Parrey and National Disability Insurance Agency
[2023] AATA 672
•4 April 2023
Parrey and National Disability Insurance Agency [2023] AATA 672 (4 April 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/6042
Re:Lisa Parrey
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member I Thompson
Date:4 April 2023
Place:Adelaide
For the reasons set out below, the Tribunal decides that the reviewable decision is affirmed.
..........[Sgnd]................................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports – applicant received mobility allowance prior to becoming an NDIS participant – claim for transport allowance – whether transport funding is available under the no disadvantage principle – decision affirmed
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Blattman and National Disability Insurance Agency [2019] AATA 184
Castledine and National Disability Insurance Agency [2019] AATA 4240
Drake & Minister for Immigration & Ethnic Affairs (no2) [1979] 2 ALD 634
Ewin and National Disability Insurance Agency [2018] AATA 4726
G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle and National Disability Insurance Agency [2017] FCA 308
McLaughlin and National Disability Insurance Agency [2021] AATA 496
National Disability Insurance Agency v WRMF [2020] FCAFC 79
RTRH and National Disability Insurance Agency [2022] AATA 205
Secondary Materials
National Disability Insurance Scheme – Operational Guidelines – Planning
National Disability Insurance Scheme – Including Specific Types of Supports in Plans Operational Guideline – Transport
National Disability Insurance Scheme – Operational Guidelines– Reasonable and Necessary Supports
REASONS FOR DECISION
Member I Thompson
4 April 2023
INTRODUCTION
The applicant, Ms Lisa Parrey, is a participant in the National Disability Insurance Scheme (NDIS).
Following receipt of her NDIS plan, which commenced on 17 February 2021, she requested an internal review by the National Disability Insurance Agency (the Agency) with regard to funding for transport allowance funding and house/yard maintenance for 2 hours per week.
On 27 July 2021, the Agency provided written notification[1] of the outcome of the internal review request. A delegate of the Agency’s CEO explained that the request for Level 3 transport funding was declined as:
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.[2]
[1] Exhibit R2 at p 56
[2] As above
The internal reviewer also rejected the request for funding for household and yard maintenance. However, prior to the hearing in the Tribunal Ms Parrey indicated that she was not pursuing her claim for funding for yard maintenance. Accordingly, the Tribunal’s review was confined to one issue, namely the claim for funded transport support.
In her application[3] to the Tribunal, Ms Parrey wrote that she had been eligible for the mobility allowance with Centrelink, but she is now worse off under the NDIS as the mobility allowance, which she previously received, is not available to NDIS participants.
[3] Exhibit R2
The hearing took place on 7 and 9 December 2022. The parties and witnesses attended the hearing by video and telephone. Ms Parrey was supported by a disability advocate, Ms Hardcastle. Ms Rao represented the Agency. Ms Parrey gave evidence by video. She called four witnesses: an occupational therapist, a support worker, an exercise physiologist and a former work colleague.
Ms Parrey is aged 57. She described her medical history and impairments in her written statement of lived experience.[4] The impairments which she listed are psoriatic arthritis, ocular migraines, osteoarthritis, lumbar degenerative disc disease, diabetes type 2, deep vein thrombosis and pulmonary embolism, obesity and hypertension.
[4] Exhibit A2
Ms Parrey’s NDIS plan,[5] which commenced on 15 February 2022, included the following goals:
short term goals
to live independently with my cats and be less limited by my disabilities
to gain more hours of work; either in the same job or staying with the same job but obtaining additional hours in another position
[5] Exhibit R3
medium or long term goals
to be able to get around my neighbourhood or to close shops without driving
to move to a smaller house to enable me to move around the home more easily inside and out
to develop a specialised exercise plan suitable to my disability to maintain capacity for as long as possible
The NDIS plan refers to Ms Parrey’s employment with a state government health agency as an administrative officer. She works 20 hours per week. Her employer provides individualised support for her in the workplace when needed. She resides in her own home with her two cats, to whom she is devoted.
LEGISLATION AND GUIDELINES
The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), and the Agency administers the NDIS.
The objects of the NDIS Act are set out in s 3, and these make particular reference to the purpose of providing reasonable and necessary supports for participants in the NDIS.
Section 3(1) provides, in part, that the objects of the NDIS Act are to:
...
(c)support the independence and social and economic participation of people with disability;
...
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;
…
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability …
Section 4 of the NDIS Act sets out general principles to guide decisions and actions taken under the NDIS Act. Relevantly, those principles include:
(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.
…
(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
In giving effect to the objects of the NDIS Act, s 3(3) requires that regard must be given to, among other matters, “the need to ensure the financial sustainability of the National Disability Insurance Scheme” and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”
Not every support that a participant requests will be provided or funded through the NDIS. Before specifying in a statement of participant supports the reasonable and necessary supports that will be funded, the CEO of the Agency must be satisfied of all of the criteria in s 34(1) of the NDIS Act in relation to each support. If one of the requirements in ss 34(1)(a)-(f) is not satisfied, then the particular item is not a reasonable and necessary support. Section 34(1) must be read in conformity with the purposes and objects of the Act.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of “reasonable and necessary supports” that will be funded under the NDIS. The Support Rules form part of the legislation.
The National Disability Insurance Scheme – Operational Guidelines – Planning (the Planning Guideline)[6] provides information about preparation and review of a participant’s plan, with particular reference to the Agency’s decision to approve a statement of participant supports. An appendix to the Planning Guideline comprises a table of guidance about whether a support is most appropriately funded by the NDIS or by other parties. The National Disability Insurance Scheme – Including Specific Types of Supports in Plans Operational Guideline – Transport (the Transport Guideline)[7] provides information about the rationale for funding transport supports and the circumstances in which transport must be considered before including it in a participants plan as a reasonable and necessary support. The National Disability Insurance Scheme – Operational Guidelines– Reasonable and Necessary Supports (the Supports Guideline)[8] provides extensive detail about the planning processes and principles for the development of a participant NDIS plan.[9]
[6] Exhibit R2
[7] Exhibit R6 at p 291
[8] Exhibit R5
[9] It is well-established authority that the Tribunal should apply operational guidelines and government policy unless there is good reason not to do so. See, for example, the comments of Deputy President Humphries in McLaughlin & NDIA [2021] AATA 496 at [75], referring to Drake & Minister for Immigration & Ethnic Affairs (no2) [1979] 2 ALD 634 at [640] and G v Minister for Immigration and Border Protection [2018] FCA 1229 at [201]-[204]
ISSUE
The issue for the Tribunal’s determination is whether Ms Parrey’s requested support of Level 3 Transport Funding (to match the Centrelink mobility allowance) is a reasonable and necessary support pursuant to s 34 of the NDIS Act.
CONTENTIONS
In her Statement of Lived Experience[10] Ms Parrey set out her submissions in support of her application, and she requested that this statement be read in conjunction with an earlier written statement dated 9 February 2022.[11]
[10] Exhibit A2
[11] Exhibit A9
Ms Parrey submitted that, due to her disability, her vehicle and travel costs are more than they would be if she did not have a disability. She should have the transport allowance to compensate her for the additional costs associated with running her own vehicle due to her disability.
Ms Parrey described psoriatic arthritis as an unpredictable disease. Her impairments include significant reduction in mobility, difficulty in getting in and out of a car because of problems with bending her knees, back pain, swelling in her feet, unsteadiness and a propensity to fall over There are times when she cannot drive and must find alternative transport. Her ocular migraines, which she attributes to psoriatic arthritis, were diagnosed in 2020. She pointed out that there is a lack of disabled parking at public buildings in her community in Newcastle. She submitted that, with limited mobility due to her disability, she cannot walk to the bus stop. She submitted that: the requested support for Level 3 transport funding is linked to her disability and to the goals in her NDIS plan; it is reasonable and necessary as it is related to her disability; it is value for money in accordance with NDIS criteria; it is effective and beneficial for her; and it recognises the fact that she does not have access to informal supports. She contended that Level 3 transport funding will give her “the ability to participate in work and also have a life outside of work.”[12]
[12] Exhibit A2 at p 302
Ms Parrey contended that the unpredictability of the impact of her impairments is a significant factor because she does not have access to a support worker 24 hours per day, 7 days per week. Hence, when she needs a support worker for transport, the support worker might not be available. At the hearing, Ms Parrey emphasised that the social and community funding in her NDIS plan is not for work; however, transport allowance funding is for work or study or for those looking for work. She told the Tribunal that she is worse off without mobility allowance, and she contended that the situation amounted to an unlawful denial of her rights. She said that her case was in accordance with the principles and objectives of the NDIS Act. She submitted that she is entitled to the transport allowance from the time of her first NDIS plan.
In support of her contentions, Ms Parrey referred to the decision of the Federal Court in McGarrigle and National Disability Insurance Agency[13] and to decisions of the Tribunal in Castledine and National Disability Insurance Agency [14] and in Ewin and National Disability Insurance Agency.[15]
[13] [2017] FCA 308
[14] [2019] AATA 4240
[15] [2018] AATA 4726
Ms Parrey summarised the key points of her submission as:[16]
· I would use public transport if it was not for my disability;
· It is not reasonable to expect anyone else to transport me, as I have no informal supports;
· Public transport is not a safe or accessible option; and
· These factors can only be mitigated by driving myself when I am able.
[16] Exhibit A2 at p 306
In its statement of issues, facts and contentions, the Agency contended that the requested supports do not meet the criteria under s 34(1) of the NDIS Act and the Support Rules.
In reference to Support Rule 5. 1(c), the Agency contended that Ms Parrey can claim funding for transport by support workers when her impairment prevents her from driving. Level 3 transport funding would be additional to her core support funding and hence would be a duplication of supports.[17]
[17] Respondent's Statement of Issues Facts and Contentions, at paras 10(b) and 63
In reference to Support Rule 5.1(d), the Agency contended that when Ms Parrey is able to drive, the costs that she incurs are day-to-day costs that the NDIS cannot fund.[18]
[18] As above at para 10(c)
The Agency contended that Support Rules 5.2(a) and 5.2(b) do not apply as Ms Parrey’s costs of driving her car do not “solely and directly” arise from her disability support needs and they are not costs that are ancillary to another funded support.[19]
[19] As above at paras 10(d) and 34
The Agency contended that the criteria in ss 33 and 34 of the NDIS Act are not met; in particular, s 34(1)(d) (effective and beneficial supports) and s 34(1)(f) (whether supports are most appropriately funded through the NDIS).[20] It was contended that the “no disadvantage principle” does not apply to Ms Parrey with regard to her receipt of Centrelink mobility allowance prior to her participation in the NDIS and its subsequent cancellation.[21]
[20] As above at para 10(e)
[21] As above at paras 10(f) and 100
In reference to Ms Parrey’s intermittent ocular migraines, the Agency contended that NDIS funding is not available where the requested support is not related to a disability that meets the disability requirements under s 24 of the NDIS Act.[22] The exclusion in this regard is contained in NDIS Rule 5.1(b).
[22] As above at paras 19, 32 and 88
In accordance with Support Rules 7. 21 and 7.22, the Agency contended that the NDIS in this case does not have any of the responsibilities described in Rule 7.21 for transport supports, as Ms Parrey is a person who can self-drive independently, while NDIS Rule 7.22 identifies matters for which the NDIS does not have responsibility, including, among others, accessible public transport options and disability parking.[23]
[23] As above at paras 42-46
In closing submissions at the hearing, counsel for the Agency confirmed that the transport allowance can be used for purposes beyond work or study.
EVIDENCE
Ms Parrey gave oral evidence and called four witnesses. They were: an occupational therapist, Ms Magnay; a support worker, Ms Atkinson; an exercise physiologist, Ms Moss; and a former work colleague, Ms Jackson.
Ms Parrey’s statement of her lived experience confirmed that she became a participant in the NDIS on 11 January 2021. Previously, she received a mobility allowance from Centrelink. This allowance terminated when she accessed the NDIS. She has had one NDIS plan, which has been “rolled over” while the proceedings in the Tribunal continue. Ms Parrey has psoriatic arthritis, which affects her spine and lower limbs, and causes swelling in her hands and feet. She described her impairments, which include: debilitating ocular migraines that occur without warning, sometimes lasting for five minutes, and sometimes lasting for five hours or more; significantly reduced mobility in her legs, resulting in difficulty bending her knees and getting in and out of her small, 14-year-old car; swelling in her feet, and when the swelling occurs she cannot drive her car; inability to walk 270 metres to and from the bus stop nearest to her house, or 2.6 km to and from the nearest train station; increasing inability to drive her car because of concerns about her migraines and her diminishing mobility. Ten years ago, she could walk locally; for example, to nearby shops, but now she must drive even those small distances.
Ms Parrey acknowledged that she can manage driving her car “most times”.[24] In evidence, she said that she cannot leave her house and travel into the community unless she drives her car or if she is a passenger in another car. Driving long distances is not possible; for example from Newcastle to Sydney and back again. Ms Parrey told the Tribunal that she drives to and from work, which takes about 10 to 15 minutes if traffic is light. Generally, she drives from home quite early to avoid heavy traffic. Ms Parrey is employed in a permanent part-time role, providing administrative support to a small team of psychologists and social workers. She drives herself home at the end of her shift, which finishes on midday on one day of the week, and at around 4:30 PM on her other two workdays. She has a parking space that her manager has reserved for her at the rear of the office.
[24] Exhibit A2
In addition to driving to and from work, Ms Parrey routinely drives to medical and allied health appointments and to local shops. In evidence, she said that she drives “a few minutes” every Tuesday afternoon to and from her exercise physiologist. The trip to her general medical practitioner takes longer. It is approximately a 30-minute drive each way. She agreed that she can use telehealth for some appointments, such as renewing prescriptions, although she pointed out that telehealth appointments cannot be made unless an in-person visit has been made within the last 12 months. Generally, she maintains her independence by driving to and from the local shopping centre. Her ability to mobilise in shopping centres is dependent upon the availability of an in-store scooter. She drives to the chemist. Sometimes, her support workers can collect prearranged medication from the pharmacy or pre-ordered items from a shopping centre. She does not drive regularly to social and recreational activities, primarily because she has been busy with family matters. She decided to reduce social activities because of the pandemic. She said that she has travelled only occasionally in her support worker’s vehicle. Her primary support worker is Ms Atkinson, who now has established her own business and employs support workers as well.
Parking is a problem for Ms Parrey. She said that a car park must be close to her particular destination. Locally, problems abound, with an apparent lack of disability parking spaces at, for example, the local police station and at the Centrelink office. Taxis are expensive, and with some locations there is nowhere that is near enough to the entrance for a taxi to park and for her to disembark, and nowhere for her to sit while waiting for a taxi to pick her up.
In evidence, Ms Parrey described having good days and bad days. She described the flare-ups in her arthritic condition. They are unpredictable in their duration and impact, and may involve swelling and pain. The pain may include shooting pains in her legs. Her ocular migraines are similarly unpredictable. They interfere with her vision, without headaches. In addition to these problems, she has suffered falls and she is concerned about the risk of falling.
Ms Parrey’s ocular migraines were apparently diagnosed in 2020 by her general medical practitioner, who told her that the migraines are related to her psoriatic arthritis.[25] She conducted research and read articles in medical journals, which alerted her to a link between her ocular migraines and arthritis. She recorded three occasions in 2020 and seven occasions in 2021 when she was unable to drive to and from work because of ocular migraines. In evidence, she said that, typically, half of her ocular migraines last for less than one hour and resolve themselves, while the others last longer. She agreed in cross examination that some of the migraines might last for five minutes. She acknowledged that the medical advice that she has received is to rest and wait for the migraine to pass. She cannot drive, walk around or work effectively while affected by an ocular migraine.
[25] Exhibit A9
Ms Parrey’s best recollection was that there were four occasions in 2020 and 10 occasions in 2021 when she was unable to drive because of flare-ups in her psoriatic arthritis, particularly through swelling and stiffness. Those occasions related to appointments, going to or from work, trips at work and visiting friends or family.[26] She did not keep contemporaneous records of these occasions, and they were based on her recollection to the best of her ability. She pointed out that it was difficult to recall the precise duration of the instances when she was unable to drive; however, with the stiffness and swelling, she might not drive for at least one day and sometimes not for a few days.[27] There was no evidence about any inability to keep appointments during these occasions or how or whether they were managed by means of alternative transport. In evidence, she explained that a support worker could assist with transport on those types of occasions, but the proviso is the availability of a support worker in this unplanned, unexpected scenario.
[26] Exhibit A9
[27] Exhibit A2, Appendix C
Ms Parrey told the Tribunal about her difficulties in accessing public transport. Whether it be a bus, a train or a tram, the difficulties are overwhelming, and make it impossible for her to use those forms of public transport. Walking to and from a bus stop, or a train station.is not possible, mainly because of the distances involved in getting to the bus or tram stop or to the train station. She cannot stand for more than four minutes, and cannot stand and wait longer than that for a bus, train or tram to arrive.
Ms Parrey told the Tribunal that she would use Level 3 transport funding when her personal circumstances necessitate accessing taxis and hire cars to take her to work and to allied health and medical appointments. She understands that this would largely replicate the purpose which the mobility allowance fulfilled previously. She said that relying upon support workers for this kind of travel is unrealistic for her because of the unpredictability of her health problems. She said that the support worker would have to be on call, which is not practicable and, in any event, there is a shortage of support workers in her area. There is also the problem that she considers she has in accessing work and community events, if she needs to do so, outside of support worker hours and availability.
Ms Magnay conducted an occupational therapy functional capacity assessment of Ms Parrey on 4 November 2022. She wrote a comprehensive report[28] dated 25 November 2022, with the results of the assessment. Ms Magnay gave evidence by video at the hearing. The assessment included, but was not confined to, Ms Parrey’s mobility issues. Ms Magnay had been provided with details of Ms Parrey’s medical diagnoses and history. At the time of the assessment, Ms Parrey advised Ms Magnay that she was planning to sell her five--bedroom, long, narrow house, and relocate to a smaller property with improved accessibility. She was reported to be 178 cm in height and to weigh approximately 160 kg.
[28] Exhibit A15
Ms Magnay reported both the common symptoms of psoriatic arthritis, together with Ms Parrey’s experience and difficulties in managing her symptoms. Those symptoms are worsened by fatigue, with a corresponding decline in physical, functional ability during the day. Ms Parrey’s NDIS-funded supports to assist with daily activities were noted as exercise physiology, support worker/domestic assistance, and lawn and garden maintenance. Ms Magnay reported that Ms Parrey does not have a network of informal supports to assist with accessing the community. Using the standard WHODAS 2.0 assessment schedule, Ms Magnay found that Ms Parrey has: very mild difficulties in attention and concentration; a good insight into her disability, with the ability to use adaptive techniques to undertake daily activities; appropriate skills in communication and interaction; and increased anxiety in dealing constantly with the impact of her disability, requiring consistent problem-solving, with community access issues, together with the enduring difficulties of managing pain and experiencing shortness of breath and fatigue.
Ms Magnay made a series of recommendations that span domains of functional capacity, mobility, transfers, personal and instrumental activities of daily living, community access, leisure activities and assistive technology. The recommendations were for allied health services, namely occupational therapy, psychology, physiotherapy, exercise physiology, hydrotherapy and podiatry; with additional recommendations regarding requirements in assistive technology, transport and support worker assistance in activities of daily living.
In relation to transport, Ms Magnay recommended Level 3 assistance for Ms Parrey to assist her to attend all community-based activities, including work. The recommendation for level 3 transport was made in relation to specific domains, which were:
· functional capacity – transport assistance to encourage her with social activities, reduce social isolation, access medical appointments and therapies;
· mobility – transport assistance to access the community without exacerbating pain and fatigue;
· medication and health management – transport assistance to access medical appointments and the pharmacy;
· community access – transport assistance to support her to access the community as she is required to attend work for 20 hours each week; and
· leisure – transport assistance to attend social activities to decrease social isolation[29]
[29] As above
Ms Magnay considered that further assessment by an occupational therapist would be beneficial, to assess the use of a powered mobility aid, such as a mobility scooter or power-assisted wheelchair, to improve Ms Parrey’s ability to access the community more regularly, with the associated potential to decrease social isolation and improve mental health. Ms Magnay summarised the issues regarding Ms Parrey’s ability to access the community in the following way:[30]
Ms Parrey has her driver’s licence however advised she no longer regularly drives long distances limiting trips to less than 30 minutes due to the impact her diagnoses have on her ability to sit comfortably within her car due to pain. Ms Parrey reported she drives herself to/from work and to other close by appointment when she is able to do so. She reported however driving is extremely difficult for her due to the level of fatigue she experiences due to lower limb pain.
As Ms Parrey’s diagnosis fluctuates in severity there are days when she is unable to safely transfer into/out of her car. Due to PsA there are period of flare ups where her symptoms reduce her flexibility and range of movement due to swelling, stiffness and pain. This for Ms Parrey not only impacts on her ability to transfer it affect her lower limb functional ability and it is unsafe for her to drive.
Ms Parrey also experiences regular ocular migraines which affect her vision and she is unable to see adequately in which to safely drive. Ms Parrey reported these ocular migraines can last for 5 minutes or for hours and she has no warning when they are about to occur. When these occur when she is out, she is unable to drive herself home form [sic] work or from the community location and requires transport assistance.
Ms Parrey has a disability parking permit and when in the community she utilises a disabled parking space as she is unbale to mobilise more than 50 metres due to insufficient walking tolerance and inability to negotiate uneven ground and inclined terrain.
For Ms Parrey it is not reasonable to expect her to access public transport due to her inability to walk to the bus stop from her home or from the bus stop to a destination particularly during these periods of exacerbation when she is unable to independently drive. As Ms Parrey’s PsA is chronic and the damage it causes to her joints will continue to affect her physical functional ability as well as the nature of the autoimmune disease causing periods of weakness affecting her ability to independently drive, it is important she is not reliant on her ability to drive to access work, medical appointments, shopping and social activities within the community. As a result, it is reasonable to recommend Ms Parrey receive transport funding to assist her to participate in all community based activities when needed.
The transport funding can be utilised in periods of need towards accessing hire cars or taxis which would be able to assist Ms Parrey in getting door-to-door of the relevant and necessary locations. Transport assistance funding is determined to be more cost effective than 1:1 assistance to provide transport for all community access including medical appointments, shopping and social activities.
[30] Exhibit A15
In evidence, Ms Magnay acknowledged the occupational therapy reports by Ms Sawyer and Ms Hunter, which are in broad agreement about Ms Parrey’s functional limitations and capacity. Ms Magnay confirmed that Ms Parrey drives locally when she is not having a flare-up of her arthritis. She commented that a support worker should be able to provide more practical assistance with mobility issues than a taxi driver could. She acknowledged that Ms Parrey’s access to medications could be facilitated, on occasions, with preplanning through doctors’ e-scripts and pharmacy home deliveries, provided that these options are available.
Ms Atkinson is a support worker accredited with the NDIS. She has worked for Ms Parrey for about three years. Currently, she and her staff provide support services by way of community access, which includes shopping, medical appointments and cleaning two days per week. Ms Atkinson provided a written statement and gave evidence by telephone. She confirmed that Ms Parrey’s mobility fluctuates due to flare-ups in hot weather, and she struggles to move at all if she has an ocular migraine. Ms Atkinson referred to the inadequacy of disabled parking spaces in their community. She can transport Ms Parrey to appointments if they are pre-planned. However, she is not generally available on call to provide transport, and when she is not available, Ms Parrey would need Ubers or taxis.
Ms Jackson is a friend and former work colleague of Ms Parrey. She provided a written statement and attended the hearing by video. She was aware of Ms Parrey’s distress and frustration at work about limitations in her physical mobility and her reliance on others in some of the activities in the office. Ms Jackson was aware that, following a fall outside her house, Ms Parrey was restricted in her ability to drive long distances. Ms Jackson referred to the difficulty that Ms Parrey has through a decline in her ability to drive to Sydney to support her brother, who is in rehabilitation following a spinal injury, and also to catch up with friends.
Ms Moss is an exercise physiologist. She provided a written statement and gave evidence by telephone at the hearing. She has worked with Ms Parrey since July 2021 on a weekly schedule. Sessions at a clinic last for 30 minutes, with an emphasis on cardiovascular fitness and overall strength; in particular, balance and gait pattern. Assistance and guidance are provided for self-management strategies and home exercise programs. Ms Moss acknowledged that Ms Parrey is able to drive her car, depending on her functional capacity at the time. She can walk for distances up to 100 metres on flat surfaces. She needs access to disabled parking when she is out in the community. Ms Moss supported Ms Parrey’s application for Level 3 transport funding of $3456. She calculated that travel assistance provided by a support worker would cost $17,815.20 per year, based on an assumption of accessing that support for six hours per week. The need for that amount of support includes not only attendances for exercise physiology sessions, but also to visit family and friends, attend appointments and attend work without having to use sick leave or annual leave when flare-ups occur. The transport funding could be used for accessing hire cars and taxis. It would assist Ms Parrey to a degree, as an available option which can be used if needed. Travelling with a support worker may be the suitable option on some occasions; however, on other occasions, it may be preferable or necessary to access a hire car or taxi using the Level 3 transport funding. In her written statement,[31] Ms Moss observed that:
Ms Parrey’s condition is at a stage which is quite debilitating however, her worse days are experienced sporadically and are unpredictable. Psoriatic Arthritis is incurable and is known to cause acute flare ups on a weekly basis without any known cause. Ms Parrey’s current mobility includes minimal standing and walking tolerances <5mins, slow waddling gait caused by poor hip mobility, reduced balance and therefore increased falls risk, shortness of breath during movement and inability to accurately negotiate steps and slopes. Ms Parrey reports that she is unable to visit her neighbours due to the distance between door-to-door and therefore also has difficulty with mobilising to nearby bus stops and train stations. Ms Parrey does have the ability to drive a motor vehicle however this is dependent on her functional capacity on the given day and only able when her condition is in a stable state.
[31] Exhibit A5
A comprehensive report[32] following an occupational therapy assessment by Ms Hunter, conducted on 5 November 2020, was included in the documentary evidence. The in-home assessment lasted approximately four hours. Ms Parrey’s report of her symptoms were recorded as:
[32] Exhibit A8
· back pain, worst in the lumbar region, centrally across her back
· difficulty standing or walking for long periods
· swelling in both hands and feet, worse in the heat but is present most of the time (dactylitis)
· tightness in the skin on hands and feet, likely due to swelling
· difficulty with fine motor tasks due to affected middle finger on the right-hand
· stiffness in the lower limbs when sitting for prolonged periods
· reduced stability in her lower limbs and occasionally has led to her right knee “giving way”
· occasional sciatic pain
· shooting pain in her left forearm
· increased body temperature and sweating when exerted and fatigued
· ocular migraines which result in being unsteady on her feet and difficulty maintaining her balance. Experienced occasionally and often when fatigued.
Ms Hunter observed that Ms Parrey had significant difficulty walking more than 50 metres. Ms Hunter commented on Ms Parrey’s technique of getting in and out of her car, involving physical improvisation, reporting that Ms Parrey’s transfer methods indicated reduced control of her shifting body weight, reductions in lower limb and abdominal strength, and consequently a risk of falling. Ms Hunter recorded an increased risk of injury to Ms Parrey’s feet, particularly the right foot, because of difficulty elevating her lower limb into the car. In relation to community access, Ms Hunter noted that Ms Parrey has a full driving licence and recorded Ms Parrey’s comments as follows:[33]
Ms Parrey advised that she is generally independent with driving; however, will limit long distance driving to approximately one hour (i,e. will drive as far as Gosford). She advised of stiffness and pain from prolonged sitting
Ms Parrey advised to have access to a disability parking permit, which assists with community access and reducing mobility needs as able. However, she also reported that parking can still be limited, ,i.e. no disability parking spots available, resulting in her parking further away and having to walk, or avoiding going out altogether. She noted this happened several times when her work colleagues are going out for lunch; she will remain in the office due to her limited walking tolerance. She noted that this makes her feel isolated from her colleagues, and affects her self-confidence.
[33] As above
An occupational therapist, Ms Sawyer, wrote a report dated 10 March 2022. [34] She had been providing occupational therapy assistance to Ms Parrey from September 2021. In her discussion about community access, Ms Sawyer commented:
Ms Parrey currently has a full driver’s licence and drives herself to and from work, as well as other places she needs to go in the community when she is well enough, and her disability is stable. Ms Parrey has advised that her driving tolerance is 30 minutes. Ms Parrey has advised that without her car, she would not be able to leave her home, but there are times when transferring in and out of the car can be difficult if she has a flare up of her Psoriatic Arthritis as this increases her symptoms of reduced flexibility, stiffness, and reduced range of movement in her upper and lower limbs as well as the associated pain. Ms Parrey has advised that at these times, she has not been able to drive herself to work or to other destinations.
[34] Exhibit A11
Ms Sawyer considered that it would not be reasonable for Ms Parrey to access buses and trains. She noted Ms Parrey’s maximum walking distance was less than 100 metres on level surfaces. She referred to Ms Parrey’s “slow waddling gait”, with standing and walking tolerances of less than five minutes, reduced balance, risk of falls, shortness of breath on exertion, and an inability to negotiate slopes and stairs. She noted that Ms Parrey relies on access to disabled parking places, which are not always available near her destination. Ms Parrey had reported that she cannot go to the shopping centre if a scooter is not available there. Ms Parrey had also reported that if she had a flare-up of her psoriatic arthritis, she would need to use a taxi to access the community. Ms Sawyer concluded that Ms Parrey should have funded support in her NDIS plan for Level 3 transport to enable her to use taxis “so that she can be transported from door to door as she does not have a sufficient level of mobility to use public transport.” Ms Sawyer calculated support worker costs of $17,815.20 for community access, compared with NDIS funding of up to $3456 per year for transport allowance.
A three-line letter from a general medical practitioner, Dr Joseph, seemingly in the form of a referral, notes the following with regard to Ms Parrey: “severely limited in mobility with lax (sic) flexibility and crippling arthritis; also suffers from ocular migraine – needs transport help; cannot travel at times in own vehicles independently”.[35]
[35] Exhibit A4
A clinical optometrist, Ms Luu, wrote to Dr Joseph on 27 November 2021 after an eye examination of Ms Parrey. The results were “unremarkable”, aside from mild cataracts, and advice was given to Ms Parrey that prophylactic oral migraine medication often assists with ocular migraine symptoms.[36]
[36] Exhibit A6
CONSIDERATION
The Tribunal finds that the oral evidence which Ms Parrey and her witnesses gave was truthful.
Based on the evidence, the Tribunal makes the following findings of fact:
i.Ms Parrey received the mobility allowance before she became a participant in the NDIS on 11 January 2021. Subsequently, as an NDIS participant she is not eligible for the mobility allowance.
ii.Ms Parrey accesses her motor vehicle, and she is able to drive it independently. She drives herself from home to work and back again on the three days of her work week. She uses her car for local trips, including shopping and occasional social engagements. When she suffers an aggravation of her psoriatic arthritis, it prevents her from driving.
iii.Ms Parrey cannot access and use buses and trains without substantial difficulty, and her difficulty in that regard is due to her disability from the impairment of psoriatic arthritis.
iv.The core support funding in Ms Parrey’s 12-month NDIS plan is available to her to be used for transport supports where she deems it necessary and appropriate. The core support funding comprises a total of $31,113.80 for daily activities and community participation and Ms Parrey can draw upon it to pay for a support worker to drive her.
Ms Parrey suffers ocular migraines and fatigue, which she described as co-morbidities of psoriatic arthritis.[37] She provided medical journal articles which were admitted into evidence.[38] Those articles include analyses of studies about emerging, perhaps unsurprising evidence, about the existence of co-morbidities in patients with psoriatic arthritis. Those reported comorbidities include conditions such as diabetes myelitis, obesity, cardiovascular disease, ophthalmic disease, depression and anxiety. One of the themes is a suggestion that physicians should be aware of comorbid disease associations in patients with psoriatic arthritis requiring, ideally, collaboration among specialists and primary care practitioners. One of the articles, “Natural Eye Care”, notes that the causes of ocular migraines are still under debate. The article states that there are two types of ocular migraine. One of them is ophthalmic or visual migraines which affect both eyes and usually last between 20 to 60 minutes. The other type is retinal migraines, which occur in only one eye before or during the headache phase. The article also suggests that migraine headaches are often confused with ocular migraines, and while a migraine headache may last from four to 72 hours with other symptoms, ocular migraines tend to go away after a few minutes to an hour, and generally do not require treatment. In evidence, Ms Parrey acknowledged that the medical journals did not specifically draw a link between ocular migraines and psoriatic arthritis.
[37] Exhibit A2
[38] Exhibits A12, A13, A14
The letter written by the general medical practitioner, Dr Joseph, and the letter by the clinical optometrist, Ms Luu, do not provide sufficient detail for the Tribunal to determine the cause of Ms Parrey’s ocular migraines. The medical journals, similarly, do not provide evidence sufficient to assist in determining whether the ocular migraines are a symptom of Ms Parrey’s psoriatic arthritis. The Tribunal does not have sufficient evidence to determine whether Ms Parrey’s ocular migraines are related to her psoriatic arthritis or, alternatively, whether they are not related to her disability.
In considering the request for funding for the transport support, the Tribunal must have regard to the criteria in s 34(1) of the NDIS Act, as further elaborated in the Support Rules. As indicated previously, the criteria in s 34(1) are cumulative, so that if a requested support does not meet all of the criteria it will not be a reasonable and necessary support for the purpose of s 34 of the NDIS Act.
In McGarrigle v National Disability Insurance Agency,[39] the term “support” is described by the Federal Court, per Mortimer J, as “a practical description of the means by which a person with disability is assisted”.
[39] [2017] FCA 308 at [88]
In National Disability Insurance Agency v WRMF[40] the Full Court of the Federal Court explained that:
... there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies — by reference to the context, objects and guiding principles of the Act and the facts of the case — the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[40] [2020] FCAFC 79 at [151]
The Transport Guideline[41] (referred to in paragraph 17, above) provides information about transport and considerations relating to adults. It includes the following details:
A participant will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty due to their disability.
The funding the NDIS provides will take into account any relevant taxi subsidy schemes available to the participant and does not cover transport assistance for carers or family members to transport the participant for everyday commitments.
There are generally three levels of funding support for transport. The levels are used to provide a transport budget for participants. In exceptional circumstances, participants may receive higher funding if the participant has either general or funded supports in their plan that enable their participation in employment.
Level 1
the NDIS will provide up to $1606 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access
Level 2
the NDIS will provide up to $2472 per year for participants who are currently working or studying part-time (up to 15 hours per week), participating in day programs and for other social, recreational or leisure activities
Level 3
the NDIS will provide up to $3456 per year for participants who are currently working, looking for work, or studying, at least 15 hours per week and are unable to use public transport because of the disability
[41] Exhibit R6
Part 5 of the Support Rules provides general criteria for supports, including supports that will not be funded or provided.
Rule 5.1 of the Support Rules provides 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.
Rule 5.2 of the Support Rules states:
The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
The Transport Guideline provides that:[42]
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.
[42] Exhibit R6
TRANSPORT FUNDING AVAILABLE
Ms Parrey’s first NDIS plan commenced on 17 February 2021. The funding for supports was set out as follows:[43]
· Total funded supports – $43,269.14
· Core Supports – self-managed – $31,113.80 comprising:
o core: consumables $2000
o core: daily activities $17,576.04
o core: social, civic and community participation $11,537.76
· Core Supports – Capacity Building Supports – self-managed – $12,155.34
[43] Exhibit R2
Core supports funding can be used flexibly to help with daily activities across the three categories. The Supports Guideline[44] points out that flexible funding in core supports provides greater flexibility to the participant over the disability supports that can be purchased within the description of that support. Core supports relate to everyday activities and the core support budget is the most flexible. The Agency’s pre-hearing contention confirmed the Agency’s position with regard to the availability of core support funding which Ms Parrey can use for transport supports, where necessary. Specifically, when she has a flare-up of her psoriatic arthritis which causes a temporary inability to drive, the Agency contended, correctly in the Tribunal’s opinion, that Ms Parrey: “… would be able to draw upon her core funding to pay for a support worker to transport her to an appropriate destination, or to take her home. The support worker would likely also need to look to Ms Parrey’s needs in getting into her home, and enabling her to settle at home appropriately…”[45]
[44] Exhibit R5
[45] Respondent's Statement of Issues, Facts and Contentions at paragraph 63
DUPLICATION OF SUPPORTS
Ms Parrey requested the Level 3 transport support so that it is available for her to access when she is prevented from driving her car because of the occasional, unpredictable flare-up in her arthritic condition. The Agency contended that Ms Parrey is able to claim funding for transport provided by her support workers when her impairment prevents her from driving. Provision for that funding has been made in her participant plan as part of core funding. The Agency goes on to contend the provision of Level 3 transport funding would be additional to the core support funding already provided. Therefore, it would be a duplication of supports whose provision or funding under the NDIS is prohibited under Support Rule 5.1(c).
Leaving to one side the issue about the effect of ocular migraines, Ms Parrey would use a Level 3 transport allowance on occasions when she is debilitated by a flare-up in her arthritis but needs to be driven somewhere for a particular purpose. For example, she might have driven to work in the morning but by the end of her shift, her arthritis has prevented her from getting into her car and driving herself home. She could use the transport funding to pay for a taxi to drive her home, and perhaps subsequently to collect her car from the office. Other examples concern local trips to the doctor or to the shopping centre when she planned to drive her own car, but in the event of an unexpected, arthritic aggravation, she would have to rearrange the trip and take a taxi. Ms Parrey contended, persuasively, that while a taxi would be available quite promptly on those occasions, a support worker might not be available promptly or at all. The support worker can drive her if the need for transport coincides with the support worker’s shift, and if, as seems probable but not guaranteed, the funds are still available from the core supports budget. Nonetheless, it may be neither realistic to assume that a support worker will be available at short notice, nor cost-effective to have one available “just in case” of unforeseen problems.
The Tribunal was informed that the funding support for Level 1, Level 2 and Level 3 transport is an annual allowance paid fortnightly, in contrast to plan-based funding that is drawn down from a participant’s plan to pay for an approved support. The three levels of funded support for transport are assessed according to a participant’s personal circumstances in relation to community access, in terms of their vocational and social activities and aspirations. However, it is seemingly not an allowance that is confined only to funding transport to and from work, study or day programs.
In one sense, it might be inferred that additional Level 3 transport funding for Ms Parrey would involve a duplication of supports. As an example, when she has a flare-up in her arthritis and she requires someone else to transport her to and from the shopping centre or the doctor, it may be inconsequential to her whether the transport is provided by a taxi or by a support worker (if available). The result is the same. The availability of two means of transport and two sources of funding is, on this view, a duplication of supports in circumstances where only one form of support is required as a funded, reasonable and necessary support.
On the other hand, Ms Parrey’s submission is convincing, because she points out, correctly, that the availability of a taxi driver is virtually assured, in contrast to the availability of her support worker, which is not guaranteed. It is quite realistic to envisage Ms Parrey experiencing situations of unpredictable disability support needs that require someone else to drive her to, for example, an important appointment, to a medical consultation, to the shopping centre, or elsewhere. The same kind of support – namely, accessing an “external source” for transport – may take on different forms at different times. It may involve a support worker driving Ms Parrey as a passenger in Ms Parrey’s vehicle. It may involve a support worker driving Ms Parrey as a passenger in the support worker’s vehicle. It may involve Ms Parrey accessing a taxi or a hire car. There may be other options. However, their features, or elements, differ and are not a duplication of one another. They involve different considerations relating to access, availability, and mode of transport. Hence, the Tribunal is inclined to the view that additional Level 3 transport funding would not involve a duplication of supports under Support Rule 5.1(c) in the specific circumstances of Ms Parrey’s disability and support needs.
DAY-TO-DAY LIVING COSTS
Several decisions of the Tribunal have determined that transport costs are day-to-day living costs which are excluded from provision or funding under NDIS Rule 5.1(d). For example, in Blattman and National Disability Insurance Agency,[46] the applicant sought Level 3 transport funding as a reasonable and necessary support under section 34(1) of the NDIS Act or, alternatively, as an entitlement under the no disadvantage principle as he received a mobility allowance prior to becoming an NDIS participant. He owned a car which he used to travel from home to work. He was able to transfer in and out of the car independently, although he would receive assistance from a support worker if the support worker was available; similarly, he would receive assistance from a colleague at work to transfer in and out of his vehicle. He used accessible taxis with the NSW taxi subsidy scheme to attend hospital appointments and some social engagements. The Tribunal (Senior Member Dr Bygrave) was not satisfied that Level 3 transport funding support was consistent with Support Rules 5.1(b) and (d) because:
… Mr Blattman’s petrol and vehicle servicing expenditure is a day-to-day living cost and there is no evidence this expenditure is attributable to Mr Blattman’s disability support needs. In accordance with rule 5.2, I am satisfied that these costs are neither additional costs incurred by Mr Blattman solely and directly as a result of his disability support needs nor ancillary to another support funded under Mr Blattman’s NDIS plan. Rather, the costs of petrol and vehicle servicing are costs borne by many other Australians as a day-to-day cost of living.[47]
[46] [2019] AATA 184
[47] As above
In Ewin and National Disability Insurance Agency[48] the Tribunal (Senior Member Parker) accepted that the cost of transportation is a day-to-day living expense, as “almost all Australians are required to bear their own daily living costs associated with travel, whether it be the cost of catching public transport, taxis, ride-sharing services or the cost of maintaining a car, motorcycle, bicycle or other mode of travel.”
[48] [2021] AATA 4276 at [233]
Similarly in McLaughlin and National Disability Insurance Agency[49] the Tribunal (Deputy President Humphries) stated that: “… the Tribunal regards the cost of operating a motor vehicle as a day-to-day living cost that Ms McLaughlin would incur regardless of her disability. Those costs therefore fall, prima facie, under rule 5.1(d), as costs that would not be funded under the Scheme: see Blattman and National Disability Insurance Agency [2019 ]AATA 184 at [34]. The Tribunal must now determine whether the costs are caught by the carve-out provision in rule 5.2(a).”
[49] [2021] AATA 496 at [124]
More recently, in RTRH and National Disability Insurance Agency,[50] the Tribunal (Member Webb) confirmed that: “… on many occasions now the Tribunal has accepted the proposition that the cost of transportation is a day-to-day living cost. There is no reason to depart from this conclusion in this case. Transportation is a feature of everyday life for most Australians and the cost of transportation is a cost most adults bear on a day-to-day basis. Commonly such costs relate to the private use of motor vehicles, including fuel, registration, insurance or maintenance for example, or the use of transport services in the form of fares, tickets or passes.”
[50] [2022] AATA 205 at [181]
Ms Parrey contended that she incurs additional costs in running her private motor vehicle through using more fuel and additional wear and tear to her vehicle, “… due to having to drive further, as I am unable to park close enough to places, I need to attend, Chemist Warehouse, Police Stations, Centrelink etc.”[51] There is no evidence about the amount of additional costs of petrol that Ms Parrey may have incurred, and no evidence about additional costs through additional wear and tear to her vehicle. The running costs of her vehicle are common costs which an owner/driver must bear. Ms Parrey also submitted that the lack of disability parking in her local community resulted in her having to drive further to find suitable parking places: “… it is rare for me to not have to drive around the block quite a number of times till a space becomes available.”[52] The problem which Ms Parrey experiences with disability parking is addressed later in these reasons. However, in the context of day-to-day living costs, there is no evidence of the amount of additional costs which she has incurred through driving around the block on repeated occasions.
[51] Exhibit A2
[52] As above
The Tribunal is not satisfied that the exception in Support Rule 5.2(a) and (b) applies. That is, the Tribunal is not satisfied that that there is appropriate evidence of additional living costs incurred by Ms Parrey solely and directly as a result of her disability support needs, or that there is satisfactory evidence of costs being ancillary to another support that is funded under her plan and which she would not otherwise incur. The Tribunal regards the costs which Mrs Parrey has incurred in operating her motor vehicle as a day-to-day living cost.
REASONABLE AND NECESSARY SUPPORTS
In considering whether funding for Level 3 transport is reasonable and necessary, the Tribunal must have regard to the criteria in s 34(1) of the NDIS Act, as further elaborated in the Support Rules.
In McGarrigle, Mortimer J stated, with respect to the question of whether a support is reasonable and necessary:
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”.[53]
[53] At [91]
Evidence in relation to each of the subsections in s 34(1) of the NDIS Act will now be considered.
WHETHER THE SUPPORT WILL ASSIST THE PARTICIPANT TO PURSUE THE GOALS, OBJECTIVES AND ASPIRATIONS IN THE PARTICIPANT’S STATEMENT OF GOALS AND ASPIRATIONS: S 34(1)(A) OF THE NDIS ACT
Section 33(1)(a) of the NDIS Act provides that a participant’s plan must include the participant’s statement of goals and aspirations, prepared by the participant, that identifies the goals, objectives and aspirations that the participant wishes to pursue. Section 33(1)(b) provides that the environmental and personal aspects of the participant’s living is identified in the statement of goals and aspirations. Paragraph 7.1 in the Planning Guideline highlights the importance of understanding the link between a participant’s statement of goals and aspirations in an NDIS plan and the statement of participant supports. The participant’s statement of goals “provides the important foundation for the subsequent selection of supports.”[54]
[54] Exhibit R2 at p 124
Ms Parrey’s NDIS plan includes a short-term goal to gain more hours of work, and a medium or long-term goal to improve her mobility to enable her to get around her neighbourhood without driving.[55] Her requested support for transport assistance arguably addresses those two goals and provides a link between the goals and the support that she seeks. However, there is no evidence before the Tribunal that this request would assist in the pursuit of the goals, objectives and aspirations to any greater degree than the funding presently available to her. The criterion in s 34(1)(a) is not met.
WHETHER THE SUPPORT WILL ASSIST THE PARTICIPANT TO UNDERTAKE ACTIVITIES TO FACILITATE THE PARTICIPANT’S SOCIAL AND ECONOMIC PARTICIPATION: S 34(1)(B) OF THE NDIS ACT
[55] Exhibit R3
Ms Parrey contended that Level 3 transport funding will enhance her capacity to participate in work and also in activities outside work. This contention links to the proposition that she does not have access to a support worker 24 hours per day, 7 days per week. In turn, it seems that her need for a taxi or a hire car might occur when she is unable to drive herself because of the impact of her impairments at a time that coincides with lack of availability of or access to a support worker to drive her. In situations of that kind, she may require a taxi or a hire car to take her to a particular destination.
The Supports Guideline[56] points out that participants might ask for supports to address impairments that were not part of the access eligibility assessment. In that event, the Agency does not require a new access request. However, it does require the provision of evidence to decide if the requested support is reasonable and necessary for an impairment that meets the access criteria. The Tribunal accepts Ms Parrey’s evidence about the spasmodic flare-ups of her psoriatic arthritis which may prevent her from driving her own car. However, she also contended that her ocular migraines are related to psoriatic arthritis, and that when she has an ocular migraine she cannot drive. The Tribunal has addressed that question earlier in these reasons and determined that there is insufficient medical evidence to be satisfied that the ocular migraines are linked to the psoriatic arthritis, or whether they constitute an unrelated medical condition and are not related to Ms Parrey’s disability. Moreover, even if the ocular migraines could be taken into account, it is difficult to envisage situations in which Ms Parrey would be inclined to take a taxi or a hire car to keep appointments while she is affected by an ocular migraine.
[56] Exhibit R5 at p 254
Ms Parrey’s multiple symptoms from the arthritis were described in her statement of lived experience and in her oral evidence. Her arthritis affects her in the spine and lower limbs, and through swelling in her hands and feet. She has painful, stiff and swollen joints. The symptoms can flare without warning. Nonetheless, Ms Parrey drives independently on almost all journeys. Occasionally, arthritic impairment prevents her from driving. On those few occasions, it would seem that the arthritis aggravation would prevent, wholly or substantially, any form of social or economic participation, irrespective of the availability of funding for transport. The Tribunal is not satisfied that the criterion in s 34(1)(b) is met.
WHETHER 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: S 34(1)(C) OF THE NDIS ACT
As discussed earlier, the Agency acknowledged that there may be instances when it is appropriate for Ms Parrey to access NDIS funding to meet her transport needs when she is unable to drive. The Agency’s acknowledgement is reflected in her NDIS plan, as she already has funding which she can access on those occasions which, nonetheless, the Agency suggested are rare.[57]
[57] Exhibit R1 at paragraph [99]
Ms Parrey provided a monthly schedule showing weekly activities and supports. It was an appendix to her statement of lived experience dated 17 March 2022, and it sets out the schedule at that time.[58] She works a full day on Monday and Thursday and in the morning on Tuesday. She also provided, to the best of her recollection, a summary in an appendix[59] of the instances in 2020, 2021 and approximately the first quarter in 2022, of her inability to drive because of her impairments. She could not drive on four occasions in 2020 and on 10 occasions in 2021 because of swelling and stiffness. She could not drive on three occasions in 2020, and on seven occasions in 2021, because of ocular migraines. In approximately the first 10 weeks of 2022, she could not drive on one occasion because of ocular migraines and twice because of swelling and stiffness. The missed trips included appointments, work and visiting friends or family. Counsel for the Agency submitted that this analysis of cancelled trips indicates that it is only rarely that Ms Parrey is unable to travel independently, while estimating that 98 per cent of anticipated independent travel takes place.
[58] Exhibit A2
[59] As above
Ms Parrey told the Tribunal that if she has an arthritic flare-up in the morning and needs to get to work, she would need to find alternative means of transport. She contended that there is a shortage of support workers in her community and the availability of a support worker on short notice, for unscheduled or urgent trips, is highly problematic. Significantly, as well, Ms Parrey contended that the expense involved in engaging a support worker to drive her would be prohibitive outside of the scheduled support work shifts. It would involve minimum hours in a shift and an on-call expense. The occupational therapist, Ms Sawyer, suggested costs of a support worker of $17,815.20 per annum for community access, at six hours per week, costed at $57.10 per hour, compared with NDIS funding of $3456 for Level 3 transport allowance.[60] The exercise physiologist, Ms Moss, also offered that analysis.[61]
[60] Exhibit A11
[61] Exhibit A5
Ms Parrey’s NDIS plan[62] included funding of $11,537.76 in the core support budget for social, civic and community participation. The funding is flexible. She can draw down on the core funding budget to pay for a support worker to transport her to a particular destination and to take her home again. There may be times when the support worker is available because of prearranged shifts which coincide with prearranged external appointments that Ms Parrey makes. Inevitably, there will be other occasions when the support worker is not available at short notice, and additional expense would be incurred if the support worker assisted at short notice to provide transport.
[62] Plan commencement date 17 February 2021
Ultimately, however, the analysis involves speculation about the context and the urgency of transport needs that may arise from time to time. In assessing the difficult question of value for money, the Tribunal gives consideration to matters set out in Rule 3.1 of the Support Rules. In doing so, it is difficult to conceive that the requested transport Level 3 allowance provides a comparable support for Ms Parrey that achieves the same outcome at a substantially lower cost. There is no suggestion that the amount of available funding in the core support budget is inadequate in any regard, or is insufficient to fund the support worker on the occasions when Ms Parrey cannot drive. The inclusion of Level 3 transport funding would be in addition to funding already available for purposes and occasions which are mostly similar although not always identical. Next, the Tribunal is not satisfied that the requested support for the Level 3 transport funding would substantially improve Ms Parrey’s life stage outcomes or be of long-term benefit to her. The Tribunal does not consider that the evidence is sufficient to determine that funding the support is likely to reduce the cost of funding of Ms Parrey’s supports in the long term.
The Tribunal is not satisfied that the requirement of value for money in s 34(1)(c) is met.
WHETHER THE SUPPORT WILL BE, OR IS LIKELY TO BE, EFFECTIVE AND BENEFICIAL FOR THE PARTICIPANT, HAVING REGARD TO CURRENT GOOD PRACTICE: S 34(1)(D) OF THE NDIS ACT
The Tribunal is not satisfied that the requested support is likely to be effective and beneficial for Ms Parrey alongside and in addition to the existing funded support. The occupational therapists made recommendations about Ms Parrey’s mobility, which may be more relevant to consideration of the effectiveness and benefits of other, potential supports. For example, in her comprehensive assessment and report, on 5 November 2020, the occupational therapist, Ms Hunter, canvassed various, possible, alternative and additional assistive technology solutions, including walking or mobility aids which would need further assessment, trial and prescription by an occupational therapist or physiotherapist.[63] Such assessments would be directed towards assessing and maximising Ms Parrey’s ability to move around her home, leave her home and move about in the community. Similarly, but more recently, the occupational therapist, Ms Magnay, assessed Ms Parrey on 4 November 2022. Her occupational therapy functional capacity report included numerous recommendations. In relation to mobility, Ms Magnay recommended further assessment by an occupational therapist to assess Ms Parrey’s suitability for assistive technology to improve outdoor mobility, to assist with community access in ways which do not exacerbate pain and fatigue.[64] For example, assessment of a mobility scooter or power assist wheelchair may be appropriate.
[63] Exhibit A8
[64] Exhibit A15
The recommendations for further assessment by an occupational therapist and a physiotherapist would appear to be relevant to the question about current good practice. In the meantime, based on the evidence available to the Tribunal, it is not possible to conclude that the requested transport allowance meets the criterion in s 34(1)(d) of the NDIS Act.
WHETHER 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: S 34(1)(E) OF THE NDIS ACT
Ms Parrey does not have family nearby to provide assistance to her. On the contrary, she has spent considerable time and effort in recent years providing support to other members of her family in exceedingly difficult circumstances.
The Tribunal is satisfied that the requirement in s 34(1)(e) of the NDIS Act is not relevant to this matter.
THE SUPPORT IS MOST APPROPRIATELY FUNDED OR PROVIDED THROUGH THE NDIS 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 THE REASONABLE ADJUSTMENTS REQUIRED UNDER A LAW DEALING WITH DISCRIMINATION ON THE BASIS OF DISABILITY: S 34(1)(F) OF THE NDIS ACT
Schedule 1 to the Support Rules sets out “Considerations relating to whether supports are most appropriately funded through the NDIS”. Within that schedule, Rules 7.21 and 7.22 of the Support Rules describe broadly the responsibilities which the NDIS has for transport and the matters for which the NDIS is not responsible in relation to transport, as follows:
7.21 The NDIS will be responsible for:
(a) supports for a person that enable independent travel, including through personal transport-related aids and equipment, or training to use public transport; and
(b) modifications to a private vehicle (ie 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).
Ms Parrey gave evidence about the availability of disability parking in her community. She considers that the provision of disability parking is seriously deficient. In her opinion, there is not enough disability parking in locations where it should be readily accessible. Often, the available spaces are already taken. When a parking space is available it is often too far away to enable her to walk to her destination. She considers that those are problems which the Tribunal should address in the context of her request for Level 3 transport funding. However, that cannot be done, as the Tribunal must apply the provisions of Support Rule 7.22(c), which preclude NDIS responsibility for disability parking and associated initiatives. That responsibility lies elsewhere.
The Tribunal is not satisfied that the requested supports are most appropriately funded through the NDIS. Accordingly, this requirement is not met.
NO DISADVANTAGE TEST
Finally, the issue of the application of the “no disadvantage” principle must be addressed. Ms Parrey received the Centrelink mobility allowance prior to becoming a participant in the NDIS, at which time the mobility allowance ceased. She claimed, in her application to the Tribunal, that she was now “worse off” under NDIS than she was with Centrelink.
There is no evidence that Ms Parrey accesses a taxi subsidy scheme or that such a scheme is available to her. Clearly, however, she was previously receiving the mobility allowance, which required her to meet certain disability criteria.
The Council of Australian Governments Intergovernmental Agreement for the NDIS Launch (the COAG Agreement), made on 7 December 2012, contained the following provisions:
Continuity of Support
60 COAG has committed to provide continuity of support to people with disability currently receiving services to ensure that they are not disadvantaged in the transition to a NDIS...
63 Where the NDIS takes on responsibility for providing continuity of supports for a person under paragraph 62 above the Agency will work with the person to develop a transition strategy for that person. This strategy will:
(a) ensure no disadvantage in a person’s outcomes — the supports provided by the NDIS will enable the person to achieve at least the same level of social and economic participation (or undertake the same range of activities) as enabled by their previously provided support; and
(b) the period of this transition will depend on the person’s circumstances and the type of support being provided, and the extent to which there are alternative supports to transition to.
It must be noted that s 118(2) of the NDIS act requires that:
(2) In performing its functions, the Agency must use its best endeavours to:
(a)act in accordance with any relevant intergovernmental agreements…
There is still an obligation on the NDIS participant to demonstrate that the relevant statutory criteria for supports are met, in addition to showing that there was a disadvantage occasioned by the loss of the mobility allowance. The participant must still satisfy all of the criteria in ss 33-34 of the NDIS act and in the Support Rules. It has already been determined that Ms Parrey does not meet those criteria. The Agency argued that Ms Parrey’s overall funding package greatly exceeds, in its relevant parts, the mobility allowance which has been lost or displaced. The Tribunal has not received evidence that Ms Parrey has not been able to achieve at least the same level of social or economic participation, or undertake the same range of activities, compared with those achieved or enabled by the Centrelink mobility allowance of $3456 per annum. The Tribunal is satisfied that the principle of no disadvantage does not apply to Ms Parrey.
CONCLUSION
For the reasons which have been set out, the criteria in s 34(1)(a), s 34(1)(b), s 34(1)(c), s 34(1)(d), s 34(1)(e) and s 34(1)(f) of the NDIS Act are not satisfied. As all of the six requirements in ss 34(1)(a)-(f) must be fulfilled for a support to be reasonable and necessary, it follows that Ms Parrey’s requested support is not most appropriately funded or provided through the NDIS.
CONCLUSION
The decision which the Tribunal reviewed was the Agency’s internal review decision dated 27 July 2021, which was made under s 100(6) of the NDIS Act. That was a decision on internal review that affirmed the original decision to approve Ms Parry’s statement of participant supports in her NDIS plan which commenced on 17 February 2021.
DECISION
The reviewable decision is affirmed.
I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Member Thompson.
..........[Sgnd].......................................
Associate
Date of Decision: 4 April 2023 Date of Hearing: 7 and 9 December 2022 Non-legal representative for the Applicant: Ms Hardcastle
Disability Advocacy NSWCounsel for the Respondent:
Ms Rao
Level 22 Chambers
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