NLXY and National Disability Insurance Agency
[2024] AATA 2275
•5 July 2024
NLXY and National Disability Insurance Agency [2024] AATA 2275 (5 July 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/0113
Re:NLXY
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:5 July 2024
Place:Canberra
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
.............................[SGD]...............................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – definition of reasonable and necessary – what is reasonable to expect families, carers, informal networks and the community to provide – value for money – transportation to and from school – autism spectrum disorder – educational supports – decision affirmed
Legislation
Administrative Appeals Tribunal Act1975 (Cth) ss 37, 43
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 17A, 32, 33, 34, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013 rr 1.3, 2.5, 3.4Cases
BIJD and National Disability Insurance Agency [2018] AATA 2971
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
JQJT and National Disability Insurance Agency [2016] AATA 478
Madelaine and National Disability Insurance Agency [2020] AATA 4025
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF (2020) 276 FCR 415Secondary Materials
NDIS ‘Including Specific Types of Supports in Plans Operational Guideline’
REASONS FOR DECISION
Member W Frost
5 July 2024
INTRODUCTION
The Applicant, NLXY, is a 13-year-old participant in the National Disability Insurance Scheme (NDIS) with Autism Spectrum Disorder Level 2 (ASD).[1]
[1] Exhibit 1, pages 27, 80-108.
In December 2022, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) affirmed its decision declining the request to include funding for transportation to and from a specialist school in NLXY’s statement of participant supports, under the National Disability Insurance Scheme Act 2013 (NDIS Act).[2] The NDIA was not satisfied that the requested support was best provided by the NDIS, taking into account what it is reasonable to expect families, carers, informal networks and the community to provide pursuant to subsection 34(1)(e) of the NDIS Act.
[2] Ibid., pages 8-12.
In January 2023, NLXY applied to the Administrative Appeals Tribunal (Tribunal) for review of the NDIA’s decision.[3] The Tribunal has considered all documents filed in this proceeding, including those provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with additional material and the parties’ submissions.[4] For the following reasons, the Tribunal affirms the decision under review to refuse to include funding for transportation to and from NLXY’s school in his statement of participant supports under the NDIS. This means that NLXY’s application to the Tribunal is unsuccessful.
[3] Ibid., pages 1-7.
[4] Exhibits 1-3.
ISSUE
The issue for determination by the Tribunal in this proceeding was whether the support requested by NLXY to be funded by the NDIA, being transportation of NLXY to and from school, is ‘reasonable and necessary’, pursuant to section 34 of the NDIS Act, and should be included in the statement of participant supports in his NDIS plan.
LEGISLATIVE INSTRUMENTS
The NDIS Act
The objects of the NDIS Act, set out in section 3, include 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
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had both to the need to ensure the financial sustainability of the NDIS, and to the provision of services by other agencies, departments or organisations, as well as the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including that:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(10)People with disability should have their privacy and dignity respected.
(11)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 to 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.
Subsection 4(17) of the NDIS Act also provides that:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 17A of the NDIS Act sets out additional principles which must be had regard to in relation to the participation of people with disability.
Section 32 of the NDIS Act provides that if a person becomes a participant in the NDIS, the CEO of the NDIA must facilitate the preparation of the participant’s plan, and this is to commence within 21 days of the person becoming an NDIS participant. Subsection 33(2)(b) of the NDIS Act requires a participant’s plan to include a statement, being the ‘statement of participant supports’, prepared with the participant and approved by the CEO of the NDIA, that specifies (amongst other things) ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.
Subsection 33(5) of the NDIS Act stipulates that in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO of the NDIA or, in this proceeding, the Tribunal, must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The criteria in section 34 of the NDIS Act set out what supports will be provided to an NDIS participant, as follows:
(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.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), Mortimer J (as her Honour then was) observed that:[5]
Although the phrase “reasonable and necessary supports” is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion s 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.
...
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that 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 (to take an example away from this case, speech therapy lessons three times a week), 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. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
[5] At [41]-43] and [93].
As the Full Federal Court of Australia explained in National Disability Insurance Agency v WRMF (2020) 276 FCR 415 (NDIA v WRMF) at [201]:
The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.
The NDIS (Supports for Participants) Rules 2013
Pursuant to subsection 209(1) of the NDIS Act, the Minister may, by legislative instrument, make rules regarding the NDIS. Subsection 34(2) of the NDIS Act authorises NDIS rules to 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)(a) to (f)’ in section 34. Such rules include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS. The CEO of the NDIA, or here the Tribunal, is bound to apply any NDIS rules, pursuant to subsection 33(5)(d) of the NDIS Act.
Rule 1.3 of the Supports Rules, in line with subsection3(3) of the NDIS Act, provides that in giving effect to the objects set out in the Supports Rules, ‘regard is to be had to the need to ensure the financial sustainability of the NDIS’. Additionally, rule 2.5 of the Supports Rules states that in administering the NDIS and in approving each plan, ‘the CEO must have regard to [the] objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans’.
Part 3 of the Supports Rules provides guidance for assessing whether supports meet the criteria in subsection 34(1) of the NDIS Act to be found to be ‘reasonable and necessary supports’ that will be funded by the NDIA.
Rule 3.4 of the Supports Rules provides the following relevant guidance regarding what it is reasonable to expect families, carers, informal networks and the community to provide under subsection 34(1)(e) of the NDIS Act:
In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
…
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities. [emphasis in original]
The Operational Guideline
The NDIA has made numerous operational guidelines regarding the application of the NDIS Act and the Supports Rules. Relevant to this proceeding was the guideline tilted, ‘Including Specific Types of Supports in Plans Operational Guideline’ (Operational Guideline).[6]
[6] accessed on 7 June 2024.
The Operational Guideline represents government policy and, to the extent it is consistent with the relevant legislation, should be applied by the Tribunal unless there is a good reason not to do so.[7]
[7] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. See also Madelaine and National Disability Insurance Agency [2020] AATA 4025 at [9].
The purpose of the Operational Guideline is to provide additional guidance in relation to making a decision to approve a statement of participant supports which includes one or more of the specific types of supports referred to in the Operational Guideline, relevantly including those relating to transport. The Operational Guideline states that:[8]
[8] accessed on 7 June 2024.
…the NDIA must take into account what is reasonable for families, carers, informal networks and the community to provide. In relation to transport, this consideration may be different for participants who are children as compared to participants who are adults.
…
Transport should only be funded where it has been determined to be reasonable and necessary, where it is an additional cost incurred solely and directly as a result of a participant’s disability support needs and, where ancillary to another funded support, it is a cost which the participant would not otherwise incur.
It does not follow, merely because transport is ancillary to a funded support, that it should be funded. The circumstances in which transport may be funded are strictly limited. Transport must:
·relate to a support that has been determined to be reasonable and necessary; and
·be an additional cost and incurred solely and directly as a result of disability support needs; and
·where transport is ancillary to another funded support, it must be a cost which the participant would not otherwise incur (see JQJT and NDIA [2016] AATA 478 at [35]).
…
Transport and considerations relating to children
Parents of NDIS participants aged under 18 years have a responsibility to meet their child’s daily transportation requirements. However, some children may require additional assistance, for example children who cannot use public transport or their parent’s vehicle, even if modified, due to their disability.
The NDIS will generally not fund day to day living costs associated with caring for children, including transport costs, as parents are expected to meet a child’s everyday transport requirements (see JQJT and NDIA [2016] AATA 478 at [35]).
When considering whether transport is a reasonable and necessary support for a child, the NDIA must take into account what is reasonable for families, carers, informal networks and the community to provide (section 34(1)(e)).
What is reasonable for a family to provide in respect of a particular support should be considered in light of the support they have to provide the child generally because of his or her disability (see JQJT and NDIA [2016] AATA 478 [39]).
When considering whether funding for transport for a participant who is a child takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the NDIA will consider:
·that it is normal for parents to provide substantial care and support for children;
·whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age;
·the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
·whether the funding or provision of the support would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing. (rule 3.4(a) of the Supports for Participants Rules).
The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their daily living activities, such as transport to and from school (rule 7.13 of the Supports for Participants Rules).
When considering if specialist transport to and from school for a participant who is a child is a reasonable and necessary support the NDIA will consider:
·if any other transport option is available and appropriate; and
·whether providing the supports would substitute for parental responsibility. [emphasis in original]
EVIDENCE
NLXY’s parents
The Tribunal has considered the Statement of Lived Experience provided by NLXY’s parents in April 2023 and their undated further Statement of Lived Experience, which latter document relevantly stated in relation to transport that:[9]
Whilst we understand that the costs quoted for transport for [NLXY] is [sic] high, as discussed this is related to agencies only providing services for a minimum of 2 hours. Even though two hours would not be required both morning and afternoon, the agencies have advised that support workers do not tend to take positions for less than two hours. Additionally, it was mentioned that the cost of transport is much higher than his yearly school fee. We understand this and if we could have a support worker service that would be less expensive and would meet [NLXY]’s needs, we would look at this opinion [sic]. I would also like to mention that although to some, the $14,000 yearly tuition at [school] may not seem like much to some – to us, this is a huge amount and has impacted our family greatly. [NLXY’s Mother] has needed to increase her working out to her maximum available capacity and [NLXY’s Father] sourced another position to ensure that we could cover his tuition costs. At times, this is still a stretch after our other family expenses.
[NLXY] would require principally the same driver each day, someone who has the training and skills to assist him should he have a blood nose, periods of anxiety of [sic] a melt down. Various taxi companies, including 13 Cabs and Silvercabs, have confirmed of [sic] they do not offer these types of services, in addition, Uber have also advised they cannot offer these services. While the costs of taxi and Uber may be significantly reduced, the cost advantages do not outweigh the limited services in this circumstance. [NLXY] will not cope with multiple drivers and this will increase his anxiety and the likelihood of meltdowns were he put in this situation. Additionally, as [NLXY]’s parents we do not feel comfortable or that we would be providing [NLXY] with the care he requires if we were to place a minor into a public transport service on his own. We believe that it is our parental responsibility to ensure that [NLXY] is and feels safe and secure with someone who cares for his well being in transporting him to and from [school].
[9] Exhibit 2, tabs 23 and 25.
NLXY’s parents gave concurrent evidence at the Tribunal hearing and said that they were seeking to do their best to assist their son to fully participate in the community and be a valued member of it. They understood that the NDIA has rules that need to be followed, but said they were seeking supports for NLXY to meet his goals, and were not asking for something they considered ‘extravagant’. NLXY’s parents agreed that the costs of the requested support were ‘exorbitant’ and said they were ‘taken aback’ by the quotes provided for support workers to transport their son, being in excess of $50,000. They said they are trying to be proactive in helping NLXY meet his goals, and if he had stayed in a mainstream school he would have required more supports, so they made the financially burdensome decision to move him to a specialist school. The parents said that they were trying to do what was best for NLXY in the best way they know how.
Currently, NLXY’s parents are getting their son to school with the paid help of a friend with whom NLXY is comfortable. They said this is a ‘huge strain’ on what the family can afford and it cannot be maintained ‘long term’. In this regard, NLXY’s parents told the Tribunal that any transport support would not be required ‘forever’, but only for a period of time, because NLXY’s goals include transport use. They said that whilst NLXY is ‘not quite there yet’ in terms of being able to use public transport, he ‘will get there eventually’. In relation to the transport costs being ‘value for money’, NLXY’s parents said that if there was an equivalent level of service at a lower cost, they would be satisfied. They said they have prioritised their son’s safety and wellbeing, noting that private transport operators could not manage any meltdowns that NLXY may have, and could potentially end a car trip without completing it, leaving NLXY ‘on the side of the road’. NLXY’s parents said that private transport operators do not have an understanding of his needs and therefore were not comparable to the requested support.
Under cross-examination, NLXY’s parents said that their son had an NDIS plan based on his ASD before commencing at the specialist school. He had exhibited ‘difficulties’ at home and at school and received support from Dr C, Psychologist, and other medical professionals. NLXY’s parents had discussed their son’s presentation and behaviours with the local primary school that he then attended. They were receiving ‘daily messages’ that NLXY was ‘not having a good day at school’, he displayed ‘school refusal issues’ and was ‘traumatised by being there’, including being ‘distressed’ and ‘anxious’ about attending school. NLXY’s parents told the Tribunal that at school NLXY attempted self-regulation techniques he had been instructed to use, such as moving away from certain situations to regulate his emotions, but that the teachers had not approved and did not give him ‘strict boundaries’ on where he could go to self-regulate. They said NLXY was getting ‘very bored’, was unchallenged, and was ‘very sensory’. NLXY’s parents said that their son had been put in the ‘too-hard basket’ at his former school and they were unable to assist him to receive the help he required.
NLXY is now at a private specialist school in a secondary class and ‘moving all the time’, but listening and answering teachers’ questions. His parents told the Tribunal that they had considered the financial commitment associated with the school when enrolling NLXY. They explored other schooling options in their local area, with one option said to be a school closer than the specialist school. NLXY’s parents understood the ‘logistical issues’ of their son attending the specialist school, but the benefits outweighed him being in a mainstream school, including that NLXY would be ‘refusing to go to school’ meaning his mother could not attend work.
NLXY’s parents confirmed that they have not asked the NDIA to fund NLXY’s school fees, excursions or uniform costs. They felt it was in NLXY’s ‘best interest’ that he change schools to the specialist school and were ‘extremely grateful’ that he could attend that independent school with high demand.
The parents’ two other children attend a local primary school and secondary school, and are currently driven to and from those schools by their maternal grandfather. However, NLXY’s parents told the Tribunal that they need to make other arrangements due to the grandfather’s eye health and other medical issues. He was still driving ‘very short distances’, but not in the evening.
NLXY’s parents told the Tribunal that they currently have a friend who transports NLXY to and from school ‘the majority’ of the time, so NLXY’s mother can take the two other children to their schools when the grandfather is unavailable. The grandfather was said to be available on ‘some days’ to drive NLXY’s siblings to school. These other schools are 10 minutes’ drive from the family home. On days when the family friend is unavailable, NLXY’s mother does the driving, which was a ‘huge pressure’ and a ‘struggle’. NLXY’s parents pay the family friend $55 per trip to transport NLXY. He was said to need the consistency of having the same person driving him to and from school and is ‘comfortable’ with the family friend, noting that both of that person’s daughters were said to have ASD, but she held no specialist qualifications. The family friend knows NLXY and his routine very well. She has a normal car, with no car seats or restraints for NLXY. She only drives with NLXY and has no other passengers. He is not driven to school by his grandfather.
NLXY’s mother told the Tribunal that her driving restrictions relate to work commitments and her long-term injury. She is not meant to drive for ‘more than 30 minutes’ due to her long term injury, therefore had asked the family friend to assist with driving NLXY.
NLXY’s father works as a project manager and drives to work. He leaves home around 7.00am for work and can return from anywhere between 4.00pm and 5.00pm each day. NLXY’s father cannot collect his children from school when it finishes because he has not concluded work by that time. The father drives the oldest child to basketball in the evening. A family friend collects that child from school and drives him to his youngest brother’s local primary school where NLXY’s mother meets them. Sometimes the eldest child rides his bike.
NLXY was said to be comfortable to tell the family friend what he needs while being driven because she has been around him over many years, including during his ‘meltdowns’. She is very good at keeping him calm, and has not needed to stop the car for NLXY’s meltdowns and can ‘talk him down’ if required. There are no modifications to the family’s car or the family friend’s car to transport NLXY.
NLXY attends school excursions, including using the train as a group with teachers, being very well supervised and under control. The family have explored the option of other families from the same school transporting NLXY, but people attending the school were said to be located ‘everywhere’, unlike local schools and there are no other students from NLXY’s school living close to them. There is no school-operated transport option.
NLXY’s parents told the Tribunal that he does not need a support worker for his everyday needs, although it would be ‘handy’ during school holidays or other extended breaks while his parents were working. NLXY was said to require the ‘consistency’ of having the same person who understands his needs and of knowing who is coming to collect him and when; he does not deal well with change. NLXY does not participate in after school activities.
NLXY’s parents hope that he would be able to get where he needs to go by the time the specialist school ends at the conclusion of Year 10. They have not yet used the recently provided transport education funding under NLXY’s current NDIS plan.
NLXY’s parents again told the Tribunal they understood there had to be ‘rules in place’ regarding supports funded under the NDIS. They consider the requested support to be reasonable because they do not have support to transport NLXY to and from school, together with his siblings. NLXY’s parents are seeking to proactively give him the best opportunity to become a productive member of society. They told the Tribunal that without living with NLXY it was difficult to understand the difference in him since attending the specialist schooling and its effect on their family. NLXY’s parents said that they felt the requested support was reasonable because without it they are unsure how long they can persist with paying for NLXY to be transported privately, and they do not want him to return to a mainstream school requiring extra support because he has ‘come so far already’. They want NLXY to get what he needs to be a valued member of the community. This means ensuring the best supports for him. NLXY’s parents told the Tribunal that they knew it seemed the requested support was not reasonable or value for money, but said that if their personal circumstances were considered along with the benefits of the arrangements for everyone, it was more than reasonable.
Dr C – Psychologist
The Tribunal has considered the three reports of Dr C dated 19 September 2022, 18 April 2023 and 27 July 2023 and provided to NLXY’s Mother.[10] Dr C’s report in 2022 relevantly stated that:[11]
[10] Exhibit 2, tabs 7, 17 and 24.
[11] Ibid., tab 7.
Over the first half of the 2022 school year, [NLXY]’s behavioural and academic presentation deteriorated significantly. His Term 1 school report is evidence of this. I can confirm that I was consulted about the issues experienced by [NLXY] and the management strategies used in his mainstream school. It was my opinion from feedback from the parents and [NLXY] that there was compelling evidence [the local] Primary School did not have the required understanding of good practice in behaviour management of ASD, were continuing to use ‘traditional’ and punitive measures in the school with [NLXY], were confounding intention and goal-driven behaviours, and had determined that [NLXY] was not a ‘good fit’ for his classroom or the school.
…
[NLXY]’s parents discussed whether it would be beneficial for them to consider their son attending a specialist school that might better meet his needs. The most appropriate and nearest option for a specialist school was reported to be [NLXY’S school]. It was my opinion that this option would be useful to consider under all the circumstances, but recommended the parents discuss the idea with [NLXY]’s school at the time.
I have been informed that in that subsequent discussion, the Principal of [the local] Primary School stated he recommended that [NLXY] transfer to [the new specialist school], supported that transfer, and acknowledged that his current school did not have the skills and resources required to appropriately assist [NLXY] in behavioural and academic respects. This has since been confirmed by the Principal in writing in a letter dated 14/9/2022. As a result of this information and further consideration of [NLXY]’s best interest, I also recommended that [NLXY] transfer to [NLXY’S school] on the basis of his behaviour support and psychological wellbeing being put at risk at his previous school.
I also recommended that the parents make an application for a review of NDIS funding to support [NLXY] to consistently attend [NLXY’S school]. As discussed below, it was and remains my opinion that transport assistance for [NLXY] meets NDIS legislation and funding guideline.
…
…having care of three primary school aged boys attending three different schools because their ages [sic] and one of the children having a recognised disability is not typical of most families in Australia. Furthermore, the school transport regime [NLXY] requires would be stressful and onerous for most parents, but with [NLXY]’s mother having a serious medical condition that affects her elbow, there is the additional stress of deterioration of functioning and increased pain due to her driving long distances each day. The level of physical and emotional distress resulting from exacerbation of the mother’s medically documented condition also affects her capacity to work, thus adding financial stress to the family.
The delegate’s reference to informal and community resources was also addressed in the application for review, which noted the only other informal support available to [NLXY] is his elderly grandfather. The grandfather has been transporting [NLXY]’s brothers to school, but his vision has deteriorated from the effects of glaucoma to the extent that he and [NLXY]’s parents are extremely anxious about the safety the two boys when the grandfather is driving.
…
[NLXY] has not been able to attend a mainstream school, needs to attend a specialist ASD specific school, and requires other significant intervention supports. These facts are, in my opinion, clear evidence his care needs are at a ‘substantially greater’ level than typically developing children of a similar age. In addition, DSM-5 severity criteria for ASD state that a Level 2 presentation is considered as “Requiring substantial support”. This is [NLXY]’s documented level severity level [sic] and in itself provides compelling support for the criterion under r 3.4(a)(ii) being met.
…
It is my opinion that [NLXY]’s disability precludes him from catching public transport for his school attendance. It is also my opinion that the expectation that [NLXY]’s mother will drive up to 3 hours per day to provide her son with transport, while experiencing a significant elbow injury and pain, engaging in paid employment, suffering the risk to her other children while being transported by the grandfather, and managing the family and its home, is wholly unsupportable under any circumstances, let alone when caring for a family that includes a child with a disability.
…
It is my opinion the requested supports that have been declined are reasonable and necessary for the welfare and development of [NLXY]. It is also my opinion that these supports contribute to the psychological wellbeing of [NLXY], his parents, and the community more broadly.
In Dr C’s report from April 2023, he relevantly opined that:[12]
[NLXY]’s level of severity and frequency of behaviours of concern has markedly decreased since his enrolment in [the specialist school]. This change has been observed in both the school and home environments. As noted by the Principal of [the local] Primary [school], that school did not have the resources, capacity, or funding to assist a chid with [NLXY]’s presentation. The letter from the Principal clearly recommended that [NLXY] attends a specialist school because, in his expert opinion, a mainstream school would not provide [NLXY] with sufficient supports to successfully continue his education. It is, in my opinion, in [NLXY]’s best [sic] to be supported to continue his enrolment at [NLXY’s school] through his NDIS Plan, as this is directly associated with his disability. As noted in the National Disability Insurance Agency Act 2013 (Cth) s 4(1):
People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
Unless appropriate supports are provided to ensure [NLXY]’s enrolment at [NLXY’s school] is viable, under all the circumstances known to the NDIA, it is untenable that he can, let alone would, realise his potential for physical, social, emotional and intellectual development.
[12] Ibid., tab 17.
Dr C’s third report from July 2023 relevantly stated that:[13]
[13] Ibid, tab 24.
The question that you have asked me to specifically comment on is the query by the NDIA about why [NLXY] is unable to utilise a registered taxi service or Uber service, which would be cheaper than specialist transport. As noted above, it is my opinion that the information contained in my document dated 18/4/2023, Clinical Psychological Report – Behaviour Support & Response Plan, provides significant reasons why a taxi or Uber service is not appropriate nor suitable for [NLXY]. A cursory understanding of the challenges faced by individuals with Autism Spectrum Disorder at Level 2 severity, in conjunction with the information in that comprehensive report, would provide compelling support for [NLXY] not being a candidate for public transport of any kind, including taxi or Uber services.
Clinically significant anxiety associated with Autism Spectrum Disorder that results in an inability to adapt to changes in environment and expectations. The use of a taxi or Uber service would not provide consistency with the driver and this poses an extreme risk of [NLXY] having a severe negative response to any change or surprise (i.e., a ‘meltdown’).
Any disturbance in [NLXY]’s affect will directly affect his ability to learn and participate in academic activities.
Any disturbance in [NLXY]’s affect will directly affect his ability to engage in peer or other form of interpersonal interaction.
Any disturbance in [NLXY]’s affect will result in high risk of avoidance behaviours and school refusal.
A driver who is not disability trained poses a risk to [NLXY]’s welfare should be [sic] experience a panic attack or ‘meltdown’. First aid training is irrelevant to disability training and experience, which includes explicit de-escalation techniques and strategies that the public are not generally aware of.
There have been several cases in the media over the past few years of children with disabilities being removed from school transport and ‘abandoned’ when drivers have been unable to manage or cope with behaviours of concern. If [NLXY] were not funded to access to [sic] an appropriately trained and experienced transport provider, in the event that something like this happened to him it would result in negative high-profile media exposure for the NDIA and perhaps even legal action over acting against clear clinical recommendations.
…
…[NLXY] has a significant history of presenting with severe behaviours of concern when agitated, anxious, or frustrated. Without consistency and certainty about who will be transporting him to and from school each day, the risk of behaviours of concern emerging in the home, at school, and during transport is unacceptably high, in my opinion.
Dr C gave evidence at the Tribunal hearing. Under cross-examination from Counsel for the NDIA, Dr C said that he did not strongly advocate for NLXY to transfer schools, he was involved in the decision-making process and made recommendations; he considered the local primary school principal made the strongest suggestion that NLXY transfer to a school better able to provide the educational environment required due to NLXY’s disability. Dr C confirmed that NLXY was ineligible for the state’s specialist school’s programs. Dr C told the Tribunal that, if NLXY attended another mainstream school, it would lead to the ‘same situation’ where there was ‘limited ability’ to manage NLXY’s educational and behavioural issues. He agreed that it was fortunate the specialist school was located in eastern Melbourne and NLXY’s parents were able to afford the fees. Dr C did not discuss NLXY’s parents’ life circumstances with them when discussing schooling options.
Dr C did not recall making any recommendation that NLXY required support generally for transportation. He said that NLXY was transported around by his family, so does not require any physical assistance for disability, but made it clear in his reports that as part of NLXY’s NDIS plan review and follow up he does require supports in terms of getting to and from school safely and managing the stability of NLXY’s family and their health issues. Dr C confirmed that no one else in the family has been assessed by him in a clinical nature and that NLXY’s mother’s injury was outside of his expertise.
Dr C disagreed with the proposition that some of the requested supports were based on what he was told, but not what he personally assessed. He referred to reports from qualified practitioners regarding various issues in relation to NLXY’s family.
Dr C agreed that his reports referred to various legal principles, but disagreed that parts of them read as though they were legal submissions. He also disagreed with the proposition that his reports were not focused on an assessment of NLXY’s needs, but were advocating legally for certain outcomes with the NDIA and Tribunal; Dr C said that he had drawn attention to where he considered the NDIA had not complied with the legislation and that he was often asked to comment on the nexus between law and psychology.
Dr C told the Tribunal that his comments regarding legal matters formed part of what was important in his assessment of NLXY; he did not provide a legal opinion, but had applied NLXY’s disability to the legislation. He did not accept that he used his clinical views for the basis of legal, not clinical, opinions. Dr C said he believed he applied the legislation to NLXY’s disabilities in the clear context of ‘advocating for his welfare’. Counsel for the NDIA asked Dr C whether he was NLXY’s advocate or treating psychologist. He told the Tribunal he could be both under the NDIS Act and was well within the parameters of the psychologist’s code of ethics to advocate for NLXY’s legal and moral rights.
Dr C confirmed that NLXY had a diagnosis of ASD Level 2 and agreed that it manifested in various ways including ‘meltdowns’, with triggers being last minute or unexpected changes of plans. Dr C agreed that NLXY does best with routine and knowing who he was seeing each day. Dr C was unaware of NLXY’s current transport arrangements.
Dr C told the Tribunal that it would be ‘useful’ for NLXY to have met the person transporting him beforehand in order for NLXY to consider them safe. He agreed that it was important for someone driving NLXY to be generally aware of his likes and dislikes and known triggers for meltdowns, including having an ability to contact family if required. Dr C was unaware of any requirement for NLXY to have restraints or modifications in a vehicle and considered observing the transport arrangements to be the domain of an occupational therapist. He also confirmed that NLXY did not require support outside of the family for activities of daily living, although he said there may be a ‘situational’ basis for such support at times.
Dr C said that taxis and Ubers were not feasible because there was no consistent driver. In relation to public transport, Dr C noted that NLXY has ‘executive function deficits’ so his planning and organisational skills are ‘severely affected’. There is a variability in his cognitive presentation, so NLXY can appear highly intelligent, but in other ways can struggle with ‘processing and procedural tasks’, such as catching two buses. In this way, NLXY does not process information in a ‘normal way’ and requires a breakdown of each task, which can lead to meltdowns and him requiring support if ‘things don’t go to plan’.
Counsel referred Dr C to an occupational therapist’s report that NLXY could progress to using public transport.[14] Dr C said he was ‘reluctant’ to agree with this opinion, because he was probably not as hopeful as the occupational therapist; it was dependent upon NLXY’s cognitive ability and it was very difficult to predict the trajectory of someone with ASD, although it was ‘possible’.
[14] Exhibit 2, tab 18.
Dr C agreed with the proposition that NLXY needs to be driven to school daily and that this needs to be done by a consistent person or persons. He also agreed that NLXY’s family had sought for a time to transport NLXY to and from school, this was difficult for the family, and there were personal circumstances, such as limited family and informal supports, the mother’s injury, the father’s restricted work hours, and the grandfather’s eye issues, which led to the request for NDIS funding. Dr C was unaware of any other available supports and understood that NLXY’s siblings attend two separate schools. It was put to Dr C that these circumstances gave rise to the request for funding transportation. He told the Tribunal that the family needed ‘reliability’ in getting NLXY to school, and the concerns about the ‘overall family circumstances’ and NLXY’s disability meant that informal supports outside the family were required. Dr C agreed that it was in NLXY’s ‘best interest’ for him to attend the specialist school. He said that NLXY’s parents had to make a decision about schooling based on his needs given his disability, he was sure they would have chosen a different school if there was another option. Dr C referred to this as a ‘disability related decision’ and ‘not some form of personal choice’.
Dr C was unaware of the present transport arrangements for NLXY, but expected that he was being driven by someone familiar and experienced enough to deal with NLXY’s needs if there was a problem. He was confident that NLXY’s parents would make those decisions on his behalf. Dr C agreed that it was an appropriate arrangement that the person currently transporting NLXY knows him, that person has children with disability needs and they were paid for their time and petrol costs. He was unaware that, despite her injury, NLXY’s mother drives him to school when the family friend was unavailable. Counsel asked whether this was a reasonable arrangement. Dr C told the Tribunal that he was unsure how perfectly reasonable such an arrangement was or of its longevity, but considered NLXY’s parents made ‘a reasonable decision under difficult circumstances’ and in the best interests of NLXY.
CONTENTIONS
NLXY
NLXY’s parents sought funding from the NDIA for the costs associated with transporting him to and from his specialist school. It was contended that this requested support was reasonable and necessary and met all of the criteria in section 34 of the NDIS Act. In written submissions lodged on behalf of NLXY, the request was said to be for funding ‘for a driver with specific experience and training in supporting vulnerable individuals with ASD to transport the Applicant to and from school’.[15]
[15] Applicant’s Response to Respondent’s Statement of Facts, Issues and Contentions, dated 12 March 2024.
NLXY’s submissions further contended that:
(a)the support was ‘value for money’, as required by subsection 34(1)(c) of the NDIS Act, including because public transport and mainstream taxi services were not genuine alternatives and the benefits of NLXY maintaining school enrolment through transport support contrasts with the identified risks to NLXY and his family;
(b)subsection 34(1)(e) of the NDIS Act, requiring consideration of what it is reasonable to expect families, carers, informal networks and the community to provide NDIS participants, was satisfied because consideration must be given to what is reasonable for each family in the circumstances of each individual participant as a result of the increased resources required to support a person with a disability; and
(c)he met Rule 3.4 of the Supports Rules because his needs were ‘substantially greater’ than those of other children of a similar age and, were it not for his disability and limited specialist schooling options, the requested transport funding would be unnecessary.
In summary, NLXY’s parents sought a decision from the Tribunal setting aside the NDIA’s refusal to fund the transportation costs of getting him to and from school and in substitution for the Tribunal to find that the disputed support should be included in his statement of participant supports and funded under the NDIS.
NDIA
The NDIA contended that NLXY’s requested support was not reasonable and necessary and therefore did not satisfy the criteria prescribed by the NDIS Act, because:
(a)the quotes of more than $50,000 per year provided by NLXY were exorbitant and illustrated that the support was not value for money pursuant to subsection 34(1)(c) of the NDIS Act;[16]
(b)it would be the community’s expectation that the responsibility for getting NLXY to and from school would reasonably fall to his family and therefore did not meet the criteria in subsection 34(1)(e) of the NDIS Act, requiring consideration of what it is reasonable to expect families, carers, informal networks and the community to provide NDIS participants; and
(c)it is normal for parents to provide substantial care and support for children, NLXY’s needs as a result of his disability are not ‘substantially greater’ than other children of a similar age and the requirement that NLXY be driven was related to practical issues such as distance, rather than being related to his disability, such that he did not satisfy Rule 3.4 of the Supports Rules.
[16] Exhibit 1, pages 45-48.
The NDIA therefore submitted that the requested support should not be included in NLXY’s statement of participant supports and the Tribunal should affirm the decision under review.
CONSIDERATION
As set out above in these reasons, subsection 34(1)(e) of the NDIS Act requires the Tribunal to be satisfied that 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. Rule 3.4 of the Supports Rules details matters to be considered in deciding whether a support meets this criterion.
NLXY attended his local public primary school until midway through Year 5 of his schooling. He then transferred to a small independent specialist school which operates from Years 3 to 10. NLXY is now in Year 7. His two brothers attend the local public primary and secondary schools. NLXY’s school is approximately 17 kilometres, or 40 minutes’ drive, from the family’s home.
NLXY’s parents moved their son to the specialist school due to their concerns, supported by NLXY’s psychologist and then local school principal, that NLXY’s learning requirements could not adequately be met by a ‘mainstream government school’.[17]
[17] Ibid., page 26.
As a result of NLXY attending the specialist school some distance from his home, transporting him became an issue for the family. Understandably, NLXY’s family sought assistance to address this matter and requested support through NDIS funding. The Tribunal accepts that NLXY cannot yet independently use public transport. The specialist school does not provide any transport for its students and does not offer an after-school care program, noting that this was not recommended for NLXY by Dr C. The Tribunal also accepts Dr C’s recommendation that taxis or Ubers not be used to transport NLXY given the nature of his disability.[18] NLXY’s family obtained two quotes, both in excess of $50,000 per annum, for the cost of a support worker transporting him to and from school.[19]
[18] Exhibit 2, tab 24.
[19] Exhibit 1, pages 45-48.
NLXY’s mother has an ongoing right arm condition that makes it difficult to drive long distances. In July 2023, a physiotherapist reported that one of NLXY’s mother’s ‘main triggers for pain is driving, especially for long periods’ and that she has been ‘struggling with the longer drive’ to and from NLXY’s school.[20] The Tribunal accepts the evidence from NLXY’s mother at the hearing that this issue is ongoing. It also notes that NLXY’s mother does transport him to school when their family friend is unavailable.
[20] Exhibit 2, tab 26.
NLXY’s father works approximately 40 minutes from his son’s specialist school. His employment is not flexible such as to allow him to transport his other sons to their schools.
NLXY’s maternal grandfather has health issues related to his eyes that presently mean he does little driving, but he does transport NLXY’s siblings the 10 minute drive to their schools.[21] He could not drive NLXY to school given the distance and concerns with his eye health.
[21] Exhibit 1, page 39.
Currently, NLXY is predominantly transported to and from school by a family friend who understands his disability and behaviours. The family pays the family friend $55 per trip. NLXY does not require any vehicle restraints or modifications for this transport. He is otherwise driven by his mother on days that the family friend is unavailable.
The Tribunal accepts that there have been positive changes for NLXY and his family as a result of his change in school to one more suited to his learning and behavioural requirements.[22]
[22] See, for example, Exhibit 2, tabs 15-16 and 18.
However, having regard to all of the evidence, the Tribunal is not satisfied that the requested support of funding for transportation of NLXY to and from school takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. Accordingly, the Tribunal finds that the requested support does not meet subsection 34(1)(e) of the NDIS Act.
In JQJT and National Disability Insurance Agency [2016] AATA 478 (JQJT and NDIA) at [35] to [38], a three member panel of the Tribunal relevantly stated as follows:
As we read them, the relevant parts of the Act, Rules and policy establish the following general principles:
·the NDIS is not responsible for everyday costs that are ordinary costs of living;
·the “day-to-day living costs” in rule 5.1(d) are not confined to “rent, groceries and utility fees”; they are examples and not an exhaustive list;
·transport is an incidental cost of everyday life for most people and is a day-to-day living cost;
·parents are expected to meet a child’s “everyday transport requirements”;
·it does not follow, merely because transport is ancillary to a funded support, that it should be funded;
·the circumstances in which transport may be funded are strictly limited: it must relate to a support that has been determined to be reasonable and necessary; it must be an additional cost and incurred solely and directly as a result of disability support needs; and where ancillary to another funded support, must be a cost which the participant would not otherwise incur;
·the overriding question for us is whether funding for transport takes account of what it is reasonable to expect families, and JQJT’s family in particular, to provide by way of transport.
We accept that the cost of transport to and from community access support is an additional cost solely and directly related to JQJT’s disability support needs and one which his parents would not necessarily otherwise incur. It is additional to the day-to-day transport they provide by taking him to and from school each day, to the riding class and on other outings during the week and on weekends.
Section 34(1)(e) is cast in generic terms of what it is reasonable for families and others to provide. That language is reflected in rule 3.4(a)(i) which requires us to take into account the unarguable proposition that it is normal for parents to provide substantial care and support for children. In the context of transport, it is normal for parents to provide transport for a child of 13 years, for example, to and from school, friends’ houses, sporting events and so on. That said, many 13-year olds have a degree of independence, for example, to catch public transport to and from school, or ride a bicycle to friends’ houses.
In contrast to rule 3.4(a)(i), rules 3.4(a) (ii), (iii) and (iv) direct attention to the particular circumstances of a participant and his or her family.
While the decision in JQJT and NDIA specifically involved a request for transport funding for the NDIS participant to attend ‘community access support’ funded under the NDIS, the Tribunal relevantly noted that, using the words from rule 3.4(a)(i) of the Supports Rules, it is ‘normal’ for parents to provide transport for a 13 year-old child to and from school. This Tribunal agrees with that proposition and the analysis set out above from JQJT and NDIA.
Additionally, as the Tribunal noted in BIJD and National Disability Insurance Agency [2018] AATA 2971 (BIJD and NDIA) at [85]:
the criteria in Rule 3.4 cannot supplant the criteria in the Act itself, specifically s 34(1)(e). The latter elevates the question of community expectations regarding the responsibility of families to the higher order of a decision maker’s consideration. In any case, Rule 3.4 suggests that no greater weight should be given to the wellbeing of the family than to the premise that it is normal for parents to provide substantial care and support for children (3.4(a)(i)).
For the avoidance of doubt, the evidence before the Tribunal was that the requested transport support arose due to the logistical needs of NLXY’s family, including his parents’ employment and medical constraints. The specialist school NLXY’s parents enrolled him in is a not insubstantial distance from their home. However, the Tribunal does not accept the contention that, were it not for NLXY’s disability and the limited options for specialist schooling, the requested support would be unnecessary, therefore it should be funded. That is not the test under the NDIS Act.
NLXY’s parents have, admirably and understandably, sought to provide their son with the best educational opportunities available as a result of his ASD. This led them to move him from their local primary school to a specialist school 40 minutes’ drive from the family home. While getting three children to three different schools for two working parents with their own medical and employment constraints is undoubtedly difficult, as a differently constituted Tribunal said in BIJD and NDIA at [84], the language in subsection 34(1)(e) of the NDIS Act ‘makes it clear that the test is one of community expectation of what should be the responsibility of a family in general, rather than of the particular family seeking this support’. The Tribunal is satisfied that it would be the general expectation of the Australian community that families bear the responsibility and cost of transporting their children to and from school, being an everyday transport requirement. That is, it is reasonable to expect families to provide that support and not the NDIS. As set out in the Operational Guideline, parents of NDIS participants aged under 18 have a responsibility to meet their child’s daily transportation requirements. The Tribunal is therefore satisfied that it is reasonable to expect NLXY’s family and informal networks to transport him to and from school.
While acknowledging that NLXY cannot yet use public transport and required someone to drive him who knew and understood him, there was no suggestion that there was a functional impact from NLXY’s disability on his requirement for transport to and from school. For example, NLXY required no restraints for transport and there were no modifications required to any vehicle in which he travelled. The current arrangements whereby NLXY is predominantly transported to and from school by a family friend for a fee paid by NLXY’s parents were described as reasonable by Dr C, although the Tribunal again notes that his view was that this support should be NDIA-funded.
Rule 3.4(a)(ii) of the Supports Rules refers to whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age. As set out above in these reasons, NLXY does not require support to complete activities of daily living beyond the assistance of his family. He does not require any restraints or modifications in a motor vehicle. In this regard, the Tribunal finds that NLXY’s needs in being transported to and from school are not ‘substantially greater’ than other children. While the Tribunal accepts that NLXY cannot yet use public transport, this is not unusual for a 13 year-old child. Although the request for support to transport NLXY to the specialist school relates to his attendance at that particular school, the requirement to drive NLXY related to practical issues, such as distance, availability and family health, rather than anything specifically related to his disability. To this end, NLXY is currently being transported by a family friend and otherwise by his mother. NLXY’s father cannot undertake this journey due to work commitments and NLXY’s grandfather’s health means he avoids driving long distances. That is, these alternative options have been discounted for practical reasons unrelated to NLXY’s disability.
As set out above, rule 3.4(a)(iii) of the Supports Rules refers to the extent of any risks to the wellbeing of the participant’s family members or carer or carers. The Tribunal accepts that there may be some risk to the wellbeing of NLXY’s family members, specifically his mother given her arm condition and its aggravation due to driving long distances. However, the Tribunal also notes that NLXY’s mother continues to transport NLXY to and from school on days when their family friend is unavailable. In addition, the criteria in rule in 3.4 cannot supplant the criteria in subsection 34(1)(e) of the NDIS Act. As noted in BIJD and NDIA, rule 3.4 suggests that no greater weight should be given to the wellbeing of the family than to the premise that it is normal for parents to provide substantial care and support for children.
In relation to rule 3.4(a)(iv) of the Supports Rules, the Tribunal does not consider that the funding of the requested transportation would improve NLXY’s capacity or future capacity, or reduce any risk to his wellbeing. It is NLXY’s attendance at the specialist school which will likely improve his capacity and reduce risks to his wellbeing. However, the Tribunal finds that the requested support itself will not deliver these outcomes.
Finally, the Tribunal has considered rule 3.4(c) of the Supports Rules regarding the desirability of supporting and developing the potential contributions of informal supports and networks within their communities. The Tribunal finds that this factor weighs neutrally in its determination.
Accordingly, for all of the above reasons, the Tribunal finds that subsection 34(1)(e) of the NDIS Act is not met in circumstances where it is reasonable to expect a family or other informal networks to provide transportation for a child to and from school.
CONCLUSION
NLXY’s parents demonstrated their deep commitment to ensuring the best for their son. They have prioritised NLXY’s educational and behavioural needs by sending him to a specialist school some distance from their family home. This led to significant logistical issues associated with transporting three children to their respective schools.
However, having considered all of the evidence, for the above reasons, the Tribunal is not satisfied that the requested support, being funding for transportation of NLXY to and from school, meets the requisite criteria to be approved as ‘reasonable and necessary’ under the NDIS Act and for inclusion in the statement of participant supports in his NDIS plan. As a result of the Tribunal’s above findings, NLXY’s application is unsuccessful because each of the criteria in section 34 of the NDIS Act must be satisfied for a support to be found to be reasonable and necessary.
DECISION
The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
...........................[SGD].............................................
Associate
Dated: 5 July 2024
Date(s) of hearing:
7 June 2024
Date final submissions received:
12 April 2024
Representative for Applicant:
NLXY’s Parents
Counsel for Respondent:
Ms Michelle Wilson
Solicitor for Respondent:
Mr Jack Watts, Maddocks Lawyers
5
0