Re Ewin and National Disability Insurance Agency
[2018] AATA 4726
•21 December 2018
Ewin and National Disability Insurance Agency [2018] AATA 4726 (21 December 2018)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/2154
Re:Stuart Ewin
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:21 December 2018
Place:Melbourne
The Tribunal sets aside the internal review decision made on 27 March 2017 and in substitution, sets aside the decision of a delegate of the CEO of the National Disability Insurance Agency (NDIA) made on 19 January 2017 (which varied a statement of participant supports forming part of Mr Stuart Ewin’s plan under the National Disability Insurance Scheme (NDIS) that commenced on 19 December 2016), and in substitution, the Tribunal approves a new statement of participant supports that:
1.specifies the following reasonable and necessary supports for Mr Ewin as from 19 December 2016:
a. funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and work on days when it is raining or forecast to rain, to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance of 672km per annum;
b. funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and lawn bowls “away” games that he plays on Saturdays or as part of the Darebin night competition, Darebin midweek competition or for tournaments held for players with disabilities; provided those “away” games are held at a bowls club located in a suburb on the Hurstbridge train line (Eligible Journeys). Mr Ewin’s costs of the Eligible Journeys are to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance to be agreed between the NDIA and Mr Ewin within 21 days of Mr Ewin providing full particulars, in accordance with paragraph [321], of the Eligible Journeys undertaken by him from 19 December 2016 to 21 December 2018; and as projected, from 22 December 2018 to 22 December 2019;
c. funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and the location of his child’s or children’s weekly swimming lessons or netball games, to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance of 864km per annum; and
d. $1,500, to be used to purchase an aerodynamic roof rack and/or fittings to be fitted onto Ms Ewin’s wife’s car; a standard-sized roof box; a step accessory; a storage rack fitting; and to reimburse Mr Ewin 12.1% of his petrol costs for the biannual trips to Apollo Bay undertaken while the roof box is in use, subject to the provision of tax invoices confirming purchase of the petrol at the commencement of those journeys;
e. $350, to be used for the purchase of a “black box” compartment; the cost of any customised fitting required to be made to Mr Ewin’s chair and a lightweight laptop bag with adjustable shoulder strap; and
f. continuation of the provision or funding of all current ongoing supports (i.e. excluding any one-off supports that have already been provided to Mr Ewin), at the same level, as listed in paragraph [15] of these Reasons for Decision; and
2.extends the review date of the statement of participant supports to 22 December 2019.
The Tribunal reserves the question of quantification of the distance referred to in paragraph 1(b) above. Either party has liberty to apply in the event that they are unable to reach agreement within 21 days after Mr Ewin has provided the required particulars.
[sgd].......................................................................
Member K. Parker
NATIONAL DISABILITY INSURANCE SCHEME – statement of participant supports – participant has incomplete paraplegia – participant able to drive independently – participant claims funding for costs of travel using his own car for specified travel – public transport on some routes unavailable, inaccessible or impractical – whether supports are day-to-day living costs – whether additional living costs of travel arise solely and directly as a result of disability needs – support that is reasonable to expect participant’s wife or other persons to provide – overarching objectives to maximise the participant’s independence – whether supports represent value for money – consideration of comparable supports – whether support is most appropriately funded under NDIS – intersection with supports to be provided by employer – whether employer should provide comparable support under its flexible workplace or inclusion policies or under relevant anti-discrimination legislation – quantification of travel costs – reviewable decision set aside and substituted with decision of Tribunal
JURISDICTION - participant’s first NDIS plan succeeded by three successive plans – whether effect of decision should be limited to coverage of travel during period of first plan only – whether effect of decision will cover period or periods of successive plans – whether effect of decision covers future period – powers of the Tribunal upon review – new plan comes into effect if Tribunal sets aside decision of reviewer and substitutes it for a decision to set aside the NDIA delegate’s decision to approve the original statement of supports and substitutes it for a decision to approve a new statement of supports
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 25, 37, 43
Disability Discrimination Act 1992 (Vic)
Disability Standards for Accessible Public Transport 2002 (Cth)
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 31, 32A, 33, 34, 35, 37, 48, 99, 100, 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) Parts 3, 5 and Schedule 1
Cases
Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Re Drake and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re FJKH and National Disability Insurance Agency [2018] AATA 1294
G v Minister for Immigration and Border Protection [2018] FCA 1229
Green v Daniels [1977] 13 ALR 1
Hneidi v Minister for Immigration and Ethnic Affairs [1981] 119 FCR 454
Re LNMT and National Disability Insurance Agency [2018] AATA 431
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 50 FCR 189
Re Nairn and National Disability Insurance Agency [2017] AATA 242
National Disability Insurance Agency v McGarrigle [2017] FCFCA 132
Nevistic v Minister for Immigration and Ethnic Affairs [1981] 119 FCR 454
Re QZHH and National Disability Insurance Scheme [2018] AATA 1465
Re PNMJ and National Disability Insurance Agency [2015] AATA 866
Secretary, Department of Social Security v Alvaro [1994] FCA 1124
Re SHGH and National Disability Insurance Agency [2018] AATA 674
Re SSBV and National Disability Insurance Agency [2017] AATA 2174
ReWendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865Secondary Materials
COAG Principles to Determine the Responsibilities of the NDIS and Other Service Systems
NDIA Operational Guidelines – Planning (Chapter 10), Appendix 1
NDIS Price Guide – Victoria, New South Wales, Queensland, Tasmania (Valid from: 1 July 2018)
NDIS Fact Sheet - Participant transport fact sheet (May 2017) – published by NDIAPublic Transport Victoria, Accessible Public Transport Action Plan
REASONS FOR DECISION
Member K. Parker
21 December 2018
INTRODUCTION
This application is about whether Mr Stuart Ewin should be funded under the National Disability Insurance Scheme (NDIS) for the costs of any or all of following nine categories of specified travel using his own car:
Travel Category 1: Travel between Mr Ewin’s place of work and his home on days when he works from home in the evenings;
Travel Category 2: Travel between Mr Ewin’s place of work and his home on days when it is raining or forecast to rain;
Travel Category 3: Travel to attend lawn bowls “away” games;
Travel Category 4: Travel to attend a lawn bowls tournament held in Bendigo annually;
Travel Category 5: Travel to do weekly grocery shopping at Mr Ewin’s local supermarket and other shopping in the Melbourne central business district (CBD) or at Northland shopping centre;
Travel Category 6: Travel from Mr Ewin’s home to his place of work and to his wife’s parents’ home to attend a fortnightly family dinner;
Travel Category 7: Travel from Mr Ewin’s home to work; work to the offices of Disability Sports & Recreation (DSR) and from DSR offices to his home, to attend DSR board meetings and mentoring activities;
Travel Category 8: Travel to take Mr Ewin’s children to a weekly sporting activity;
Travel Category 9: Travel to attend family holidays at Apollo Bay in Mr Ewin’s car to allow Mr Ewin to transport himself and his lawn bowls equipment and purpose-designed bowls wheelchair separately from Mr Ewin’s wife’s car, which will transport his other family members and their luggage.
For the reasons set out below, the Tribunal has made a decision the effect of which is that Mr Ewin will be funded under the NDIS for his travel costs using his private vehicle for Travel Category 2, for some trips in Travel Category 3 where the “away” bowls games are held at a club in a suburb on the Hurstbridge train line, and Travel Category 8. The Tribunal is satisfied that the provision of funding for these categories of travel are reasonable and necessary supports under the NDIS. The Tribunal is not satisfied that the provision of funding to Mr Ewin for the remaining categories of travel specified by him are reasonable and necessary supports.
The Tribunal also considers that some alternative supports suggested by the NDIA are reasonable and necessary supports and that Mr Ewin should be funded for those items and equipment, should he elect to purchase and use them.
ISSUES
Substantively, this application raises for consideration whether funding should be provided to Mr Ewin under the NDIS for the cost of travel by private vehicle for specified categories of travel. This will require a consideration of the factors set out in s 33(5) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (see paragraph [61]), which includes whether the Tribunal is satisfied that the claimed supports are reasonable and necessary supports on account of meeting all of the criteria under s 34(1) of the NDIS Act (see paragraph [62]).
This application also raises a jurisdictional issue as to whether any decision made by the Tribunal would cover the period of the plan that contained the statement of participant supports that was the subject of review by the reviewer as part of the internal review, or whether the Tribunal is able to make a decision that would extend the coverage of its decision beyond that period; namely, to cover the periods of any successive NDIS plans for Mr Ewin. Furthermore, the Tribunal must consider whether it is able to make a decision that will give rise to the participant being able to receive funding of the approved supports into the future; and if so, for what period.
BACKGROUND
Mr Ewin became a participant of the NDIS in November 2016.[1] The NDIS operates under the NDIS Act and its regulations. The National Disability Insurance Agency (NDIA) is the Commonwealth government agency responsible for administering the NDIS.
[1] Mr Ewin was granted access as a participant to the NDIS on 7 November 2016 – refer T-Documents T6/20. On 17 May 2017, the NDIA lodged a set of documents with the Tribunal in accordance with its obligations under s 37 of Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).
Mr Ewin is employed full-time as a senior lawyer with the ANZ Bank. He is 51 years old and lives with his wife and two primary-school aged children in Alphington, Victoria.
In 1981 Mr Ewin became an incomplete paraplegic due to a medical condition (transverse myelitis) which caused inflammation of his spinal cord. Mr Ewin’s incomplete paraplegia limits his lower limb function and he cannot walk independently. Mr Ewin is able to weight bear. Mr Ewin uses a manually-propelled wheelchair for mobility.[2]
[2] Refer T-Documents T7/25 and Mr Ewin’s Statement of Lived Experience lodged on 12 December 2017 (Mr Ewin’s Statement).
Since 2012, Mr Ewin has also suffered from shoulder impingement syndrome which may, at times, cause him pain and impact his ability to propel his wheelchair when carrying heavy items, lift items and support his own weight on crutches.
Four successive NDIS plans
Since becoming a participant of the NDIS, four successive NDIS plans have been put in place for Mr Ewin as follows:
Date of NDIA covering letter confirming approval of statement of supports
Commencement date referred to in plan
Scheduled review date referred to in plan
First Plan
19 January 2017
19 December 2016
19 December 2017
Second Plan
24 March 2017
24 March 2017
26 March 2018
Third Plan
27 March 2018
27 March 2018
25 September 2018
Fourth Plan
25 September 2018
25 September 2018
26 March 2019
On 11 April 2017 Mr Ewin lodged an application with this Tribunal for review of an internal review decision made by a reviewer (who is a delegate of the CEO)[3] on 27 March 2017 (Internal Review Decision).[4] In the Internal Review Decision, the reviewer did not specify the statement of participant supports (or plan) that was the subject of her review, although it was preceded by a letter to Mr Ewin from a different delegate of the CEO who decided that a decision had been made that the NDIA would undertake a review relating to Mr Ewin’s plan on 30 January 2017. Mr Ewin also states in his internal review request form that he sought a review about: “NDIS Plan (NDIS numbered 430208235)” and when Mr Ewin was prompted to provide the date that the NDIA made its decision, he inserted, “19 December 2018”.[5] Both of those references are to Mr Ewin’s First Plan.
[3] In these Reasons for Decision, the Tribunal’s reference to “CEO” is a reference to the Chief Executive Officer of the NDIA.
[4] Refer T-Documents T2/6&7.
[5] Refer T-Documents T5/14&15.
Evolution of approved supports for Mr Ewin
The approved statement of participant supports in the (12-month) First Plan for Mr Ewin included:
(a)$4,000 to fund an allied health professional or therapist to assist him to meet his goals of assistive technology and assessment of home modifications;
(b)$1 for funding for bathroom modifications - quote to be obtained;
(c)$6,458.90 (for support coordination); and
(d)$5,226.75 to purchase low risk equipment for equipment up to the value of $1,000 and home maintenance (specifically house cleaning, gardening and guttering).
The approved statement of participant supports forming part of the subsequent (12-month) Second Plan for Mr Ewin contained the previous supports referred to in paragraph [12], with the addition of:
(a)a new support of $1,300 for a manual wheelchair and repairs;
(b)an increase to the approved level of funding for low risk equipment and home maintenance by $999.05; and
(c)an increase to the approved level of funding for home modifications (specifically, grab rails) to $150.
The approved statement of participant supports forming part of the (six-month) Third Plan for Mr Ewin included:
(a)$13,271.13 for assistive technology (including for a manual wheelchair, repairs and seat cushion);
(b)$2,000 to fund the provision of an allied health professional or therapist to assess and provide support regarding assistive technology and home modifications;
(c)$150 for hand grab rails;
(d)$3,292.10 for support coordination; and
(e)$2,760.68 for low risk equipment up to the value of $1,021 and for home maintenance.
The approved statement of participant supports forming part of the (six-month) Fourth Plan (i.e. current plan) for Mr Ewin included:
(a)$1,300 for assistive technology repairs;
(b)$2,020.30 for an allied health professional or therapist to assess and provide support regarding assistive technology and home modifications;
(c)$150 for hand grab rails;
(d)$3,321.70 for support coordination; and
(e)$3,464 for low risk, low cost equipment up to the value of $750, and for house cleaning and gardening.
Mr Ewin’s goals and aspirations
Mr Ewin’s goals and aspirations, which have not altered over the course of his four successive plans, are described as follows:[6]
My First Goal is:
During this plan: To continue living at home with my family in a safe and supported environment.
My Second Goal is:
During this plan: To continue to be engaged in the workforce and wider community activities.
My longer term goals and aspirations are:
Goal: To optimise my health and wellbeing.
Relates to: Health and wellbeing.
Summary of reasons why Mr Ewin seeks funding for specified transport costs and why the NDIA has resisted inclusion of those supports
[6] Refer T-Documents T8/33 (page 3 of the First Plan) and page 6 of the Fourth Plan lodged with the Tribunal on 7 November 2018.
Mr Ewin previously received a mobility allowance from Centrelink before commencing as a participant of the NDIS. The mobility allowance was cancelled on 19 December 2016. He said he used this allowance to pay for his petrol to drive to and from work. He has expressed concern about being financially disadvantaged as a result of the transition to the NDIS.
Mr Ewin is permitted to use public transport free of charge at any time. Mr Ewin acknowledged that he could use public transport for some of his travel. However, he contends that for other travel he is unable to do so because public transport is unavailable, inaccessible or impractical on account of his imcomplete paraplegia. He explains that this is the case when:
(a)accessible public transport is unavailable for certain routes;
(b)public transport becomes impractical when it is raining, as he and his clothes become wet and soiled from the rain itself and as the water from the wet pavements and ground splashes up onto him, particularly his sleeves, from the wheels of the moving wheelchair; and
(c)public transport becomes impractical at times when he needs to carry certain items, for instance, his ANZ laptop and work files when he is travelling between work and home; or his lawn bowls equipment and bowls wheelchair when he is travelling to attend lawn bowls competitions or tournaments for recreational purposes.
The NDIA is sympathetic to Mr Ewin’s position. However, it considers that the transport costs incurred by Mr Ewin are day-to-day living costs, and those costs should not be funded as supports under the NDIS.
The NDIA also considers that the lack of inaccessible public transport available to Mr Ewin for certain categories of travel is the responsibility of the transport infrastructure authority, and not appropriately funded under the NDIS.[7]
[7] Refer T-Documents T3/8.
The NDIA considers that the need for Mr Ewin to carry items that would make it difficult for him to travel from his workplace by public transport, arises as a consequence of his personal choice to take work home in order to spend more time with his children in the evenings and his personal preference to work from hard copy rather than soft copy documents. The NDIA considers that these costs are incurred as part of Mr Ewin’s work arrangements and as such, are not the responsibility of the NDIS.
The NDIA contends that Mr Ewin’s employer is responsible for providing him with reasonable adjustments required because of his disability or under its flexible workplace policies. The NDIA contends that if the ANZ Bank provided him with an ANZ laptop for him to keep at his home on an indefinite basis, it would eliminate the need for him to transport the computer and work files between work and his home, because he could access his work documents electronically or print off the work documents at his home. After the conclusion of the hearing, Mr Ewin submitted a copy of an email from ANZ Bank stating that ANZ staff members were not permitted to connect their workplace laptops with third-party printers.
The NDIA contends that Mr Ewin could obviate the need to take hard copy work files home by adopting an alternative work practice of working from soft copy documents. Alternatively, the NDIA suggested that Mr Ewin could also ask ANZ Bank to arrange to install one of its printers indefinitely at his home to allow him to print hard copies (from the soft copy documents accessible from the ANZ laptop).
The NDIA also considers that alternative supports in the form of carry bags or satchel attachments for Mr Ewin’s wheelchair would be a more cost-effective way to allow him to carry the items while travelling to and from work on public transport.
Mr Ewin contends that the attachments suggested by the NDIA would not solve the problem with respect to carrying his items as they are heavy and bulky, rendering it unsafe for him to travel in the wheelchair with the items inside the carry bags or sachet attachments. Mr Ewin contends that the increased weight would make it difficult for him to wheel up inclines. He also contends that it would create a risk of theft of the items if one of the suggested carry bags or sachet-attachments were used.
The ANZ work files are A4-sized stiff cardboard files which appear to contain about 200 or 300 pages of A4-sized documents. Mr Ewin’s wife, Ms Nicki Greenberg, gave evidence that she was not aware how many of these files Mr Ewin would bring home on the nights he was planning to work at home. Mr Ewin provided the Tribunal with an image of two of those work files stacked on top of a desk.[8]
[8] Refer Exhibit “A6”.
The installation of a power-assist device, SmartDrive MX2, was considered as a means by which Mr Ewin could be assisted to power his wheelchair as required when carrying the items. However, Mr Ewin contends that it would be unsafe for him to use this device during peak hour, due to the increased number of people on the footpaths and the difficulty he would have navigating around them, using this device.
At the hearing, Mr Ewin said he had not made inquiries with his employer, ANZ Bank, about whether it would be prepared to provide him with an ANZ laptop to keep at home. Mr Ewin said that he had not been working with the ANZ Bank for long and held concerns about whether any such request may affect whether they would offer him a subsequent contract. At the time of the hearing, Mr Ewin gave evidence that he was working on a 12-month contract.
The Tribunal sought an update from Mr Ewin about his employment status before handing down its decision. Mr Ewin confirmed that his employment status since the hearing had changed. He reported that he was no longer working under a contract and had been made a permanent employee of the ANZ Bank in the same role.
Documentary material before the Tribunal and written submissions
On 12 December 2017, Mr Ewin lodged with the Tribunal a set of documents including statements of lived experience by Mr Ewin and Ms Greenberg; reports by an occupational therapist, Dr Lisa Chaffey; and a report by an orthopaedic surgeon, Dr Eden Raleigh.
The parties lodged a number of written submissions in this application including:
(a)on 12 December 2017, Mr Ewin lodged his statement of position (Mr Ewin’s SOP);
(b)on 24 January 2018, the NDIA lodged its statement of facts and contentions (NDIA’s SFIC);
(c)on 2 March 2018, Mr Ewin lodged submissions in closing (Mr Ewin’s Closing Submissions);
(d)on 16 March 2018, the NDIA lodged closing submissions (NDIA’s Closing Submissions);
(e)on 26 March 2018, Mr Ewin lodged submissions in reply (Mr Ewin’s Closing Submissions in Reply);
(f)on 7 December 2018, the NDIA lodged further written submissions (NDIA’s Further Submissions);
(g)on 10 December 2018, Mr Ewin lodged further submissions (Mr Ewin’s Further Submissions);
(h)on 13 December 2018:
(i)Mr Ewin lodged further submissions in reply (Mr Ewin’s Further Submissions in Reply); and
(ii)NDIA lodged further submissions in reply (NDIA’s Further Submissions in Reply).
Documentary evidence before the Tribunal included:
(a)webpages providing information about the Job Access: Employment Assistance Fund (EAF);[9]
(b)ANZ documents outlining its policies and procedures applicable to ANZ staff in relation to flexible work practices and inclusion of persons who have a disability including the, “ANZ My Flexibility Employee Guide – Guidelines to successfully implanting and maintaining flexible work arrangements” (ANZ My Flex Guide) and the further ANZ documents referred to in paragraph [257];[10]
(c)webpages showing details of wheelchair side pouches, carry bags and sachet attachments offered for sale;[11]
(d)photographs of Mr Ewin’s ThinkPad laptop that he uses for work and two sample hard copy ANZ work files;[12] and
(e)the User Manual for SmartDrive MX2+ power-assist device for wheelchair.[13]
[9] Refer Exhibit “R1”.
[10] Refer Exhibit “R2”.
[11] Refer Exhibits “R3” and “R4” and webpage downloaded by the Tribunal and provided to the parties on 14 November 2018 for comment.
[12] Refer Exhibits “A5” and “A6”.
[13] The Manual was requested from Dr Chaffey at the hearing – refer Transcript P-134. It was not produced. The Manual was subsequently downloaded by the Tribunal from the manufacturer’s website and provided to parties on 14 November 2018 for comment.
Mr Ewin, Ms Greenberg and Dr Chaffey gave further oral evidence at the hearing. Both parties were represented by counsel. The Tribunal acknowledges the assistance of counsel during the hearing process and in the preparation of closing submissions.
Particulars of Mr Ewin’s travel costs
Mr Ewin tendered a document at the hearing (showing the date, 7 February 2018), that set out an estimate of his monthly and annual travel and costings as follows:[14]
Monthly Travel – Stuart Ewin 07/02/2018
[14] Refer Exhibit “A2”.
Travel
Reason
#Times per Month
KM per Trip
KM per Month
Cost @ $.66
Bowls Away Saturday Games
Transport gear and chairs
2
37
74
$48.84
Bowls Darebin Night Comp
Transport gear and chairs
4
6
24
$15.84
Bowls Midweek Comp
Transport gear and chairs
2
37
74
$48.84
Drive to Work
Transport laptop/files
2.5 times but 2 trips each
28
140
$92.40
Supermarket Shopping
Transport groceries
4
4
16
$10.56
Other shopping (CBD)
Transport items
1
20
20
$13.20
Other shopping (Highpoint)
Transport items
2
25
50
$33
Friday Night at Nicki’s Parents
Inaccessible PT
2
35
70
$46.20
DSR Board meetings
Inaccessible PT
2
26
52
$34.32
[Child’s] Netball
Inaccessible PT
4
18
72
$47.52
Leadership Mentoring Programme (DSR)
Inaccessible PT
1
26
26
$17.16
Travel due to rain
Stop getting wet
2
28
56
$36.96
$444.84
[Total per annum] $5,338.08
Annual Travel
Bendigo Bowls Tournament
Transport gear and chairs
Once [per annum]
350
350
$231.00
Apollo Bay Family Trip
Transport gear and chairs
Twice [per annum]
450
900
$594.00
Raymond Island Family Trip[15]
Inaccessible PT
Once
610
610
$402.60
Disabled Bowling Tournament
Transport gear and chairs
3 days
44
132
$87.12
[Total per annum] 1992 KM $1,314.72
[Total for both tables per annum]: $6,205.80
[15] Mr Ewin withdrew his claim for this support during questioning about it at the hearing of this application.
After the hearing, at the request of the Tribunal, Mr Ewin provided an estimate of his travel and costs over the period of the First Plan:
Travel – 19/12/16 – 26/3/17
Travel
Reason
Trips
Average KM per trip
KM travelled
Cost @ 66c
Bowls Away Saturday Games
Transport gear and chair
12 games – 6 away
37
222
$146.52
Bowls Midweek Comp
Transport gear and chair
12 games – 6 away
37
222
$146.52
Drive to work
Transport laptop/files
4 occasions (2 trips each)
28
112
$73.92
Supermarket Shopping
Transport groceries
11
4
44
$29.04
Other shopping (CBD)
Transport Items
1
28
28
$18.48
Other shopping (Northland)
Transport Items
2
13
26
$17.16
Friday Night at Nicki’s Parents
Inaccessible PT
4
35
140
$92.40
DSR Board meetings
Inaccessible PT
7
26
182
$120.12
[two children] swimming
Inaccessible PT
8
8
64
$42.24
Leadership Mentoring Programme (DSR)
Inaccessible PT
4
26
104
$68.64
Travel due to rain
Stop getting wet
2
28
56
$36.96
TOTAL
1200
$792.00
Individual Travel
Travel
Reason
#Occasions
KM per trip
Total KM
Cost @ 66c
Apollo Bay
Transport gear and chair
30/12/16 – 10/1/17
450
450
$297.00
Disabled Bowling Tournament
Transport gear and chair
3 days
44
132
$87.12
TOTAL
582
$384.12
TOTAL COST $1,176.12
Evidence of Dr Chaffey – occupational therapist (OT)
Dr Lisa Chaffey was called by Mr Ewin to give expert evidence. Dr Chaffey is a registered occupational therapist with the Australian Health Practitioner Regulation Agency – AHPRA. Dr Chaffey holds a Bachelor of Occupational Therapy (Hons), Doctor of Clinical Science (Occupational Therapy), Graduate Certificate in Health Promotion and a Diploma of Applied Science (Naturopathy). Dr Chaffey prepared a report dated 28 November 2017 containing observations about Mr Ewin’s needs and recommendations about supports that she considered would assist him.[16]
[16] Refer Exhibit “A8”.
At the hearing, Dr Chaffey disclosed that she had a personal relationship with Mr Ewin. Dr Chaffey said she played basketball with Mr Ewin in the same team in the mid-90’s and she coached a team that Mr Ewin was a member of in 2005. Dr Chaffey described their relationship as “acquaintances” and said she did not see Mr Ewin socially and was not connected with him on social media. The Tribunal acknowledges Dr Chaffey’s extensive qualifications and has taken into account her opinions expressed, albeit with some reservation about Dr Chaffey’s impartiality in this case given her distant, but not insignificant, sporting history with Mr Ewin.
In Dr Chaffey’s report dated 28 November 2017, she observed that Mr Ewin experienced paralysis in most muscle groups below his mid-torso region and that he was able to weight bear. However, she said he could not walk without using supports, such as furniture or crutches, and he became tired after travelling more than 100 metres on his crutches. She observed that Mr Ewin’s shoulder impingement condition had impacted on his ability to support his own weight on crutches. Dr Chaffey said Mr Ewin uses a manual, lightweight, custom-made wheelchair for all mobility and that he was independent in all personal activities of daily living and drove an unmodified car as he is able to use foot pedals. The Tribunal accepts this evidence.
OT’s recommendations in relation to travel by Mr Ewin between his work and home
Mr Ewin’s local train station is Alphington station. It is wheelchair accessible and is a 10-minute wheel from Mr Ewin’s home. Dr Chaffey observed Mr Ewin wheeling between Alphington Station and his home. She noted the times when “the rough terrain caused him to become unstable in his wheelchair”. Photographs of the pavement were provided in her report to show some of the bumps that Mr Ewin encounters on his journey to and from Alphington Station.
Dr Chaffey observed that Mr Ewin was particularly unstable when crossing the railway tracks and although he was able to “right himself”, she considered that if he was carrying files and a laptop, they would have fallen. Dr Chaffey observed that there was a ramp providing access to Alphington station. However, she considered Mr Ewin would not manage the ramp if he had a bag on his knee.
Mr Ewin reported to Dr Chaffey that he needed to drive to work due to the difficulty in carrying files and a laptop that he sometimes needed to carry.
Dr Chaffey noted that once Mr Ewin arrives by train in the city, he takes either tram route 11 or tram route 86 from Southern Cross Station to his office in Docklands. (Mr Ewin gave evidence at the hearing that it is often faster for him to wheel to work which he will do if it is not raining and/or the next tram is not due for some time). Mr Ewin reported to Dr Chaffey that not all of the “tram route 86” trams are E-class trams and if not, Mr Ewin was unable to get onto them. On his way to work, Mr Ewin reported to Dr Chaffey instances of having to wait for up to three trams before one arrived that was wheelchair accessible. Mr Ewin also reported to her of him being unable to board a tram if there was no “super stop” for him to do so.
The first alternative considered by Dr Chaffey that may assist Mr Ewin to carry his laptop and files to and from work when required, was a “luggage carrier” consisting of two prongs (appearing to be approximately 10-15cm long) that could be fitted at the base of the front of a wheelchair and was able to be folded down into a horizontal position when in use (and folded up when not in use) (Luggage Carrier). When the Luggage Carrier was in use, the laptop and/or files or a bag containing one or both of those items could be placed on the two prongs and rested back against the legs of the person using the wheelchair. Dr Chaffey indicated the cost of this fitting is approximately $300.
Dr Chaffey stated her opinion that a luggage carrier would be unsuitable for Mr Ewin’s purpose because:
(a)“most importantly,[…] these carriers, and the additional laptop and files, would add extra weight to [Mr Ewin’s] wheelchair, which is already difficult to push due to shoulder pain” and “they should not be used without a power assist device, such as the Smart drive MX2”;
(b)“over rough terrain, such as the train tracks, the files and laptop would almost certainly fall”;
(c)“[it would] make [the items] susceptible to theft, particularly in peak hour public transport”; and
(d)“the extra length that these add to his wheelchair will make it difficult for [Mr Ewin] to travel on crowded trains”.
The second alternative considered by Dr Chaffey was a SmartDrive MX2 power assist device, which she said could be fitted to Mr Ewin’s chair at a cost of approximately $9,500. A benefit identified by Dr Chaffey was that it would minimise any extra load on Mr Ewin’s shoulders from carrying the laptop and files. However, she considered that this device was unsuitable for uneven terrain, such as that observed by her between Mr Ewin’s home and Alphington Station. In Dr Chaffey’s opinion, “it is also difficult and somewhat dangerous for both the user and other people, when in crowded places, such as a peak hour commute”.
Accordingly, Dr Chaffey recommended that Mr Ewin continue to drive his car to work when he needs to carry files and/or a laptop. Dr Chaffey recommended that he catch the train at times when he does not need to carry those items.
OT’s recommendations in relation to travel by Mr Ewin to attend lawn bowls
Dr Chaffey stated in her report that Mr Ewin uses a specially designed wheelchair for use on lawn bowling greens. It is low to the ground and fitted with fat tyres that do not damage the greens. Dr Chaffey states that Mr Ewin’s bowls wheelchair is unsuitable for use off the greens, because it has no push rims and is too low to the ground for the user to be able to wheel up over a curb or over uneven terrain. For this reason, Dr Chaffey said Mr Ewin is required to take his everyday wheelchair, bowls wheelchair and a large, heavy bag containing bowls; when he attends bowling competitions. Mr Ewin reported to her that he played “away games” once a fortnight at other clubs, such as Eltham, Greensborough and Bundoora.
Dr Chaffey observed Mr Ewin pushing both wheelchairs simultaneously and states that he was able to do so for 200 metres “over a flat surface” to reach his local bowls club nearby his home. However, Dr Chaffey states that Mr Ewin was unable to do so for the 10-minute wheel from his home to Alphington Station or the local bus service, particularly with the heavy bowls bag.
Dr Chaffey recommended that Mr Ewin drive to “away” games, and wheel both wheelchairs to “home” games.
OT’s recommendations in relation to travel by Mr Ewin to shop at the supermarket
Dr Chaffey stated that Mr Ewin reported to her that while he shared grocery shopping duties with his wife, he “shops 90% of the time” while his wife is taking care of their children or working. Mr Ewin reported to her that the nearest supermarket was in Ivanhoe, which was about two kilometres from his home, and he drove because he needed to transport the groceries home.
Dr Chaffey stated that it was not a viable option for Mr Ewin to wheel to the supermarket to do the grocery shopping because of the distance and the hilly and uneven terrain. She also states that the Luggage Carrier referred to above would only allow Mr Ewin to carry one bag of groceries at a time, even if he used the local bus service.
Dr Chaffey recommended that Mr Ewin continue to drive to the supermarket.
OT’s recommendations in relation to travel by Mr Ewin to attend DSR’s offices
Dr Chaffey stated in her report that Mr Ewin is a board member of the DSR and several of its subcommittees. She said he attends meetings at DSR’s offices in Fitzroy two or three times per month. Those meetings were reported to Dr Chaffey as occurring after work hours and finishing late at night. Mr Ewin reported to her that he drove to those meetings because there were limited public transport options.
Dr Chaffey stated in her report that tram route 86 tram travelled nearby DSR’s offices, but the closest “super stop” was in Clifton Hill or near Parliament Station. Dr Chaffey stated that if Mr Ewin travelled by train, the nearest train station was Victoria Park which was “bypassed on many timetables at non-peak times, such as DSR meeting times”.
Dr Chaffey recommended that Mr Ewin continue to drive to DSR meetings.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objects set out in s 3 of the NDIS Act. Section 4 of the NDIS Act establishes general principles guiding actions to be taken under the NDIS Act. Persons with disabilities may apply to become a participant in the scheme, subject to certain eligibility requirements.
A NDIS participant’s plan is prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. The supports described in the plan (in a statement of participant supports), must be approved in accordance with the NDIS Act and regulations made under it.
Section 31 of the NDIS Act establishes a set of general principles that apply to the “preparation, review and replacement” of a NDIS participant’s plan, as reproduced below. These principles have been taken into account by the Tribunal.
31 Principles relating to plans
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da)if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out a number of principles that apply in the development of an NDIS plan for an NDIS participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument under the scheme that governs what funding the participant is entitled to receive in respect of the supports referrable to the period of the plan. Each plan must have in it an approved statement of supports and, in fact, a plan does not take effect until a statement of supports forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act.
Section 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a statement of participant supports, which is prepared with the participant and approved by the CEO (or his or her delegate) in accordance with s 33(2).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether or not to approve the statement of participant supports under s 33(2), must;
(a)have regard to the participant’s statement of goals and aspirations;
(b)have regard to relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d)apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;
(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.
Section 34(1) of the NDIS Act provides as follows (emphasis added):
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 community to provide;
(f)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 reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Section 35 of the NDIS Act allows for NDIS rules to prescribe a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided,[17] or for declaring particular reasonable and necessary supports or general supports that will or will not be provided or funded, either generally or for prescribed participants.[18]
[17] Refer s 35(1)(a) of the NDIS Act.
[18] Refer s 35(1)(b) and (c) of the NDIS Act.
Rules have been prescribed and are in force, namely, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (SupportRules). Section 33(5)(d) of the NDIS Act requires that those Support Rules be applied in the making of a decision to approve a statement of participant supports.
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] as follows:
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Support Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
Schedule 1 of the Support Rules requires the CEO of the NDIA to have regard to certain matters in relation to reaching a state of satisfaction with respect to s 34(1)(f); namely that supports are most appropriately funded or provided under the NDIS.
Section 37(2) of the NDIS Act provides that a participant’s plan cannot be varied after it comes into effect, but it can be replaced under Division 4 of the NDIS Act. Section 37(3) provides that the plan ceases to be in effect when it is replaced by another plan under Division 4 or when the participant ceases to be a participant, whichever occurs first.
Section 48(4) of the NDIS Act provides:
The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.
CONSIDERATION
General observations about the NDIA Guidelines
The NDIA provided the Tribunal with an extract from its internal operational guidelines, namely, Operational Guidelines (Guidelines).[19] The Guidelines describe (in clause 3.1) that they provide:[20]
…detail and guidance to decision makers on how to apply the law in the context of the NDIS, and helps the NDIA to interpret its functions and powers when making decisions or recommendations affecting members of the public.
[19] Refer T-Documents T12/66-84 (Chapter 10 – Deciding to include supports in a participant’s plan) and T13/85&86 (Chapter 12 – Transport).
[20] Clause 3.1 was not included in the extract provided to the Tribunal but was publically available on the Operations Guidelines accessible on the NDIA’s website.
The extract provided to the Tribunal in the T-Documents comprised of Chapter 10 (Planning) and a section of Chapter 12 (Including specific types of supports in plan) which deals with transport.
The Tribunal also notes the references to the provision of funding for participant transport as appearing in the NDIS Price Guide – Victoria, New South Wales, Queensland, Tasmania (Valid from: 1 July 2018) (NDIS Price Guide) (similar to earlier versions of this publication) which states as follows (emphasis added):[21]
Transport Support (Support Category 1.02)
Transport enables participants to access disability supports outside their home, and to pay for transport that helps them to achieve the goals in their plan. Transport supports generally do not have price controls; however, participants should use the least expensive transport that meets their needs. Transport funding is paid fortnightly in advance to self-managed participants. Funding transport assistance is limited to those who cannot use public transport due to their disability. If the participant has questions about their transport support, providers may direct them to the NDIS factsheet available on the NDIS Website.
[21] Page 29 of NDIS Price Guide – see link
At the end of that paragraph in the NDIS Price Guide, there is a footnote containing a link to the NDIS website as follows: This link is an NDIS Fact Sheet published on its website dated “May 2017”.
The Tribunal has considered the role that executive policy in general should play in the decision-making process in this Tribunal, as addressed by the Federal Court of Australia in the following relevant authorities.
The Full Court of the Federal Court in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake) considered the function of policy in the decision-making process of this Tribunal. In the majority judgment (Bowen CJ and Dean J), it was held that (emphasis added):
[69] Ordinarily …an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy.
[70] …In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant fact for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
Upon being remitted to the Administrative Appeals Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake No 2), Brennan J made the following further observations (emphasis added):
[on page 644] Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister’s policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.
…
[on page 645] When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
…
The Tribunal notes that in the recent decision in G v Minister for Immigration and Border Protection [2018] FCA 1229 (G v MIBP), Mortimer J considered extensively the leading authorities relating to the use of executive policy in the decision-making process including the decisions of Drake and Drake (No 2).[22] The Tribunal notes and agrees with Mortimer J’s condensation of the relevant principles arising from these authorities in G v MIBP, as follows (emphasis added):
[22] The Tribunal acknowledges that the policy under consideration in G v MIBP (unlike the policy relevant in this application), was made under a specific provision of the relevant statute. The Tribunal considers that this does not detract from the principles as articulated by Mortimer J and their application to Mr Ewin’s case.
[201] It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:
·A decision must not be “so truncated by a policy as to preclude consideration of the merits of specified classes of cases” (Drake No 2 at 640);
·A decision-maker must not “abdicate” her or his exercise of power to the terms of the policy (Nevistic:[23] Frank J at 642, Deane J at 646; Lockhart J at 651-652; Gray[24] at 205-206; Hneidi[25] at [42]);
·The policy should not “superimpose” a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute (Green[26] at 9);
·The policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context (Green at 10); and
·A policy statement should not be applied so as to prejudice a Tribunal’s independent assessment of the merits of the case (Gray at 211).
[202] There may be circumstances where the value of equality of treatment that policy can support, and the legitimate role for the executive in forming policy to guide statutory power that is based on political considerations, prevail over the interests of the individual, or individual justice. So much can be accepted as an appropriate consequence of the relationship between different branches of government.
[203] Nevertheless, the core authorities to which I have referred make it clear that if, and when, the AAT makes a decision on the merits review which has this outcome, it is a conscious choice, being fully aware that it has a choice, and having carefully and thoroughly considered whether an outcome of that kind is the correct, or the preferable, decision in the circumstances of that individual.
[204] Finally, I consider it is clear from Drake (No 2) and from Gray, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task. It will be an error of law if it fails to do so, or if it misunderstands or misconstrues the content of the policy in a way that is material to the exercise of power in its review: Gray at 2018; Drake (No 2) at 645-646, Elliot v Minister for Immigration and Multicultural Affairs [2007] FCAFC; 156 FCR 559 at [23]-[23], [41]-[42], Braganza v Minister for Immigration [2003] FCAFC 170 at [31]. To say this much is not to contradict the statements I have set out in [201] above, which are all directed to the appropriate limits on the role of executive policy, once taken into account.
[23] Nevistic v Minister for Immigration and Ethnic Affairs [1981] 119 FCR 454.
[24] Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 50 FCR 189.
[25] Hneidi v Minister for Immigration and Citizenship [2010] 182 FCR 115.
[26] Green v Daniels [1977] 13 ALR 1.
In order to determine whether it is appropriate for the Tribunal to apply the Guidelines in making its own decision on review in this application, while bearing in mind the principles arising from the Federal Court authorities referred to above, the Tribunal is required to determine whether the relevant parts of the Guidelines sought to be relied on by the NDIA are lawful, or whether their application would produce an unjust decision in the circumstances of this application.
The Tribunal has applied these broad principles as set out in paragraphs [81] to [82] below in considering the executive policy issued relevant to transport supports.
Provisions in the NDIA Guidelines about transport supports
Chapter 12 of the Guidelines deals with specific types of supports in NDIS plans. Relevantly, these Guidelines provide as follows:[27]
[27] Refer T-Documents T13/87&88.
12. Transport
Transport supports include supports that enable participant’s to build capacity to independently travel, including through personal transport-related aids and equipment, or training to use public transport.
A participant’s transport supports may also include the reasonable and necessary costs of taxis or other private transport options for participants who are not able to travel independently, as well as transport to and from school for students.
…
When considering whether transport is a reasonable and necessary support, the NDIA must consider, amongst other matters, whether the support is related to the participant’s disability…
A support will not be provided or funded under the NDIS if it relates to day-to-day living costs (rule 5.1(d) of the Supports for Participants Rules).
Day-to-day living costs may include rent, groceries or utility fees, however, this is not an exhaustive list. Transport is an incidental cost of everyday life for most people and, therefore, can also be considered a day to day-to-day(sic) living cost (see McGarrigle and NDIS [2016] AATA 498 at [46]).
However, the day-to-day living costs which the NDIS will not fund do not include the additional living costs that are incurred by a participant solely and directly as a result of their disability support needs (rule 5.2(a) of the Supports for Participants Rules).
These additional living costs (i.e. those incurred by a participant solely and directly as a result of their disability support needs) may be funded under the NDIS if they relate to reasonable and necessary supports.
…
12.2 Transport and considerations relating to adults
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 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
·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, are unable to use public transport because of their disability.
...
The Tribunal considers that the above section of the Guidelines is broadly consistent with the NDIS legislative regime, except for the last part of clause 12.2 of the Guidelines, which seeks to establish three caps applicable to the level of funding that are to be provided to a participant. These funding caps depend on the participants’ personal circumstances (i.e. the degree of the participant’s involvement in work and study activities). The Tribunal considers that the Federal Court in McGarrigle has established that the correct approach when a request has been made by a participant to receive funding for a particular support, is for a determination is to be made as to whether the support is reasonable and necessary and if such a determination is made, the provisions of the NDIS Act require the support to be funded in full.[28]
[28] Refer [49] in McGarrigle. This decision was appealed to the Full Court of the Federal Court of Australia, although the approach taken by Mortimer J were not overturned on appeal – refer National Disability Insurance Agency v McGarrigle [2017] FCAFC 132.
The imposition of caps, as the last part of clause 12.2 seeks to do, may operate to deliver only partial funding to a participant in circumstances where the total cost of certain travel determined to be a reasonable and necessary support exceeds the value of the nominated caps.
For this reason, the Tribunal will not apply this last part of clause 12.2 of the Guidelines, or the NDIS Fact Sheet as referred to in paragraph [72], to Mr Ewin’s case as it considers it inconsistent with the relevant legislative provisions and in some cases (depending on the circumstances), may produce an unjust result.
Should the transport costs specified by Mr Ewin be funded?
Firstly, the Tribunal will deal with the substantive issue about whether the transport costs specified by Mr Ewin, or some of them, should be funded as a support under the NDIS. As mentioned above, this will require a consideration of the factors set out in s 33(5) of the NDIS Act (see paragraph [61]), including whether this support is reasonable and necessary on account of meeting all of the criteria under s 34 of the NDIS Act.
Section 34(1)(a) – Whether proposed support will assist Mr Ewin to pursue his goals, objectives and aspirations
Mr Ewin’s goals and aspirations are stated in identical terms in his four successive NDIS plans and include: to continue living at home with his family in a safe and supported environment; to continue to be engaged in the workforce and wider community activities; and to optimise his health and wellbeing.
The reviewer who made the Internal Review Decision on 23 March 2017 was satisfied that the requirement under s 34(1)(a) of the NDIS Act was met. After Mr Ewin made this application, the NDIA altered its position. The NDIA contends that this requirement is not met because it is difficult to discern the nexus between the funding sought by Mr Ewin for transport and his goals. The NDIA contends that Mr Ewin was able to drive an unmodified car and independently use public transport. The NDIA contends that it was not the case that he was unable to access work or community activities because of his disability and needed assistance to enable him to travel. The NDIA states that there was no evidence that the funding would assist Mr Ewin to live at home and be engaged in the workforce. Instead, the funding would assist him financially, as he would not be out of pocket for particular trips he made using his car.
Mr Ewin relied upon the guidance that was provided by the NDIA in its Guidelines as follows:[29]
It is important to note that the NDIA does not need to be satisfied that the funding, or provision of a support, will specifically result in the achievement of a participant’s goals, objectives or aspirations. Rather, the support simply needs to assist (i.e. aid, support or contribute) to the participant to achieve their goals.
[29] Refer T-Documents T12/68.
Mr Ewin contends that funding of travel to undertake household tasks such as shopping and to take his children to sporting activities would assist his first goal of continuing to live at home with his family. Further, he contends that funding his travel to engage in work, to attend the DSR board meetings and DSR mentoring and to visit extended family members would clearly assist Mr Ewin in his second goal of being engaged in the workforce and wider community activities. Finally, Mr Ewin contends that funding his travel to bowls and on family holidays assisted his third goal of optimising his health and wellbeing.
Mr Ewin’s goals and aspirations are expressed in broad terms. The Tribunal considers that the provision of funding to Mr Ewin to undertake the travel specified in paragraph [1] in his private vehicle, will assist him to meet his second and third goals, by removing the disincentives that Mr Ewin would otherwise face if he was required to undertake that travel by public transport, being that travelling to those places by public transport would either be impractical, inconvenient, or in some cases, not possible because of his disability.
Accordingly, the Tribunal concludes that the mandatory requirement under s 34(1)(a) is met in Mr Ewin’s case with respect to the specified travel.
Section 34(1)(b) – Whether the support will assist Mr Ewin to undertake activities, so as to facilitate his social and economic participation
The NDIA contends that the requirement under s 34(1)(b) of the NDIS Act is not met in Mr Ewin’s case, for the same reasons that they are not met under s 34(1)(a), as set out in paragraph [85].[30]
[30] Refer [56] of NDIA’s Closing Submissions.
The NDIA also contends that where there is no public transport to enable Mr Ewin to attend a social or recreational event, this is not a proper basis for the NDIS to fund private transport and that the NDIA is not responsible for providing or subsidising public transport infrastructure of lack thereof (relying upon r 7.22 of the Support Rules).[31] The NDIA contends that Mr Ewin has requested funding for a private “work from home” arrangement and to attend leisure and recreational activities, which are daily living expenses.[32]
[31] Refer paragraph [217] of these Reasons for Decision which reproduces r 7.22 of the Support Rules.
[32] Refer [32] of NDIA’s SFIC.
Mr Ewin contends that he met the requirements of s 34(1)(b) of the NDIS Act because funding for travel to and from sports activities, meetings of DSR, family visits and activities with his children will assist his social participation; and funding for travel to and from work and to undertake shopping clearly facilitated his economic participation.
Mr Ewin’s goals and aspirations as stated in his four successive NDIS plans are centrally focused on issues concerning both his social and economic participation and the criteria under s 34(1)(a) and (b) are closely linked. For this reason, the Tribunal is satisfied that the requirement under s 34(1)(b) of the NDIS Act is met in Mr Ewin’s case, for the same reasons as set out in paragraph [88] above.
Section 34(1)(c) – 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 supports
In assessing whether the provision of funding to Mr Ewin for the transport costs for some or all of the specified travel represents value for money, the Tribunal has taken into account the following relevant considerations as prescribed in r 3.1 of the Support Rules:
Value for money
3.1In deciding whether the support represents value of money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of the alternative support, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
…
Mr Ewin contends that the most cost-effective way of supporting him is to fund him under the NDIS for the cost of using his private vehicle for the specified travel.
Having reference to r 3.1(b), the Tribunal considers that support in the form of funding Mr Ewin’s travel by private vehicle for each of the travel categories referred to in paragraph [1] is likely to be of a long-term benefit to him, albeit mainly in a financial sense, but also by providing him with a more convenient means by which to achieve his goals and aspirations. However, it was less clear to the Tribunal how those supports could be said to substantially improve his life stage outcomes. Mr Ewin presently has a reasonable standard of independence, being able to drive independently and weight bear to allow for ease of transfers from his wheelchair into and out of his car. The Tribunal considers that even without the provision of the requested support, Mr Ewin will achieve the same life stage outcomes. While the Tribunal has considered these factors they have not significantly influenced its decision about whether the various categories of travel represent value of money.
The factor regarded by the Tribunal as most relevant to the circumstances of this application was the consideration under r 3.1(a); being whether there are comparable supports which achieve the same outcome at a substantially lower cost.
Comparable support for all Travel Categories: taxi/hire care or provision of carer to drive the participant
Mr Ewin contends that when he is unable to use public transport, the cost would be significantly higher if he were to use a taxi, hire car or a carer to drive him. The Tribunal accepts this contention. This alternative support would deliver the same outcome but not at a substantially lower cost.
Comparable support for Travel Category 1: Luggage Carrier
Specifically, Mr Ewin contends that the Luggage Carrier would not serve as an alternative support, based on Dr Chaffey’s evidence.
Mr Ewin gave evidence to the effect that his belongings would simply fall off the Luggage Carrier when he travelled over uneven terrain. The Tribunal accepts that if items such as a laptop and/or work files were resting on the Luggage Carrier, and were not affixed or attached in some way, while Mr Ewin was wheeling, it is likely that they would fall off. This may cause damage to the laptop. It may also cause the work files containing sensitive information to be lost. Importantly, the Tribunal accepts Dr Chaffey’s evidence to the effect that this may create a hazard or risk to Mr Ewin as his visibility of the surface in front of him may be obscured. There is also a risk that it may place undue weight out in front of his wheelchair, distorting the balance of the weight on the wheelchair as he travels.
The NDIA contends:[33]
…A luggage carrier may not be necessary if the Applicant does not transport files home. Dr Chaffey agreed that if the current weight that the Applicant carries in his backpack is maintained, he would remain stable in his wheelchair: [Transcript] 133.13-20. The reasons against fitting a luggage rack are not persuasive. For example, the Applicant contends that the files would be susceptible to theft. Given that the luggage carrier would be placed directly in front of the Applicant’s feet, it seems unlikely that luggage could be stolen while the Applicant sat in his wheelchair. The risk of theft would be ameliorated if the luggage was otherwise attached to the chair, which Dr Chaffey said was possible: [Transcript] 135.10.
[33] Refer [40] of NDIA’s Closing Submissions.
For the reasons set out in paragraph [100], the Tribunal does not consider the luggage stand is a comparable support that is capable of achieving the same outcome of transporting Mr Ewin’s laptop and work files safely without posing a risk to Mr Ewin in the safe wheeling of his wheelchair.
Comparable support: power-assist device to be attached to wheelchair
Dr Chaffey states in her report that it would cost approximately $9,500 to add a power-assist device designed to electronically power Mr Ewin’s manual wheelchair. She provided details of this device in her report. Her evidence was that although it would assist Mr Ewin to push the wheelchair, it was not suitable for use in crowded places or on uneven surfaces, because it did not have a sophisticated speed control and did not enable sensitive increases or decreases in speed.
The Tribunal has accessed the manufacturer’s User’s Manual for the SmartDrive MX2+ which is publically available online (Manual).[34] The intended use of this device specified in the Manual is set out as follows:
The Max Mobility SmartDrive Wheelchair Power Assist device is exclusively intended to provide auxiliary power to manual wheelchairs to reduce the pushing power needed by their users, including paediatrics, with a user weight of 30 to 331 lbs (14-150 kgs). It is intended to be used by users capable of operating and maneuvering a powered and manual wheelchair, ultimately empowering them through enhanced mobility…
[34] Refer The link to this manual was sent to the parties by the Tribunal on 14 November 2018 with an invitation that either of them could make further submissions about it.
The Operating Conditions are described in the Manual as follows:[35]
The SmartDrive is designed for typical operating conditions encountered by a manual wheelchair user on a daily basis. Max Mobility recommends restricting the use of this device to indoor and light outdoor use….
The total weight of the SmartDrive assembly is 13.5 lbs (6.1 kg). This weight should be included in calculating the on-board weight of the wheelchair…
[35] Refer page 8.
There are a number of warnings and safety precautions set out on pages 1 and 2 of the Manual including the following (emphasis added):
Always pay close attention to the surface that you are operating your wheelchair, whether your SmartDrive is on or not, as the front casters of your wheelchair can get stuck in cracks, ruts, holes, ledges, etc. Running into these obstacles can cause you to tip out of your chair.
…
Do not operate over significantly rough terrain, very slick surfaces, extreme slopes, or loose ground. This may cause a loss of traction, leading to injury or damage to your SmartDrive and void the warranty.
The SmartDrive is not designed to drive up or down large curbs/steps. Only perform this maneuver when absolutely necessary and always ask for help. Also be sure to turn OFF the power assist [via Push Tracker] before maneuvering.
Use extreme caution when operating a SmartDrive attached wheelchair when near streets. Consider turning OFF the power assist [via Push Tracker] to reduce risk.
When crossing major roads, intersection, railway crossings or highways as well as when you drive steep, long slopes you should always consider having somebody accompany you in the interest of your safety.
…
Riding over curbs or obstacles can cause tipping and serious bodily harm. Turn OFF the power assist [via Push-Tracker] when attempting to ride in these situations…
…
Use caution when operating a SmartDrive attached wheelchair indoors or in crowded/confined areas. Consider turning OFF the power assist (via Push Tracker] to reduce the chance of collision, damage or injury.
Based on the information provided by the manufacturer in the Manual for this device, the Tribunal does not accept the evidence of Dr Chaffey that this device should not be used on uneven surfaces because it did not have a sophisticated speed control and did not enable sensitive increases or decreases in speed. The Manual details three different modes of operation of the device. All three modes suggest that once the user is trained and skilled in using the device, they will have a great deal of control over the speed at which the device will push the wheelchair, control of deactivating the operation of the device, and/or braking as and when required, when using it on a manual wheelchair.
The Tribunal finds that this device is suitable for “typical operating conditions encountered by a manual wheelchair user on a daily basis” as indicated by the manufacturer in the Manual. However, the Tribunal is satisfied that the device’s suitability is most likely confined to using the device indoors and for “light outdoor use”. The Tribunal considers that the device is able to be used safely on uneven surfaces, but it is not suitable for significantly rough terrain (see highlighted text in the Manual as indicated at paragraph [106]). The Tribunal does not consider that small bumps or cracks in a pavement constitute significantly rough terrain. The Tribunal considers that the reference to significantly rough terrain was intended to refer to an unsealed bumpy or rocky surface.
Separately, based on the specifications in the Manual, the Tribunal is satisfied that the device is not suited, and may present a risk, when used in crowded places (see highlighted text in the Manual as indicated at the end of paragraph [106]).
For the travel that Mr Ewin is required to do between Southern Cross Station and Docklands when travelling to and from work during peak hour when significant crowds are likely to be present, particularly coming out of the station, the Tribunal considers that the use of this device by Mr Ewin would be potentially unsafe and unsuitable. For this reason, the Tribunal does not consider the SmartDrive MX2+ to be a comparable support that will deliver the same outcome.
Comparable support for Travel Category 5: online grocery shopping
With respect to the specified weekly travel by Mr Ewin in his private vehicle between his home and his local supermarket to do the grocery shopping for his family, the NDIA identified that the online shopping and delivery service offered by the major supermarkets could be used by Mr Ewin as a comparable support to achieve the same outcome.
Mr Ewin gave evidence that he and his wife had trialled online grocery shopping about five or six years ago. He recalled being charged a delivery fee of between $7 and $14. His experience was that the supermarket failed to deliver all of the items ordered, requiring a trip to be made by him or his wife to the supermarket to buy the missing item. Mr Ewin said he recalled that online shopping was sometimes more expensive than shopping in person at the supermarket. Mr Ewin said he does not consider using this service as a cost-effective alternative to transport funding.
The Tribunal notes that a prominent consumer organisation, CHOICE, published results of a test undertaken by it of the online shopping services offered by Australia’s leading supermarkets, including Woolworths.[36] The Tribunal considered this information probative because it was covert testing that had been undertaken recently (i.e. at some time around mid-2018). Mr Ewin’s evidence about online shopping was based on only his experience that dated back five or six years ago, which the Tribunal considered unreliable given the significant passage of time.
[36] Refer A relevant extract from the information contained in this CHOICE publication was provided by the Tribunal to the parties on 16 November 2018. Mr Ewin addressed this information in his further submissions lodged with the Tribunal in December 2018.
The test undertaken by CHOICE involved it placing orders with the three major supermarkets offering online shopping services under a pseudonym and using a shopping list “as close to identical as possible” and by repeating each order twice. Scores were given for a range of factors including performance.[37]
[37] 80% of the performance score was based on order accuracy, namely, “were all the products delivered and were substitutions appropriate and fair? We penalised retailers for insufficient substitutions (like corn chips instead of potato chips), out-of-stock items and forgotten products. We also checked the quality and quantity of all fresh produce to ensure it was of an acceptable standard”; and 20% was based on delivery accuracy, namely, “did the delivery arrive within the specified delivery window?”
The test results indicate that Woolworths received a performance score of 95%. They also indicate that a “good point” in relation to Woolworths was that “only one out of 62 items was not delivered but a suitable replacement was delivered instead”. The Tribunal also notes some “bad points” indicated in the test results, such as the availability of items varied depending on which store filled the order and also one of the two orders arrived with the elevated temperature of refrigerated goods, including chicken (which rose to 11 degrees).
The Tribunal was unable to identify any Federal Court decisions providing authoritative guidance in relation to this jurisdictional issue in the context of the NDIS.[100] The Tribunal has closely examined the legislation to seek to determine the extent of its power in the present application.
[100] The Tribunal has considered a number of decisions by other members of the Tribunal concerning or touching upon this issue, including the decisions in Re Nairn and National Disability Insurance Agency [2017] AATA 242; Re SSBV and National Disability Insurance Agency [2017] AATA 2174, ReLNMT and National Disability Insurance Agency [2018] AATA 431, Re SHGH and National Disability Insurance Agency [2018] AATA 674, Re FJKH and National Disability Insurance Agency [2018] AATA 1294, PNMJ and National Disability Insurance Agency [2015] AATA 866; and also my earlier decision in Re QZHH and National Disability Insurance Scheme [2018] AATA 1465.
Going back to the source of the Tribunal’s general jurisdiction, relevantly, s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) states that an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
Division 6 of the AAT Act deals with the Tribunal’s decision on review. Section 43(1) of the AAT Act provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision; and shall make a decision in writing affirming, varying or setting aside the decision under review and if the latter, make a decision in substitution or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
In Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 (Control Investment), Justice Davies sitting as the President of the Tribunal observed as follows (emphasis added):[101]
Mr Morris submitted that the word “may” in s 43 of the Administrative Appeals Tribunal Act imports an element of discretion so as to authorize the Tribunal to limit its function as it sees fit. But the provision “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …” is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision-making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing on the merits the subject decision.
[101] Refer page 92 of the decision in Control Investment.
The Tribunal also notes the general observations of Deputy President McCabe and Member Bygrave in ReWendy Halliday as the Administrator of the Estate of the Late Ashley Pauling and Secretary of Social Services [2018] AATA 3865, at [19] (emphasis added):
[21] The Tribunal is a creature of statute. It does not have an open-ended power to review any administrative decision that is the subject of a complaint. Section 25 of the AAT Act states the Tribunal only has jurisdiction to review a decision if an enactment designates that decision as a reviewable decision. As it happens, there are now over 450 different enactments that include provisions investing the Tribunal with power to review particular decisions. One of those enactments is the Social Security Administration Act 1991 (Cth) (the Administration Act). Subsection 142(1) of the Administration Act gives the Tribunal jurisdiction to review decisions made by the Secretary or the Chief Executive Officer of Centrelink or an authorised review officer (the ‘first tier review’ before the SSCSD) and subsection 179(1) provides the General Division of the Tribunal jurisdiction to review a decision after it has been reviewed by the SSCSD.
[22] Once the Tribunal is satisfied there is a reviewable decision and it has jurisdiction, it is not ordinarily concerned with what was decided by the original decision-maker or the SSCSD. The Tribunal conducts a fresh review on the merits, which means it generally reconsiders all of the evidence – which in most cases will include evidence that has become available since the date of the original decision – and takes submissions from the parties with a view to reaching the correct or preferable decision on the material before the Tribunal. There are some reviewable decisions which require a different approach. For example, in some cases, the decision must be made having regard only to evidence that was available at a fixed point in time. But those exceptions do not apply in this case.
[23] A proper understanding of the Tribunal’s role in the decision-making process shows why it does not matter if the original decision (or the SSCSD decision) was wrong, or if it was affected by legal error, provided there was a reviewable decision within the meaning of the AAT Act. The Tribunal is often said to ‘step into the shoes of the original decision-maker’ upon review. In the course of the review process, it exercises all of the original decision-maker’s powers and is subject to the same legal constraints. When the Tribunal makes its decision, the decision takes effect as the decision of the original decision-maker: subsection 43(6) of the AAT Act.
[24] The effect of the framework of Australian administrative law is to incorporate the Tribunal’s review process into each agency’s decision-making, at least in relation to those decisions which are declared to be reviewable decisions of that agency. Even if the original decision-maker (or an intermediate decision-maker where there are several steps in the process) has run into trouble, the Tribunal provides a convenient and effective mechanism for the decision-making to be corrected and (at least in a legal sense) perfected before the extended decision-making process is finalised: see, for example, Secretary, Department of Social Security v Alvaro [1994] FCA 1124 at [16] – [17] per von Doussa J.
[25] Courts and Tribunals have consistently given a wide interpretation to the expression reviewable decision. The leading authorities are Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 per Brennan J and (on appeal to the Full Court) Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 2 ALD 1. In the Tribunal proceedings in Brian Lawlor, Brennan J concluded there would be a reviewable decision within the Tribunal’s jurisdiction if the decision-maker went through a decision-making process with the intention of exercising the relevant power. His Honour looked to the fact of a decision as a consequence of a decision-making process, as opposed to evaluating the quality or efficacy of that decision: at [180]. The Full Court essentially agreed with this approach, although Bowen CJ (with whom Smithers J agreed) cautioned against looking into the intentions of the decision-maker. Bowen CJ said it was enough if there was in fact a decision made in purported exercise of the power in the relevant enactment: at [16]-[17].
[26] There is a danger of over-thinking some of the jurisprudence on jurisdictional error. The provisions of the AAT Act (read in light of the decisions in Brian Lawlor) point the way to dealing with defective decisions by original decision-makers. The fact the Tribunal is independent of the agencies whose decisions it reviews does not change the fact the Tribunal remains part of the executive. The Tribunal’s decision-making processes are incorporated by operation of law into the executive decision-making process that it reviews. If there is a problem – even a fundamental problem – encountered during the course of the original decision-making process, the Tribunal can set things to right.
Section 103 of the NDIS Act provides as follows (emphasis added):
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
The reviewer is a delegate of the CEO and is a person who was not involved in making the original decision made by a different delegate of the CEO to approve the statement of supports in the participant’s plan.
The reviewer derives his or her powers under s 100(6) of the NDIS Act. Under this provision, the reviewer is required to make a decision confirming, varying or setting aside the reviewable decision, and in the latter case, to substitute it for a new decision.
The NDIS Act is specific about the type of decisions made by the NDIA that are reviewable by the reviewer through an internal review process under s 100 of the NDIS Act. The reviewable decisions are specified in s 99 of the NDIS Act.
Section 99 of the NDIS Act (in item 4 of the table in s 99(1)), sets out that a decision made by the CEO under s 33(2) of the NDIS Act to approve the statement of participant supports in a participant’s plan, is a reviewable decision.
A reviewer who undertakes an NDIA internal review under s 100 of the NDIS Act has the power to do one of three things:
(a)a reviewer has the power to confirm the decision under review, in this case being the original decision by a delegate of the CEO to approve the statement of supports in a participant’s plan. If such a decision is made by the reviewer, the plan (containing the unaltered approved statement of supports) may be left to run its course undisturbed and the participant must be provided with (or funded for) the supports as included in it for the period of operation of that plan; or
(b)a reviewer has the power to vary the decision under review. If such a decision is made by the reviewer, the approval of the statement of supports in a participant’s plan will remain intact, subject to the variations made by the reviewer to add, remove or modify some of the individual supports included in the original approved statement of supports. The original plan (containing the approved statement of supports) may be left to run its course; however, for the period of operation of this plan, the participant must be provided with (or funded for) supports to the extent that they reflect the variations made by the reviewer to the statement of supports in the original plan; or
(c)a reviewer has the power to set aside the decision under review. This will have the effect of setting aside altogether the approval given for the statement of supports in the participant’s plan, meaning the plan would no longer have effect. The reviewer would then substitute a new decision for the decision he or she has set aside. The new decision of the reviewer will be a decision to approve a new statement of supports in a participant’s plan. If such a decision is made by the reviewer it will trigger the operation of s 37(1) of the NDIS Act, provided the CEO has received the participant’s goals and aspirations as required by s 37(1)(a) of the NDIS Act. This will mean that a new plan will come into effect for the participant on the day the reviewer decides to set aside the decision under review and in substitution, decide to approve the new statement of supports in a participant’s plan.
This Tribunal considers that in light of the observations in Control Investment, the effect of s 43(1) of the AAT Act (in conjunction with the wording in s 103 of the NDIS Act), empowers the Tribunal to exercise such powers as the reviewer (as referred to in the above paragraph). Accordingly, the Tribunal on review may itself affirm, vary or set aside the original decision by the delegate of the CEO to approve the statement of supports in a participant’s plan. In the case of the latter, the Tribunal may substitute the decision it has set aside for a new decision to approve a new statement of supports in a participant’s plan. In the Tribunal’s opinion, this will trigger the operation of s 37(1) of the NDIS Act, provided the NDIA has received the participant’s goals and aspirations as required by s 37(1)(a), and a new plan will come into effect for the participant by force of s 37(1).[102]
[102] This Tribunal has previously adopted this approach in Re QZHH and National Disability Insurance Scheme [2018] AATA 1465.
Decision under review before the Tribunal in this application
By letter dated 19 January 2017, the NDIA informed Mr Ewin that his NDIS plan had been approved.[103] This letter attached the Frist Plan and Mr Ewin was informed that it started on 19 December 2016 (one month before this letter was sent to him), and also that the First Plan was scheduled for review on 19 December 2017. The NDIA informed Mr Ewin that “this decision” had been made in consideration of the information supplied to the NDIA and as discussed in their conversations. Mr Ewin was also informed that the relevant delegate of the CEO was satisfied that the supports specified in the plan were reasonable and necessary under s 34 of the NDIS Act.
[103] Refer T-Documents T8/29&30. The Tribunal considers that the NDIA intended to convey that it had approved the statement of supports contained within the plan, and not the plan as such.
Mr Ewin lodged an application for internal review.[104]
[104] Refer T-Documents T5/11-19. It is unclear to the Tribunal when this application was submitted to the NDIA by Mr Ewin but nothing turns on it.
By letter dated 13 February 2017, a delegate of the CEO wrote to Mr Ewin to acknowledge his “written request to the National Disability Insurance Agency (NDIA) for a review of your plan on 30 January 2017”.[105] The delegate advised Mr Ewin that she had made a decision under s 48(2) of the NDIS Act that it was appropriate for a review to be conducted in relation to Mr Ewin’s plan and that a representative from the NDIA would be in touch with him to arrange a meeting to discuss the review.
[105] Refer T-Documents T4/10.
On 23 March 2017, another delegate of the NDIA, i.e. the reviewer, telephoned Mr Ewin to “review the reviewable decision”.[106] The entry on the reviewer’s file note states:
[106] Refer T-Documents T3/8&9.
Decision OVERTURNED. New information available, small changes in QTY of support to reflect context Need to be made.
Review then conducted over the phone 23/3.
Results:
Change in Domestic support: …
1 hour per week increased to 1.5 hours per week.
New wheelchair…
Inclusion of light weight frame custom manual chair.
Inclusion of Maintenance of wheelchair for both the manual chair and a sports chair that the participant owns.
Transport Request – Request to fund level 3 transport – Original decision UPHELD…
…
Plan Amended to include above support.
Written confirmation of the reviewer’s decision was provided to Mr Ewin under cover of her letter dated 27 March 2017. At the beginning of this letter, the reviewer states (emphasis added):
On 30\01\2107 you requested an internal review of the [made decision (sic)] by the National Disability Insurance Agency (NDIA) to decline your request to review funded supports in your plan relating to Transport, Domestic support and Assistive technology including Maintenance budgets.
I have reviewed this decision. I have amended this decision in relation to increasing the level of domestic support and including an assistive technology (AT) maintenance budget.
At the beginning of the reviewer’s letter to Mr Ewin dated 27 March 2017, she states that Mr Ewin had requested internal review of a decision made by the NDIA “to decline [Mr Ewin’s] request to review funded supports in [his] plan relating to Transport, Domestic support and Assistive technology”. However, this cannot be right because a different delegate of the CEO advised Mr Ewin in her letter dated 13 February 2017 (see paragraph [298]) that this was what she had decided to do. It is also evident from the file note of the subsequent conversation on 23 March 2017, between Mr Ewin and the reviewer that the internal review comprised a substantive review of Mr Ewin’s supports (and whether they should be funded under the NDIS). The Tribunal is satisfied that the reviewer mistakenly mischaracterised the request that Mr Ewin had made for an internal review.
Accordingly, the Tribunal considers that in March 2017, the reviewer was reviewing a decision by the delegate of the CEO under s 33(2) of the NDIS Act to approve a statement of participant supports for Mr Ewin which formed part of Mr Ewin’s First Plan. This statement of participant supports as it existed at that time did not include any funding for private transport costs, assistive technology maintenance, and included a lesser amount of funding for the provision of domestic support.
The reviewer stated twice (in her file note and in the letter recording the Internal Review Decision), that she had made a decision to amend the decision. The Tribunal understands this to constitute a decision by her to vary the reviewable decision, as she had the power to do under s 100(6)(b) of the NDIS Act. The variation made by her to the statement of supports comprised of increasing the level of domestic support to Mr Ewin by half an hour each week, and by adding an assistive technology budget as a further support. There is no suggestion by the reviewer that she was setting aside the reviewable decision, as she also had the power to do under s 100(6)(c) of the NDIS Act.
This characterisation aligns with the NDIA’s description of the decision under review before this Tribunal, as given in its Closing Submissions:
…the internal review decision dated 27 March 2017, insofar as it varied the decision made on 19 January 2017 to approve a statement of participant supports.[107]
[107] Refer [16] of the NDIA’s Closing Submissions.
A decision under s 33(2) is a reviewable decision under s 99(d) of the NDIS Act. The reviewer had power to review this reviewable decision under s 100(6) of the NDIS Act. Mr Ewin sought review by this Tribunal of the Internal Review Decision under s 103 of the NDIS Act.
Separately, the NDIA contends that Mr Ewin’s Second Plan was approved[108] in order to “give effect and utility to the terms of the internal review decision” and that “Counsel is instructed that this is the [NDIA’s] current practice, and is the most appropriate option available at this point in time due to limitations in the [NDIA’s] business systems which prevent the [NDIA] from making variations to existing plans”.
[108] The Tribunal notes that the plans themselves are not the instruments that need to be approved by the CEO; it is in fact the statements of support that require approval. Once approved, and the NDIA has received the participant’s goals and aspirations, the plan takes effect, not by any further step (such as an approval by the NDIA), but instead by force of s 37(1) of the NDIS Act.
The NDIA’s position is at odds with the Tribunal’s view as to how the scheme is intended to work. In this case, the reviewer made a decision to vary. In accordance with the Tribunal’s views as set out in paragraph [294(b)], there was no further step the NDIA was required to take under the provisions of the NDIS Act to “give effect and utility” to the decision to vary the reviewable decision. The approval for the statement of supports (albeit varied) remained in place, and accordingly, the plan continued to have effect and would have continued to operate, except for the CEO’s subsequent decision on his or her own initiative to replace the First Plan, with the Second Plan.
It is a separate matter that the NDIA’s computer system was unable to deliver, at an administrative level, the effect of the variations to be made to the approved statement of supports, which the reviewer under the NDIS Act has the power to make. In this case, the implementation by the NDIA of the Second Plan was commenced by force of s 37(1) when a new statement of supports was approved by a delegate of the CEO, following a review initiated by the CEO.
The Tribunal notes that there has been no further requests for review made by Mr Ewin under s 100(2) of the NDIS Act, or applications to the Tribunal under s 103 of the NDIS Act, in relation to the decision of the delegate of the CEO to approve a new statement of supports for Mr Ewin’s Second Plan (or for that matter, the Third Plan or Fourth Plan).
However, the Tribunal considers that the absence of such further internal reviews (and Tribunal applications) in relation to the statements of supports in the successive plans, does not limit the “coverage” of the effect of the decision made by this Tribunal in this application. The Tribunal, in making this decision, does so standing in the shoes of the reviewer, setting aside the original decision of the delegate of the CEO and substituting it for a new decision to approve a new statement of supports which includes the current supports and also the additional support sought by Mr Ewin which was central to this application. Having done so, in the Tribunal’s opinion, a new plan containing the new statement of supports for Mr Ewin’s will take effect by force of s 37(1) of the NDIS Act. The second and only other requirement under s 37(1) has already been met; namely, that the CEO has received the participant’s statement of goals and aspirations.
When will the Tribunal’s decision take effect
The next question that arises is when the Tribunal’s decision will take effect and what period will it cover.
The Tribunal notes ss 43(5A), (5B) and (6) of the AAT Act provide that (emphasis added):
Section 43
…
(5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.
(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.
…
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
In accordance with the first half of s 43(6), the decision by this Tribunal to set aside the reviewer’s decision and substitute it for a new decision is taken to be the decision of the reviewer.
Taking into account the reference in s 43(6) to “unless the Tribunal otherwise orders”, irrespective of the default position that applies under this provision, the Tribunal considers that it has the power to otherwise order the period during which its decision (deemed to be the reviewer’s decision) has effect.
The reviewer was initially reviewing a decision in relation to a statement of supports contained in the First Plan that commenced on 19 December 2016, and the NDIA and Mr Ewin have continued since that time to be in dispute about whether transport funding should have been included in Mr Ewin’s First Plan and successive plans. In accordance with the second part of s 43(6), the Tribunal considers that it is appropriate to order that the new plan (which will come into force by operation of s 37(1) of the NDIS Act as a consequence of this Tribunal’s decision to set aside the original decision of the delegate of the CEO to approve the statement of supports in the First Plan and to substitute it with a new decision to approve a new statement of supports), will have effect as from 19 December 2016 until the present time and continuing until such time as this plan is replaced by another, noting the Tribunal has extended the review date on the statement of supports until 22 December 2019 – see paragraphs [316] to [318] of these Reasons for Decision.
Extending the review date in the statement of supports
The Tribunal in making its decision, must consider what review date should be included in the new statement of supports, being an essential element of any statement of participant supports as required by s 33(2)(c) of the NDIS Act.
Before the dispute arose about whether the transport costs specified by Mr Ewin should be funded, the NDIA formed a view that an appropriate notional period for an NDIS plan for Mr Ewin was 12 months. This was the notional period the NDIA set for the First Plan and the Second Plan.
Given Mr Ewin’s condition is stable; and his employment and family circumstances are stable; the Tribunal considers it appropriate to adopt the previous approach that was adopted by the NDIA of setting a notional period for the operation of the plan of 12 months. Accordingly, the Tribunal considers it appropriate to include a review date in the new statement of supports of 22 December 2019 (i.e. 12 months from the date of this decision).
Quantum
Mr Ewin contends that funding under the NDIS for the costs of travel by him using a private vehicle should be based on the ATO prescribed rate of 66 cents per kilometre. The Tribunal was unable to identify in the NDIA submissions any dispute about this being an appropriate rate to apply, however, it acknowledges that the NDIA has issued guidance in the Guidelines that if transport is considered as a reasonable and necessary support for a participant, one of three different levels of funding should apply.
The Tribunal accepts that the ATO prescribed rate of 66 cents per kilometre is an appropriate measure by which to quantify Mr Ewin’s costs, given that this was a quantification of the cost of running a car arrived at by the Commonwealth Government for taxation purposes. For the 2018-19 income year the ATO has adjusted this figure to 68 cents per kilometre; so the increased rate is to be applied from 1 July 2018 onwards.[109]
[109] Refer >
The Tribunal was concerned by Mr Ewin’s expectation that he should not have to maintain records of his travel in order for funding to be provided to him under the NDIS. Given that funds to be distributed under the NDIS are public monies, the Tribunal considers it appropriate that Mr Ewin provide particulars of and maintain a travel logbook to record details of his travel for the trips to be funded under the NDIS including dates, times, the location of origin and destination, reason for travel and for future travel, odometer readings. Mr Ewin should also obtain and keep records of the lawn bowls competition draws or his applications for registration in the competitions. Mr Ewin should produce them to the NDIA to enable the NDIA, upon request, so that the NDIS administrator may satisfy itself that Mr Ewin has undertaken the travel for which he will be funded by public monies as a consequence of this decision.
CONCLUSION
For the reasons set out above, the Tribunal sets aside the Internal Review Decision made on 27 March 2017 and in substitution, sets aside the decision of a delegate of the CEO of the NDIA on 19 January 2017 (which varied the statement of participant supports forming part of Mr Ewin’s plan under the NDIS that commenced on 19 December 2016), and in substitution, approves a new statement of participant supports that:
(a)specifies the following reasonable and necessary supports for Mr Ewin as from 19 December 2016:
(i)funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and work on days when it is raining or forecast to rain, to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance of 672km per annum;
(ii)funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and lawn bowls “away” games that he plays on Saturdays or as part of the Darebin night competition, Darebin midweek competition or for tournaments held for players with disabilities; provided those “away” games are held at a bowls club located in a suburb on the Hurstbridge train line (Eligible Journeys). Mr Ewin’s costs of the Eligible Journeys are to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance to be agreed between the NDIA and Mr Ewin within 21 days of Mr Ewin providing full particulars, in accordance with paragraph [321], of the Eligible Journeys undertaken by him from 19 December 2016 to 21 December 2018; and as projected, from 22 December 2018 to 22 December 2019;
(iii)funding to reimburse Mr Ewin for the costs of using his private vehicle for travel between his home and the location of his child’s or children’s weekly swimming lessons or netball games, to be reimbursed at the rate of 66c/km for travel up to 30 June 2018 and 68c/km for travel from 1 July 2018 onwards, for a distance of 864km per annum;
(iv)$1,500, to be used to purchase an aerodynamic roof rack and/or fittings to be fitted onto Ms Ewin’s wife’s car; a standard-sized roof box; a step accessory; a storage rack fitting; and to reimburse Mr Ewin 12.1% of his petrol costs for the biannual trips to Apollo Bay undertaken while the roof box is in use, subject to the provision of tax invoices confirming purchase of the petrol at the commencement of those journeys; and
(v)$350, to be used for the purchase of a “black box” compartment; the cost of any customised fitting required to be made to Mr Ewin’s chair and a lightweight laptop bag with adjustable shoulder strap; and
(vi)continuation of the provision or funding of all current ongoing supports (i.e. excluding any one-off supports that have already been provided to Mr Ewin), at the same level, as listed in paragraph [15] of these Reasons for Decision; and
(b)extends the review date of the statement of participant supports to 22 December 2019.
The Tribunal reserves the question of quantification of the distance referred to in paragraph [322(a)(ii)] above. Either party has liberty to apply in the event that they are unable to reach agreement within 21 days after Mr Ewin has provided the required particulars.
I certify that the preceding 323 (three hundred and twenty three) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
[sgd]......................................................................
Associate
Dated: 21 December 2018
Date(s) of hearing:
Date final written submission and evidence lodged:
8 February 2018
14 December 2018
Counsel for the Applicant:
Solicitors for the Applicant:
Ms G Cafarella of Counsel
Victoria Legal Aid
Counsel for the Respondent: Ms K M Evans of Counsel Solicitors for the Respondent: National Disability Insurance Agency
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