needs and there is no capability for them to provide it.
The type of transport support which Mr Barling requires is specialised and entirely unique to his circumstances. The type of vehicle, the technological aspects of the modification, the manner in which he will be travelling and the communication patterns between Mr Barling, as passenger, and his carer as the driver, are features of this innovative, specialised support.
For all participants, rule 3.4(c) of the Support Rules refers to “the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.” Because of his confinement at home, the potential contributions of informal supports have been curtailed severely. If Mr Barling has the opportunity to access the community more regularly, it is likely, perhaps inevitable, that his networks will expand. With access to a modified vehicle driven by a carer there is scope for change in that regard.
The Tribunal is satisfied that this requirement is met.
Whether the support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, Agency or body, or systems of service delivery or support services offered (i) as part of a universal service obligation; or (ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability: s 34(1)(f) of the NDIS Act.
The Support Rules 7.21 and 7.22 have been discussed above.
The Support Rules 5.1 and 5.2 are recited in paragraphs 125 and 126 above.
Under Support Rules 5.1(a), (b) and (c), the NDIS does not provide or fund a support if the circumstances set out in any one of those sub-rules apply. The Tribunal is satisfied that they do not apply. The requested supports are not likely to cause harm to Mr Barling or pose a risk to others. They are related to Mr Barling’s disability, and they do not duplicate other supports.
The Tribunal accepts that Mr Barling will use the modified vehicle to travel to appointments with medical practitioners and allied health practitioners. Those appointments are mainly located in the Warrnambool district. His ability to attend those appointments and consultations regularly, safely and reliably is ensured as far as practicable by the provision of the supports. The availability of the modified vehicle will enhance Mr Barling’s opportunity to travel to Melbourne for medical treatment and allied health assessment and therapy. Uncertainty about whether or not Mr Barling can commit to travelling to Melbourne annually is not an important factor. The preponderance of evidence suggests that it is in his best interest to do so and that he is resolute in his desire to participate in person in those assessments.
The use of the vehicle to visit family and friends will be occasional and it will assist to reduce Mr Barling’s social isolation. Simply going for a drive will be beneficial for him. Both Dr Duffy and Dr Clark considered that Mr Barling’s mental health is adversely affected by his confinement at home and they both consider that the provision of the vehicle will improve his mental health. It is not of much relevance to speculate whether the positive impacts may or may not be sustained. The Tribunal is satisfied that his social isolation is a factor in his depression which arises out of his disability. The requested supports are related to his disability. There was a suggestion that Mr Barling would still need a vehicle for purposes of study, recreation and socialising and as such use of a vehicle arises regardless of disability, there is a day to day living aspect in relation to the purchase and use of the vehicle, as opposed to the modification[103]. However, that proposition is not supported by the evidence about his disability support needs. The Tribunal does not accept the Agency’s pre-hearing contention that Mr Barling’s need for a motor vehicle is not solely attributable to his disability.
[103] Exhibit 4, para 21.
In the way in which the Agency developed its submissions at the commencement and during the hearing, the question about day-to-day living costs being attributable to Mr Barling’s disability support needs was not explored in further detail. In McKenzie and National Disability Insurance Agency[104] the Tribunal, comprising Senior Member (now Deputy President) Meagher drew the distinction between day-to-day living costs which are regular and ongoing outgoings contrasted with one-off or occasional costs. The Tribunal accepts that Mr Barling’s requested supports are in the nature of one-off capital expenditures rather than day to day living costs within the meaning of rule 5.1(d).
[104] [2019] AATA 3275, at [69].
The Agency’s Counsel commented that there are no reported cases where the Agency has accepted that it can fund the purchase of a vehicle and none in which the Tribunal has so directed.[105] That submission carries little weight. The legislation is complex and relatively new and it underwent a gradual launch across regions over several years. Its reach will be interpreted and understood in terms of its application to an emerging and infinite variety of unique and individual situations. At this stage there are but a few reported decisions on the particular topic which is the subject of this review. In evidence, Associate Professor Corben acknowledged that she was not aware of clients of the Friedreich Ataxia Clinic having received funding through the NDIS for the purchase of a vehicle. This point was raised by the Agency during the hearing and in closing submissions, perhaps inferentially against the background of pre-hearing issues relating to a summons which was issued on behalf of Mr Barling. The summons sought information about NDIS funding of vehicles for other participants in the Scheme. The Agency opposed production of the material and sought an order that the summons be set aside on the basis, initially, that the documents would be manifestly irrelevant to the review[106] and subsequently that the information and documents are protected under s 67G of the NDIS Act.[107] The Tribunal reserved ruling on this issue which was ultimately not pressed in closing submissions for Mr Barling because of the way in which the Agency formulated its position at the hearing. It is not now necessary to rule on the question of whether the summons should be answered in view of the fact that a ruling is no longer requested. While the Tribunal is inclined to the view that the requested information might have provided some illumination on the issue, the information cannot be forthcoming if the Agency’s contention about the protection afforded by s 67G is correct. However that proposition need not be determined on this occasion and could warrant testing on another occasion.
[105] Respondent's closing submissions, para 31.
[106] Exhibit 44.
[107] Exhibit 45.
The purchase of a vehicle for Mr Barling will enable him to be released from the confinement of his home and it will give him the means to travel locally and beyond. It will enable him to travel in a manner which will not impair his health. It will enable him to attend regular medical appointments and allied health appointments which are essential for the preservation of his physical health together with the enhancement of his mental health. Those appointments are numerous, consistent, and non-negotiable. The Tribunal does not accept the submission by Counsel for the Agency that the evidence was “somewhat mixed” as to the extent to which Mr Barling would access the modified vehicle.[108] Funding of a vehicle for Mr Barling is consistent with the objects, guiding principles and values in the NDIS legislation and it satisfies the statutory requirements and the rules. In particular it is consistent with or gives effect to the general principle set out in s 4(15) of the NDIS Act, which states “innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.”
[108] Ibid, para 46.
The Tribunal acknowledges that the Supports Guideline states that generally the purchase of a vehicle will not be funded by the Scheme. However, the purchase is not prohibited. The circumstances of this case are exceptional. There is overwhelming evidence from the medical health practitioners and allied health practitioners in support of Mr Barling’s need for a private motor vehicle with appropriate modifications. Mr Barling’s impairments and the impacts of those impairments are unique to him. The impacts are severe. The Tribunal is satisfied that Mr Barling’s case is of such significance that the purchase of a motor vehicle and modifications to it together provide specific, exceptional and compelling reasons for departure from the proposition that the purchase would generally not be funded by the Scheme. Counsel for the Agency also submitted that purchase of a vehicle was a matter for Mr Barling rather than a matter for the Scheme:
“As to whether the purchase of the vehicle is funded partially or fully through funds generated from the Applicant, community supports, family, friends, associates or a combination of these, is a matter for the Applicant.[109]
That suggestion has more resonance with a pre-NDIS era.
[109] Ibid, para 57.
The Tribunal considers that the requested transport supports are “other private transport options” within the meaning of rule 7.21(c) the Support Rules. The Tribunal is satisfied that the transport supports are most appropriately funded through the NDIS. The requirements of s 34(1)(f) are met.
FINDINGS
For the reasons which have been set out, the Tribunal finds that the provision of a new vehicle, namely a Volkswagen Caravelle at a cost of $58,990 is a reasonable and necessary support within the meaning of s 34(1) and related provisions of the NDIS Act. The Tribunal finds that the modification to the vehicle at a cost of $94,570 is a reasonable and necessary support within the meaning of s 34(1) and related provisions of the NDIS Act.
DECISION
The decision under review is varied as follows:
(i)Mr Barling is to receive funding to purchase a new Volkswagen Caravelle.
(ii)Mr Barling is to receive funding for the modification of the Volkswagen Caravelle for front passenger conversion for wheelchair accessibility.
I certify that the preceding 168 (one hundred and sixty eight) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
.............[Sgnd]......................
Legal Administrative AssistantDated: 24 November 2021
Annexure A – List of Exhibits
| Exhibit no. | Document |
| 1 | Applicant's Statement of Facts, Issues and Contentions, 23 July 2021. |
| 2 | Respondent's Statement of Facts, Issues and Contentions, 10 August 2021. |
| 3 | Applicant's Reply to the Respondent's Statement of Facts, Issues and Contentions, 23 August 2021. |
| 4 | Respondent's Supplementary Statement of Facts, Issues and Contentions, 24 August 2021. |
| 5 | Applicant's Statement of Issues, 26 August 2021. |
| 6 | Respondent’s Statement of Issues, 25 August 2021. |
| 7 | Witness outline of Gary Barling, 23 July 2021. |
| 8 | Witness outline of Michael Patrick Pickett, 23 July 2021. |
| 9 | Witness outline of Associate Professor Louise Corben, 23 July 2021. |
| 10 | Witness outline of Lauren Parkinson, 23 July 2021. |
| 11 | Letter from Associate Professor Louise Corben, 8 January 2021. |
| 12 | Letter from Dr Roger Peverill and Associate Professor Louise Corben, 7 February 2021. |
| 13 | Letter from Dr Jonathon Duffy, 9 February 2021. |
| 14 | Letter from Dr John Clarke, 4 March 2021. |
| 15 | Letter from Dr Roger Peverill, 6 April 2021. |
| 16 | Further letter from Associate Professor Louise Corben, 14 July 2021. |
| 17 | Letter from Lauren Parkinson, 14 July 2021. |
| 18 | Briefing letter from Thomson Geer to Dr John Clarke, 17 August 2021. |
| 19 | Briefing letter from Thomson Geer to Dr Roger Peverill, 17 August 2021. |
| 20 | Briefing letter from Thomson Geer to Associate Professor Louise Corben, 17 August 2021. |
| 21 | Briefing letter from Thomson Geer to Lauren Parkinson, 17 August 2021. |
| 22 | Report from Dr John Clarke, 17 August 2021. |
| 23 | Report from Dr Roger Peverill, 18 August 2021. |
| 24 | Report from Associate Professor Louise Corben, 19 August 2021. |
| 25 | Report from Lauren Parkinson, 20 August 2021. |
| 26 | Automobility quote for front passenger conversion to Volkswagen Caravelle, 8 July 2021. |
| 27 | Letter from Jared Foster, Automobility, 14 July 2021. |
| 28 | Applicant's forecast of transport costs to attend medical appointments, 26 July 2021. |
| 29 | Briefing letter from Mills Oakley to Phi-Van Houston, 27 April 2021. |
| 30 | Briefing letter from Mills Oakley to Dr Garry Helprin, 27 April 2021. |
| 31 | Report from Dr Garry Helprin, 17 May 2021. |
| 32 | Supplementary briefing email from Mills Oakley to Phi-Van Houston, 4 June 2021. |
| 33 | Report from Phi-Van Houston, 4 June 2021. |
| 42 | Summons to produce documents, 28 July 2021. |
| 43 | Applicant's submissions on summons, 2 August 2021. |
| 44 | Respondent’s submissions on summons, 2 August 2021. |
| 45 | Respondent's further submissions on summons, 9 August 2021. |
| 46 | Applicant's further submissions on summons, 11 August 2021. |
| 47 | Respondent's second further submissions on summons, 16 August 2021. |
| 51 | National Disability Insurance Scheme Act 2013 (Cth). |
| 52 | National Disability Insurance Scheme (Support for Participants) Rules 2013 (Cth). |
| 53 | NDIS Operational Guideline, 'Including Specific Types of Supports in Plans – Vehicle Modifications'. |
| 54 | NDIS Operational Guideline, Planning Operational Guideline –Appendix 1. |
| 55 | Administrative Appeals Tribunal Act 1975 (Cth). |
| 56 | Section 37 T-Documents. |
10
0