David and National Disability Insurance Agency
[2018] AATA 2709
•8 August 2018
David and National Disability Insurance Agency [2018] AATA 2709 (8 August 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/4858
Re:LUKE DAVID
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:SENIOR MEMBER R CAMERON
Date:8 August 2018
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides:
(a)That taxi fares for the trips described in the table in paragraph 16 of these reasons are reasonable and necessary supports to be funded under the NDIS; and
(b)That the participation fee and airplane tickets for a carer to attend interstate sports events with the Applicant twice a year are reasonable and necessary supports that are to be funded under the NDIS.
................[sgd]........................................................
SENIOR MEMBER R CAMERON
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – applicant with Nemaline Myopathy – whether cost of transport reasonable and necessary support – object of NDIS – cost of airplane tickets for carer to attend sporting events – cost of taxis to visit friends and family
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FACFC 132
RePerosh and National Disability Insurance Agency [2018] AATA 980
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
SENIOR MEMBER R CAMERON
8 August 2018
INTRODUCTION
This is an application by Luke David for a review of a decision made on 18 July 2017, following an internal review by a delegate of the Chief Executive Officer of the Respondent not to include further funding in his then applicable National Disability Insurance Scheme (“NDIS”) plan for gymnasium membership[1], support worker accommodation and flight costs, Victorian Electric Wheelchair Sports Association membership fees and interstate participation fees. (“the reviewable decision”)
[1] The issue of gymnasium membership was not ultimately canvassed during the hearing and the Applicant in his Synopsis of Final Contentions did not pursue this part of the matter. He only pursued two categories of claim: The taxi fares and participation fee and airplane tickets for a carer to attend interstate sports events. See Part B of the Applicant’s Synopsis of Final Contentions at paragraph 3. The Respondent’s Synopsis proceeded on the same footing.
THE EVIDENCE AND MATERIALS BEFORE THE TRIBUNAL
There was both documentary and viva voce evidence before the Tribunal at the hearing of this matter.
The evidence adduced was as follows:
(a)The Applicant by witness statement and in the witness box;
(b)The Applicant’s mother by witness statement and in the witness box;
(c)Reece Miller by witness statement and in the witness box;
(d)Wendy Chandler, occupational therapist, with a report dated 16 April 2018 and in the witness box;
(e)Melanie Holmes, occupational therapist, with a report and in the witness box;
(f)The T documents;
(g)The Supplementary T documents; and
(h)A further bundle of documents consisting of the Applicant’s estimated taxi costs, Applicant’s estimated travel costs by taxi versus LINK, Qantas Disability Access Facilitation Plan, Yooralla’s Ventilator Accommodation Support Service, Australian Ventilator User Network, “Ventilator Manuals and Mask Information”, Whittlesea City Council Community and Medical Transport.
Each party also submitted to the Tribunal Statements of Facts, Issues and Contentions and a Synopsis of Final Contentions.
SOME RELEVANT FACTS CONCERNING THE APPLICANT
The Applicant’s NDIS plan was made under the provisions of the National Disability Insurance Scheme Act 2013 (“the Act”).
Mr David was born on 23 February 1992. He suffers from a condition known as Nemaline Myopathy. This condition is a disorder of the muscle which leads to severe muscle weakness and respiratory failure. Consequently, he requires the use of a ventilator 24 hours a day. The condition is described as a severe and progressive disorder which is lifelong in nature.[2] He is wheelchair-bound and dependent on others to provide him with all necessary care for his needs. Currently, he lives in the family home with his mother.
[2] Medical opinions concerning his condition were provided to the Tribunal and in evidence from Associate Professor Andrew Kornberg, a Consultant Neurologist at St Vincent's Hospital Melbourne, (document T 11 of the T documents), Dr Gayathiri Wang of the Respiratory and Sleep Medicine section of the Austin Hospital, (document T 9 of the T documents) and Dr Claire Kembry (an attachment to the Applicant’s witness statement).
The effects of this condition are such that the Applicant requires assistance with dressing, showering and toileting. When showering he is required to shower with his ventilator functioning and is only able to remove the ventilator facemask for very short periods during the shower or when shaving or otherwise cleaning such equipment. He cannot cook or prepare food for himself.
Another issue that arises from his condition is what has been described in some of the material as “thermoregulatory difficulties.” This is sometimes described as “temperature control” in the material and is particularly difficult for him during the colder months. Even in the warmer months, he is prone to feeling cold and it requires him to wear reasonably warm clothing at all times but in particular when he travels outdoors.[3] The effects of coldness become more pronounced if he has to wait for extended periods for whatever reason. Similarly, extreme heat is also a problem for the Applicant and he is more susceptible to heatstroke than a normal person on days of high temperature.
[3] The Applicant even gave evidence that temperatures below 24° can still cause him to become quite cold. Some of the measures that he has to take to keep warm include wearing thermal pants, two pairs of socks, carrying heavy bags and on really cold days putting more clothes on. When it is really cold he has no option but to remain indoors.
It is fair to say from the evidence that maintaining a consistent body temperature in a variety of settings for the Applicant is a constant challenge. His torso is considerably deformed[4] and weak by reason of the illness, such that it requires mechanical support for him to sit upright, usually with assistance of weight bearing through his right arm. This has the unfortunate side-effect of impairing the use of his right hand somewhat.
[4] His wheelchair has a customised seat mould to provide optimal support, comfort, respiratory function and pressure care, for his torso and compromised respiratory function.
At the outset, the Tribunal wishes to record how impressive Mr David was as a witness. He presented as a fine young man who was doing his absolute best to make the most of his life notwithstanding the difficult circumstances that confront him. His upbeat and positive attitude conveyed to the Tribunal what an outstanding role model he is, for not only people with disabilities and young people but everyone. The Tribunal does not hesitate to accept his evidence in its entirety.
Similarly, the Tribunal also wishes to record that Mr David’s mother gave evidence and she was likewise an impressive witness. She maintained a dignity in the witness box that could not have left a right-minded observer unaffected. That she was able to maintain such a dignity in the face of the challenges that she has endured both in her own personal life and in raising the Applicant was a credit to her. Her complete concerns were for the welfare and advancement of her son in every respect. The Tribunal accepts her evidence entirely.
THE APPLICANT’S NDIS PLANS
The Applicant became a participant under the NDIS when his first NDIS plan was approved on 7 September 2016.[5] A further NDIS plan was approved on 23 December 2016.[6] A plan cannot be varied but can be replaced due to the requirements of sections 37(2) and (3) of the Act. By reason of the reviewable decision being made on 18 July 2017 a further NDIS plan for the Applicant was approved on 19 July 2017.[7] (“the July 2017 plan”)
[5] Document T 16 of the T documents.
[6] Document T 17 of the T documents.
[7] Document T 18 of the T documents.
Whilst the July 2017 plan is in evidence before the Tribunal, it is useful to reiterate its essential elements. The first relevant part of the July 2017 plan is “Part 2: My goals”. The Applicant’s “First Goal” is to significantly increase his independence and preparation to move out of home. His “Second Goal” is to pursue a career in sports management, play competitive sport and be an active community member. Under the heading “My longer term goals and aspirations” the Applicant stated he wishes to maintain his mobility, limb function and access the equipment he needs to be independent. Secondly, he wishes to gain paid employment in sports management. Thirdly, he wishes to move out of home and live independently.
“Part 3: My supports” identifies firstly, family and friends, informal support services and community groups. Under the sub-heading of this part “My informal supports”, the Applicant’s mother’s role in providing the Applicant support on a daily basis is recorded including her provision of assistance with personal care, meals, laundry and cleaning, transport and assistance to access learning, social and recreational activities. The important goal held by the Applicant of wishing to be more independent of his family is also noted along with the desire for the Applicant’s mother to be able to continue in employment and pursue her own interests.
The July 2017 plan then proceeds to provide a comparatively detailed budget for what are described as “NDIS reasonable and necessary supports budgets”. A series of specific budget items and monetary allowances for each such item are identified in a table contained in this part. They are assistive technology ($867.85), improved daily living
($4,595.86), increased social and community participation ($17,852.52), support coordination ($7,524.80) and transport ($6,000.00). Finally, there is an item “Core supports” for $76,553.26. Core supports are described as being used to assist with daily activities and community participation. They are said to enable maximum independence in personal activities of daily living and can be provided in a range of environments, including but not limited to, the home. It is also said to include support to explore and participate in community-based activities of interest and to develop, build and maintain friendships.A later part of the July 2017 plan provides an explanation of the “Core budget” under the heading “Managing your NDIS funding package.” In this section it is stated that the Core budget is the most flexible, and includes four categories of support. The first category is Consumables, the second category is Daily Activities, the third category is Assistance with Social and Community Participation (examples were supports to enable the participant to engage in social or recreational activities) and finally, with much relevance to this application, Transport (an example was given if the participant was unable to use public transport because of his or her disability.)
THE POSITION OF THE PARTIES
The Applicant seeks to vary the reviewable decision by seeking a ruling that:
(a)Taxi fares for trips to work for two days per week, sports matches in Croydon once a month, Victorian Electric Wheelchair Sports Association (“VEWSA”) meetings, visits to his father in Sunbury, sports training in Nunawading, visiting friends and hospital appointments and volunteer events are a reasonable and necessary support that is to be fully funded under the NDIS; and
(b)The participation fee and airplane tickets for a carer to attend interstate sports events three times a year are reasonable and necessary supports that are to be fully funded under the NDIS.
It is perhaps useful to provide an analysis of the funding that the Applicant seeks for taxi fares with respect to the first limb of his application:
Activity
Trips per year
Cost per return trip
Annually
Work 2 days per week
· Based on 5 months work per year
40
$80.00
$3,200.00
Sports matches in Croydon once a month
· Based on 11 months per year
11
$80.00
$880.00
VEWSA meetings
10
$90.00
$900.00
Visiting father in Sunbury approximately once a month
10
$110.00
$1,100.00
Sports training in Nunawading or visiting friends approximately once a week
48
$80.00
$3,840.00
Hospital appointments and volunteer events approximately once per week
40
$60.00
$2,400.00
Total
159
$12,320.00
The position of the Respondent is to concede that the Tribunal should vary the decision of its delegate by increasing the Applicant’s core supports by $1,000.00 per year to facilitate participation in interstate competitions. It otherwise opposes every other aspect of the application.
THE NDIS REGULATORY SCHEME
It is useful to articulate some of the elements of the NDIS Regulatory Scheme. This includes applicable sections of the Act together with the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (“the Rules”) which are also applicable to the assessment and determination of the reasonable and necessary supports and the general supports provided for participants under the NDIS.
The Act
Sections 3 and 4 articulate the objects of the Act and the general principles guiding actions under the Act:
3 Objects of Act
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
…
(i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).
…
(3) In giving effect to the objects of the Act, regard is to be had to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme;
4 General principles guiding actions under this Act
...
(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.
...
(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.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
...
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard 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.
Section 34(1) of the Act specifies the criteria that must be satisfied for the funding of reasonable and necessary supports:[8]
[8] Although the term ‘reasonable and necessary supports’ is referred to throughout the regulatory scheme, as observed by Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [41] it is not defined but its meaning can be construed from the context in which it is used, especially by reference to section 4(11) of the Act which specifies what reasonable and necessary supports should enable persons with a disability to achieve.
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
The Rules
Additionally, the Rules provide guidance in several respects concerning the matters that a decision-maker must take into account in determining an application such as this one. Under section 209 of the Act, the Rules prescribe matters necessary or convenient to be prescribed in order to carry out or give effect to the Act and therefore form part of the NDIS regulatory regime. The relevant portions of the Rules will not be reproduced in full. However, several of the Rules are applicable as follows. Part 2 “Outline of these Rules”, “Introduction to supports for participants”, Part 3 “Assessing proposed supports”, “Value for money”, “Effective and beneficial and current good practice” and “Reasonable family, carer and other support” and Part 5 “General criteria for supports, and supports that will not be funded or provided”, “General criteria for supports”.
THE APPROACH TO ADOPT WHEN APPLYING THE REGULATORY REGIME TO DETERMINE WHETHER THE COSTS OF TRANSPORT IN A PARTICIPANT’S PLAN ARE REASONABLE AND NECESSARY SUPPORTS UNDER THE NDIS
In McGarrigle v National Disability Insurance Agency[9], Mortimer J held that in the matter before her the NDIA was required to pay for the full costs of transportation as set out in the participant’s plan.
[9] [2017] FCA 308.
As I comprehend the judgment of Mortimer J, Her Honour came to the view that once an item like transport was found to be a reasonable and necessary support in a participant’s plan, the NDIA was liable to pay for the full cost of the item.
At paragraphs [93]-[95] of her judgment, Mortimer J stated as follows:
93. In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
The scheme contemplates full funding of reasonable and necessary supports
94. Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
95. The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded. There are no references in these provisions to “contributions” from the participant, the participants’ family or carers. I have explained, in my opinion, how s 34(1)(e) is intended to operate: that is, it is intended to operate at the stage of the CEO (or the delegate or Tribunal) forming a state of satisfaction about what are “reasonable and necessary supports”. It is not intended to ask the decision-maker to assess whether any of the persons in para (e) are capable, or willing, to make a financial contribution towards the proposed support. That is made especially clear by the inclusion in the list in para (e) of the “the community”. Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan.The NDIA appealed Mortimer J’s decision to the Full Court of the Federal Court of Australia. In National Disability Insurance Agency v McGarrigle[10], Kenny, Robertson and Kerr JJ dismissed the appeal. The Full Court in brief reasons stated as follows:
5. To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded. We express no view on this issue. Its resolution will turn on the Tribunal’s assessment of the evidence and materials before it.
[10] [2017] FCAFC 132.
Ultimately therefore, in considering these materials with respect to each claim for support which the Tribunal is requested to adjudicate on, it is necessary to identify the support and determine whether it has the character of being a reasonable and necessary support or it does not. This can only be determined by an analysis of the evidence before the Tribunal. In terms of what is necessary this requires an evaluation of the considerations identified in sections 34(1)(a), (b) and (d) of the Act. To determine what is reasonable attention has to be devoted to the factors such as those identified in sections 34(1)(c) and (f) of the Act.[11]
[11] See Mortimer J in McGarrigle at paragraph [91].
TAXI FARES
In relation to this quotient of the claim, the Tribunal has considered evidence given by the Applicant, his mother, the medical practitioners and the two occupational therapists whose reports were tendered (and who also gave viva voce evidence) concerning the Applicant’s condition and its effect on his capacity to travel by various means including public transport. Additionally, the Tribunal has taken into consideration the practicalities facing the Applicant in terms of his transport needs such as proximity to public transport, other transport options such as LINK Community Transport (“LINK”)[12] and the use of a van owned by his mother, that has been adapted to some extent to accommodate his needs.
[12] A quote from LINK dated 18 April 2018 was in evidence, the contents of which are referred to in full. It provided a quote for "Annual transport cost" for the Applicant of $25,004.00.
The matters recorded in paragraphs [6] – [8] above concerning the effects of the Applicant’s condition upon him are referred to and repeated.
As noted earlier, he requires the continuous assistance of a ventilator to enable him to breathe. The evidence is that he has three ventilators.[13] He has a “primary ventilator” which he uses during the daytime and is mounted on his wheelchair in a specially designed carrying bag. It is described as an Astral 100 which is a life-support machine issued to people such as the Applicant who require constant, reliable ventilation. Additionally, he has two other ventilators which are reserved for an emergency at home and one which is a backup ventilator for his wheelchair.
[13] The contents of Melanie Holmes’ report under the heading "Mr. David’s Ventilators" are referred to in full.
Some observations should be made about the evidence given by both occupational therapists, Wendy Chandler and Melanie Holmes, concerning some aspects of ventilator function. The Tribunal considers that essentially both occupational therapists’ evidence concerning these matters were largely the same. It should also be noted that both occupational therapists have had considerable level of contact with the Applicant over several years. Ms Holmes has had contact with the Applicant and his mother through the Victorian Respiratory Support Service (“VRSS”). Ms Chandler has worked with the Applicant since February 2017. The Tribunal has no doubt in accepting that both occupational therapists gave evidence with the Applicant’s best interests in mind.
Both occupational therapists gave evidence that if the Applicant travelled on public transport, particularly on a train during more crowded times, there were significant risks to him. The level of the risk assessed by both of them was largely similar. In substance their evidence was that the risk posed was from disconnection of any part of the ventilator or a ventilator malfunction. Both agree that in the event of a disconnection of the ventilator or a ventilator malfunction there is a critical window of time within which to either reconnect the ventilator or switch to the backup ventilator.
In this setting there are several points that emerge from the evidence of the doctors, occupational therapists, the Applicant and his mother.
Should the ventilator fail for even a few minutes the Applicant would require urgent treatment to prevent a respiratory arrest and if the ventilator was not reconnected shortly thereafter death would follow.[14]
[14] Indeed Melanie Holmes stated at paragraph 6 on page 3 of her report that all of the Applicant's ventilators may fail at any given time and the results would be catastrophic. She also opined that this is the reason why he must have a backup unit with him at all times and needs someone to access it. She described the failure as "an ever present risk".
The malfunctions and failures of ventilators are not predictable and the rate of failure is unknown.
The rubber end of the ventilator’s hose attaches to the plastic outlet pipe from the ventilator. If it is bumped hard or not securely fastened, it can be dislodged. There is a risk that the ventilator, including any part of its circuit and the hose, may disconnect. The causes of such a disconnection can be either accidental such as bumping by other people, contact by or with objects carried by pedestrians in closely confined areas such as sporting goods, baby carriages and so on, bumping by other train users or in the confines of a train carriage making contact with carriage fixtures, or malicious.
If the primary ventilator cannot be reconnected, the backup ventilator will have to be used. This involves removing the battery pack from the primary ventilator and attaching it to the backup ventilator and moving the breathing circuit onto the backup ventilator. As noted above, this must be done within minutes of the initial failure to avoid respiratory arrest and possible death.
There is the potential for either accidental or malicious disconnection of any part of the ventilator circuit. The risk of such an event occurring is reduced by the presence of carers, friends or family.
The rubber end of the hose attached to the plastic outlet pipe from the ventilator may fall off if bumped hard or if not put on properly. Detachment of the hose is more likely when the Applicant is in the community rather than in the home environment.
There is also the medical evidence which weighs in favour of taxis as opposed to public transport. Dr Wang, in a report of 24 January 2017,[15] stated that there are limitations on the Applicant’s access to public transport. Whilst the Applicant is able to access train services, the opinion was qualified by the fact that there are significant difficulties utilising trams and buses as there is a potential risk associated with his ventilator and ventilator disconnection in crowded transport.
[15] Document T 9 of the T documents.
Dr Kornberg echoed similar sentiments to Dr Wang and, in a report of 21 February 2017,[16] strongly supported the provision of increased funding for taxi services. Tellingly, he stated that without the ability to access taxi services the Applicant’s independence is severely affected. He opined that the Applicant needs a carer with him at all times if he is to travel by public transport. Additionally, he stated that because of the Applicant’s ventilator dependence, being on crowded public transport is a risk due to the fact that the ventilator may disconnect. He stated that from the viewpoint of his medical, social and independence issues, funding for taxis should be allowed.
[16] Document T 11 of the T documents.
The Tribunal also takes into account various difficulties that would be encountered by the Applicant in making a journey in his motorised wheelchair from the railway station to his home. The Tribunal is particularly concerned in circumstances where it is raining heavily or if there are roadworks, footpath works or some other public works being undertaken that block his path unexpectedly. There is also the issue of after-dark journeys and what may happen if there is a breakdown or some other obstacle that prevents him completing the journey. The risks to the Applicant’s personal safety cannot be underestimated in these circumstances.
Available public transport options for the Applicant are problematic. There is evidence from several sources that the nearest train station, Keon Park, is approximately 4 km from the Applicant’s home. The nearest accessible tram stop is approximately 3 km from his home. This poses the question of how the Applicant in his condition is to travel between his home to the railway station or the tram stop. The Tribunal finds that it is not a realistic option for the Applicant to make that portion of the journey by navigating his motorised wheelchair.
There was evidence from the Applicant and his mother about the occasions where the Applicant has taken public transport unassisted. He gave evidence that it was a handful of times, approximately five to his recollection. On one occasion, he attended the casino to meet friends and did not return until approximately 1.00am, having to navigate his wheelchair late at night from Keon Park railway station to his home.[17]
[17] The Applicant stated that he visits his friends at the Casino because it has a sports bar which is well equipped with a lot of room that is more accommodating for his wheelchair. He also expressed that he enjoys the social atmosphere that occurs at the Casino sports bar when he is there with his friends.
Naturally, as one can appreciate, this was of significant concern to his mother. As both the Applicant and his mother gave evidence, these excursions by the Applicant via public transport on his own were an attempt by the Applicant to assert his independence.[18] His mother made the valid comment that in addition to the concerns about the operation of his ventilators and the temperature, there were the frequent lengthy periods waiting at train stops where he could get cold. There are also the practicalities of public transport such as dealing with frequent overcrowding[19], the need to stand at the driver’s end of the platform and to find the lift for passengers with a disability.
[18] The Applicant also contended that some of those trips were also undertaken by him because he didn't have enough funding to pay for a taxi back home after he received his first NDIS plan in 2016. It was in essence a funds preservation measure as much as an expression of his independence. It is understandable to the Tribunal that in the circumstances this was also a relevant consideration on the part of the Applicant.
[19] Not to mention public transport reliability, or perhaps lack thereof from time to time. His mother in her evidence made the observation that when her son uses public transport or has used it in the past she is concerned about it not being available late at night, which the Tribunal accepts is a valid consideration.
Additionally, the Applicant has no room to manoeuvre if there is another person with a scooter or wheelchair either at the driver’s end of the platform or in the disabled section of the front carriage of the train. This occurrence heightens the risk of the ventilator being disconnected or otherwise damaged and/or interfered with.
Tellingly, the Applicant’s mother gave evidence that she observed one of the best things that help the Applicant achieve the maximum level of independence was his ability to use taxis. The Tribunal accepts this evidence.
The Respondent has contended that the Applicant can use public transport independently with some limitations. Whilst there is evidence that he has done so in the past, such as the visit to the casino referred to above, the Tribunal considers the preponderance of the evidence weighs against this conclusion. The risks identified, although they may be at the lower end of probability in terms of their occurrence, do nonetheless have potentially catastrophic consequences up to and including death if they occur. Overall this is not a risk that the Applicant should be required to take.
In this setting, if the section 34(1) criteria are applied, the provision of taxis to the Applicant as sought is a reasonable and necessary support. In applying each of the section 34(1) criteria, it is useful to also recall the objects of the Act articulated in section 3. Amongst those objects is the desire to support the independence and social and economic participation of people with a disability. The provision of this support gives the Applicant the ability to exercise choice and control in the pursuit of his goals. As will be apparent from the consideration of the section 34(1) criteria below, the amount sought by the Applicant for taxis is a reasonable and necessary support, consistent with those objects contained in the Act for a person suffering from a disability such as that of the Applicant who is on any objective assessment severely disabled.
In relation to section 34(1)(a), the Applicant’s statement of goals and aspirations in his most recent NDIS plan emphasises his desire to increase independence and preparation to move out of home. His other goals as noted before are to pursue a career, play competitive sport and be an active community member. The evidence of his mother that taxis enabled him to increase his independence is accepted by the Tribunal. As the Applicant contends, it means he can travel without relying upon a carer, his mother or other informal supports.
To this extent, the Tribunal notes that the Applicant’s mother has been separated from his father for many years[20] and has largely shouldered the burden of caring for the Applicant. Her commitment and devotion to her son in every way is simply exemplary. The Applicant is mindful of the burden that his mother has had to share. As part of his desire to be more independent, he is also aware of the respite that this form of independence would give her.[21] It would also relieve his mother somewhat of the stress and worry that she, as any mother, would have when her son is travelling on public transport in the circumstances that he has.
[20] She gave evidence that this was approximately 10 years.
[21] He also gave evidence which his mother accepted that if he were to have some greater level of independence it would enable her to continue working as a Customer Service Officer for VicRoads. She expressed a desire to continue working for some years to come. It was apparent that the devotion that she has given to her son has severely restricted her capacity to pursue her own career and make a living which therefore, has not made day-to-day life any easier in a financial sense.
The Tribunal also accepts that taxis would enable the Applicant to pursue his career plans, both in terms of working and pursuing a career in sports management. The flexibility that access to taxis would give him will make it easier for him to find employment and also discharge his duties as an employee in the best possible manner. It would also assist him to achieve his other goals by playing competitive sport and being a more active community member, of which there had been some considerable evidence.
This was particularly in the context of the Applicant’s role as President of VEWSA. That someone suffering from such a disability as the Applicant is so heavily involved in and presiding over such an organisation is exemplary. It is also probably appropriate at this juncture to note that there is evidence before the Tribunal that the Applicant is also the Acting National Director of the National Electric Wheelchair Sports. This is evidenced in a letter from Charlotte Sangster, the General Manager of Muscular Dystrophy NSW of 5 March 2018 which is in evidence. In the course of that letter she observes with respect to the Applicant that: "Luke's role in the association is vital to ensure that it is able to continue." This evidence will also be canvassed later in these reasons with respect to the second limb of the Applicant's claim in which he seeks funding for the participation fee and airplane tickets so that a carer may accompany him to interstate sporting tournaments several times a year. It should be encouraged and supported.
The Tribunal considers that having the capacity to take taxis to such meetings is reasonable and necessary. Those meetings are in Glen Waverley. To travel to such meetings by public transport or a combination of public transport and taxi is unrealistic. The journey involves travelling the 4 km between his house and the Keon Park railway station, then catching a train to the city, changing trains to Glen Waverley and then probably having to take a taxi to the Glen Waverley venue where the meeting is held. It would take approximately four hours.
The Respondent contended that there was no explanation given as to why the VEWSA meetings were held in Glen Waverley. Further, it was submitted that they could be conducted by telephone or Skype. The Tribunal does not accept this contention. The Applicant presides over the organisation. Presumably, it holds meetings at that location for good reasons. The Tribunal does not need to explore the reason why an independent organisation holds its meetings as it does. Most critically, in the context of section 34(1)(a) considerations, the Tribunal considers the provision of taxi fare reasonable and necessary because of its obvious contribution to facilitating the Applicant’s goals of pursuing a career in sports management, continuing to play competitive sport and being an active community member.
These considerations also apply to the request for transport to Croydon for wheelchair sports once per month. The Applicant’s evidence about the sports that he had played was impressive. He stated he has played, amongst other things, hockey, soccer[22] and rugby. He also stated that he generally arrived earlier for sporting events because he is the President and wishes to greet players and other supporters upon their arrival. It is apparent to the Tribunal that the sporting events at Croydon are an important fulcrum in his life. Such events contribute to his goals to play competitive sport and be an active community member.
[22] There was evidence that he plays "Powerchair Soccer" and is captain of his team. He has competed at a national event in Sydney in this sport and secured selection to the "All Australian Team" to compete against New Zealand. It is again a reflection of his dedication and passion to sport not to mention yet again an example of his determination to do the best he can notwithstanding the severe disabilities from which he has to contend. Additional evidence was led that he has recently been snow skiing through the help of the charity known as "Disability Winter Sports" and last summer he went swimming for the first time.
There is an additional factor concerning the Applicant’s long-term goals and aspirations. His health and well-being would be well-served by continuing to participate in wheelchair sports which are a recognised pastime for wheelchair-bound members of the community suffering from a variety of disabilities. It is apparent from the evidence that the reduction in the request made by the Applicant reflects a contribution made by other sources of transport, particularly using the van owned by his mother and driven by her, his girlfriend or a carer. The Tribunal finds the request in the circumstances is reasonable and necessary.
The Respondent also contended that the claim for taxis for attending work is not in effect reasonable because he could undertake some, if not all of the work which he would otherwise perform in the office, from home or possibly over the telephone from home. When suggestions to this effect were put to the Applicant in cross-examination, he stated he did not believe it was possible to do this work over the telephone because it was too complicated. The Tribunal accepts this evidence from the Applicant. Also, there is no evidence as to whether his employer would be prepared to permit this to occur. It does not seem unreasonable to suggest that most employers would require their employees to work from their business premises.
In any event the Tribunal finds that the Applicant’s claim is not unreasonable. In terms of the Applicant’s goals and aspirations, to be able to work in the city surely must increase his independence and assist with his pursuit of a career. These pursuits make much sense and on any objective assessment surely should be encouraged.
There is also a claim for transport to visit the Applicant’s father in Sunbury. The Respondent contended that the Applicant has the capacity to undertake at least some of the journeys by public transport. The Tribunal has considered earlier in these reasons why travel by public transport is not a realistic option. They are referred to and repeated and of course relied upon to reject the Respondent’s contentions concerning this matter.
The Applicant also contended (which the Tribunal accepts) that a practical difficulty of visiting his father by public transport was that there is no direct connection. It would require him to travel to the city from Bundoora and then take a connecting service to Sunbury. Upon arrival at the Sunbury railway station there is no public transport connection, or option available to the Applicant which enables him to travel to his father’s residence. It was also contended that very few taxis would be prepared to make a short trip for such a small fare and he could be stranded at the Sunbury railway station by reason of this fact.
The Applicant’s mother gave evidence that her former husband does not attend at her home and that she does not feel comfortable with him doing so because it is awkward. She also stated that sometimes the Applicant meets his father at one of his siblings’ homes. Presumably, this will continue. It is important for the Applicant to maintain contact with his father as best as it can be achieved. However, in all the circumstances, the Tribunal considers that it is reasonable and necessary for the Applicant to maintain contact with his father and that funding for 10 trips per year is appropriate, reasonable and necessary support.
The Applicant also made a claim for the costs of taxis to sports training in Nunawading or visiting friends approximately once a week. He attends sports training once a fortnight. The Respondent concedes that because he is required to bring his sports wheelchair to training he should not use public transport for the journey. In any event, the considerations articulated earlier in these reasons as to why public transport is not a realistic option for the Applicant are referred to again and repeated.
The Applicant stated that his biggest passion in life is sport. This was also evident to the Tribunal from his involvement at a significant level in several sporting ventures and organisations. Sport also features in his statement of goals and aspirations in his NDIS plan. This includes playing sport and pursuing a career in sports management.
In the context of both the objects of the Act and the section 34 criteria, funding for taxis as sought will assist the Applicant pursue those goals, objectives and aspirations. Additionally, it will assist the Applicant undertake his sporting pursuits so as to facilitate his social and economic participation. It does not seem an unreasonable cost in terms of value for money and has certainly taken into account the contribution from his family, carers and other informal networks towards this pursuit.
The contention that a support worker might drive him to these events also faces the hurdle that has been repeated throughout these reasons. The support worker is only required for the purpose of undertaking the journey and presumably would have to remain at the venue until the Applicant was ready to complete the return journey. Furthermore, there would be a significant cost to the Applicant of paying the carer for what might be described as “downtime”, whilst that carer remains at the venue during the Applicant’s participation in the sporting activity concerned. In terms of applying all the relevant section 34 criteria, the Tribunal finds this is not a realistic proposition in the circumstances.
Similarly, with respect to the portion of the request for transport to visit friends the contents of the Applicant’s NDIS plan are again referred to. The Applicant gave evidence that his friends live in suburbs scattered throughout the Melbourne metropolitan area including Sunbury, Narre Warren and Airport West. He further stated that he and his friends engage in a variety of activities due to the fact that they have similar hobbies and are inclined to attend movies, sports bars and often visit the city. The social interaction with his friends is also an important part of his life. In terms of the Act’s objectives, such friendships are critical to his pursuit of the relevant goals, objectives and aspirations he holds and also facilitate his participation in society to the maximum possible extent. In the support area defined as “Core supports” of the plan, one of the objectives identified is for the Applicant to “develop, build and maintain friendships”. This is a commendable objective and should be encouraged.
The Tribunal observes that the severity of the Applicant’s disability should be sympathetically considered. In this light, funding taxis for him to the limited extent that he seeks to visit friends, would not only assist him in achieving the objectives in his plan but also add purpose and satisfaction to his life which, given the hurdles he has had to face, has been extremely difficult. This element of the claim by the Applicant for taxi fares is in the circumstances considered to be reasonable and necessary support within the criteria prescribed by section 34.
The Respondent tackled this limb of the claim by asserting that the Applicant seeks transport to the city. This is contended because the amount per trip sought is the same as a city trip (see paragraph 45 of the Respondent's closing synopsis). The Tribunal cannot accept this contention as it was never asserted by the Applicant. The amount per trip sought appears to be a genuine estimate of what a taxi fare would be for each of these visits.
The Respondent also resisted the claim on the grounds that the Applicant could interact with his friends by means of telephone, email or Skype. The Tribunal rejects this contention. It is unfair to expect a young person in the position of the Applicant to confine his interaction with friends by these mediums. Additionally, given the objectives of the Act and the practical benefits to the Applicant arising from face-to-face interaction (including the promotion of the Applicant's desire to increase his independence and make friends which are both goals and aspirations referred to in his NDIS plan), this contention cannot be accepted. There was also a contention that visits to friends could be undertaken by public transport. For the reasons articulated elsewhere in these reasons, this contention is not accepted.
In terms of the section 34(1)(b) considerations, the Tribunal largely repeats the matters referred to above. Access to taxis would assist the Applicant in undertaking activities that facilitate his social and economic participation. His work, sporting events and his role at VEWSA, given his significant disability, are significantly enabled if he has access to taxis as a means of transport. His ability to participate in such activities is very dependent upon access to a reliable level of transport. It also obviates the need for a carer or some other family member or friend whose assistance has to be arranged on a trip by trip or some other basis.
There is also a claim for transport to hospital appointments and volunteer events. These claims are for 40 trips per year, predicated on approximately one trip per week. It is resisted by the Respondent because it was suggested that there was no clear evidence as to what the Applicant’s hospital appointments were. The Respondent conceded that the Applicant gave evidence of requirements to attend hospital events frequently. His evidence on this limb of his claim is accepted in its entirety.
Alternatively, the Respondent contended that the Applicant could use his core funding of $75,553.26 “flexibly” to allocate it to transport directed to these pursuits.[23] He obviously will have the necessity to regularly attend at the Austin and St Vincent’s Hospitals. Contrary to the contentions of the Respondent it cannot always be assumed that he will be accompanied by a support worker. Concerning the other limb of this portion of the claim by the Applicant, it has been repeated throughout these reasons that one of the Applicant’s aspirations has been to foster his connections with his friends and be an active community member, (which fall within the categories of pursuing his goals, objectives and aspirations together with facilitating his economic and social participation in the sections 34(1)(a) and (b) sense). To require him to have recourse to the funding allocated for core supports to undertake these journeys would lead to an erosion of such funding that are vital for “daily personal care needs higher intensity” (amongst others)[24] that his disability requires. He gave evidence that under the existing plan the limited contribution to his transport requirements leaves him with a significant shortfall causing him significant disadvantage.[25] The Tribunal finds that this portion of the claim is therefore, reasonable and necessary to assist him to do this. The number of trips sought is limited and probably in the scheme of things fall within the ‘value for money’ consideration of the section 34(1)(c) criteria and also effective and beneficial as required by section 34(1)(d). Given his medical condition frequent visits to various doctors and allied health practitioners, this limb of the claim does not seem unreasonable.
[23] It should also be recorded that the budget for transport in the plan was $3,456. This is in the scheme of things considered by the Tribunal to be a comparatively small allowance for someone with the disabilities of the Applicant.
[24] The details of the “Core supports” provided for in the relevant plan (page 69 of the T documents) are referred to for their full force and effect. They are properly record the fact that the requirements for his day and night time care are intense.
[25] This evidence was also confirmed by his mother who stated that she was concerned that and it frequently is an issue, that the Applicant uses too much of his funding for transport and doesn't have enough money left for his recurring intense daily personal care needs. The Applicant also gave evidence along these lines. This is a contention that the Tribunal accepts. It should also be recalled that the budget for "Transport" was $3456 per year. This was funding towards any transport related costs the Applicant incurred during the plan period.
Furthermore, this support does seem necessary within the relevant parameters of the section 34 criteria. There was evidence to some limited extent of the Applicant’s involvement with a Disability Sports and Recreation event in Fitzroy which he attended in his capacity as president of VEWSA. This is further amplification of him pursuing his goals and aspirations as contained in his NDIS plan. Overall, this claim constitutes reasonable and necessary supports and therefore, the Tribunal finds it should be allowed.
Section 34(1)(c) requires the support to represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports. As the Applicant has contended, he does not seek funding for taxi fares for all his transport needs. He already relies on his mother, girlfriend and carers to drive or assist him for a significant portion of his travel. The funding he seeks for taxi fares would be used in circumstances where it would not be reasonable and necessary to rely on others. The Tribunal finds that taxis represent better value for money than other options.
The matters raised previously about the risks of travelling on public transport are referred to and repeated. There is also the additional cost of a carer; which more likely than not would exceed taxi fares. Additionally, there would be the additional cost to the community of consequent ambulance attendance and any necessary medical and/or hospital treatment if the Applicant were to suffer some form of event or ventilator malfunction whilst on public transport.
As noted earlier, in several of the pursuits for which taxi fares are sought, if the Applicant were to take public transport, in any event he would need to obtain a taxi to complete the journey. There is also the question of whether or not a carer should accompany the Applicant during the public transport phase of the journey. Further complications arise concerning whether the carer remain at the location of the meeting and wait for the Applicant until the meeting finishes or whether the carer would leave the Applicant there and return. In the former case, the carer would need to be paid for the time in between and this would result in increased cost to the Applicant. In the latter case, the Applicant would have to be by himself on the return journey. Both alternatives are impractical and do not represent good value for money.
The Respondent referred to LINK community transport as a better transport option for the Applicant. As the Applicant contends, the difference in actual cost per day between the use of LINK and taxis is quite minimal.
Another matter that emerges from the material is that the amount claimed by the Applicant for taxis for the purposes articulated in the Table above is $12,320.00. The LINK quote is for a total of $25,004.00; admittedly, this quote is for more trips. However, the Applicant has, to his credit, made the claim after having considered the alternative LINK option. Putting aside any other considerations, what he seeks in mathematical terms does represent better value for money relative to both the benefits achieved and the cost of alternative support.
The quote from LINK is subject to the proviso that it is for transport to pre-scheduled appointments and activities and does not include ad hoc transport. The Tribunal is mindful of the challenges that the Applicant’s disability poses for him, and the need to have the maximum level of flexibility in terms of transport options is important. This may be so even if overall, trips are actually funded using the option of taking taxis when compared to the LINK option.
The Applicant and his mother gave evidence concerning LINK transport. They indicated they had used it before and it was problematic. The problem they encountered was that LINK was late from time to time. They also had to fit in with its timetable. The bookings had to be made about a week beforehand; the service cannot be booked the day before. Its use was also dependent upon LINK’s availability which could not always be guaranteed.[26] They had experiences where the Applicant got to school late when using LINK. This evidence is accepted by the Tribunal in full and in the circumstances justifies a rejection of it as a reasonable alternative transport option.
[26] Evidence along these lines concerning inadequacy of LINK in terms of frequency and destination was also given by the occupational therapist Wendy Chandler. Although, it should be conceded that she prefaced such evidence with the proviso that she was not really an expert with respect to the service provided by LINK.
Section 34(1)(d) requires the support to be or likely to be effective and beneficial for the participant having regard to current good practice. For the reasons articulated above, the Tribunal finds that this criterion is satisfied in the Applicant’s case. It should be viewed with a degree of realism, considering the severe disability that the Applicant suffers from, including but not limited to the fact that he is confined to a wheelchair and is ventilator dependent and the effect of ventilator failure may be life-threatening.
Section 34(1)(e) requires that the funding or provision of the support take account of what it is reasonable to expect families, carers, informal networks and the community to provide. The Applicant’s mother, who is the only other person living under the same roof as he is, has provided a remarkable level of support in so many ways. Apart from the fact that she is the only person present at night, and therefore bears that responsibility which is significant in itself, she also provides much assistance with many of his day-to-day needs.
There is also the contribution that the Applicant’s mother has made by the purchase of the van, which is registered and insured to her,[27] to drive him to places as much as she is able to. She pays for the running costs including petrol and maintenance. The van is a 2001 Hi Ace, not made for passengers. She stated that it has never had seats in the back. It is a vehicle much “like a tradie would use”. She stated she regularly does trips for him including seeing her family who she described as “a big Italian family”, including her father in Preston.
[27] She gave evidence that she bears the insurance and registration. Additionally, she also properly observed that there are some issues sometimes about obtaining or keeping insurance cover if one of the Applicant's carers is over 25. Also, she stated that some carers don't feel comfortable in driving the van themselves. She herself is concerned to make sure that the person driving the van is competent to do so with the Applicant in it.
The Respondent asserts that the proposed trips for which the Applicant seeks funding do not sufficiently take account of journeys which might be made in the modified vehicle. Whilst it is acknowledged that the Applicant’s mother, girlfriend and where appropriate a carer, can drive the van to places such as the venue where the Applicant plays sport in Croydon, the Tribunal considers that the reduction in amount of taxi support sought by the Applicant addresses this concern on the part of the Respondent. The Tribunal acknowledges the contribution these sources of alternate transport using the van already make and have made.
A further comment should be made concerning the issue of the van which arises from the evidence given by the Applicant and his mother. The Applicant contended in his evidence that due to the lack of taxi funding given by the NDIS, he has had to rely upon support workers to drive him in the van to several places. This, he stated, was not his preferable option because it not only takes away his independence but also forces him to use more support worker hours in situations he does not need to. For instance, he gave evidence that if he wishes to go shopping with friends, he does not need someone there with him to watch him shop as he is able to do that on his own. Without a support worker to drive the van there is no other way for him to be able to travel to the shops unless it is by taxi.
The Applicant questioned why he would hire a carer to drive him in the van for 10 minutes to a shop, to sit there for however many hours he might be at the shopping centre,[28] then to drive him 10 minutes home on the return journey when the other option is to simply take a taxi both ways. He described it as an issue of needing transport to a venue but not having enough taxi funding. He is limited to the options of either hiring a carer to “hang around just to drive me to and from” or take the risk of catching public transport (assuming it is otherwise available from his home to the shopping centre concerned).[29] The Tribunal considers it to be a persuasive argument. This contention, where appropriate, is also rationally applicable to the consideration of sections 34(1)(a), (b), (c) and (d) above.
[28] The Applicant gave evidence which the Tribunal accepts, that he does not need any assistance to do his shopping. Also, it is a further example of him advancing his desire for independence together with social and economic participation, which is both understandable and commendable; and in terms of both the objects of the Act and the section 34 criteria a desirable and appropriate pursuit of his goals, objectives and aspirations. It is also indicative of an attitude displayed by the Applicant, not to mention his mother, of wishing to use the funds available to him pursuant to his NDIS plan in the most efficient, effective and appropriate way so as to give him the maximum benefit. Perhaps, putting it in terms of the regulatory regime underpinning the Act, it is the best value for money.
[29] There was evidence before the Tribunal that the nearest shopping centres usually patronised by the Applicant were Greensborough and Epping, for which there is no train or direct bus connections.
Section 34(1)(f) requires that the support be most appropriately funded or provided through NDIS and not more appropriately funded or provided through other general systems of delivery or support identified in the section.
The Applicant has referred to rule 7.21 of Schedule 1 to the Rules, which provides amongst other things that the NDIS will be responsible for the reasonable and necessary costs of taxis or other private transport options for those not able to travel independently. As noted earlier, the Tribunal accepts on the preponderance of the evidence including the expert evidence that the Applicant cannot travel independently within the meaning of the Rules. For the reasons articulated previously, there does not appear to be a more appropriate source of funding through any other general system of service delivery or support services within the contemplation of the language of this section. Taxi fares are a cost directly and solely attributable to the disability from which the Applicant suffers, which is appropriately funded through NDIS. The provisions of rule 5.2(a) are referred to. The Tribunal also refers to the helpful decision of Professor R McCallum in RePerosh and National Disability Insurance Agency[30] in this regard.
[30] [2018] AATA 980 at [70].
Finally, in so far as it is suggested that in some way any allowance for taxi fares should be subject to a deduction by reference to a mileage rate and cost to ordinary Australians, the Tribunal rejects it, as it violates the language of the statute itself and its true and proper construction given by Mortimer J in McGarrigle.[31] To accept such a contention is in effect finding that only a proportion of the cost of the supports found to be reasonable and necessary in accordance with the criteria under section 34(1) should be funded. The section 34(1) requirements are directed to whether or not the support concerned is a reasonable and necessary support that will be funded under the NDIS. Having found that the support meets the legislative requirements, there is no room for a finding that funding of such support may be partial or otherwise limited.
PARTICIPATION FEE AND AIRPLANE TICKETS FOR A CARER TO ATTEND INTERSTATE SPORTS TOURNAMENTS WITH THE APPLICANT
[31] See paragraphs [93] to [99] of the reasons of Mortimer J.
The Applicant in his written submissions and closing address to the Tribunal has stressed that this limb of the claim is not sought for additional carer hours so that a carer may accompany him on such journeys. The claim is for additional funding limited to the carer’s travel costs and participation fee. Apparently, the participation fee is levied by the event’s organisers for the carer’s accommodation, who would share a room with the Applicant for the duration of his stay at the tournament concerned.
The first consideration is whether or not it is appropriate for the Applicant to compete in interstate sports tournaments. The Applicant contended that it is central to his goals of playing competitive sport, being an active community member and pursuing a career in sports management. It is also apparent to the Tribunal that such participation would no doubt be a feature of his goal to assert his independence and ultimately live independently. It will be recalled that he has in various parts of his evidence expressed a desire to move out of home and live separately from his mother. It is an understandable desire and overall a commendable character trait for someone who is as severely disabled as he is.
A further factor in this consideration is that the Applicant has been an active member of various sports associations. This includes his presidency at VEWSA. These achievements are a reflection of his passion and desire to achieve his goals and aspirations and an apparent desire to make a difference in the interests of people with disabilities. It yet again demonstrates what an outstanding role model the Applicant is, not only to people with disabilities but to all citizens. He is an exemplary member of the community.
He has also, as noted above, achieved All Australian Team selection for the Powerchair Soccer team. He is a high achiever in the sporting field despite his disabilities.
The Respondent also contends that if the Tribunal is minded to make an allowance for the Applicant to attend interstate sports tournaments, it should be confined to 1 to 2 competitions per year to achieve the objective of assisting the Applicant to participate in competitive sport and be an active community member.
In considering how many interstate tournaments should be funded, the Tribunal observes that there has been limited documentary evidence produced to the Tribunal which demonstrates the precise details of these tournaments. The only direct documentation provided was an “Invitation” to the October 2017 “Battery National Championship” which apparently was a national Powerchair football competition. It revealed that the participation fee for the event was $1,000.00 per person twin share. The participation fee covered accommodation, meals, competition venue and transport to and from the airport.
There was also a letter from Charlotte Sangster, General Manager of Muscular Dystrophy NSW dated 5 March 2018, in which she states that the National Electric Wheelchair Sports event is held over one week in each year.[32] Further, she observes that the tournament includes electric wheelchair soccer, hockey and rugby league. Beyond these documents there is no other direct evidence of any other tournaments.
[32] The letter from Charlotte Sangster of 5 March 2018 is document ST 6 of the ST documents.
With respect to future events, there are no brochures, sales promotional material, or other documents that might show when these events occur, how much the anticipated participation fees actually are, the nature of the tournaments and so on. The evidence was somewhat shallow in terms of identifying particular sports that the Applicant would be participating in. (It is assumed, at the very least that this would be power chair football.)
Whilst the Tribunal has no doubt that these events occur and that the Applicant participates in them, it is reluctant to allow funding for three events per year without more evidence. There was no real evidence concerning why an allowance for three events might be more preferable for the Applicant than two other than he enjoys the participation in such events coupled with his role an office bearer. It seems that as in the assessment of damages for breach of contract some level of estimation is required. In the circumstances, recognising all the evidence that has been adduced on the topic, the Tribunal will allow additional funding for carers’ travel costs and participation fees for two interstate tournaments per year. It is considered that two trips per year strikes a balance between the competing contentions that have been advanced in this application.
The Applicant further contends that his ability to participate in interstate sports tournaments is dependent on having a carer to travel and live with him whilst travelling interstate. The Tribunal accepts the contention of the Applicant that the need for a carer on an airplane flight and overnight accommodation is established from the evidence before the Tribunal.[33] The Tribunal is particularly persuaded by the evidence of Dr Kembry on this question[34]. By reason of this evidence the Tribunal rejects the contention of the Respondent that Qantas would not require the Applicant to fly with a support worker.[35] Further, the Tribunal rejects the contention of the Respondent that he does not require a carer on such a flight.
[33] Such evidence is to be found in the Qantas documentation exhibit R 5 Qantas Disability Access Facilitation Plan clause 2.5; the evidence of Dr Kembry of 19 December 2017 and the attached "Qantas Group Medical Travel Clearance Form-Part A" signed by her on the same day; the occupational therapist Melanie Holmes’ report at paragraphs 28-38 (she states in this report that she believed if the Applicant travels independently it would be very risky behaviour and a course of action she described as "hazardous"). This is also confirmed by the evidence of the Applicant himself, Mr Miller and his mother.
[34] There is also the evidence of both occupational therapists. They both agree that would be risky for the Applicant to travel without a carer and they both identify a number of risks associated with such an occurrence. They also identify the reasons why a carer should travel with the Applicant on any airplane flight including the tasks that such a carer would have to perform and the assistance that they can render to him both on a practical level and in the event that there was a ventilator or other problem arising in the course of such a trip. The contents of both occupational therapists’ reports concerning this aspect of the case are referred to in their entirety for their full force and effect.
[35] However, in fairness to the Respondent, it did concede that the Applicant does require to have some support when travelling on an airplane in the event of ventilator failure requiring a swap to the backup ventilator. It is contended by the Respondent that the Applicant does not require assistance with toileting or food. With respect, the Tribunal cannot accept this contention because firstly, with respect to toileting, it is predicated on the Applicant planning his toileting times around flight timetables. However, it does not allow for unexpected delays or other vicissitudes that may disrupt even the best laid plans. Also, when one examines the Qantas documentation at clause 2.5 it states amongst other things, "However, Cabin Crew do not otherwise assist with food and beverage consumption."
The Tribunal therefore finds that it is unreasonable to expect the Applicant to make arrangements with another team member travelling to Sydney (assuming such arrangements could be made, of which there is no evidence) to have emergency access to the team member’s support worker during a flight. As has previously been stated throughout these reasons, the Applicant is severely handicapped, ventilator-dependent, and wheelchair-bound with a deformed torso. This issue must be viewed with a degree of realism by reason of these matters.
Applying a similar rationale, the Tribunal accepts that a support worker’s participation fees is a reasonable and necessary support. However, the Respondent’s contention that carer’s meals should not be funded is fairly made and the Tribunal therefore considers that they should not be allowed.
CONCLUSION
By reason of the foregoing matters, the decision under review will be set aside. The Tribunal considers that the correct and preferable decision is that the following orders be made:
(c)That taxi fares for the trips described in the table in paragraph 16 of these reasons are reasonable and necessary supports to be funded under the NDIS; and
(d)That the participation fee and airplane tickets for a carer to attend interstate sports events with the Applicant twice a year are reasonable and necessary supports that are to be funded under the NDIS.
The Tribunal grants liberty to the parties to apply should there be any questions or further directions required concerning the terms of these orders or any further orders that may be made.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of SENIOR MEMBER R CAMERON
..........................[sgd]..............................................
Associate
Dated: 8 August 2018
Date(s) of hearing: 17-18 April, 14 May 2018 Counsel for the Applicant: Angie Wong Solicitors for the Applicant: Graham Wells - Victoria Legal Aid Counsel for the Respondent: Sarah Varney Solicitors for the Respondent: Kellie Latta - Sparke Helmore
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