DeGiovanni and CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 1904

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 634
Shi 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DeGiovanni and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1904
Case: [2025] ARTA 1904
Decision Date: 24 September 2025

CaseChat Overview and Summary

The case of DeGiovanni and CEO, National Disability Insurance Agency (NDIS) involved a dispute over the funding of transport costs for a participant of the National Disability Insurance Scheme (NDIS). The Applicant, Mr DeGiovanni, sought additional funding for non-labour transport costs associated with his participation in various activities. The dispute was reviewed by the Administrative Review Tribunal (ART) following the abolition of the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the Applicant's request for additional transport funding was reasonable and necessary under section 34 of the NDIS Act. This required consideration of the specific circumstances of the Applicant and the nature of the requested supports.

In reaching its decision, the Tribunal considered the evidence provided, including the NDIS Operational Guidelines and Pricing Arrangements, which outline the costs that can be claimed by service providers. The Tribunal found that the Applicant's request for 100km of transport each week for a second visit to his Mother was not reasonable and necessary. The Tribunal reasoned that the request was primarily based on the Mother's inability to drive, low income, and desire to avoid travel, rather than the Applicant's disability. It concluded that it was reasonable to expect the Applicant and his Mother to make travel arrangements, including using public transport, for the second visit each week. The Tribunal also noted that the Respondent had already agreed to fund 70km for one visit per week, which it considered a generous interpretation of what is reasonable and necessary.

The Tribunal ultimately affirmed the decision of the Respondent, finding that the requested transport funding was not reasonable and necessary under the NDIS Act. Consequently, the Tribunal did not order any additional funding for the transport costs in question.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 CostsIf 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 SupportsProviders 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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. CONSIDERATIONRequest 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