Perosh and National Disability Insurance Agency
[2018] AATA 980
•23 April 2018
Perosh and National Disability Insurance Agency [2018] AATA 980 (23 April 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2017/3838
Re:Peter Perosh
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Professor R McCallum AO, Member
Date:23 April 2018
Place:Sydney
The decision under review is varied as follows:
1) The taxi fares from Mr Peter Perosh’s home to the TAFE at St Leonards and return for the 31 weeks of the academic year is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme.
2) The taxi fares from Mr Peter Perosh’s home to the gym in Castle Hill and return each week is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme.
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Professor R McCallum AO, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – applicant with cerebral palsy – reasonable and necessary supports – whether costs of transport to TAFE, the gym and outings is a reasonable and necessary support – whether supports should be fully funded – McGarrigle considered – decision under review varied
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 3,4, 34(1), 100(6), 103, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) r 5.1, 2.10
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
REASONS FOR DECISION
Professor R McCallum AO, Member
23 April 2018
INTRODUCTION
The Applicant, Mr Peter Perosh is a young adult who lives with his parents and sister in a rural area of the Hills District in Sydney.
Mr Peter Perosh has spastic quadriplegic cerebral palsy.
Dr Heather Burnett and Dr Mary-Clare Waugh from Westmead Children's Hospital wrote a report dated 11 April 2016. The doctors explain Mr Peter Perosh’s spastic quadriplegic cerebral palsy. This report reads in part as follows:
Peter … has spastic quadriplegic cerebral palsy (GMFCS IV, MACS 2, CFCS II, FMS 2/1/I).
…
He uses his walking frame at Conductive Education but has challenges in the home environment getting into it. He needs standby assistance to mobilize safely in his walker. He mostly uses his wheelchair for mobility.
…
He does require full assistance for activities of daily living, including toileting and dressing as well as bathing. He can perform some simple tasks around the home, such as getting out food so that someone can make a snack for him. Maria and Donna suspect that he could probably make himself a snack as well; however, he prefers to have this done for him. The family had home modifications completed in 2013 and the home is fully accessible for Peter in his wheelchair. This includes a fully accessible, 5m x 5m bathroom as well as an electronic change-table.
…
PHYSICAL EXAMINATION
Height: 164.5 cm.
Weight: 61.7 kg
Peter was a pleasant and cooperative young man throughout today's consultation. His seated posture was slumped forward in the upper spine; however, he was easily able to lift his head to make appropriate eye contact. This posture was present in standing as well. When I examined his spine seated, he has a flexible kyphoscoliosis with its apex to the right in the upper thoracic spine.
Peter was able to perform a standing transfer from his wheelchair to his walking-frame with assistance from his sister. Peter was able to get his knees straight in mid stance. He walked with a flatfooted gait with clipping of the heels and external foot progression bilaterally. Walking was obviously effortful for him. He had reasonably good manoeuvring control in his frame.
On passive examination of his lower limbs today, in hip abduction with the knees flexed, Peter had a catch at 25° with end range to 50° bilaterally. In his abduction with his knees extended, he had a catch at around 15° with end range to 20°. Peter had full extension of the hips today with about a 5° knee flexion contracture bilaterally. He had increased tone in quadriceps bilaterally but was able to bend his knees easily when asked. The popliteal angle was 55° bilaterally with no catch. At the ankles bilaterally, Peter had range in soleus to about +20° and in gastrocnemii to about +10° bilaterally with soft catches at plantigrade in both muscle groups bilaterally.
In his upper limbs, Peter had reduced speed and quality of movement bilaterally. This was more marked on the left. He had good active and full passive range of motion at all joints and tone was not significantly increased in the upper limbs.
Peter did not talk much during today's visit; however, he clearly understood what was said to and around him. Maria reports that he speaks more at home. He is dysarthric but he is easily understandable to his family. He is no longer receiving speech therapy services.
As I comprehend Dysarthria, it usually means that a person’s speech is slurred or slow.
Dr Mary-Clare Waugh provided a subsequent report dated 19 February 2018. Omitting formal parts, Dr Waugh wrote as follows:
CLARIFICATION
Peter is a ** year old young man with spastic quadriplegic cerebral palsy (GMFCS 4).
Peter can walk short distances (e.g. 5 metres or within an hour) with a walking frame but is not able to do so efficiently enough to use this mode of mobility in the community. He is unable to use Public Transport with a walking frame due to his slow effortful movements.
As he has significantly weak muscles any efforts at movement outside the home result in physical and cognitive fatigue.
I hope this clarifies the matter as noted in my report of 2016.
Mr Peter Perosh has completed his secondary education. It is my understanding that in 2017, he attended Macquarie University and studied one semester length music subject.
Since February or March 2018, Mr Peter Perosh has been attending the North Sydney Institute at St Leonards for six hours each week. The North Sydney Institute is a TAFE.
Mr Peter Perosh has been studying two subjects in a certificate IV (NRT) TAFE course in Digital and Interactive games. To fulfil the requirements of this course, Mr Peter Perosh will be required to complete seven subjects.
MR PETER PEROSH JOINS THE NDIS
Mr Peter Perosh became a participant in the National Disability Insurance Scheme (“NDIS”) on 19 September 2016. The NDIS is established by the National Disability Insurance Scheme Act 2013 (Cth) (“NDIS Act”). The NDIS scheme is administered by the National Disability Insurance Agency (“NDIA”).
On 24 October 2016 Mr Peter Perosh’s first participant plan was approved. This plan included funding of $2,625.00 for transport. Subsequent participant plans were approved on 15 November 2016 and 27 February 2017, maintaining $2,625.00 funding for transport.
As I comprehend the manner in which the NDIA assesses transport costs, it uses three levels of costs. In Mr Peter Perosh’s circumstances, the amount of $2,625.00 equates to level 2 of the NDIA’s transport costs.
In the matter before me, its position is explained in paragraph 4.5 of the Respondent’s Statement of Position which reads in part as follows:
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 $1,606 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 $2,472 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 $3,456 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 their disability.
When considering transport as a funded support, if the criteria relevant to including supports in a participant’s plan are satisfied, this does not mean that the full cost of the support should be funded as it may be reasonable for a participant’s family members, carers, informal networks and/or the community to provide some of this support. (see McGarrigle and NDIA [2016] AATA 498 at [36]).
THE FAMILY SEEKS REVIEW
The family sought review, and a review decision was made on 7 June 2017. The review decision provided that the amount of funding for transport would not be altered.
On 8 June 2017, a further participant plan giving effect to the review decision commenced operation.
Mr Peter Perosh has applied to the NDIS Division of the Administrative Appeals Tribunal to review the review decision.
Under section 103 of the NDIS Act, the Tribunal has jurisdiction to review the decision of 7 June 2017 as it was made pursuant to section 100(6)(a) of the NDIS Act.
THE RELEVANT LEGISLATION
The statutory provisions governing reasonable and necessary supports in participant plans are both detailed and complex. However, for the purposes of this decision it is necessary to set them out in some detail.
Section 33 of the NDIS Act sets out the content of participant plans. It relevantly provides as follows:
Matters that must be included in a participant’s plan
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme;
…
(5) in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO 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.
Mr Peter Perosh asserts that an increase of funding for transport is a necessary and reasonable support which should be funded by the NDIA pursuant to subsection 33(2)(b) of the NDIS Act.
Section 34(1) of the NDIS Act sets out the criteria for the funding of necessary and reasonable supports as follows:
Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Of course, subsection 34(1) is only one provision in a detailed statute governing the NDIS. This provision must be interpreted having regard to the entire statute and subsection 34(1) must also be read in conformity with the purposes and objects of the Act. The Parliament of Australia has expressly provided objects and general principles in the NDIS Act to give guidance on the interpretation of the statute and these apply to the interpretation of subsection 34(1).
It is not necessary to set out the objects and principles in their entirety, but for the purposes of this decision I reproduce the following objects and principles:
3 Objects of Act
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
…
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(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
…
(3) In giving effect to the objects of the Act, regard is to be had to:
…
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme;
…
4 General principles guiding actions under this Act
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(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.
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(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
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(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.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
…
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Importantly, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the “Support Rules”) address the assessment and determination of “reasonable and necessary supports” that will be funded by the NDIA. By virtue of section 209 of the NDIS Act, the Support Rules form part of the legislation.
THE HEARING
The date of the hearing was 11 April 2018.
Mr Peter Perosh attended the hearing in person. He was accompanied by his parents, Mrs Mary (known as Maria) Perosh and Mr John Perosh.
Mr Malcolm Charlton who is a disability advocate represented Mr Peter Perosh. The NDIA was represented by counsel.
THE COSTS OF THE REASONABLE AND NECESSARY SUPPORTS SOUGHT
At the hearing, Mr Malcolm Charlton clarified the transport costs which Mr Peter Perosh was seeking as reasonable and necessary supports.
First, the cost of return taxi fares to attend TAFE twice a week for the 31 weeks of the 2018 academic year: $100 per trip, total $6,200.
I note that on 15 December 2017, the Applicant sent two emails to the Tribunal containing further submissions. In the first email it is stated that “The taxi fare one way from where Peter lives in ** to St Leonards is $88.06.”
Second, the cost of taxi fares to attend the gym at Castle Hill once a week for 52 weeks, $32 per week, total $1,664.
Third, the cost of taxi fares for an outing with a carer each week for 52 weeks, $32 per week, total $1,664.
The total costs sought were $9,528.
Mr Peter Perosh receives taxi discount vouchers under the NSW Taxi Transport Subsidy Scheme. My understanding is that the costs sought are the costs of the discounted taxi fares. I take the estimate of $100 per trip from Mr Peter Perosh’s home to the TAFE at St Leonards and return to be approximate costs. Obviously, taxi fares will vary having regard to traffic flows etc.
THE EVIDENCE OF MRS MARIA PEROSH
Mrs Maria Perosh who is Mr Peter Perosh’s Mother gave sworn evidence.
Mrs Perosh explained that her son was born with cerebral palsy.
Mrs Maria Perosh said that she currently works in information technology.
Mrs Maria Perosh explained Mr Peter Perosh’s weekly timetable as follows:
On Mondays – he leaves at 8:00am by taxi to attend TAFE at 9:00am. He finishes at 12:00pm. A taxi brings him home. He goes with his carer to TAFE, who helps, as Mrs Maria Perosh works full-time.
On Tuesdays – a Physiotherapist comes to the house for a 1 hour treatment session.
On Wednesdays – Mr Peter Perosh attends gym for a Physical therapy session for strengthening for thirty minutes. He travels to and from by taxi.
On Thursdays – he leaves at 8:00am by taxi to attend TAFE at 9:00am. He finishes at 12:00pm. A taxi brings him home.
On Fridays – there is a physiotherapist treatment session for another hour. He is with his carer for the rest of the day.
Mrs Maria Perosh was asked how she paid for the taxi fares. She said that she has opened a cab charge account. Even with the NSW Taxi Transport Subsidy Scheme, she said she is out of pocket for $250 per week, this being the cost of the taxis to and from TAFE, and to and from the gym.
Mrs Maria Perosh was asked about the public transport options. She said that they live in a rural part of the Hills District. There are no footpaths. This means that her son would have to go by wheelchair 500 metres on a gravel road to a bus stop.
It was put to Mrs Maria Perosh that Mr Peter Perosh could catch a taxi to Pennant Hills Railway Station, then take a train to St Leonards and then an accessible bus to the TAFE. Mrs Maria Perosh said that this might take up to 1 hour and 30 minutes each way and that Mr Peter Perosh fatigues easily.
Mrs Perosh said that she now works full-time from 9:00am to 5:00pm. However, she comes home by 3:00pm to relieve the carer and does the remainder of her work from home.
Mrs Maria Perosh was asked whether the family could afford another vehicle in which to transport Mr Peter Perosh and his wheelchair. She explained that they could not afford this. Mrs Maria Perosh said that her husband was unemployed for six months last year.
Mrs Maria Perosh was asked about the request for the transport costs to enable Mr Peter Perosh to go on weekly outings with his carer to Castle Hill. She said that he has not gone there yet. However, she said he would like to go to have lunch, to watch a movie or to do some shopping.
Mrs Maria Perosh was asked how the family travelled to the Tribunal for the hearing. She said that they travelled in her four wheel drive (FWD) vehicle which can accommodate Mr Peter Perosh’s manual wheelchair. It cannot accommodate his electronic wheelchair.
Mrs Maria Perosh said that they had a step-ladder on the vehicle to enable Mr Peter Perosh with assistance to get into it. She added that this is not a safe means of transfer.
In cross-examination, Mrs Perosh was asked how long it took to drive to Pennant Hills Railway Station. She said that it depends. At 8:15am the other day with the heavy traffic it took 45 minutes.
Mrs Maria Perosh was asked whether she could drive her son to the Pennant Hills Railway Station where he could catch the train. She said she could do so, but that she would be late for work. She added that she could drive her son to TAFE, but then she could not go to work.
Mrs Maria Perosh was asked whether she had organized an assessment of her FWD vehicle to see if modifications could be made to enable her son to more safely transfer in and out of it. She said that she had not had an assessment as in her view it was not possible to modify this vehicle.
She was also asked whether she had arranged for Mr Peter Perosh to be assessed to see if he could use public transport. She said she had not done so.
THE EVIDENCE OF MR JOHN PEROSH
Mr John Perosh who is Mr Peter Perosh’s father gave sworn evidence.
In cross-examination Mr John Perosh said that he worked in insurance in the CBD. He left at 6:00am and returned at 6:30pm. He drove his car to Beecroft Railway Station where there was parking and took the train to the city. He returned home by train and car.
In subsequent examination by Mr Charlton Mr John Perosh explained that his car is an open utility which is 11 years old. He could put his son’s electronic wheelchair into the open utility, but of course it would be open to the weather.
Mr John Perosh said that he takes his son to swimming every Saturday afternoon. He added that he takes him to the shops after work on two or three evenings each week.
THE MCGARRIGLE DECISIONS AND THE COST OF REASONABLE AND NECESSARY SUPPORTS
To the best of my knowledge, this is the first occasion where this Tribunal has had to consider the decisions of the Federal Court of Australia concerning the costs of the transport components of participant plans which are reasonable and necessary supports under the NDIS.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J sitting in the Federal Court of Australia held that in the matter before her the NDIA was required to pay for the full costs of transportation as set out in the participant plan.
As I comprehend the judgment of Mortimer J, her Honour came to the view that once an item like transport was found to be a reasonable and necessary support in a participant plan, the NDIS was liable to pay for the full cost of the item.
At paragraphs [93]-[95] of her judgment, Mortimer J stated as follows:
93 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.
The scheme contemplates full funding of reasonable and necessary supports
94 Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
95 The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded. There are no references in these provisions to “contributions” from the participant, the participants’ family or carers. I have explained, in my opinion, how s 34(1)(e) is intended to operate: that is, it is intended to operate at the stage of the CEO (or the delegate or Tribunal) forming a state of satisfaction about what are “reasonable and necessary supports”. It is not intended to ask the decision-maker to assess whether any of the persons in para (e) are capable, or willing, to make a financial contribution towards the proposed support. That is made especially clear by the inclusion in the list in para (e) of the “the community”. Parliament did not intend the decision-maker to ask, in forming a state of satisfaction, whether the community could or should make a financial contribution to the funding of a support found by the decision-maker to be reasonable and necessary in order for the participant to work towards the goals, objectives and aspirations set out in the participant’s plan.
The NDIA appealed to a Full Bench of the Federal Court of Australia. In National Disability Insurance Agency v McGarrigle [2017] FCAFC 132, Kenny, Robertson and Kerr JJ dismissed the appeal. Their Honours delivered a brief ex tempore judgment of eight paragraphs. In paragraph 5 of the judgment, their Honours state as follows:
5 To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded. We express no view on this issue. Its resolution will turn on the Tribunal’s assessment of the evidence and materials before it.
In the matter before me, counsel for the Respondent made the following argument. As I comprehended this submission, it was asserted that the words “… it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded” should be understood as follows. It is open to the Tribunal to fully fund some, but not all of the reasonable and necessary supports. In other words, some supports could be fully funded, while other supports could be partially funded.
This is a possible interpretation of paragraph 5 of the judgment of the Full Bench. However, in my view it is not the correct interpretation. If their Honours had wished to say that some but not all supports could be fully funded, then they would have placed the word “fully” before the word “funded” as follows. “…it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be fully funded.”
In my view, their Honours were simply saying that it was up to the Tribunal to determine which supports would be funded and which supports would not be funded as they were not reasonable and necessary supports.
I adopt this view for it is consonant with Mortimer J’s judgment which I have quoted above. The Full Bench upheld this judgment on appeal.
Until otherwise guided by the courts, it is my view that the proper course for this Tribunal to take is to adhere to the holding by Mortimer J that once a support is held to be a reasonable and necessary support, it should be fully funded. As her Honour said in paragraph 95, “…[T]he relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded.”
CONSIDERATION
I am required to determine whether the transport costs of Mr Peter Perosh attending the TAFE, going to the gym and going on outings are reasonable and necessary supports. If I find that any or all of these transport costs are reasonable and necessary supports, in accordance with Mortimer J’s holding I shall order that the NDIS is required to cover their full costs.
The Section 34(1) Criteria
Section 34(1) of the NDIS Act which has been quoted above, sets forth the criteria for determining whether or not a support is a reasonable and necessary support.
Counsel for the Respondent confirmed what the Respondent had written in paragraph 4.3 of its Statement of Position. The Respondent is satisfied that the claim for increased transport costs meets the criteria set out in paragraphs (a), (b) and (d) of section 34(1) of the NDIS Act. Having regard to the evidence before the Tribunal, I find that Mr Peter Perosh’s claim does meet the criteria in these paragraphs.
Therefore, I am required to decide whether the claim meets paragraphs (c), (e) and (f) of section 34(1) of the NDIS Act. For ease of comprehension I repeat these paragraphs 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:
…
(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;
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(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.
The position of the Respondent
The primary submission of the Respondent was founded on Rule 5.1(d) of the Support Rules. Rule 5.1(d) is as follows:
General criteria for supports
5.1 A support will not be provided or funded under the NDIS if:
…
(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.
Counsel for the Respondent asserted that transport is a day to day living cost which is contemplated by paragraph (d) of Rule 5.1 of the Support Rules. I agree with this submission.
The next issue is what portion of the transport costs of Mr Peter Perosh are not attributable to his disability.
It is clear that the costs of taxis are attributable to Mr Perosh’s disability.
Counsel for the Respondent stated that Mrs Maria Perosh could drive her son to the Pennant Hills Railway Station on two mornings a week. Mr Peter Perosh could catch the train from Pennant Hills Railway Station to the St Leonards Railway Station, both stations being wheelchair accessible. He could then catch an accessible bus to the TAFE. On returning each afternoon, he could book a wheelchair taxi to take him from the Pennant Hills Railway Station to his home.
Counsel for the Respondent suggested that even if Mr Peter Perosh took taxis to Pennant Hills Railway Station on two mornings a week, instead of his Mother driving him, these costs were fully funded by the NDIS as it had funded $2,625.00 for the costs of transport.
Of course, this argument depends on whether Mr Peter Perosh is able to take public transport.
Rule 2.10 of the Support Rules provides as follows:
2.10 Schedule 1 sets out considerations relating to whether supports are most appropriately funded through the NDIS, which is relevant to the matter set out in paragraph 2.3(f).
Clause 7.21 of Schedule 1 is as follows:
Transport
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.
In paragraph 4.5 of the Respondent’s Statement of Position it is stated that:
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.
There is not much evidence before me on the capacity of Mr Peter Perosh to travel by public transport independently and without difficulty. There is no independent assessment from an occupational therapist.
There are the reports from Dr Heather Burnett and Dr Mary-Clare Waugh which I have quoted above. I also accept the evidence from Mrs Maria Perosh that her son fatigues easily. This fatigue explains why Mr Peter Perosh is only studying two TAFE subjects per semester, and not three TAFE subjects as was originally planned.
As is noted in the report by Dr Heather Burnett and Dr Mary-Clare Waugh dated 16 April 2016 which has been quoted above:
He uses his walking frame at Conductive Education but has challenges in the home environment getting into it. He needs standby assistance to mobilize safely in his walker. He mostly uses his wheelchair for mobility.
…
He does require full assistance for activities of daily living, including toileting and dressing as well as bathing.
Having regard to all of the evidence before me, I find that Mr Peter Perosh cannot use public transport independently and without substantial difficulty.
Are The Costs Of The Taxis To The TAFE, To The Gym And For Outings Reasonable And Necessary Supports?
The final matter which I am required to decide is whether the costs of the taxis which Mr Peter Perosh is claiming, are reasonable and necessary supports.
First, I find that the taxi fares from Mr Peter Perosh’s home to the TAFE at St Leonards and return is a reasonable and necessary support. This cost fulfils the criteria set forth in section 34(1) of the NDIS Act. In particular, it represents value for money, and having regard to the circumstances of the family, it is not reasonable to expect his Mother or Father to drive him to and from TAFE. It also fulfils the criteria in the Support Rules.
The length of the academic year is 31 weeks, and Mr Peter Perosh attends the TAFE twice a week.
Second, I find that the taxi fares from Mr Peter Perosh’s home to the gym in Castle Hill and return is a reasonable and necessary support. This cost fulfils the criteria set forth in section 34(1) of the NDIS Act. In particular, it represents value for money, and having regard to the circumstances of the family, it is not reasonable to expect his Mother or Father to drive him to and from the gym. It fulfils the criteria in the Support Rules.
Mr Peter Perosh attends the gym once a week for 52 weeks per year.
Third, I find that the taxi fares from Mr Peter Perosh’s home for outings to Castle Towers and return is not a reasonable and necessary support.
In his evidence, Mr John Perosh said that he takes his son to swimming on Saturday afternoons, and on two or three evenings after work he takes him to the shops. I find that further outings do not comply with paragraph (e) of section 34(1) of the NDIS Act because I find it is reasonable for Mr Peter Perosh’s family to arrange further outings for him. In coming to this view, I am mindful of the need to ensure the financial sustainability of the NDIS.
In accordance with the decision of Mortimer J which was upheld by the Full Federal Court in the McGarrigle case which I have quoted above, the NDIS is required to pay the full costs of the taxi fares to and from the TAFE, and to and from the gym.
If issues arise over the full costs of these taxi fares, I note that in her evidence Mrs Maria Perosh stated that she had opened a cab charge account for her son. The documents before the Tribunal contain several invoices from this account. I am sure that Mr Charlton who appeared for Mr Peter Perosh will be able to assist the family to detail the full costs of these taxi fares to the NDIA.
DECISION
The decision under review is varied as follows:
1)The taxi fares from Mr Peter Perosh’s home to the TAFE at St Leonards and return for the 31 weeks of the academic year is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme.
2)The taxi fares from Mr Peter Perosh’s home to the gym in Castle Hill and return each week is a reasonable and necessary support which is to be fully funded under the National Disability Insurance Scheme.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member
.........................[sgd]...........................................
Associate
Dated: 23 April 2018
Date(s) of hearing: 11 April 2018 Advocate for the Applicant: M Charlton, Synapse Counsel for the Respondent: M Donald Solicitors for the Respondent: Sparke Helmore
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