McPherson and National Disability Insurance Agency

[2018] AATA 4303

McPherson and National Disability Insurance Agency [2018] AATA 4303 (20 November 2018)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:           2018/1251

Re:Mark McPherson

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:20 November 2018

Place:Sydney

The decision under review is affirmed.

......................[sgd]..............................................

Dr L Bygrave, Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – muscular dystrophy – anxiety/depression – whether NDIA should fund a private motor vehicle – applicant seeking to access community independently – difficult to use public transport or accessible taxis – no current driver’s licence – impact on financial sustainability of the NDIS – whether funding a private motor vehicle is consistent with the Supports for Participants Rules/Operational Guideline – whether a private motor vehicle is a reasonable and necessary support within the context of section 34(1) – decision affirmed

LEGISLATION

National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 34, 103, 209

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

CASES

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Operational Guideline – Including specific types of supports in plans

REASONS FOR DECISION

Dr L Bygrave, Member

20 November 2018

INTRODUCTION

1. The applicant, Mr Mark McPherson, is 27 years old and resides in the inner west area of Sydney. He has diagnoses of limb girdle muscular dystrophy and anxiety/depression, which affect his mobility and community access. His condition of muscular dystrophy causes weakness and wasting of the muscles in his arms and legs and, since suffering a leg fracture in 2013, he relies on an electric-powered wheelchair and requires a hoist for transfers.

2. Mr McPherson became a participant in the National Disability Insurance Scheme (the NDIS or Scheme) on 19 April 2017 and subsequently requested funding for a private motor vehicle in his NDIS plan. His first NDIS plan commenced on 29 June 2017 but did not include funding for a private motor vehicle.

3. Mr McPherson sought a review of this decision and, on 12 March 2018, an internal review by the National Disability Insurance Agency (the NDIA) affirmed the decision to not fund the cost of a private motor vehicle.

4. On 14 March 2018, Mr McPherson applied to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review.

5. Pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), the Tribunal has jurisdiction to review the internal review decision made by the NDIA.

6. The matter was heard in Sydney on 12 and 18 October 2018. Mr McPherson did not have legal representation; he attended the hearing on 12 October 2018 in person and gave oral evidence, and attended the hearing on 18 October 2018 by conference telephone.

   ISSUE

7. The issue for determination by the Tribunal is whether providing funding for a private motor vehicle for Mr McPherson is a “reasonable and necessary support” as set out in subsection 34(1) of the Act.

8. For completeness, Mr McPherson has had four approved NDIS plans to date, which have commenced on 29 June 2017, 4 August 2017, 15 March 2018 and 4 June 2018. In each of these plans, Mr McPherson has outlined his first goal as “…to be able to access [his] community with more ease”.[1]

   [1] Exhibit T-T14–T16, ST-ST12.

9. I note that Mr McPherson’s NDIS plan commencing on 4 June 2018 included funding for a new electric power wheelchair and, in addition, funding in the amount of:

   ·$1,606 for transport to support access to work, study and community activities; and

   ·$74,460 for core supports used to assist with daily activities and community participation, including “support to explore and participate in community based activities of interest and to develop, build and maintain friendships”.[2]

   [2] Exhibit ST-ST12, p 294.

10. The NDIA and Mr McPherson informed the Tribunal about continuing discussions in relation to features to be included in Mr McPherson’s new electric-powered wheelchair; however, this issue is not part of these proceedings before the Tribunal.

    RELEVANT LEGISLATION

    NDIS statutory framework

11. The objects and principles in the Act provide guidance on the interpretation of the statute. Section 3 sets out the objects of the Act, which include:

    ·giving 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);

    ·supporting the independence and social and economic participation of people with disability;

    ·providing reasonable and necessary supports for participants in the NDIS;

    ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;

    ·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and

    ·promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

12. Paragraph 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

13. Section 4 outlines the general principles guiding actions under the Act. These principles include affirming that people with disability should be supported to exercise choice in the pursuit of their goals and the planning and delivery of their supports; and acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability.

14. Subsection 4(11) of the Act also provides that:

    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 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.

15. Under subsection 209(1) of the Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules), which form part of the legislation.

16. Operational Guidelines have also been drafted by the CEO of the NDIA to assist staff to make decisions and perform functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.

    Reasonable and necessary supports

17. Subsection 34(1) of the Act sets out the criteria for the funding of reasonable and necessary supports as follows:

    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. [emphasis added]

18. Subsection 34(2) of the Act provides that the NDIS rules “may prescribe methods or criteria to be applied”, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection (1).

19. The Support Rules are relevant to assessing and determining the reasonable and necessary supports and general supports that will be funded for NDIS participants.

20. Rule 1.4 of the Support Rules provides that:

    (e)reasonable and necessary supports for people with disability should:

    (i)support people with disability to pursue their goals and maximise their independence;

    (ii)support people with disability to live independently and to be included in the community as fully participating citizens; and

    (iii)develop and support the capacity of people with disability to undertake activities that enable them to participate in the mainstream community and in employment…

21. Rule 5.1 sets out the general criteria for supports and stipulates that a support will not be provided or funded under the NDIS if:

    (a)it is likely to cause harm to the participant or pose a risk to others; or

    (b)it is not related to the participant’s disability; or

    (c)it duplicates other supports delivered under alternative funding through the NDIS; or

    (d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

22. In relation to transport, rules 7.21 and 7.22 of the Support Rules state:

    7.21The 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.

    7.22 The NDIS will not be responsible for:

    (a)ensuring that public transport options are accessible to a person with disability, including through the funding of concessions to people with disability to use public transport; or

    (b)compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or

    (c)transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).

23. The Operational Guideline – Including specific types of supports in plans (the Supports Guideline) provides further guidance in relation to making decisions to approve specific types of supports. Relevant to this review, clause 7 of the Supports Guideline entitled Vehicle Modifications provides, among other matters, that the NDIA will generally not fund the purchase of a motor vehicle, regular insurance, registration or running costs.

    EVIDENCE

24. There is substantial evidence before the Tribunal in relation to Mr McPherson’s requirements for a private motor vehicle/transport to access the community, and his requirements in relation to his electric-powered wheelchair. The evidence set out below relates solely to the issue of funding a private motor vehicle for Mr McPherson.

    Mr McPherson’s evidence

25. Mr McPherson currently lives at home with his mother who provides him full-time care. This care includes transferring Mr McPherson between his bed and electric-powered wheelchair using a hoist, assisting him with toileting and bathing, and preparing his meals. Mr McPherson said he is reasonably independent in his mobility once he is sitting in his electric-powered wheelchair.

26. Mr McPherson’s NDIS plan includes funding of $74,460 for core supports, which may be used to pay for carers or attendants. Both Mr McPherson and the NDIA told the Tribunal he has accessed only a small amount of this core supports funding as he does not use (or uses in a very limited way) a carer or attendant. In oral evidence to the Tribunal, Mr McPherson indicated there were two reasons for not using a carer; firstly, his mother’s care currently meets his needs, and secondly, he has not been able to access a suitable carer.

27. In his oral and written evidence to the Tribunal, Mr McPherson strongly emphasised his desire for independence. He told the Tribunal at the hearing that a private motor vehicle would allow him to leave his home, meet with friends, travel alone to medical appointments, undertake study and participate in employment, attend family functions and sporting events, build and maintain his personal relationships, shop for groceries and go to cafes. Mr McPherson acknowledged that he needs assistance from other people due to his muscular dystrophy and anxiety but – understandably – he asserted his desire to live his life as independently as possible.

28. Mr McPherson stated his goal to independently access the community would be achieved if he owned a private motor vehicle that was modified to enable him to drive it. He provided a quote from Freedom Motors Australia dated 10 April 2018, which priced a current KIA Carnival YP S model including road costs as $41,843.50 (price subject to change) and additional costs associated with modifying the vehicle for wheelchair use. Mr McPherson explained that a vehicle could be modified using a “space drive system” that would enable him to access and drive the vehicle without the assistance of another person.

29. Mr McPherson held a full driver’s license prior to 2013. He currently does not hold a driver’s license and, at the date of the Tribunal hearing, he had not undertaken a medical assessment, driving assessment by an occupational therapist (OT) or an OT driving test, which are some of the procedures he is required to complete before he can acquire a driver’s license.

30. Mr McPherson stated that his financial situation precludes him from saving the money required to purchase a private motor vehicle. In his written statement dated 5 September 2018, he noted:

    Why I need the NDIS to fund me a motor vehicle and modification

    My only form of income support I have is from my mother/sole carer, she is on a carer’s pension. So the unrealistic expectation for me to fund my own vehicle with less than 100,000km and under three years old is unrealistic as that pretty much means a brand-new car which is more than two years the amount I get paid annually. If I were not disabled I could buy a $2000 car and be fine, however because of my disability I cannot go out and buy a $2000 car. And then we get to second hand vehicles, for a reliable engine vehicle with a modification already installed it costs upwards of $20,000. And then every modification is fitted to the disabled occupant so someone’s needs might be met but not mine and keeping the high price tag of $20,000 this is unachievable for me.[3]

    [3] Exhibit ST-ST8, p 219.

31. Mr McPherson also gave evidence about alternative forms of transport that are available to him. He said that taking a wheelchair accessible taxi provokes extreme anxiety in him and he spoke of past bad experiences, including waiting for up to five hours for an accessible taxi. He also expressed concern about the cost of taxis, as his NDIS plan transport budget only comprised $1,606 (or approximately $30 per week).  Mr McPherson said he had concerns about using public transport such as buses, trains and ferries due to his compromised immunity and anxiety.

32. In June 2018, Mr McPherson acquired a second-hand private motor vehicle that was purchased for him with the assistance of his local council mayor. This vehicle has been modified for wheelchair use so an adult with a driver’s license can drive Mr McPherson in his wheelchair; however, Mr McPherson is not able to drive this vehicle. Mr McPherson said this motor vehicle has been driven by family members (including his mother, sister, father and cousin) and his closest friend (who lives next door to him). Mr McPherson acknowledged this motor vehicle allows him to access the community but stated that his independence is still limited as he requires a family member, friend or carer to drive the vehicle.

    Medical evidence

33. Dr Margot Woods, Mr McPherson’s long-term general practitioner, provided reports dated 6 September 2017 and 10 January 2018 in which she stated that Mr McPherson’s “biggest barrier to living his life as he envisions is his lack of mobility”.[4] Dr Woods noted that public transport and taxi travel are not viable options for Mr McPherson to access the community due to his anxiety and further explained that he:

    …is desperate for independence and does not have that now due to not having access to transportation. He is unable to decide when and if he goes out and is unable to escape an at times noisy home life as he lives with his mother, sister and her children. The pressure on his mother is constant.

    A car would offer Mark independence and integration into the world allowing him a more normal life.[5]

    [4] Exhibit T-T11, p 52.

    [5] Exhibit T-T7, pp 46-47.

34. Ms Beulah Warren (psychologist) provided a report dated 31 January 2018 in which she confirmed Mr McPherson has been diagnosed with depression and anxiety; she wrote that Mr McPherson was “struggling to leave the house because of physical and emotional constraints” and “requires a vehicle to get him out of the house”.[6]

    [6] Exhibit T-T8, p 48.

    Evidence by Occupational Therapists

35. Mr McPherson filed reports from Ms Karen Williamson (OT) dated 19 June 2017 and Ms Hannah Spencer (OT) dated 6 September 2018. The NDIA requested that Ms Deborah Hammond (OT) undertake an assessment of Mr McPherson; Ms Hammond subsequently provided a report dated 13 September 2018.

36. Ms Williamson reported her last assessment of Mr McPherson was in April 2017 and she recommended he undertake further OT assessment regarding his ability to use a vehicle and the modifications that could be made to a vehicle to increase his independence in accessing the community and a workplace environment.

37. Ms Spencer outlined Mr McPherson’s goal to access his community and participate with community activities with more ease, independence and safety. She noted that he is currently dependent on family members to drive him places. In view of Mr McPherson’s functional capacity, Ms Spencer noted he would:

    …require a full vehicle modification including – alternative space drive steering technology (given the limitations with his upper and lower limb and lower limb), wheelchair access with ramp, driving in wheelchair availability, controls utilizing hand and fine dexterity function, lowered flooring. He would also require an OT driving assessment, medical clearance and OT driving test.[7]

    [7] Exhibit ST-ST7, pp 212-213.

38. Ms Spencer provided oral evidence to the Tribunal on 18 October 2018, in which she confirmed she had assisted Mr McPherson to research equipment that may be available to enable him to drive independently, but he had not undertaken any OT or driving assessment regarding his potential to drive a motor vehicle independently.

1. Ms Hammond’s report outlined transport options available to Mr McPherson, including wheelchair accessible taxis, the Leichardt Marrickville Community Transport Group, public transport such as buses, ferries, light rail and trains, and hiring a wheelchair accessible vehicle. Ms Hammond opined, both in her report and her oral evidence to the Tribunal, that Mr McPherson would require an attendant or carer for all community outings other than to the local park due to his high support needs and to assist him to manage his anxiety.

   Report by the Office of the Scheme Actuary

2. A report prepared by the Office of the Scheme Actuary (the Actuary report) dated 13 September 2018 provided extensive submissions and calculations on the potential impact on the financial sustainability of the NDIS if the Scheme were to provide funding of private motor vehicles to participants.

3. The Actuary report reiterated the provisions in the Support Rules that the NDIS will only pay the “additional costs that arise directly because of a participant’s disability” and the statement in the Supports Guideline that the NDIA will generally not fund the purchase of a motor vehicle [emphasis in original].[8]

   [8] Exhibit ST-ST9, p 225.

4. The Actuary report submitted that motor vehicle ownership is an ordinary and high cost of living for all Australians, and expressed concern that a precedent decision by the Tribunal could have a wider “ripple effect” on the financial sustainability of the NDIS.[9] Based on estimates of projected numbers of NDIS participants, the Actuary estimated annual funding to purchase motor vehicles for all participants with muscular dystrophy would be between $7.4 million and $11.4 million per annum, and the cost for funding private motor vehicles for all adult participants would be between $936 million and $1,442 million per annum.

   [9] Exhibit ST-ST9, p 225.

5. Despite my request, the Actuary did not appear at the Tribunal hearing to provide oral evidence and so it was not possible to examine any assumptions that may underlie the Actuary’s calculations and the Actuary’s concerns about the “ripple effect” as contended in their report. Nonetheless, I accept the Actuary’s submissions that there would be risks to the financial sustainability of the NDIS if the Scheme were to pay “regular daily living expenses that are an ordinary cost of life for all Australians”, and there could be “risks of inequity between various cohorts of participants” if funding for private vehicles is provided for one group of participants and not another group.[10]

   [10] Exhibit ST-ST9, p 233.

   CONSIDERATION

6. Based on the evidence before the Tribunal, I make the following findings of fact:

   ·Mr McPherson is seeking funding for a private motor vehicle that is fully modified for him to drive so that he is able to access the community independently.

   ·The cost of this private motor vehicle is approximately $41,843.50 (plus additional costs associated with modifying the vehicle to enable Mr McPherson to drive it independently).

   ·Mr McPherson does not have a current driver’s licence.

   ·Due to his combined conditions of muscular dystrophy and anxiety/depression, Mr McPherson finds it extremely difficult to use public transport or accessible taxis to access the community.

   ·Mr McPherson currently owns a motor vehicle that has been modified to transport a person in a wheelchair and may be driven by an adult with a driver’s licence.

   ·In his NDIS plan that commenced on 4 June 2018, Mr McPherson has funding in the amount of $74,460 for core supports, which includes support to pay for a carer to drive his motor vehicle. Mr McPherson has only used a small amount of this funding to date.

7. It is clear from these findings that the issue before the Tribunal – to decide whether funding a private motor vehicle for Mr McPherson is a reasonable and necessary support in accordance with the Act – is speculative. This is because Mr McPherson does not currently hold a driver’s licence. Further, there is no evidence before the Tribunal from medical practitioners, an OT or the NSW Department of Roads and Maritime Services about Mr McPherson’s potential to obtain a driver’s licence in view of his conditions of muscular dystrophy and anxiety/depression.

8. The issue is also speculative because there is no clear and objective documentation before the Tribunal (or the NDIA) about the sort of vehicle modifications that would be required for Mr McPherson to be able to drive independently. Rather, the only information is Mr McPherson’s oral evidence and a brief statement in Ms Spencer’s OT report, which is based on information they obtained from a visit to Problem Management Engineering (a company that undertakes vehicle modifications). I also note that changes in technology, including developments such as self-driving vehicles, may assist Mr McPherson in his goal to drive a vehicle independently. However, again there is no expert evidence before the Tribunal.

9. Having regard to the Support Rules, I find that funding a private motor vehicle for Mr McPherson is not consistent with Rule 5.1(b), which stipulates a support will not be funded under the NDIS if “it is not related to a participant’s disability”. In accordance with Rule 7.21(b), I am satisfied that this means the NDIS will fund any modifications to a motor vehicle that would enable Mr McPherson to drive independently, but not pay for the capital asset of the vehicle. This is also consistent with the Supports Guideline, which states the NDIA will generally not fund the purchase of a motor vehicle.

10. I now consider the provisions of subsection 34(1) of the Act to decide whether funding a private motor vehicle is a “reasonable and necessary support” for Mr McPherson. In my consideration below, I also have regard to Mortimer J’s decision in McGarrigle v National Disability Insurance Agency, which provides the following guidance to assess “reasonable and necessary supports” in the Act:

    Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”…

    [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…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… That determination can only be made on the basis of probative evidence.[11]

    Will the support assist Mr McPherson to pursue the goals, objectives and aspirations included in his statement of goals and aspirations – paragraph 34(1)(a)?

    [11] [2017] FCA 308 at [91, 93].

11. Mr McPherson’s first goal in his NDIS plan is to access his community with more ease. He is seeking funding for a private motor vehicle to be modified to enable him to independently access the community. Mr McPherson’s need for a motor vehicle to achieve his goal to access the community is also corroborated by evidence from Dr Woods, Ms Warren and Ms Spencer.

12. Noting the support of a private motor vehicle is speculative for the reasons set out in paragraphs 45-46 above, I am otherwise satisfied that a motor vehicle modified for Mr McPherson to drive independently would assist him to pursue the goals, objectives and aspirations in his statement of goals and aspirations.

    Will the support assist Mr McPherson to undertake activities, so as to facilitate his social and economic participation – paragraph 34(1)(b)?

13. The evidence of Mr McPherson, Ms Spencer and Dr Woods is that a private motor vehicle would facilitate his social and economic participation, allow him to easily access his friends and community activities, and participate in study and employment opportunities.

14. In view of Mr McPherson’s anxiety about using public transport and accessible taxis due to both his muscular dystrophy and anxiety/depression conditions, which has been supported in evidence from Dr Woods, Ms Warren and Ms Spencer, I accept that these transport options do not facilitate his social and economic participation.

15. Noting the support of a private motor vehicle is speculative for the reasons set out in paragraphs 45-46 above, I am otherwise satisfied that funding a private motor vehicle will facilitate Mr McPherson’s social and economic participation.

    Does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support – paragraph 34(1)(c)?

16. Since June 2018, Mr McPherson has owned a private motor vehicle that can transport his wheelchair and be driven by any adult with a driver’s licence. Mr McPherson has family members and friends who can and do drive this vehicle. Mr McPherson’s NDIS plan also provides the amount of $74,460 for core supports that can be accessed to pay a carer to drive this vehicle and assist him to access the community. Mr McPherson’s capacity to access the community using this motor vehicle and a driver addresses the concerns about Mr McPherson’s physical and emotional constraints set out in the reports by Dr Woods, Ms Warren and Ms Spencer.

17. Mr McPherson contended at the Tribunal hearing that, if the NDIA funds a private motor vehicle that he can drive independently, then his core supports funding to pay for carers or attendants can potentially be reduced.

18. I accept Mr McPherson’s goal is to independently drive a private motor vehicle. However, for the reasons set out in paragraphs 45-46 above, I cannot find the support represents value for money. Indeed, in view of my reasons at paragraphs 45-46 and the submissions made by the Scheme Actuary regarding the long-term financial sustainability of the NDIS, it would be irresponsible for me to make a finding that funding a private motor vehicle for Mr McPherson either represents value for money or is reasonable. In considering the issue of “value for money”, I also note that Mr McPherson has owned a private motor vehicle since June 2018, as described in paragraph 54 above.

19. Based on the evidence before the Tribunal, I am not satisfied that funding a private motor vehicle for Mr McPherson is reasonable because it does not represent value for money relative to the benefits achieved and the cost of alternative support.

    Will the support be, or likely to be, effective and beneficial having regard to current good practice – paragraph 34(1)(d)?

20. Noting the support of a private motor vehicle is speculative for the reasons set out in paragraphs 45-46 above, I am otherwise satisfied that a motor vehicle modified for Mr McPherson to drive independently would be effective and beneficial having regard to current good practice. In making this finding, I am guided by the objects set out in paragraph 3(1)(g) of the Act regarding promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

    Does the funding take account of what it is reasonable to expect families, carers, informal networks and the community to provide – paragraph 34(1)(e)?

21. For the reasons set out in paragraph 47, I am satisfied that funding a private motor vehicle for Mr McPherson is not consistent with the Support Rules. It follows that I am satisfied that it is reasonable for NDIS participants, their families, carers, informal networks and/or the community to provide funding for a private motor vehicle for Mr McPherson.

22. In making this finding, I note that Mr McPherson was provided with a second-hand private motor vehicle in June 2018 that was purchased for him with the assistance of his local council mayor.

    Is the support appropriately funded through the NDIS – paragraph 34(1)(f)?

23. In considering whether it is appropriate for the NDIS to fund a private motor vehicle for Mr McPherson, I have regard to the objects and principles of the Act that seek to ensure the long-term financial sustainability of the NDIS, the evidence in the Actuary report about an NDIS participant’s responsibility for normal and ordinary costs of living, and the Support Rules and Supports Guideline that state the NDIA in general will not fund the purchase of a motor vehicle.

24. The insertion of the words “in general” in the Supports Guideline reinforces the requirement for me to consider the merits of Mr McPherson’s particular circumstances.  Based on the evidence before the Tribunal, I am not satisfied that Mr McPherson’s situation is sufficiently unusual or unique that it would be appropriate for the NDIS to provide funding for a private motor vehicle. In making this finding, I also refer to my reasons set out in paragraphs 45-46 above that the support of a private motor vehicle is speculative.

    CONCLUSION

25. For the reasons set out above, I am not satisfied that providing funding for a private motor vehicle for Mr McPherson is a “reasonable and necessary support” as defined in subsection 34(1) of the Act.

    DECISION

26. The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...........................[sgd].........................................

Associate

Dated: 20 November 2018

Date(s) of hearing:	12 & 18 October 2018
Applicant:	In person
Counsel for the Respondent:	N Laing
Solicitors for the Respondent:	National Disability Insurance Agency