HUMAN RIGHTS – whether partial funding permissible under National Disability Insurance Scheme Act 2013 (Cth) – meaning of “reasonable and necessary supports” – distinction between “funding” and “providing” of services under National Disability Insurance Scheme Act – partial funding not permissible
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
122
Counsel for the Applicant:
Mr C Horan QC with Ms L Martin
Solicitor for the Applicant:
Victoria Legal Aid
Counsel for the First Respondent:
Ms J Davidson
Solicitor for the First Respondent:
National Disability Insurance Agency
Counsel for the Second Respondent:
The Second Respondent did not appear
ORDERS
VID 962 of 2016
BETWEEN:
LIAM MCGARRIGLE
Applicant
AND:
NATIONAL DISABILITY INSURANCE AGENCY
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
28 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Tribunal made on 15 July 2016 be set aside.
3.The matter be remitted to the Tribunal to be determined according to law.
4.The first respondent pay the applicant’s costs of, and incidental to, the appeal, on a lump sum basis.
THE COURT DIRECTS THAT:
5.On or before 4 pm on 11 April 2017, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.
6.On or before 4 pm on 26 April 2017, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 and 4.14 of the Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in…
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
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Case
[2017] FCA 308
Decision Date
CaseChat Overview and Summary
In the case of McGarrigle v National Disability Insurance Agency, the appellant, Mr McGarrigle, sought to challenge the decision of the National Disability Insurance Agency (the Agency) to partially fund his transport costs under the National Disability Insurance Scheme (NDIS). The dispute was heard and determined by the Federal Court of Australia. The central legal issue in this case was whether the Agency was permitted to partially fund Mr McGarrigle’s transport costs under the National Disability Insurance Scheme Act 2013 (Cth), and if so, whether the Agency had erred in calculating the amount of funding provided. The court needed to determine the meaning of the phrase “reasonable and necessary supports” in the context of the Act, and whether there was a distinction between the concepts of “funding” and “providing” services under the Act.
The court examined the relevant provisions of the Act and found that the phrase “reasonable and necessary supports” implied that the Agency was required to fund the full cost of the supports that were deemed necessary and reasonable. The court noted that the objects of the Act, as outlined in s 3, included providing reasonable and necessary supports for participants in the NDIS, and that these objects were to be achieved by adopting an insurance-based approach to the provision and funding of supports for people with disability. The court concluded that the Agency’s decision to partially fund Mr McGarrigle’s transport costs was inconsistent with the requirements of the Act, and that the Agency had erred in its calculation of the amount of funding provided. The court found that the Agency’s decision to fund only 75% of the estimated cost of Mr McGarrigle’s transport was not in accordance with the legislative scheme, and that the Agency had failed to take into account the need to ensure the financial sustainability of the NDIS.
In light of the court’s findings, the appeal was allowed, the decision of the Tribunal was set aside, and the matter was remitted to the Tribunal to be determined according to law. The court also ordered that the Agency pay the appellant’s costs of, and incidental to, the appeal, on a lump sum basis. The court directed that the appellant file and serve an affidavit constituting a Costs Summary, and that the Agency file and serve any Costs Response, within specified timeframes.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the Tribunal made on 15 July 2016 be set aside.
3. The matter be remitted to the Tribunal to be determined according to law.
4. The first respondent pay the applicant’s costs of, and incidental to, the appeal, on a lump sum basis.
THE COURT DIRECTS THAT:
5. On or before 4 pm on 11 April 2017, the applicant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.
6. On or before 4 pm on 26 April 2017, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 and 4.14 of the Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The factual background in the following sections is not controversial and is taken from the Tribunal’s decision.Mr McGarrigle’s background In October 2013, Mr McGarrigle became a participant in the NDIS. Under the NDIS, he was provided with funding and support for a disability group program at Encompass Community Services for three days each week, and supported employment at a disability enterprise, Karingal Kommercial, for the other two weekdays. Both Encompass and Karingal Kommercial are located in Geelong. Mr McGarrigle lives with his parents and younger sister in Moriac, which is approximately 25 km from Geelong. Accordingly, Mr McGarrigle’s NDIS plan includes funding for transport to and from Encompass and Karingal Kommercial. The funding includes return trips via taxi three days a week. On the other two days, he is picked up by a taxi in the morning, and a support worker funded by the NDIS picks him up in the afternoons, takes him to a gym, and then back home. Mr McGarrigle’s ability to use public transport, and the availability of public transport to and from Moriac, is limited. He holds a card which entitles him to a 50 per cent subsidy on taxi fares. To the extent possible, the taxi provider shares Mr McGarrigle’s trips with other people from the Moriac area, however this depends on the needs of others and is not predictable. Mr McGarrigle’s father works full-time in Geelong, and his mother works 30 to 33 hours a week at a general store in Moriac. Mr McGarrigle’s mother is his primary carer. She describes herself as an “unofficial PA”, in that she coordinates his supports, looks after his finances, drives him to appointments, and is on-call to assist Mr McGarrigle. Participation in the NDIS – participant’s plan As a participant in the NDIS, Mr McGarrigle has a “participant’s plan” prepared by the Agency, which includes a statement of his goals and aspirations, and a statement of participant supports. Part 2 of Chapter 3 the Act deals with these plans and I refer to those provisions below. It is sufficient here to note that by s 33(2) of the Act, a plan must include and specify the “general supports (if any)” that will be provided to a participant; and the “reasonable and necessary supports (if any)” that will be funded under the NDIS. It is the construction and operation of this latter phrase which plays a central role in the resolution of the questions of law raised on this appeal. Since Mr McGarrigle became a participant in the NDIS in 2013, he has been subject to three NDIS participant plans. First plan Under the first plan, which commenced on 2 December 2013 and was to be reviewed by 1 December 2014, Mr McGarrigle was provided with $14,317 in funding for assistance with travel. This amount comprised:(a)$8,872, which was provided for taxi travel to and from Encompass and Karingal Kommercial; and(b)$5,445, which was provided on a per kilometre basis for support staff to transport Mr McGarrigle to the gym and home two afternoons a week, as well as support staff for Mr McGarrigle to go out on a regular basis for respite, and for support staff to attend for in-home support.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
It is not in dispute that Mr McGarrigle’s first two plans included funding for the full cost of his transport to and from Encompass and Karingal Kommercial.Third plan, and the first instance decision about it Mr McGarrigle’s third plan was to commence on 21 December 2015 and was to be reviewed by 20 November 2016. Mr McGarrigle was provided with $8,000 in funding for assistance with travel. This third plan did not separately indicate the amount allocated for the taxis and the per kilometre allowance for support staff, but rather specified that this amount included funding for both of those purposes. On 4 November 2015, Mr McGarrigle’s mother asked the Agency to conduct an internal review of the decision to fund $8,000 of her son’s transport costs. On 6 January 2016, Ms Neroli Raff, an authorised reviewer of the Agency, decided that the contribution should be increased to $11,850. Ms Raff acknowledged in her decision that the initial funding decision of $8,000 represented 50.8% of the estimate of the full cost of the Monday to Friday taxi costs, which, calculated by reference to the Geelong Taxi website, amounted to $15,850. The letter acknowledged that this would leave Mr McGarrigle and his informal support network with $7,580 worth of transport costs. The decision letter acknowledged that this wouldbe an onerous expectation, given that Liam is only on a part pension, you already provide significant informal and financial support for him and you have another teenager to support[.] It appears that Ms Raff’s view about how onerous it was to expect Mr McGarrigle and his family to make up 50% of the transport costs was, at least in part, what led her to vary the decision and increase the funding to what she stated was a 75% contribution to the estimated costs of Mr McGarrigle’s “weekday transport”, leaving approximately $4,000 to be borne by Mr McGarrigle’s informal support network. It is unclear whether the reference to “weekday transport” here includes the amount for the support staff’s per kilometre allowance. At the internal review meeting between Mr McGarrigle, Mr McGarrigle’s father and mother, and Ms Raff, there were discussions as to how to further reduce transport costs. The options canvassed included:·seeking informal transport arrangements with family or trusted community members; ·seeking appropriate local activities that would also meet Mr McGarrigle’s goals; and ·seeking overnight accommodation close to Mr McGarrigle’s day or employment service, to reduce the number of trips required. Following the internal review decision, Mr McGarrigle applied to the Tribunal for review of the decision. The Tribunal affirmed the Agency’s decision to contribute $11,850 of Mr McGarrigle’s transport costs. DISCUSSION OF RELEVANT ASPECTS OF THE LEGISLATIVE SCHEME The objects of the Act are set out in s 3. Relevantly for present purposes, s 3 provides: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…(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and…(2) These objects are to be achieved by:(a)providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and(b)adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.(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; and…