McGarrigle and National Disability Insurance Agency - [2016] AATA 498

McGarrigle and National Disability Insurance Agency [2016] AATA 498 (15 July 2016)

Division

NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s)

2016/0450

2016/2067

Re

Liam McGarrigle

APPLICANT

And

National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 15 July 2016

Place Melbourne
The Tribunal affirms the decision under review.
.......................[sgd].................................................
Senior Member J F Toohey
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – applicant a participant in the NDIS – autism spectrum disorder – intellectual disability – reasonable and necessary supports – transport costs – taxis – whether total cost should be funded – what is reasonable to expect families, carers, informal networks and the community to provide – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 ss 3, 4, 34(1), 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
REASONS FOR DECISION
Senior Member J F Toohey
15 July 2016
Background

Liam McGarrigle is a 20-year old man who has autism spectrum disorder and intellectual disability. He became a participant in the National Disability Insurance Scheme (NDIS) in October 2013. He lives with his parents and younger sister outside Geelong.
Mr McGarrigle attends a group program at Encompass Community Services (Encompass) in Geelong on three days each week. His participation in the program is funded by the NDIS. On the other two weekdays he works at Karingal Kommercial (Kommercial), a disability enterprise in Geelong. He is unable to use public transport but can travel independently by taxi. He uses taxis to go to Encompass or Kommercial each morning, and home on three afternoons each week. A support worker funded by the NDIS picks him up on the other two afternoons and takes him to a gym and then back home.
Mr McGarrigle’s father works full-time in the Geelong CBD. His mother is his primary carer. She gave up her career as a library administrator after he was born. She now works 30 to 33 hours a week at a local general store. She describes herself as his “unofficial PA”; she coordinates his supports, looks after his finances, drives him to appointments, does his shopping and cooking, and his laundry, and is on-call “24/7” in case he has a “meltdown”. Not surprisingly, even with respite care for two nights each month and camps and overnight stays on four weekends each year, meeting his needs can be overwhelming at times. She has a history of “mental health issues” for which she takes medication.
Mr McGarrigle seeks review of a decision by the National Disability Insurance Agency (NDIA) to fund $11,850 for “transport to access daily activities”. This amount represents approximately 75 per cent of the annual cost of $15,850 for taxis and transport by the support worker.
The NDIA submits that $11,850 is a reasonable contribution to Mr McGarrigle’s transport costs. For Mr McGarrigle it is submitted that funding for a contribution only, rather than the full cost of transport,…

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.

Continue reading McGarrigle and National Disability Insurance Agency

Details

AGLC: McGarrigle and National Disability Insurance Agency [2016] AATA 498
Case: [2016] AATA 498
Decision Date: 15 July 2016

CaseChat Overview and Summary

This matter concerned an appeal by Mr McGarrigle, a participant in the National Disability Insurance Scheme (NDIS) with autism spectrum disorder and an intellectual disability, against a decision of the National Disability Insurance Agency (NDIA). The dispute centred on the extent to which the NDIA should fund Mr McGarrigle's transport costs, specifically the use of taxis. The decision was made by SM J F Toohey.

The court was required to determine whether the NDIA's decision to fund only 75 per cent of Mr McGarrigle's weekday transport costs was consistent with the objects of the NDIS Act and the criteria for reasonable and necessary supports. Specifically, the court had to consider what is reasonable to expect families, carers, informal networks, and the community to provide in terms of transport support, and whether transport is a support that, if only partly funded, would be of little or no benefit.

SM J F Toohey reasoned that while some supports may be rendered ineffective if only partially funded, transport is not such a support. The court found that a policy of meeting a substantial part, rather than the full cost, of transport is not inconsistent with the objects of the NDIS Act. The decision to fund 75 per cent of Mr McGarrigle's weekday transport was considered to strike an appropriate balance, taking into account his individual needs and circumstances, as well as what it is reasonable to expect his family to provide. The court acknowledged the additional burden this would place on his parents but concluded that the funding level recognised this burden and the potential risk to their wellbeing.

The court affirmed the decision under review, finding that the transport was a reasonable and necessary support for Mr McGarrigle and that funding less than the full cost was not inconsistent with the Act.

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

Full text does not contain this section.

Decision

Reasons for decision

The Guideline provides that the NDIS will not be responsible for matters concerning accessibility or lack of public transport, or transport infrastructure.Conclusion There may be supports which, by their nature, are rendered of little or no benefit if only partly funded. There may be supports which, by their nature, cannot be provided or supplemented by families or other informal supports. However, I am not persuaded that transport is a support of that kind. Nor am I persuaded that a policy by which a substantial part of the cost of transport is met, rather than the full cost, is inconsistent with the objects of the Act. In every case an individual participant’s needs for support have to be considered in light of his or her circumstances and the relevant legislation and relevant policy. I accept that it would impose an additional burden on Mr McGarrigle’s parents if they have to transport him to and from Encompass and Kommercial 25 per cent of the time, or meet the shortfall in funding. The shortfall amounts to the equivalent of two and a half – realistically three – trips each week in addition to the transport they already provide him at other times during the week and on weekends. I accept that it may add to the demands already placed on Mr McGarrigle’s parents if one of them has to drive him on those extra trips each week, or they have to make some other arrangement that does not rely on funded transport. I accept that any additional burden has the potential to affect their wellbeing. However, in my view, the decision to provide funding for 75 per cent of the cost of Mr McGarrigle’s weekday transport takes into account what it is reasonable for families generally, and his family in particular, to provide. In setting an amount above the amounts usually payable according to NDIA policy, I am satisfied that it recognises the burden on his family and potential risk to their wellbeing in a way that takes into account what it is reasonable to expect families and others to provide by way of transport or by alternative arrangements. I am satisfied that the transport is a reasonable and necessary support for Mr McGarrigle within the meaning of subsection 34(1). I do not accept that funding for less than the full cost of his transport is inconsistent with the Act. I am satisfied that the decision to fund 75 per cent of his weekday transport costs strikes an appropriate balance between what is reasonable and necessary for him and the overall financial sustainability of the NDIS For these reasons I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The basis for this instruction is not clear. It does not appear to be based on the Act or the Supports for Participants Rules, or the policy reflected in the ‘Participant transport fact sheet’, and I have not taken it into account in this decision. It appears to be at odds with an assessment of an individual participant’s needs. It also suggests that, even if Level 1, 2 or 3 funding under the policy would satisfy an individual’s needs for transport, the full amount should not be funded. For the reasons set out below, I do not accept that funding for less than the full amount of Mr McGarrigle’s transport is incompatible with the objects of the Act but that conclusion has nothing to do with the instruction in the Conversation Tool.Operational Guideline The NDIS ‘Operational Guideline, Planning and Assessment – Supports in the Plan – Interface with Transport’ (the Guideline) concerns whether a support is most appropriately funded by the NDIS or more appropriately funded by other systems. It therefore relates primarily to the application of subsection 34(1)(f) but it is included for completeness. It provides that the NDIS will be responsible for:(a)Supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport, and(b)Modifications to a private vehicle (i.e. not modifications to public transport or taxis), and(c)The reasonable and necessary costs of taxis or other private transport options for those not able to travel independently or use public transport. The Guideline provides that the NDIS will not be responsible for matters concerning accessibility or lack of public transport, or transport infrastructure.Conclusion There may be supports which, by their nature, are rendered of little or no benefit if only partly funded. There may be supports which, by their nature, cannot be provided or supplemented by families or other informal supports. However, I am not persuaded that transport is a support of that kind. Nor am I persuaded that a policy by which a substantial part of the cost of transport is met, rather than the full cost, is inconsistent with the objects of the Act. In every case an individual participant’s needs for support have to be considered in light of his or her circumstances and the relevant legislation and relevant policy. I accept that it would impose an additional burden on Mr McGarrigle’s parents if they have to transport him to and from Encompass and Kommercial 25 per cent of the time, or meet the shortfall in funding. The shortfall amounts to the equivalent of two and a half – realistically three – trips each week in addition to the transport they already provide him at other times during the week and on weekends. I accept that it may add to the demands already placed on Mr McGarrigle’s parents if one of them has to drive him on those extra trips each week, or they have to make some other arrangement that does not rely on funded transport. I accept that any additional burden has the potential to affect their wellbeing. However, in my view, the decision to provide funding for 75 per cent of the cost of Mr McGarrigle’s weekday transport takes into account what it is reasonable for families generally, and his family in particular, to provide. In setting an amount above the amounts usually payable according to NDIA policy, I am satisfied that it recognises the burden on his family and potential risk to their wellbeing in a way that takes into account what it is reasonable to expect families and others to provide by way of transport or by alternative arrangements.

Division	NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s)	2016/0450 2016/2067
Re	Liam McGarrigle
APPLICANT
And	National Disability Insurance Agency
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	15 July 2016
Place	Melbourne