DeGiovanni and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 1904
•24 September 2025
DeGiovanni and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1904 (24 September 2025)
Applicant/s: Alex DeGiovanni
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2025/0024
Tribunal:General Member N Purcell
Place:Sydney
Date:24 September 2025
Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) affirms the decision under review.
....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – transport costs – insufficient evidence – provider operational needs – requested supports not reasonable and necessary – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Statement of Reasons
INTRODUCTION
Mr DeGiovanni (the Applicant) is a 33 year old man who resides alone in Supported Independent Living (SIL) accommodation in an outer suburb of Sydney. The Applicant was granted access to the scheme in 2016 due to impairments arising from severe intellectual disability and autism spectrum disorder.
The Applicant’s SIL provider, Outwest Care is funded to provide a ratio of 1:1 support worker assistance at all times. This includes Social Economic and Community Participation (SECP) funding to attend a day program at the Hub in Windsor each weekday for 6 hours. This program is also run by Outwest Care.
The Applicant’s current plan includes funding of approximately $753,000.
As explained in more detail below, Outwest Care and the Applicant’s Mother sought funding for about 455km per week of non-labour transport costs. After hearing further evidence, the Tribunal is satisfied the request was for about 340km per week. If charged at $0.99 per kilometre, this equates to about $17,500 per year.
Decisions under review
On 11 March 2024, a delegate of the Respondent approved a Statement of Participant Supports (SOPS) under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act or the Act). On 27 May 2024, the Applicant, through his plan nominee, requested an internal review of the decision. On 29 August 2024, a delegate of the Respondent confirmed the decision under review under section 100 of the NDIS Act.
On 6 January 2025, the Applicant filed an application seeking external review by the Administrative Appeals Tribunal (AAT) pursuant to section 100(6) of the NDIS Act. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, Mr DeGiovanni’s application was automatically transferred to the ART.[1]
[1] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
Issues in dispute
Several issues were resolved between the parties prior to hearing and resulted in a new plan dated 25 August 2025. The Respondent confirmed in an email dated 23 September 2025 that the calculation of existing transport funding reflects the current price guide.
Pursuant to section 103(2)(e) of the NDIS Act, the Applicant’s application for external review by this Tribunal is also taken to be a review of the decision to approve the SOPS in the current plan.
The sole remaining issue before the Tribunal is whether the Applicant’s request for additional transport funding is reasonable and necessary pursuant to section 34 of the NDIS Act and any relevant rules.
The hearing
The Applicant was represented by his Mother, Ms DeGiovanni and Ms Katie Nuth Robertson, who is the Director of Services at the Applicant’s day program. The Respondent was represented by Ms Michelle Campbell of Counsel and instructed by Mills Oakley lawyers.
The hearing was conducted by video over 1 day.
In arriving at its decision, the Tribunal has considered the written evidence provided in the joint hearing bundle (admitted and marked ‘JHB’). The following documents were also admitted into evidence:
(a)E1 – Applicant’s NDIS plan dated 25 August 2025.
(b)E2 – Respondent’s technical advice
The Respondent submitted that the request for transport was made late in the process (about 6 weeks prior to hearing), lacked particulars, and was not accompanied by supporting evidence.
Towards the end of the hearing, Ms Nuth Robertson submitted that relevant documents were not included in the hearing bundle. The Tribunal stood the matter down so both parties could identify any relevant documents that should be before the Tribunal. The Respondent informed the Tribunal that it had checked Nepean Hospital records provided by the Applicant on the 28 February 2025 and another bundle of documents provided by the Applicant between 20 March 2025 and 11 June 2025. The Respondent indicated it could not identify any documents related to transport or travel that were not already included in the hearing bundle. The Applicant was invited to identify any records related to travel or transport that had been provided to the Respondent, noting the request was made on 17 July 2025. No further documents were identified.
Ms Nuth Robertson claimed the Respondent should have identified the types of evidence required to support the request for transport. The Respondent submitted that the request was made late in the process and that as a large service provider, Outwest Care ought to know the types of information that would be relevant to a request for transport funding. The Respondent further submitted that it was Mr DeGiovanni’s application for review and his team must adduce sufficient evidence to satisfy the Tribunal that the section 34 criteria are met. The Tribunal is satisfied the Applicant was sufficiently on notice about the types of evidence required to press a case, noting other supports in dispute were resolved through the provision of detailed evidence.
The Tribunal explained that it must review the decision based on the evidence before it. The Applicant’s team was informed that they could withdraw their application, obtain further evidence, and submit a new change of circumstances form to be decided by the Respondent. Alternatively, they could proceed with the application however the Tribunal would be limited to the written and oral evidence presented at hearing when making its decision, including any findings or observations. The Applicant elected to proceed with the application for review.
Role of the Tribunal
In reviewing the decision:
(a)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[2] and
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[3]
[2] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[3] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
RELEVANT LAW
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions.
Subsection 34(1) of the NDIS Act now relevantly states:
(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:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(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)(aa) to (f).
The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[4] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[5]
[4] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].
[5] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters including the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) introduce several key changes. Schedule 1 identifies supports that are considered NDIS supports while Schedule 2 identifies those that are not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[6]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
EVIDENCE
The NDIS Pricing Arrangements and Price Limits 2025-26 govern the costs that can be claimed by service providers in relation to the provision of various supports. The following overview is relevant to this application:
Provider Travel – Non-Labour Costs
If a provider incurs costs, in addition to the cost of a worker’s time, when travelling to deliver Face-to-Face supports to a participant (such as road tolls, parking fees and the running costs of the vehicle), they may negotiate with the participant for them to make a reasonable contribution towards these costs. The NDIA considers that the following would be reasonable contributions:
•For a vehicle owned by the provider or the worker, up to $0.99 a kilometre; and
•For other forms of transport or associated costs, such as road tolls, parking, public transport fares, up to the full amount.
Claims can only be made for the non-labour costs associated with provider travel in respect of a support where the rules governing provider travel allow a claim for provider travel time to be made.
Claims for the non-labour costs of provider travel in respect of a support must be made separately to the claim for the primary support (the support for which the travel is necessary) and for the travel time associated with the provider travel. The non-labour costs should be claimed against the relevant “Provider Travel – non-labour costs” support item as indicated in the NDIS Pricing Arrangements and Price Limits.
…
Activity Based Transport – Social, Economic and Community Participation Supports
Providers of supports in the Assistance with Social, Economic and Community Participation Support Category (“community participation supports”) can, at the request of a participant, transport a participant to, or from, or as part of, a community participation support. In these cases, the provider is entitled, with the agreement of the participant, to bill the participant’s plan for the time that support workers spend providing the transport support (as part of the community participation support). They are also entitled to bill for any non-labour costs associated with transporting the participant (again, as part of the community participation support).
The worker’s time can be claimed at the agreed hourly rate for the relevant support item for the total time the worker provides support to one or more participants, including time spent accompanying and/or transporting the participant. Where a provider is transporting two or more participants on the same trip, the worker’s time should be apportioned amongst participants. This claim should be made using the relevant community participation support item and against the participant’s core budget.
If a provider incurs costs, in addition to the cost of a worker’s time, when accompanying and/or transporting participants in the community (such as road tolls, parking fees and the running costs of the vehicle), they may negotiate with the participant for them to make a reasonable contribution towards these costs. The following is a guide as to what these contributions might be:
·For a vehicle that is not modified for accessibility, up to $0.99 a kilometre;
·For a vehicle that is modified for accessibility or a bus, up to $2.76 a kilometre;
·For other forms of transport or associated costs, such as road tolls, parking, and public transport fares, up to the full amount.[7]
[7]
Existing Travel / Transport funding
On the 19 August 2024, the Respondent approved Level 2 Transport of $2,676 in the Applicant’s SOPS. These funds were paid directly into his or his legal guardian’s bank account at regular intervals.[8]
[8] JHB, p289.
On the 11 April 2025, the Respondent approved a new SoPS for a 6-month period which replicated the transport funding on a pro-rata basis.[9]
[9] JHB, p948 and p961.
Sometime between April 2025 and June 2025, the parties had a meeting whereby it was agreed that transport would be added to the Applicant’s core budget.
On 27 June 2025, a further SOPS was approved with Level 2 Transport added to the Applicant’s core funding.[10] An additional amount of $3,640 was also included for a weekly visit by car (70km round trip) for the Applicant to see his Mother.
[10] JHB, p974 and p981.
This funding arrangement continues in the current plan before the Tribunal.
It is unclear to the Tribunal whether the Respondent agreed to fund the Applicant for twice weekly visits to see his Mother, or whether flexible core funding was simply used by the Outwest Care and the Mother to fund this arrangement. In any event, it appears that such a practice developed over a period.
Request for Travel
The Applicant’s request for funding was set out in an email from Ms Nuth Robertson on or about 17 July 2025:
Alex is required to use his personal funds to cover the cost of Activity fees, and some travel.
I understand that Alex is going to receive level 2 transport directly to his nominate account, however this isn’t sufficient to support Alexs needs. Under normal practice for SIL 100% of the transport allowance would be provided to the SIL provider.
Alex is currently using on average the following KMS at day programs and I have included this into the quote for consideration. If Alex is not able to access kms and vehicles this is again isolating Alex from participating in social activities.
Monday – Bowling in Penrith and return. 50KMS
Tuesday – Swing City in Norwest and return. 45KMS
Rita has requested to have Tuesday visits with Alex again. This would be meeting mum at home, going for lunch, shopping etc spending the day together and then heading back to mums and then home. 100KMS
Wednesday – Cooking/ Park outing (Dependant on Alex behaviour, if he is unsettled then we avoid a food-based activity). Local Park within half hour. 40KMS
Thursday- Pub Lunch – up to an hour travel. 60KMS
Friday – Heros with Ability – Carnes Hill 90KMS
Saturday – Dinner with family, home to dinner, usually in the Penrith area and return. 70KMS
Sunday – Alex only uses public transport.
These KMS total
$1.00 – car = 100-170 KMS $100- $170.
$2.76 – Van = 285KMS $443.40. This is divided between the number of clients in the van, could be 2, 3 or 4 other clients. We also have to take into account Alex’s behaviour as he doesn’t cope too well in a loud vehicle.
Alex already uses public transport daily to travel to and from his day programs due to lack of funding.[11]
[11] JHB, p924.
No further data or documentary evidence was filed by the Applicant evidencing average weekly transport costs over a certain period.
Ms DeGiovanni’s evidence
Ms DeGiovanni told the Tribunal she previously spent Tuesdays with the Applicant. She indicated the Applicant and his support worker would pick her up because she doesn’t drive.
Currently, Ms DeGiovanni and the Applicant meet at a restaurant closer to her home on a Saturday evening. Ms DeGiovanni’s daughter attends the Saturday dinner with the Applicant “sometimes” depending on her own family commitments. However, Ms DeGiovanni’s daughter always picks her up and drops her home after dinner with the Applicant.
Ms Giovanni told the Tribunal that her husband died about 6 years ago. They do not have any other extended family living in Australia.
Ms DeGiovanni is 66 and in receipt of a Newstart/Job Seeker payment. She volunteers 2 days per week as part of her Centrelink obligations. The Tribunal understands Ms DeGiovanni would like to spend Tuesday with the Applicant from around 10am to 2pm.
Ms Nuth Robertson’s evidence
Ms Nuth Robertson explained that the Applicant’s Level 2 Transport has recently been transferred to Outwest Care to cover incidental travel such as shopping and medical appointments. This transport funding equates to approximately $102 per fortnight. There was no data before the Tribunal about how many kilometres are used for these types of trips.
Despite an Aldi store being located within walking distance, Ms Nuth Robertson indicated Outwest Care takes the Applicant to a supermarket located a 30-minute drive away each Monday.
Ms Nuth Robertson confirmed that the Applicant attends Outwest Care’s community-based day program called the Hub, 5 days per week. Participants usually arrive between 9:00 and 9:30. They are then said to pick an activity for the day before walking to a local park for morning tea. Participants then travel in Outwest Care’s vehicles to the relevant activity, returning at approximately 2:30pm before going home at 3:00pm.
The Applicant is always accompanied by his support worker. Since obtaining the ratio of 1:1 support, the Applicant’s behaviours are said to have significantly settled.
The Hub is located about a 20-minute drive from the Applicant’s home. He walks 40 minutes to the local train station, catches the train to Windsor and walks another 15 minutes to get to the Hub. The trip takes about 1 hour.
Ms Nuth Roberston explained the Applicant generally travels to most Hub activities in a van with 2 other participants and their workers. This would mean the $2.76 cost per kilometre would be divided between 3 participants – equating to 92c per kilometre.
The Applicant’s mother lives about a 40-minute drive away. Ms Nuth Robertson indicated Ms DeGiovanni prefers to meet her son away from the family home. She told the Tribunal the train trip from the Applicant’s local station to Blacktown is about 40 minutes.
Ms Nuth Robertson indicated it would take the Applicant 2 to 3 hours on public transport to visit his Mum. Ms DeGiovanni told the Tribunal the nearest public transport is 500 metres away. She said “I don’t want to spend the time travelling. I want to spend time with my son”. A typical daytime catch-up with the Applicant would include lunch, a haircut and getting his nails cut.
Google maps reveal that it would take both Ms DeGiovanni and the Applicant about 1 hour to travel to Blacktown from their respective suburbs by public transport on a weekday. The Tribunal is satisfied a lunch-time catch-up could occur in Blacktown (or somewhere similar).
Outwest Care – Hub travel
Outwest Care’s Hub program has 5 wheelchair accessible vans that can transport between 7 and 9 people and 3 regular cars. Ms Nuth Robertson explained that for participants without behaviours of concern, they travel together in a van to reduce the overall transport costs for each participant.
Ms Nuth Robertson confirmed the Applicant does not have mobility issues requiring transport in a modified vehicle or van. She indicated the Applicant does not cope travelling in a full van due to the level of noise/activity and so generally travels in a van with fewer participants, who are accompanied by their support workers. If the Applicant exhibits a behaviour of concern, Outwest Care generally waits until his behaviour settles before travelling. Outwest Care would not take him to an activity if he was displaying significant behaviours of concern prior to an activity and would stay at the Hub.
Ms Nuth Robertson indicated that whilst his behaviours have been serious in the past, the Applicant can now go several weeks without significant behaviours. She attributes the settling of the Applicant’s behaviours to his ratio of 1:1 support.
Ms Nuth Robertson emphasised the Applicant’s choice and control at certain points during the hearing, stating:
There are local parks in the area, but for somebody to go to the same park every day for five days a week over 20 years…, it become quite boring. So for the guys to have choice and control, they select a listing of parks that they like to go to.
It was later confirmed that a participant is invited to pick the name of a park out of a hat once a week, (from a pre-determined list of parks). She also gave evidence that the Applicant has essentially attended the same schedule of activities at the Hub over the past year.
Ms Nuth Robertson told the Tribunal the figures provided in her quote/estimate were based on a “worst case scenario”.[12] In circumstances where public funds are involved, this was observed to be unsatisfactory, particularly as Outwest Care’s own records could provide a more accurate cost estimate based on actual expenditure. For example, she did not provide any data to demonstrate a dollar figure for the claimed kilometres over a 2 or 3 month period, noting that the number of participants in a vehicle determines the price.
[12] JHB, p924.
Using another client’s invoice records (anonymised) during the hearing, Ms Nuth Robertson indicated invoices in the range of $300 - $400 per week are charged to some participant accounts. She described how other program participants pay for travel:
So what we see is most of our participants have some flexibility or they have some surplus or there’s a little bit of fat per se in their funding, which is where the costing for their kilometres comes from.
Ms DeGiovanni said she had paid $1600 towards ‘out of pocket’ expenses for the Applicant’s transport this year. Ms Nuth Robertson could not provide an ‘out of pocket’ figure regarding Outwest Care’s absorption of the Applicant’s transport costs. There were no invoices, receipts or service agreements in evidence.
Ms Nuth Robertson and Ms DeGiovanni did not contend what portion of kilometres might be reasonable and necessary or advance an argument which one or two activities are particularly important or meaningful for the Applicant.
There was no evidence before the Tribunal about the significance of any of these activities to the Applicant, beyond enjoying them. For example, the Tribunal does not understand the significance of the Carnes Hill trip each Friday, despite it being one of the furthest located, and therefore most expensive, activities.
Findings and observations
The Applicant walks considerable distances and travels by train on daily basis. Walking has been identified as an important strategy for the Applicant to maintain a healthy weight and lifestyle.[13] This type of travel provides an opportunity for the Applicant to engage with the community around him.
[13] JHB, p211.
The Applicant receives Level 2 transport or about $100 per fortnight. This equates to approximately 100km of solo travel or up to 200km if shared with another participant, per fortnight.
The Applicant receives additional funding of 70km of car travel to visit his Mother each week.
A significant portion of kilometres is used each week to drive the Applicant to a supermarket 30 minutes from his home rather than attending a local supermarket within walking distance.
There is a bowling alley and a range of pubs and parks located in the Applicant’s surrounding area which do not require extensive travel.
The Applicant is funded at a 1:1 ratio at all times, which allows flexible access to the community, whether it be through attendance at the Hub or attending community locations or activities with his support worker.
The Applicant has a gym membership costing approximately $30 per month. He uses the pool and facilities at the gym multiple times per week.
Based on the evidence, the maximum additional claim for kilometres is calculated at 340km per week comprising:
(a)Monday – bowling – 50km
(b)Tuesday – second visit to mum – 100km
(c)Wednesday – local park – 40km
(d)Thursday – pub lunch – 60km
(e)Friday – Heroes with Ability Sports Program in Carnes Hill – 90km[14]
[14] JHB, p924.
The Applicant does not have mobility issues and can travel in a regular vehicle. For example, a support worker drives the Applicant to various locations including his Mother’s home, the gym and supermarket in a regular vehicle. Accordingly, transport in a modified vehicle or van is not necessary to address the need of the Applicant arising from an impairment in relation to which he meets the disability requirements under section 34(1)(aa).
The Tribunal understands the Applicant’s behaviours have mostly settled with a 1:1 ratio of support. There was no evidence to suggest the Applicant could not be transported in a regular car with one other participant and support worker when his behaviour is settled. This would reduce the cost to $0.50 per kilometre.
For vehicle travel, it would seem the maximum cost that could be considered in line with section 34(1)(aa) is either $0.99 per kilometre if travelling alone or $0.50 per kilometre if travelling with another participant, irrespective of the vehicle used.
The Tribunal finds the Hub’s schedule of activities is routine based and does not change regularly. The Tribunal is satisfied that Outwest Care chooses the primary activity each day and therefore determines the number of kilometres charged to participants each week. The Tribunal is not suggesting the Applicant does not enjoy some or all of the activities on offer.
CONSIDERATION
Request for 100km each week for second visit to Mother
There was no explanation why this support was required on account of the Applicant’s disability, pursuant to Rule 5.1(b) of the Supports Rules or section 34(1)(aa).
There was evidence the Applicant routinely uses trains and travels for extended periods, particularly in a car. Whilst the Applicant experiences occasions of incontinence, sometimes associated with behaviours, the Tribunal understands his behaviour is now managed, for the most part, through a ratio of 1:1 support. Further, Outwest Care indicated they will not take the Applicant out for certain community visits if he is particularly dysregulated. It is assumed that as part of their responsibilities, support workers would prompt the Applicant to go to the toilet before going on a longer trip, whether by car or train.
The Tribunal is of the view that the request for this portion of the transport funding is primarily based on Ms DeGiovanni’s inability to drive, low income and not wanting to spend time travelling to visit her son. The Tribunal does not accept that Ms DeGiovanni cannot travel by public transport to Blacktown or some other mid-way point between her home and the Applicant’s home to meet for lunch. Rule 5.1(b) of the Supports Rules provide that a support will not be funded if it is not related to the Participant’s disability.
The Tribunal acknowledges the family have been through a difficult time since the death of the Applicant’s father 6 years ago. They do not have extended family in Australia and Ms DeGiovanni is of limited means which undoubtedly creates financial pressures. However, it cannot accept Ms Giovanni’s contention that it is her right for the NDIS to fund twice weekly visits with her son. Noting the Applicant does not have mobility impairments, his status as a participant of the scheme does not alter the reality that the Applicant and his Mother need to make travel arrangements in line with their modest Centrelink incomes because such costs represent day-to-day living costs. While public transport arrangements may be somewhat inconvenient and/or time-consuming, that is not a relevant consideration under section 34.
The Respondent has agreed to fund 70km for one visit per week to support the Applicant to maintain contact with his family. The Tribunal will not interfere with current weekly provision of 70km, observing it is undoubtedly more convenient for the Applicant, his Mother (and probably his support worker), however it is arguably a generous interpretation of what is reasonable and necessary based on the evidence.
In these circumstances, the Tribunal considers it reasonable to expect Ms DeGiovanni and the Applicant to spend time travelling via public transport to see each other for a second visit each week. The request for funding of 100km for the Applicant to visit his Mother is not reasonable and necessary taking into account what it is reasonable to expect his family to provide. The Tribunal is not satisfied the support is necessary to address needs arising from an impairment in relation to which he meets the disability requirements. Section 34(1)(aa) and (e) are not met.
Request for Hub activity based travel
The remaining request consists of 240km for 4 day-program activities including:
(a)bowling – 50km
(b)visit to a park – 40km
(c)lunch at a pub – 60km
(d)visit to the Heroes with Ability Sports Program in Carnes Hill – 90km
In the Tribunal’s estimate, if the Applicant’s transport was to be calculated in accordance with the findings in paragraphs 67 to 69 above, the actual cost of transport for these 4 activities would be in the range of $120 - $240 per week. This, of course, says nothing of the other criteria in section 34 which must be considered.
Ms Nuth Robertson provided three key reasons why the Applicant’s transport costs should be funded which can be summarised as follows:
(a)The Applicant needs to be busy and engaged. If he has plenty to do, his behaviours of concern reduce along with safety / risk issues.
(b)He shouldn’t miss out on what other participants are funded to do.
(c)He will be isolated and disengaged from the community if he can’t attend the Hub’s activities.
The Tribunal does not accept the contention that 240km of travel is required to ensure the Applicant is busy and for his behaviours to be managed. He is now funded for a support worker at a ratio of 1:1 at all times, meaning there is significant flexibility for the Applicant to access the community in a variety of ways and at different times. The evidence suggests the Applicant leads an active and seemingly full social life.
Ms Nuth Robertson indicated Outwest Care is charging some participants transport costs in the vicinity of $300 - $400 per week. While the claimed funding arrangement of other participants is of no consideration to this matter, the Tribunal considers such a figure to sit beyond the range of what would ordinarily be described as some “excess” or “fat” in plans, particularly given the nature of the claimed travel. This example highlights the difficulty with this application – it was advanced largely from the perspective of a service provider based on operational needs and expectations, rather than from the perspective of the participant. There was insufficient evidence necessary to persuade the Tribunal that the requested support, either in whole or in part, is reasonable and necessary for the Applicant.
The Tribunal wishes to be clear that this does not mean the Ms Nuth Robertson and Outwest Care do not genuinely want the best for the Applicant – the Tribunal accepts they are very committed to his care and development. However, the overriding impression is that Outwest Care have a pre-determined weekly schedule of activities involving high-cost travel which they expect to be funded through the NDIS. This arrangement can lead to a conflict of interest between the operational needs of Outwest Care and the actual disability needs of the participant.
Ms Nuth Robertson gave evidence that Outwest Care prefers the bowling alley in Penrith because it provides a better experience to the participants and has other desirable amenities including a nearby arcade. That may well be the case, however, it was a bare assertion unsupported by evidence including a detailed explanation why the local option is considered so unsuitable that it justifies 50km worth of travel to Penrith on a weekly basis for every Hub participant.
The Tribunal observes that if the Outwest Care stopped driving the Applicant 30 minutes to a supermarket each Monday, the bowling activity would likely be covered out of the existing kilometres provided by the Applicant’s Level 2 Transport funding. The exercise of choice extends to making decisions about preferred activities and prioritising funds or kilometres for certain activities over others. 50km for travel to the bowling alley is arguably a duplication of funding already provided through Level 2 Transport. Rule 5.1(c) prevents funding of supports which duplicate other supports delivered under alternative funding through the NDIS. Ultimately, however, the Tribunal cannot be satisfied such travel is value for money on the evidence provided. Section 34(1)(c) is not met in relation to 50km to Penrith each Monday.
The Tribunal does not accept the contention that travel to pubs and parks located at considerable distance from the Hub is grounded in advancing choice and control for participants. A google map search reveals at least 8 pubs within a 3km radius of the Hub and countless more if the search is widened to a 10-minute drive. In these circumstances, the Tribunal is not satisfied on the evidence that funding 100km in total for the Applicant to travel to a park and pub each week is value for money. Section 34(1)(c) is not met.
Finally, the Applicant’s team did not provide any evidence about the Heroes with Ability program or explain the intended or likely benefits for the Applicant. This is unfortunate, as there may be good reasons for the Applicant’s participation in this program and it may not be available in his local area. It would seem further information about this activity accompanied by a quote that is reflective of the findings made regarding fair costings may warrant consideration. That is ultimately a matter for the Respondent to decide based on any additional evidence provided. On the current evidence, the Tribunal is not satisfied that funding for 90km of transport each Friday to Heroes with Ability is value for money. Section 34(1)(c) is not met.
The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) affirms the decision under review.
Date(s) of hearing: 26 August 2025 – by video Applicant: Applicant’s Mother, Ms DeGiovanni and Director, Windsor hub day program, Outwest Care, Ms Nuth Robertson.
Counsel for the Respondent: Ms Michelle Campbell Solicitors for the Respondent: Ms Klara Zecevic, Mills Oakley lawyers.
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