Syddall and National Disability Insurance Agency - [2022] AATA 3738

Syddall and National Disability Insurance Agency [2022] AATA 3738 (8 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/7320
Re:Eric Syddall
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:The Hon. Justice F Meagher
Date:8 November 2022
Place:Brisbane

Pursuant to subparagraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that Respondent approve a new statement of participant supports for the Applicant, containing the following:
(a)funding for the Applicant to undertake travel to his General Practitioner as necessary, to his other medical appointments (consistent with their written advice as to their necessity and frequency), to engage in recreational and other activities in accordance with paragraphs 52 – 54 of the Applicant’s Statement dated 14 May 2020 and with an additional allowance of funding to undertake various trips in accordance with paragraph 55 of the Applicant’s Statement dated 14 May 2020; and
(b)specify the review date by the Respondent must review the plan to be six (6) months after the day on which the new statement of participant supports is approved.

……………[SGD]…………..
The Hon. Justice F Meagher
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of supports in plan – whether funding for a modified Toyota Commuter, including the associated travel costs, and a trailer is reasonable and necessary pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (Cth) – consideration of National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) – funding for vehicle precluded by Rules – funding for various other transport supports is reasonable and necessary - decision under review remitted with direction.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Azizi and Minister for Home Affairs [2018] AATA 2561
Barling and National Disability Insurance Agency [2021] AATA 4358
Beezley v Repatriation Commission [2015] FCAFC 165
Castledine and National Disability Insurance Agency [2019] AATA 4240
Commonwealth v Esher (1991) FCR 324
Drake v Minister for Immigration and Ethic Affairs [1979] AATA 179
Ewin and National Disability Insurance Agency [2018] AATA 4726
McGarrigle v National Disability Insurance Agency [2017] FCA 308
McLaughlin and National Disability Insurance Agency [2021] AATA 496
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Costello and Department of Transport (1979) 2 ALD 834
Stoddart v Repatriation Commission (2003) 74 ALD 335; [2003] FCA 334
WRMF and National Disability Insurance Agency [2019] AATA 1771
Secondary Materials
Macquarie Dictionary Online (Web Page, 8 November 2022)
‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) < FOR DECISION
The Hon. Justice F Meagher
8 November 2022
INTRODUCTION

Mr Eric Syddall (the Applicant) has made an application to the Tribunal for review of a decision dated 15 August 2019 made by the National Disability Insurance Agency (the Respondent) which approved a Statement of Participant Supports (SOPS).[1] The SOPS did not provide for requested supports including the purchase, or lease, of a motor vehicle and modifications and a trailer to transport equipment.[2] The application was made pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
[1] Exhibit 1, T1, 6 – 9.
[2] Exhibit 1, T16, 151 – 160.
Mr Syddall has been a ‘participant’ under the National Disability Insurance Scheme (the NDIS) since 2018 and had his first plan approved in January 2019.[3]
[3] Applicant’s Statement of Facts, Issues and Contentions filed on 21 June 2021, [1].
On 13 June 2019 a delegate of the CEO advised Mr Syddall that the SOPS in his plan to commence on that date had been approved, and attached a copy of the plan.[4] The SOPS were approved by reference to subsection 33(2) of the NDIS Act, which is a reviewable decision, by reference to section 99 of the NDIS Act. Between 13 June 2019 and 5 August 2019 Mr Syddall communicated complaints that he had in relation to the SOPS to his support worker. Those complaints were passed onto the Respondent, and was taken to be an oral request for internal review of the decision, pursuant to subsections 100(2) and (3) of the NDIS Act.[5] At that stage, the additional supports sought by Mr Syddall included with respect to transport, technology and core supports.[6]
[4] Exhibit 1, T15, 14.
[5] Exhibit 1, T11, 115.
[6] Exhibit 1, T12, 117 – 123.
On 15 August 2019, a delegate of the CEO advised Mr Syddall that a further SOPS had been approved, for the period commencing 15 August 2019 – 14 August 2020.[7] That advice constituted an internal review decision made pursuant to subsection 100(6) of the NDIS Act.
[7] Exhibit 1, T16, 151 – 154.
On 7 November 2019, Mr Syddall made an application to the Tribunal for review of the decision of 15 August 2019.[8] By the time the application to the Tribunal was made the supports in issue were the purchase or lease of a motor vehicle and modifications thereto, and the provision of a plunge pool, recumbent tricycle and a trailer to transport various equipment.[9]
[8] Exhibit 1, T1, 4.
[9] Exhibit 1, T 1, 7.
On 28 September 2020, the Respondent made a decision to approve a further SOPS (the September 2020 Plan) pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[10] By virtue of paragraph 42D(4)(a) of the AAT Act, the application for review before the Tribunal is taken to be an application for review of SOPS contained within the September 2020 SOPS.
[10] Exhibit 1, A15, 170.
The purpose of the September 2020 SOPS was to provide temporary funding to Mr Syddall for the cost of a leased motor vehicle, however due to an administrative oversight no reference was made to that in the September 2020 SOPS. It has a review date of 28 September 2021.[11]
[11] Exhibit 1, A15, 172.
On 24 December 2020, a further plan came about to correct the administrative oversight (the December 2020 Plan).[12] It did not involve the making of a new decision with respect to the SOPS under subsection 33(2) of the NDIS Act. Accordingly, the September 2020 SOPS remains the decision under review, albeit the SOPS is now administratively recorded in a different document.
[12] Exhibit 3, NDIS Plan dated 24 December 2020.
I note that the parties made submissions regarding the Tribunal’s jurisdiction with respect to the decision under review.[13] I have considered the submissions and material before the Tribunal and consider that it has jurisdiction in relation to this matter.
[13] Respondent’s Further Submissions dated 23 November 2021; Applicants Further Submissions on Jurisdiction filed on 7 December 2021.
As the matter progressed through the Tribunal the Respondent agreed to fund a recumbent tricycle for Mr Syddall, specifically the ICE Full Fat 26-26 model.[14] At the hearing, Mr Syddall withdrew his request for a plunge pool.[15]
[14] Statement of Agreed Facts and Issues, [14].
[15] Transcript, P-3, lines 28 – 30.
Therefore, the supports sought crystallised as a particular modified motor vehicle and associated travel costs, either purchased or leased, and a trailer.[16] The Respondent proposed an alternative to the purchase or lease of the vehicle – namely the funding of a taxi or taxi-like service.[17]
[16] Respondent’s Closing Submission, [2].
[17] Respondent’s Closing Submission, [3].
Background
Mr Syddall was born on 1 July 1956 and is currently 66 years old.[18] He lives at Tewantin with his wife, Susan, and his two sons.[19] Mr Syddall also has two adult daughters who live some distance away from him. Mr Syddall’s older son is a participant in the NDIS.[20]
[18] Applicant’s Statement of Facts, Issues and Contentions filed on 21 June 2021, [6].
[19] Applicant’s Statement of Facts, Issues and Contentions filed on 21 June 2021, [7].
[20] Applicant’s Statement of Facts, Issues and Contentions filed on 21 June 2021, [10].
Mr Syddall first started experiencing symptoms in November 2000 and was diagnosed with diffuse idiopathic skeletal hyperostosis (DISH), ankylosing spondylosis, nerve compression, diabetes mellitus type I and narcotic induced bowel bleeding in 2009.[21] DISH is a permanent and progressive condition.[22]
[21] Exhibit 1, A8, [7].
[22] Exhibit 1, A21, 221; Exhibit 1, R2, 332.
Mr Syddall has three wheelchairs.[23] They include a manual wheelchair that has been prescribed with particular back and headrest supports, and in which he is unable to propel himself.[24] Secondly, he has a power wheelchair, a ‘Permobil’, which he uses most regularly.[25] Thirdly, Mr Syddall has a ‘Sahara’ wheelchair, with fat wheels, designed to be more effective on certain terrains, including roads.[26] However, it is too large for many interiors, such as his doctors surgery.[27] As well, the Sahara has not proved effective on roads,[28] including because Mr Syddall has nearly been hit by other vehicles when using it.[29] Therefore, Mr Syddall does not use the Sahara much and describes the Permobil as his ‘day to day wheelchair’.[30]
[23] Transcript, P18, lines 3 – 7.
[24] Transcript, P-18, lines 4 – 5 and 12.
[25] Transcript, P-18, lines 4 – 6.
[26] Transcript, P-18, line 6.
[27] Transcript, P-18, line 8 – 9.
[28] Transcript, P-18, lines 9 – 10.
[29] Transcript, P-18, lines 24 – 26.
[30] Transcript, P-18, lines 5 – 6.
Mr Syddall and his wife own a 2012 Kia Grand Carnival (the Kia),[31] and Mr Syddall currently holds an unrestricted driver’s licence.[32]
[31] Exhibit 1, A8, [25].
[32] Applicant’s Statement of Facts, Issues and Contentions filed on 21 June 2021, [92(a)].
The purchase of the Kia was subsidised by Queensland Health, through the Vehicle Option Subsidy Scheme in 2015, partly to meet the needs of Mr Syddall, and partly to meet the needs of his older son, whose disabilities (namely Asperger’s and ADHD) mean he needs to be seated a certain distance from other people travelling in a vehicle, in order for him, other passengers, and the driver to travel safely.[33]
[33] Exhibit 1, A8, [29] – [30].
Mr Syddall is not able to flex his body to independently transfer in or out of the car seat of the Kia due to the structure of the vehicle.[34] Hence, in order to travel in the Kia, Mr Syddall requires someone else to be present with him to assist with transfers.[35]
[34] Exhibit 1, A12, 165.
[35] Exhibit 1, A12, 165.
Mr Syddall’s Permobil wheelchair does not fit into the Kia, and modification of it to accommodate the Permobil would result in the loss of two seats, thus rendering the vehicle unsuitable for use with Mr Syddall’s older son.[36] Therefore, if Mr Syddall accesses the community using the Kia, he is only able to take his manual wheelchair, and accordingly requires assistance, by way of someone pushing him, to move around.[37]
[36] Exhibit 1, A8, [36].
[37] Exhibit 1, A8, [17] – [18].
Mr Syddall has trialled a number of vehicles, including the 2014 Toyota Welcab, 2015 Toyota HiAce Welcab and 2015 Toyota Regius ACE Welcab.[38]
[38] Exhibit 1, A4, 17.
Mr Syddall was also provided with a rented Toyota HiAce Commuter (the HiAce) by the Respondent between November 2020 and April 2021,[39] at a cost of $1162 per week.[40] The modifications in that vehicle were designed to accommodate a broad range of wheelchairs, rather than being specific to Mr Syddall’s wheelchair.[41]
[39] Transcript, P-11, line 31.
[40] Exhibit 1, A8, [41].
[41] Exhibit 1, A8, [35].
Mr Syddall has also trialled a converted Toyota Commuter vehicle (the Toyota Commuter).[42]
[42] Exhibit 1, A8, [42].
During the period when Mr Syddall had the use of the rented HiAce, he was able to attend medical and other appointments, and some social and community activities outside his home.[43]
[43] Exhibit 1, A8, [40]; Transcript, P-11, lines 42 – 46; P-12, lines 1 – 2.
A statement provided by Mr Syddall sets out a schedule of activity, both current and proposed, which encompasses:
·regular appointments with his General Practitioner, situated approximately 9 kilometres from his home, approximately once per fortnight;[44]
·appointments with his Orthopaedic Surgeon, situated approximately 63 kilometres from his home, once per month;[45]
·visits to Royal Brisbane and Women’s Hospital, situated approximately 153 kilometres away from his home, usually monthly but can sometimes be more frequently;[46]
·trips to Queensland Diagnostic Imaging in Caloundra, situated approximately 72 kilometres away from his home, at least once per fortnight, however Mr Syddall noted that there was a period where he was making this trip weekly;[47]
·hydrotherapy at Sippy Downs, situated approximately 57 kilometres away from his home. Mr Syddall indicated that he would ideally like to undertake hydrotherapy five days a week, but that, due to the cost of doing so and the effort and paid in travelling, it has meant that he has been unable to attend at all;[48]
·outings with a recumbent bike group, situated approximately 40 kilometres away from his home. Mr Syddall indicated that he would like to do so three days a week;[49]
·visits to his daughters, one of which lives in the Tablelands (situated approximately 156 kilometres from his home) and other of which lives in Ferny Grove (situated approximately 140 kilometres from his home). Mr Syddall indicated that he would ideally like to visit each of his daughters on alternating weeks; [50]
·supporting his son in social activities weekly, such as attending horse-riding, situated approximately 65 kilometres from his home;[51] and
·opportunities to go out for trips with his family such as going to the shops, the beach and so on.[52]
[44] Exhibit 1, A8, [47].
[45] Exhibit 1, A8, [48].
[46] Exhibit 1, A8, [49].
[47] Exhibit 1, A8, [50].
[48] Exhibit 1, A8, [51].
[49] Exhibit 1, A8, [52].
[50] Exhibit 1, A8, [53].
[51] Exhibit 1, A8, [54].
[52] Exhibit 1, A8, [55].
Mr Syddall’s SOPS relevantly states:[53]
·I live with my wife and two sons, my daughters live a few hours away with my grandchildren. My wife provides a lot of my support.
·I spend most of my time at home, engaged in computer related activities. I enjoy water related activities and cycling but have limited opportunity to undertake these recently due to access issues.
[53] Exhibit 1, A15.
Mr Syddall’s goals, as contained within his SOPS, are as follows:[54]
[54] Exhibit 1, A15.
·Short term goal
oTo increase my social interaction within the community.
·Short term goal
oTo provide support to my family and maintain my independence.
·Medium or long term goal
oTo maintain my independence with support from therapy and equipment.
Mr Syddall’s case is that the provision of a modified Toyota Commuter, associated travel costs and a trailer to transport his recumbent tricycle ‘are reasonable and necessary supports’ that should be funded under the NDIS, and thus should be specified in the SOPS.[55] With respect to the modified motor vehicle, Mr Syddall proposes that it be provided by the Respondent funding its purchase and modification,[56] or in the alternative that the Respondent fund the lease of a modified vehicle.[57] Of note Mr Syddall submits that the support he is seeking is ‘a vehicle that he can access and operate independently’, specifically the Toyota Commuter as modified, not ‘transport’ generally.[58]
[55] Applicant’s Closing Submissions, [2].
[56] Applicant’s Closing Submissions, 126].
[57] Applicant’s Closing Submissions, [138].
[58] Applicant’s Closing Submissions, [89].
The Respondent’s position regarding these alternatives is that the purchase of a private vehicle is not permitted under the NDIS Act and the relevant delegated legislation.[59] Alternatively, the proposed purchase or lease of a Toyota Commuter is not a reasonable and necessary support that should be funded by the NDIS.[60] Similarly, the Respondent submits that the purchase of the trailer is not a reasonable and necessary support.[61]
[59] Respondent’s Closing Submissions, [3].
[60] Respondent’s Closing Submissions, [3].
[61] Respondent’s Closing Submissions, [3].
The Respondent does however acknowledge that Mr Syddall requires additional transport and has proposed in its closing submissions transport funding in the amount of $16,412.60 for an average of 9358 km per year for travel using taxi services.[62]
[62] Respondent’s Closing Submissions, [73].
Hearing
A hearing in this matter took place by MS Teams on 2 and 3 August 2021. Mr Syddall gave oral evidence. Ms Duff and Ms McCartin gave concurrent oral evidence. Ms Duff is an Occupational Therapist who has completed a Bachelor of Occupational Therapy.[63] Ms McCartin is an Occupational Therapist who has completed a Diploma of Occupational Therapy,[64] and holds a ‘Driver Trained Occupational Driving Assessor’ qualification.[65] Both Ms McCartin and Ms Duff made an affirmation prior to giving oral evidence during the hearing.[66]
[63] Exhibit 1, A23, 297.
[64] Exhibit 1, R9, 509.
[65] Exhibit 1, R 2, 354.
[66] Transcript, P-52.
The evidence before the Tribunal included the material set out in the exhibit list attached to this decision, and the oral evidence referred to within these reasons. For a matter where both parties were represented, the evidence was in many regards scant. Sometimes it was inconsistent or opaque. While I am satisfied that each of the Occupational Therapists called did their best to assist the Tribunal, I am not satisfied that either of them had comprehensively reviewed Mr Syddall in a manner consistent with what would be necessary for me to be positively satisfied with respect to the criteria contained in section 34 of the NDIS Act relevant to reasonable and necessary supports. Further, given the evidence regarding the pain suffered by Mr Syddall, and its impact upon him, no experts were called who could speak to that issue. No expert was called in relation to DISH who could speak to its likely progression, despite all relevant evidence before the Tribunal acknowledging that Mr Syddall’s condition is permanent and progressive.[67] There were reports from each of Mr Syddall’s Physiotherapist and General Practitioner,[68] but neither were called to expand upon their reports or for their evidence to be tested.
[67] Exhibit 1, A21, 221; Exhibit 1, R2, 332.
[68] Exhibit 1, A11; Exhibit 1, T1I.
After the hearing the parties provided lengthy written submissions as follows:
·Respondent’s Closing Submissions dated 7 October 2021 (the Respondent’s Closing Submissions);
·Applicant’s Closing Submissions filed on 8 November 2021 (the Applicant’s Closing Submissions);
·Respondent’s Further Submissions dated 23 November 2021 (the Respondent’s Further Closing Submissions); and
·Applicants Further Submissions on Jurisdiction filed on 7 December 2021 (the Applicant’s Further Closing Submissions).
At the time of the hearing, the relevant Operational Guideline was entitled ‘Including Specific Types of Supports in Plans Operational Guideline – Vehicle Modifications’ and was current as of 3 October 2019 (the previous Operational Guideline).[69] It was upon this Operational Guideline that the parties based their submissions.
[69] Exhibit 1, O4, 357 – 358.
It came to my attention, without indication from the parties, that that Operational Guideline had been replaced on 10 February 2022 by an Operational Guideline entitled ‘Vehicle modifications and driving supports’ (the current Operational Guideline).[70] The current Operational Guideline is materially different from the former one.
[70] ‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) < type="1">
A telephone directions hearing was conducted on 19 May 2022 to bring to the parties’ attention the change in the Operational Guideline. I also raised with the parties, particularly the Applicant, concerns I had regarding the evidence with respect to Mr Syddall’s driving of the vehicle, and made directions timetabling submissions from the parties responsive to the matters raised.
Accordingly, the parties also filed the following further submissions:
·Applicant’s Further Submissions dated 16 June 2022 (the Applicant’s Operational Guideline Submissions); and
·Respondent’s Further Submissions dated 20 June 2022 (the Respondent’s Operational Guideline Submissions).
THE NATIONAL DISABILITY INSURANCE SCHEME
The NDIS is governed by the NDIS Act.[71] Its objects are set out in section 3 of the NDIS Act. They should be used to assist in the construction of the NDIS Act, unless contrary to clear words elsewhere in the Act, notwithstanding they ‘may pull in different directions’ or be ‘aspirational’.[72] General principles guiding actions to be taken under the NDIS Act are set out in section 4. Such actions include ‘determining whether a statement of participant supports should be approved’.[73]
[71] NDIS Act, s 3(1)(b).
[72] National Disability Insurance Agency v WRMF [2020] FCAFC 79, [145] – [146].
[73] NDIS Act, s 33(2).
Participant Plans are covered in Chapter 3 Part 2 of the NDIS Act. Section 31 of the NDIS Act deals with the preparation, review and replacement of a participant’s plan. Section 33 of the NDIS Act deals with matters which must be contained within a participant’s plan. They include a statement of goals, objectives and aspirations and the participant’s environmental and living context prepared by the participant.[74] They also include a SOPS prepared with the participant and approved by the CEO.[75]
[74] NDIS Act, s 33(1).
[75] NDIS Act, s 33(2).
Subsection 33(5) of the NDIS Act specifies the matters which the CEO must have regard to when deciding whether or not to approve a SOPS, including:
·the participant’s statement of goals and aspirations;
·relevant assessments conducted in relation to the participant;
·satisfaction that section 34 of the NDIS Act is met in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
·application of the rules (if any) made for the purposes of section 35;
·the principal that a participant should manage their plan to the extent they wish to do so; and
·the operation and effectiveness of any previous plans of the participant.
Section 35 of the NDIS Act provides for the making of rules including in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), Mortimer J stated, with respect to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules), that:
43.The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
Subsection 34(1) of the NDIS Act contains criteria in respect of which a decision maker must be satisfied. All the criteria must be met. The phrase ‘reasonable and necessary’ is not defined in the legislation. It is a composite phrase and should be considered as such.
Section 99 of the NDIS Act contains a table enumerating reviewable decisions under the NDIS Act. They include, ‘[A] decision under subsection 33(2) to approve the statement of participant supports in the plan’. Section 100 of the NDIS Act provides for review of reviewable decisions within the NDIA. Pursuant to section 103 of the NDIS Act, an application may be made to the Tribunal in respect of any decision reviewed under section 100 of the NDIS Act.
There are also Operational Guidelines which constitute government policy and should be considered if not inconsistent with the provisions or objects of the legislation. As set out above, the Operational Guidelines changed after the hearing and provision of submissions but before the decision had been made. Those changes were:
·First, the previous Operational Guideline stated that the NDIS would generally not fund the purchase of a motor vehicle.[76] The current Operational Guideline provides that the NDIS will not provide funding to buy or lease a vehicle.[77]
·Secondly, the previous Operational Guideline did not address safety. The current Operational Guideline outlines further consideration and requirements regarding the necessary documentary evidence and/or assessments required to demonstrate that modifications to vehicles are safe.[78] The current Operational Guideline provides for further requirements if a participant is to drive a vehicle and references the national ‘Assessing Fitness to Drive’ medical standard.[79]
[76] Exhibit 1, O4, 358.
[77] ‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) 3, < ‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) 10 – 11, < ‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) 13, <
As a decision by the Tribunal is to be treated as if it were that of the primary decision-maker, the Tribunal is required to apply the law as if it were the decision-maker. However, the decision in Re Costello and Department of Transport (1979) 2 ALD 834,[80] later endorsed by the Full Federal Court in Commonwealth v Esher (1991) FCR 324,[81] held that this approach is only required where the Tribunal is considering anterior entitlements, unless the amending legislation is expressed to have retrospective effect.[82] As the decision in this matter relates to Mr Syddall’s current entitlement to the supports in dispute, and there is no consideration of reimbursements or retrospective entitlements, I will apply the current Operational Guideline.
[80] [939] – [945].
[81] 101 ALR 35.
[82] Stoddart v Repatriation Commission (2003) 74 ALD 335; [2003] FCA 334.
CONSIDERATION
As alluded to above, the parties made lengthy detailed submissions. As will become clear from these reasons it neither necessary nor appropriate for me to deal with all of them. As decided in Azizi and Minister for Home Affairs [2018] AATA 2561, a decision of the Tribunal is normative in that its findings of fact should be followed if that factual issue is relevant to another decision.[83] In order to avoid inconsistent decision making, the Tribunal needs to be cautious in deciding more than what is necessary.
[83] [6].
However, one issue which has arisen in different contexts within the parties’ submissions is the characterisation of the support sought. I need to deal with this issue to consider the parties’ submissions relating to the use of taxi services.
In relation to submissions with respect to rule 3.1 of the Rules (that is, submissions made before the changes to the Operational Guidelines and relevant to the value for money argument advanced by the Respondent regarding the use of taxis as an alternative), Mr Syddall submitted that what he was claiming is not “transport” generally, rather a vehicle that he can access and operate generally.[84] In reply the Respondent submitted that to make such a distinction took an unduly narrow and unrealistic approach.[85] I accept the Respondent’s submissions in that regard and accept that the support sought should be characterised as transport. Further, as others have concluded with respect to the previous Operational Guideline, there may be circumstances where the purchase of a motor vehicle would be undertaken by the Respondent, such as in the decision of Barling and National Disability Insurance Agency [2021] AATA 4358, in respect of which no appeal was lodged by the Respondent.
[84] Applicant’s Closing Submissions, [89].
[85] Respondent’s Further Closing Submissions, [11].
With respect to the current Operational Guideline, insofar as they state that the NDIS will not provide funding to buy or lease a vehicle[86] I consider them to go beyond the statutory scheme and thus to not apply. Rule 7.21 of the Rules sets out the transport supports for which the Respondent will be responsible, and rule 7.22 of the Rules sets out those for which it will not.[87] Nowhere within the Rules is there a prohibition on buying (or leasing) a motor vehicle. Furthermore, the current Operational Guideline makes no attempt to consider rule 7.21 and 7.22, and instead applies a blanket bar to the funding of the purchase or lease of a vehicle. To that extent, I find that the current Operational Guideline, with respect to not providing funding for leasing or purchasing a vehicle, undermines what the legislation provides and, for that reason, does not apply.
[86] ‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) 3, < Barling and National Disability Insurance Agency [2021] AATA 4358, [49].

With respect to the current Operational Guideline as it relates to safety, Mr Syddall submits that the requirements (which are in this case intended to amplify rule 5.1(a) of the Rules) are inconsistent with the Rules.[88] Rule 5.1(a) of the Rules states that a support will not be funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others. Mr Syddall submits that in accordance with rule 5.1(a) of the Rules, the Tribunal must have evidence to satisfy itself that harm or risk is likely, whereas the current Operational Guideline appears to impose an obligation upon a participant to establish that a support is safe.[89] I consider that to be drawing too fine a distinction. There is a general consensus that there is no onus of proof in relation to matters before the Tribunal. In saying that, Mr Syddall needs to demonstrate that the evidence sustains his argument that the supports in dispute meet the relevant statutory tests. The Rules are subordinate legislation that comprise the statutory scheme that governs the NDIS. The Federal Court in Beezley v Repatriation Commission [2015] FCAFC 165 commented that:[90]

…as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on the applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest…
[88] Applicant’s Operational Guideline Submissions, [16].
[89] ‘Vehicle modifications and driving supports - Operational Guidelines’, National Disability Insurance Agency (Web Page, 8 November 2022) 10 – 11, < [68].

Brennan J in Drake and Minister for Immigration and Ethic Affirms (No 2) [1979] 2 ALD 634 held that the Tribunal is to apply ‘lawful ministerial policy, unless there are cogent reasons to the contrary…’.[91] I do not find any cogent reasons supporting Mr Syddall’s submission. In fact, requiring a participant to provide evidence demonstrating that a support is safe and does not cause harm to the participant or another person, appears to be a reasonable requirement.

[91] Page 640.

With the above considerations in mind, I turn to consider the transport support. The anticipated costs of the three transport options are as follows:

·Funding for the purchase and modification of a Toyota Commuter, along with the potential repair, maintenance and other expenses relating to the modification – approximately $90,000 as a once-off cost.[92]
·Funding for the lease of a modified Toyota Commuter – approximately $60,424 per annum.[93]
·Funding for a reasonable level of access to suitable taxi or taxi-like services – approximately $16,500 per annum.[94]

Purchase of the Toyota Commuter

[92] Respondent’s Closing Submissions, [6(a)].

[93] Respondent’s Closing Submissions, [6(c)].

[94] Respondent’s Closing Submissions, [6(b)].

Rule 5.1(a) of the Rules

Part 5 of the Rules outlines general criteria for supports that will be funded and supports that will not be funded or provided by the NDIS. Specifically, rule 5.1(a) of the Rules stipulates that a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others (Emphasis added).

Much of the evidence at hearing focused on Mr Syddall’s ability to undertake the steps involved in using the Toyota Commuter in the proposed fashion, that is: spontaneously and without the assistance of another, including driving his wheelchair into and out of the Toyota Commuter, transferring from it into the driver’s seat, and at the conclusion of the journey from the driver seat back into the wheelchair, securing it for safety during the journey, and at the conclusion of the journey releasing it, and also driving the vehicle.

Mr Syddall gave oral evidence that he trialled driving a Toyota Commuter including loading himself into the vehicle, transferring into the driver’s seat and driving himself to the local Bunnings for two hours in 2019.[95] He has not undertaken that process in the Toyota Commuter since.[96] Mr Syddall’s evidence regarding the Toyota Commuter, which also highlighted the autonomy and independence he craves, include that in the Toyota Commuter he can enter the vehicle itself without anyone attending.[97] He ‘…can move into the vehicle, park it, and transfer into the driver’s seat’.[98] He can drive himself.[99] It has an open layout, is of the right height to enable Mr Syddall to pivot from his wheelchair into the driver’s seat, has a flat floor with no impediments for his wheelchair, and it is the most comfortable.[100]

[95] Transcript, P-20, lines 35 – 45.

[96] Transcript, P-21, line 2.

[97] Transcript, P-15, lines 19 – 21.

[98] Transcript, P-15, lines 20 – 21.

[99] Transcript, P-15, line 21.

[100] Exhibit 1, A8, [43] – [45].

In terms of the Toyota Commuter, Mr Syddall said: [101]

It will stop the need for me travelling the way that I currently do which is much more aggravating and it will allow me to drive directly into the vehicle on the wheelchair. So, it will take away the squeezing and bending and getting into the vehicle. I will be able to be seated all the way into the vehicle.
[101] Transcript, P-37, lines 20 – 23.

With respect to the transfer from his wheelchair to the driver seat, Mr Syddall said that it was no different from transferring between his bed and his wheelchair and in any case, Ms McCartin, Occupational Therapist, had suggested a swivel wheelchair.[102] As to unloading in the community, he has no concerns regarding the safety of that exercise as the hoist made it an ‘automatic process’.[103] With respect to the relationship between the trajectory of his impairments and his ongoing ability to load and unload his wheelchair and transfer between it to and from a driver’s seat, Mr Syddall said that he would be able to transfer for at least five to ten more years based on the previous five to ten years, thus getting ‘…five to ten years of freedom that he has not been able to experience for the last 20 years’.[104] He has no concerns regarding the safety of such transfers.[105]

[102] Transcript, P-37, lines 38 – 41.

[103] Transcript, P-38, lines 10 – 12.

[104] Transcript, P-37, lines 46 – 47.

[105] Transcript, P-38, lines 15 – 16.

Mr Syddall explained that driving is more comfortable for him than being a passenger[106] as he does not have any problems with driving himself.[107] If he is a passenger, he is ‘thrown around’ … ‘by unanticipated vehicle movement’ which can lead to him getting ‘migraines and vomiting’.[108] He says that it is far easier for him to travel as the driver because he is aware of what the vehicle is doing.[109] He reiterated these points in cross examination emphasising that when he is driving he is able to ‘predict what the vehicle is doing’ and is more ‘stable’.[110] He said that ‘[I]f I sit in the passenger seat, I get thrown around a fair bit, and unfortunately my neck is the first thing to get aggravated, and that’s fairly sensitive, and that can lead to days of migraines and headaches and vomiting’.[111]

[106] Transcript, P-15, lines 22 – 23.

[107] Transcript, P-15, line 21.

[108] Transcript, P-15, lines 22 – 24.

[109] Transcript, P-15, line 25.

[110] Transcript, P-19, lines 2 – 5.

[111] Transcript, P-19, lines 5 – 8.

In a statement provided by Mr Syddall prior to hearing, he detailed the pain that he experiences, saying, ‘On bad days, I’m not able to get up. I can have migraine headaches from the generated pain in my neck. This results in blurry vision and vomiting. It also affects my speech sometimes.’[112] When asked in cross examination about the context in which migraines, blurry vision and vomiting occur, and whether they arise just from moving about the house, Mr Syddall disagreed with that, saying ‘…if you spoke to a doctor and had a review on what [DISH] is, there would be a good explanation that movement is needed to aggravate the skin [sic]. It’s not something that’s going to happen if I’m just sitting there’.[113]

[112] Exhibit 1, A8, 65.

[113] Transcript, P-36, lines 39 – 43.

In his statement, Mr Syddall also explained:[114]

If it’s a particularly painful time, I might be stuck in bed for a whole week. This tends to happen when I move incorrectly. I usually try to be very careful and not move incorrectly, but sometimes I can’t help it. Hence, these particularly bad times tend to happen about once a month or so.
[114] Exhibit 1, A8, [15].

When asked during cross examination about being ‘stuck in bed for up to a whole week’, Mr Syddall said this was due to: [115]

…coping with things now that I shouldn’t need to cope with, helping with wheelchair movements and folding and what have you. That sort of thing, if I can drive straight into the back of a truck, I don’t need to do those things and then I can be focused on what I’m doing rather than spending the day getting somewhere.
[115] Transcript, P-36, lines 13 – 17.

Ms Duff’s Vehicle Modification Assessment Templates (Vehicle Assessments) states that Mr Syddall ‘has significant difficulties with mobility, balance, pain, back stiffness, transfers, endurance, strength and power’.[116] It includes that ‘[Mr Syddall] has difficulty with independence of ADL’ and ‘accessing the community due to the impact of his disability’,[117] and says:[118]

[Mr Syddall] was found to have reduced mobility and safety in transfers and positional change, due to poor balance, strength and endurance, pain and muscle power. He has extreme pain, increased dependence on others and poor mental health, deficits are due to spinal stiffness, poor balance, strength and endurance, severe pain and decreased muscle power.
[116] Exhibit 1, A4, 14; Exhibit 2, A7, 51.
[117] Exhibit 1, A4, 14; Exhibit 2, A7, 51.
[118] Exhibit 1, A4, 14; Exhibit 2, A7, 51.

Within the Vehicle Assessments, under the hearing ‘Functional Assessment’, Ms Duff also references pain generated from neck and trunk flexion.[119] These Vehicle Assessments appear to have been undertaken based on Mr Syddall being a passenger in the vehicle, not the driver. The assessment states: ‘The vehicle will be modified to enable [Mr Syddall] to be a passenger in the vehicle. He does hope to return to driving, and may be able to in the future, following further assessment, training and modification as required. Eric has no current license restrictions’ (Emphasis added).[120] Ms Duff has completed the form on the basis that the ‘Participant is the vehicle passenger only – no evidence required’ (Emphasis added).[121]
[119] Exhibit 1, A4, 15; Exhibit 2, A7, 52.
[120] Exhibit 1, A4, 16; Exhibit 2, A7, 53.
[121] Exhibit 1, A4, 16; Exhibit 2, A7, 53.
A report dated 1 August 2020[122] prepared by Ms Duff sets out the reviews of vehicles trialled by Mr Syddall stating, ‘all above listed vehicles were physically trialled by [Mr Syddall], including entry and exit in wheelchair, transfers to suitable travel chair (to increase safety)’.[123] (Emphasis added) With respect to the 2019 Toyota Commuter, it states that it was physically trialled and that Mr Syddall was:[124]
…able to enter and exit the vehicle without flexion (adequate height clearance). Able to transfer into safe vehicle seat for independence and safe travel. (Emphasis added) [Mr Syddall’s] abilities can continue to decline, and vehicle would still be suitable – able to use as long as [Mr Syddall] is able to transfer into and out of [wheelchair]. (emphasis added)
[122] Exhibit 1, A12.
[123] Exhibit 1, A12, 162.
[124] Exhibit 1, A12, 163.
The report explains that travel in the Toyota Commuter does not exacerbate Mr Syddall’s condition,[125] but that it ‘[I]s specifically suited to the needs of [Mr Syddall] related to his disability and motor/sensory impairments’[126] as ‘[I]t does not require him to bend or flex to enter and exit the vehicle, it is laid out in a way that allows for [Mr Syddall] to independently navigate and transfer into suitable seating. It allows for family travel and increased independence.’[127]
[125] Exhibit 1, A7, 55.
[126] Exhibit 1, A7. 55.
[127] Exhibit 1, A12, 166.
The report also states that Mr Syddall is no longer able to travel in the Kia because it started to ‘exacerbate [Mr Syddall’s] condition so much’.[128] There is no mention in this report, or any other report provided by Ms Duff, of Mr Syddall having been assessed in the context of him driving any vehicle, nor transferring into a driver’s seat.
[128] Exhibit 1, A12, 164.
A further report of Ms Duff dated 13 May 2021, responsive to Ms McCartin’s report,[129] reiterates Ms Duff’s conclusion that the purchase of the Toyota Commuter is ‘deemed reasonable and necessary’.[130]
[129] Exhibit 1, A22.
[130] Exhibit 1, A22, 293.
Ms McCartin’s report dated 8 February 2021 sets out an extensive list of matters she understands to be ‘the medical conditions and ongoing disability impacts’ to Mr Syddall.[131] Ms McCartin made observations regarding Mr Syddall’s physical status noting restricted range of motion in terms of flexion of neck chin to chest and to ceiling, but otherwise able to move his neck functionally within a modified comfortable range of movement.[132]
[131] Exhibit 1, R2, 332.
[132] Exhibit 1, R2, 333.
Ms McCartin notes in her report that the Kia was not available for assessment,[133] however she prepared her assessment on the basis that Mr Syddall drives. In her first report, Ms McCartin reported that there was a rented Toyota van parked outside on the first of her visits.[134] Ms McCartin states, based on a self-report provided by Mr Syddall,[135] that Mr Syddall is able to transfer from his wheelchair to either the driver’s seat or passenger seat of the Kia,[136] and that these transfers are independent.[137] It was also reported that Mr Syddall ‘is not restricted in his driving ability’.[138] With respect to Mr Syddall’s pain levels, Ms McCartin reported that he:[139]
…expressed pain when he quickly turned his head to the right as he was stopped in his front entrance. This is secondary to the spinal fusions in his neck and Mr Syddall usually avoids quick extreme movements to prevent triggering the pain. No other overt pain was observed or expressed during the transfers.
[133] Exhibit 1, R2, 334.
[134] Exhibit 1, R2, 334.
[135] Exhibit 1, R2, 334.
[136] Exhibit 1, R2, 334.
[137] Exhibit 1, R2, 334.
[138] Exhibit 1, R2, 334 – 335.
[139] Exhibit 1, R2, 334 – 335.
However, Ms McCartin’s report also stated, in response to the question ‘if [Mr Syddall] had access to a modified vehicle would he be safe to drive?’, that: [140]
…a formal driving assessment was not completed, however Mr Syddall’s self-report of being comfortable driving for extended periods suggested that he is safe to drive. There is no medical evidence on the reports provided, that Mr Syddall does not have the medical fitness to drive. Careful self-monitoring is required however, as there would be many days when Mr Syddall would not be well enough to drive. (Emphasis added)
[140] Exhibit 1, R2, 339.
The Respondent’s submissions were that there is an absence of medical or other evidence supporting that Mr Syddall can safely use the vehicle in the proposed way,[141] and further that there is evidence Mr Syddall suffers ‘flare-ups and can have episodes where he is not able to independently identify that his capacity has reduced’ which gives rise to the possibility of risk to Mr Syddall or others whilst driving the vehicle or driving his wheelchair into or out of the vehicle.[142]
[141] Respondent’s Closing Submissions, [15].
[142] Respondent’s Closing Submissions, [15].
Mr Syddall’s position is that the use of the word ‘likely’ in rule 5.1(a) of the Rules means that the Tribunal must be ‘positively satisfied of that fact on the evidence’.[143] He submits that ‘there are fatal evidentiary gaps in the Respondent’s submission’.[144] He also submits that the Respondent’s position that there is an absence of evidence ‘certifying’ Mr Syddall’s ability to safely use the vehicle is not correct as Ms Duff has observed Mr Syddall using the vehicle and neither she nor Ms McCartin raised concerns regarding his ability to use the vehicle safely.[145] Mr Syddall submitted that evidence referred to by the Respondent confirms that the support ‘might pose a risk’, not that it is ‘likely to cause harm’ (Emphasis added).[146]
[143] Applicant’s Closing Submissions, [49].
[144] Applicant’s Closing Submissions, [49].
[145] Applicant’s Closing Submissions, [51].
[146] Applicant’s Submissions dated 16 June 2022, [30] – [31].
Mr Syddall acknowledged that there was discussion in oral evidence regarding his ability to restrain the wheelchair[147] which concluded that he is currently able to bend to restrain the wheelchair in the Toyota Commuter, using Q’straints.[148] Ms Duff’s precise oral evidence was that ‘…on a good day [Mr Syddall] could definitely flex at the trunk and do it’ but that ‘…on days where his pain is exacerbated that may not be an option’.[149] There was additional oral evidence from Ms McCartin that she ‘…would assess that through a practical driver trained OT assessment’,[150] and that it is ‘…difficult to extrapolate because of the variability of Mr Syddall’s condition’.[151] Alternative means of securing the wheelchair should Mr Syddall become unable to bend were discussed, such as for example the use of an adaptive aid to pick up the restraint,[152] or the installation of the docking station,[153] but the appropriateness of those have not been assessed.
[147] Transcript, P-65, lines 20 – 47; P-67, lines 1 – 33.
[148] Transcript, P-67, lines 18 – 21.
[149] Transcript, P-67, lines 20 – 21.
[150] Transcript, P-67, lines 7 – 8.
[151] Transcript, P-67, lines 8 – 9.
[152] Transcript, P-67, lines 30 – 32.
[153] Transcript, P-67, lines 26 – 28.
The Respondent submitted that Mr Syddall currently only drives occasionally with his family and that a trial of the Toyota Commuter took place for only two hours in 2019 and is not demonstrative of the ability to undertake frequent transfers or drive over the long term.[154] Mr Syddall says he can drive all day in the Kia,[155] although I find that there is no evidence as to how often that occurs and whether it is safe or even possible in light of the effects of pain he experiences,[156] the uncontroverted report of Mr Shorten, Physiotherapist, dated 14 March 2019, that Mr Syddall cannot sit for long periods,[157] and the uncontroverted evidence of Dr Whyatt, General Practitioner, dated 27 July 2020 that he needs to change positions regularly.[158] Furthermore, that evidence is undermined by Ms Duff’s conclusion that Mr Syddall can no longer travel in the Kia because to do so exacerbates his condition.[159]
[154] Respondent’s Closing Submissions, [14].
[155] Exhibit 1, R2, 338.
[156] Exhibit 1, A8, [8].
[157] Exhibit 1, T1I, 52.
[158] Exhibit 1, A11.
[159] Exhibit 1, A12, 164.
The state of the evidence regarding this issue is inconsistent and deficient. Mr Syddall submits that there are evidentiary gaps,[160] and he is right. The evidentiary gaps emanate from both sides, notwithstanding both parties were represented by counsel. It is generally accepted that there is no onus of proof in relation to matters before the Tribunal. In saying that, Mr Syddall asserted the very serious consequences of his pain,[161] and no evidence was called in respect of pain management and its impact upon his ability to drive safely in light of that evidence.
[160] Applicant’s Closing Submissions, [49].
[161] For example, Transcript, P-17, [39] – [43].
Despite the oral evidence from Mr Syddall and the written evidence from Mr Shorten that Mr Syddall’s disability is progressive[162] and the extensive evidence regarding Mr Syddall’s pain and its impact upon him, namely that he can suffer migraines and vomiting and even speak in a fashion which is unintelligible without being aware of it,[163] Mr Syddall asserts adamantly that he can drive.[164] He is willing to take a driving test but says that no one has asked him to do so.[165] This is surprising given that the Vehicle Modification Templates, signed by Ms Duff, state that ‘if a participant will be driving you must attach the driving assessment report’.[166]
[162] Exhibit 1, T1I, 52.
[163] Exhibit 1, A8, [12] – [13].
[164] Applicant’s Closing Submissions, [28].
[165] Transcript, P-38, lines 2 – 6.
[166] See example Exhibit 1, A4, 16.
Mr Shorten and Dr Whyatt provided uncontroverted reports that speak to the significant impairment from pain that Mr Syddall experiences.[167] Mr Shorten refers to very serious scores on the Oswestry Low Back Pain Disability Questionnaire and Neck Disability Index.[168] He also states that Mr Syddall finds it very difficult to get in and out of the car and that his disability affects his ability to sit for long periods of time.[169] Dr Whyatt states that Mr Syddall must limit his activity,[170] and in order to manage his pain he must change positions regularly, use heat, and notes that Mr Syddall uses Cannabidiol (CBD) oil, which he procures privately.[171] Dr Whyatt indicated that CBD oil has been the most successful of all medication options so far, and detailed an extensive list of pain management options which had been trialled and ceased due to various side effects.[172] Neither Mr Shorten nor Dr Whyatt were called to give oral evidence, despite Mr Syddall seeing his General Practitioner five times within the six weeks prior to the hearing.[173]
[167] Exhibit 1, A11; Exhibit 1, T1I.
[168] Exhibit 1, T1I.
[169] Exhibit 1, T1I.
[170] Exhibit 1, T1I.
[171] Exhibit 1, T1I.
[172] Exhibit 1, T1I.
[173] Transcript, P-27, lines 15 – 25.
Ms Duff unequivocally states in her report, completed about a year prior to the hearing, that Mr Syddall no longer travels in the Kia because it exacerbates his condition.[174] However, it is clear from other evidence that Mr Syddall told Ms McCartin on either 18 November 2020 or 31 December 2020 that he ‘can drive all day in the Kia’[175] and that he travelled in it including to visit each of his daughters just prior to the hearing.[176] At the hearing Ms Duff had reservations about Mr Syddall restraining the wheelchair when his condition is exacerbated,[177] although expressed no concerns regarding driving or the other activities involved, despite the basis upon which her Assistive Technology Assessment appears to have occurred.
[174] Exhibit 1, A12, 164.
[175] Exhibit 1, R2, 338.
[176] Transcript, P-34, lines 43 – 44; P-35, lines 1 – 5.
[177] Transcript, P-67, lines 18 – 22.
Ms McCartin observed pain when Mr Syddall moved his head to the right.[178] She expressed extensive reservations about the process involved in assessing the Kia, including ‘…This lack of background information about the power wheelchair assessment and prescription, the lack of a detailed mobility assessment, and the absence of a driving assessment means that the functional capacities are not well described’.[179] These reservations are relevant to me in making my assessment of the ‘likely’ harm or risk involved.
[178] Exhibit 1, R2, 334.
[179] Exhibit 1, R9, 502.
Therefore, I do not accept Mr Syddall’s submission that neither Ms Duff nor Ms McCartin raised concerns regarding Mr Syddall’s ability to use the vehicle safely.[180] In any event, although Ms McCartin holds the ‘Driver Trained Occupational Diving Assessor’ qualification[181] (which Ms Duff does not),[182] neither Ms Duff nor Ms McCartin are qualified to opine on the likelihood of Mr Syddall’s driving causing harm to himself or being a risk to others given the consequences of pain that he himself describes. They are not specialists in DISH or pain management, nor on the impact of pain on someone in Mr Syddall’s position such that their opinions are definitive. It is difficult to reconcile Mr Syddall’s submission regarding his safe ability to drive without causing harm to himself or pose a risk to others given the extensive evidence adduced which details the effect that pain has on him.
[180] Applicant’s Closing Submissions, [51].
[181] Exhibit 1, R2, 354.
[182] Exhibit 1, A23, 297.
The question to be answered, pursuant to rule 5.1(a) of the Rules, is whether the provision of the support is likely to cause harm to the participant or pose a risk to others. There is no definition of ‘likely’ in the Rules. It is defined in the Macquarie Dictionary Online as ‘probably or apparently going or destined (to do, be, etc.)’.[183]
[183] Macquarie Dictionary Online (8 November 2022) (adj 1).
Taking account of the above I find that there is significant evidence, including from Mr Syddall himself, which indicates it is probable he could cause harm to himself or be a risk to others if driving, and that there is no evidence to controvert it, other than Mr Syddall’s assurances that he is safe to drive and Ms Duff’s acceptance of same. Ms McCartin overall gave a qualified acceptance of Mr Syddall’s ability to safely drive based on Mr Syddall’s own recount of his abilities but, as I have found above, neither Ms Duff nor Ms McCartin is qualified in pain management and the effects on driving safely with pain such as described by Mr Syddall.
Based on all of the evidence, I am unable to reconcile the effects of the levels of pain, and the restricted range of motion in terms of neck flexion, and the impact he states it has upon him, which I accept, with his claimed ability to drive the Toyota Commuter, load and unload, secure and release his wheelchair, drive it into and out of the Toyota Commuter, and transfer to and from his wheelchair to the driver seat, without being likely to cause harm to himself or pose a risk to others.
I consider that Mr Syddall would be likely to cause harm to himself or pose a risk to others should he experience migraines, nausea, blurry vision, or experience episodes where he is speaking and unaware that his words are unintelligible,[184] or any of the other of the effects of pain he reports, or experiences the sort of pain described by Ms McCartin when he moved his neck to the right[185] - a movement required when driving. Further, it is difficult to understand how Mr Syddall would be able to self-monitor in accordance with Ms McCartin’s report[186] if he were experiencing migraines, nausea, blurry vision or other of the effects of pain he reports.[187] Those concerns are not offset by the fact that Mr Syddall has clearly been driving, although the Respondent submits only occasionally and with his family.[188] Again, this exposes gaps in the evidence – it is not clear how much Mr Syddall has been driving and in what circumstances. The lack of clarity regarding this issue is highlighted by the dichotomy between Ms Duff’s report of 1 August 2020 which states that Mr Syddall can no longer travel in the Kia because it exacerbates his condition so much,[189] Mr Syddall’s statement to Ms McCartin contained in her report of 12 February 2021 that he ‘can drive all day in the Kia carnival’[190] and his evidence at hearing that he had recently driven the Kia to visit his daughters,[191] each of whom live about 140 kilometres from his home.[192] Of further concern is that Mr Shorten does not consider that Mr Syddall can sit for long periods[193] and Dr Whyatt considers he needs to change position regularly[194] which would not be possible when driving long distances as described by Mr Syddall in his proposed schedule[195] and as would occur if he drove to visit his daughters.
[184] Exhibit 1, A8, [12] – [13].
[185] Exhibit 1, R2, 334.
[186] Exhibit 1, R2, 339.
[187] Exhibit 1, A8, [12] – [13].
[188] Respondent’s Closing Submissions, [14(a)].
[189] Exhibit 1, A12, 162.
[190] Exhibit 1, R2, 338.
[191] Transcript, P-34, lines 43 – 44; P-35, lines 1 – 5.
[192] Exhibit 1, A8, [53].
[193] Exhibit 1, T1I.
[194] Exhibit 1, A11.
[195] Exhibit 1, A8, [47] – [55].
Accordingly, as the evidence currently stands, I find that funding the purchase of a motor vehicle and modifications is likely to cause harm to Mr Syddall or pose a risk to others and is therefore precluded by operation of rule 5.1(a) of the Rules.
As I have concluded that rule 5.1(a) of the Rules applies, it is not necessary for me to consider whether the criteria contained in subsection 34(1) of the NDIS Act are met,[196] or to have regard to the other matters prescribed in the Rules, with respect to the purchase of the Toyota Commuter as modified. Both parties made submissions regarding the value for money criteria contained in section 34(1)(c) of the NDIS Act. Notably, the Respondent proposed that taxis or taxi-like services would achieve the same outcome.[197] Mr Syddall rejected that proposal.[198] While I accept that using taxis does not achieve the same outcome in Mr Syddall’s opinion, and that his mental health would be greatly assisted by increased community participation and the ability to support and accompany his family to undertake more activities, the inconsistencies and gaps in the evidence before me regarding how much travel Mr Syddall can undertake mean that I cannot be satisfied that the purchase of a motor vehicle is value for money.
[196] WRMF and National Disability Insurance Agency [2019] AATA 1771, [8].
[197] Respondent’s Closing Submissions, [24(c)].
[198] Applicant’s Closing Submissions, [72].
Similarly, detailed submissions were made regarding paragraph 34(1)(e) of the NDIS Act[199] expectations of families, and carers and paragraph 34(1)(f) of the NDIS Act whether the support is most appropriately funded through the NDIS.[200] Curiously there were no submissions regarding paragraph 34(1)(d) of the NDIS Act as to whether the support sought would be or be likely to be effective and beneficial for Mr Syddall. While I am satisfied that increased community participation and involvement with family activities would be beneficial for Mr Syddall’s mental health, there is insufficient evidence for me to be satisfied that the purchase of a motor vehicle to be driven by Mr Syddall would be overall effective and beneficial, given my findings regarding the possibility of harm to himself or posing a risk to others.
[199] Applicant’s Closing Submissions, [91]; Respondent’s Closing Submissions, [33] – [36].
[200] Respondent’s Closing Submissions, [37] – [42].
Lease of Toyota Commuter

Mr Syddall submits that the lease of the vehicle is an alternative to its purchase and relies on the same submissions as those upon which he relied in relation to the purchase of the Toyota Commuter,[201] save that he acknowledges that the lease of the vehicle is more expensive on a yearly basis.[202] The submissions that Mr Syddall relies upon in relation to paragraph 34(1)(c) of the NDIS Act were not considered in detail above as I found that rule 5.1(a) of the Rules precludes the purchase of the Toyota Commuter.
[201] Applicant’s Closing Submissions, [139].
[202] Applicant’s Closing Submissions, [139].
The Respondent made no submissions regarding rule 5.1(a) of the Rules in relation to the leasing of the vehicle, as was advanced for the purchase of it, despite the clear intention on the part of Mr Syddall to drive the motor vehicle, as modified, whether purchased or leased. The Respondent does however submit that the Tribunal cannot be satisfied that the leasing of the motor vehicle meets the requirements in paragraphs 34(1)(c) or (e) of the NDIS Act.[203]
[203] Respondent’s Closing Submissions, [76].
The Respondent went on to make submissions as to how the taxi proposal, detailed below, met the criteria in subsection 34(1) of the NDIS Act,[204] and how leasing does not meet the criterion contained in paragraph 34(1)(c) of the NDIS Act including by reference to several of the Rules.[205]
[204] Respondent’s Closing Submissions, [74].
[205] Respondent’s Closing Submissions, [78]
I am of the view that the same considerations relating to the likelihood of harm to Mr Syddall or risk to others apply in this case whether the vehicle is purchased or leased, and therefore for the reasons set out above in relation to the purchase of the vehicle, the support claimed, of leasing a Toyota Commuter, is likely to cause harm to the participant or pose a risk to others and that therefore rule 5.1(a) of the Rules applies.
With respect to the criteria under paragraph 34(1)(c) of the NDIS Act, Mr Syddall conceded that the lease of a motor vehicle is not ‘value for money’ relative to the purchase of the motor vehicle.[206] Mr Syddall did however submit that if the Respondent’s concerns are regarding Mr Syddall’s capacity to drive the vehicle in the long term, then leasing of the vehicle was a more suitable, short term option.[207] Based on the evidence set out above, quite apart from being satisfied that leasing a motor vehicle for the purpose proposed by Mr Syddall is likely to cause harm to the participant or pose a risk to others, I am unable to be satisfied, on the current evidence, as to the frequency with which Mr Syddall could use the motor vehicle such that I could be satisfied that it is value for money. Even if the threshold regarding harm to the participant or risk to others can be overcome, it is difficult to see how the lease of a motor vehicle could be value for money compared to the purchase of a vehicle.
[206] Applicant’s Closing Submissions, [139].
[207] Applicant’s Closing Submissions, [138] – [140].
Associated Travel Costs
Mr Syddall also claims what are described as the ‘associated travel costs’ on a ‘per kilometre’ basis on the current rate of 72 cents per kilometre, based on decisions of the Tribunal (differently constituted).[208]
[208] Applicant’s Closing Submissions, [127]; Ewin and National Disability Insurance Agency [2018] AATA 4726, [320]; Castledine and National Disability Insurance Agency [2019] AATA 4240, [335].
Mr Syddall has sought funding for the travel costs of attending ongoing medical appointments, hydrotherapy and recumbent bike group activities.[209] Mr Syddall told the Tribunal that he is not currently attending hydrotherapy as there are no suitable pools available.[210] Accordingly, the Respondent submits that this aspect of the request may be disregarded.[211]
[209] Applicant’s Statement of Facts, Issues and Contentions filed 21 June 2021, [144].
[210] Transcript page 33 lines
[211] Respondent’s Closing Submissions, [57].
The Respondent refers to McLaughlin and National Disability Insurance Agency [2021] AATA 496 (McLaughlin) where Deputy President Humphreys considered rules 5.1 and 5.2 of the Rules together.[212] The Respondent submits that the approach of Deputy President Humphreys in McLaughlin is the correct approach.[213] In that case, it was found that the cost of operating a motor vehicle would have been incurred by the Applicant, irrespective of her disability.[214] However, the Deputy President also found that rule 5.2 of the Rules provides a “carve out” for additional costs incurred solely and directly as a result of their disability support needs.[215] The Respondent submits, in light of that, that those are the costs that should be funded in relation to Mr Syddall: that is funding only in relation to any additional registration, insurance, maintenance and fuel costs above and beyond what would be incurred in operating an ordinary motor vehicle.[216] The Respondent submits that such an approach was consistent with the Respondent’s Guidelines[217] which provide at Part 12:
Transport should only be funded where it has been determined to be reasonable and necessary, where it is an additional cost incurred solely and directly as a result of a participant’s disability support needs and, where ancillary to another funded support, it is a cost which the participant would not otherwise incur.
[212] McLaughlin, [123] – [125]; Respondent’s Closing Submissions, [60] – [61].
[213] Respondent’s Closing Submissions, [62].
[214] McLaughlin, [112].
[215] McLaughlin, [125].
[216] Respondent’s Closing Submissions, [64].
[217] Respondent’s Closing Submissions, [62].
Mr Syddall accepts the Respondent’s approach to the law generally but says that the Respondent mischaracterises the Toyota Commuter as the family vehicle.[218] Mr Syddall says that the Kia is the family vehicle and it, and the associated costs of running it, are the day to day running costs.[219] He submits that the Toyota Commuter is a specific assistive device needed by him to mobilise in the community independently.[220] Therefore, it follows that the costs of running the vehicle are integral to running that device. In the alternative, Mr Syddall submits that all of the costs would be caught by the “carve out” on the basis that the costs are only incurred as a result of the use of the Toyota.[221]
[218] Applicant’s Closing Submissions, [129].
[219] Applicant’s Closing Submissions, [130].
[220] Applicant’s Closing Submissions, [131].
[221] Applicant’s Closing Submissions, [132].
Given that I am not satisfied that the evidence as it currently stands supports the purchase or lease of a motor vehicle, the question of associated travel costs is rendered nugatory – if no vehicle is procured there will be no associated travel costs.
Purchase of a trailer
Mr Syddall seeks funding for a trailer to assist him in transporting his recumbent tricycle, which was recently funded by the Respondent. He wishes to be able to use the recumbent tricycle beyond where he can just ride it near his home.[222] He would like to take it to a range of areas including the North Shore of Noosa, Bundaberg, Gympie, Brisbane and Landsborough.[223] He would also like to transport his pedal kayak and the pedal kayak owned by his son.[224] There is apparently insufficient room for Mr Syddall to transport the equipment that he wishes as well as his wheelchair in the Toyota Commuter and there is no way of fitting it into the Kia.[225]
[222] Applicant’s Closing Submissions, [142].
[223] Applicant’s Closing Submissions, [143].
[224] Applicant’s Closing Submissions, [143].
[225] Applicant’s Closing Submissions, [144]; Transcript, P-34, lines 1 – 7.
Mr Syddall submitted that the funding for the tricycle itself satisfied all of the criteria within section 34 of the NDIS Act and was therefore a reasonable and necessary support, which had already been conceded by the Respondent.[226] Mr Syddall submitted that, in circumstances where the tricycle has been considered reasonable and necessary, that it was also reasonable and necessary for a trailer to be funded for the purpose of transporting the tricycle and that the cost of the trailer was ancillary to that of the tricycle.[227]
[226] Applicant’s Statement of Facts, Issues and Contentions, [140] – [141].
[227] Applicant’s Statement of Facts, Issues and Contentions, [142].
The Respondent submits that the purchase of the trailer is not reasonable and necessary as the evidence does not establish that the criteria within subsection 34(1) of the NDIS Act.[228] In particular, the Respondent submitted that:
·it was not clear that the trailer will assist Mr Syddall to pursue his goals, objectives and aspirations or facilitate his social or economic participation in any substantial way beyond that provided by the tricycle itself;[229]
·the cost of the trailer (about $15,000) does not represent value for money in circumstances where the tricycle will provide substantial benefits without the need for the trailer;[230]
·with reference to the report of Ms McCartin, it is unlikely that Mr Syddall could safely use a trailer to transport the tricycle without assistance from another person and that it is therefore unclear that the trailer will be effective and beneficial;[231] and
·the funding for the trailer does not take into account what is reasonable to expect of families, carers, informal networks and the community to provide as transport of recreational equipment such as the tricycle is a reasonable expense to expect families to meet.[232]
[228] Respondent’s Statement of Facts, Issues and Contentions, [41].
[229] Respondent’s Statement of Facts, Issues and Contentions, [41].
[230] Respondent’s Statement of Facts, Issues and Contentions, [41].
[231] Respondent’s Statement of Facts, Issues and Contentions, [41].
[232] Respondent’s Statement of Facts, Issues and Contentions, [41].
Following the hearing the Respondent further submitted that the purchase of the trailer is not related to Mr Syddall’s disability and is therefore precluded by rule 5.1(b) of the Rules.[233] The Respondent noted that Mr Syddall would require a trailer to convey his recreational equipment regardless of his disability.[234]
[233] Respondent’s Closing Submissions, [83].
[234] Respondent’s Closing Submissions, [84].
In the alternative, the Respondent submitted that the evidence fails to establish that the support meets the criteria within subsection 34(1) of the NDIS Act similar to those outlined above at paragraph 99 above.[235]
[235] Respondent’s Closing Submissions, [86] – [90].
The request for a trailer to be purchased for the transport of Mr Syddall’s recumbent tricycle and pedal boat is predicated upon the Tribunal finding that the purchase or lease of the Toyota Commuter as modified is a reasonable and necessary support in accordance with subsection 34(1) of the NDIS Act. Mr Syddall did not appear to consider that the tailer would be used with the Kia, which is evidenced when he was asked whether he can use the trailer with the Kia and he stated:[236]
I’m not sure of the wiring and stuff that’s on there. We’d probably have to do something about that. At this stage because I can’t put the wheelchair in the Kia that hasn’t been something that we’ve had the opportunity to explore. So I don’t know.
[236] Transcript, P-22, lines 4 – 8.
Furthermore, when Ms McCartin was asked about the feasibility of the trailer, she said, ‘I am unable to say that the trailer is reasonable and necessary based on the fact that I’ve not been able to undertake any assessment of the Toyota Commuter’[237] and when asked about the feasibility of the trailer in relation to the Kia, she said, ‘So, Mr Syddall’s existing vehicle, he has advised me that he transported the folded ICE bicycle in the back of that. However, his current vehicle has no way of loading it.’[238]
[237] Transcript, P-56, lines 38 – 40.
[238] Transcript, P-57, lines 4 – 6.
As I have found that the purchase or lease of the Toyota Commuter as proposed is precluded by rule 5.1(a) of the Rules it would appear that the evidence as currently framed does not support a finding that the purchase of the trailer would be value for money or effective and beneficial, as required by paragraphs 34(1)(c) or (d) of the NDIS Act, for the straightforward reason that there would be no way for Mr Syddall to use it.
The Taxi Proposal
The need for Mr Syddall to be able to engage in increased community participation and be able to support his family and engage in family outings was acknowledged by the Respondent.[239] I would agree with that that submission. As discussed in paragraph 47 above, I consider the support sought by Mr Syddall to be ‘transport’.
[239] Respondent’s Closing Submissions, [74].
The ‘Taxi Proposal’ was made in the Respondent’s Closing Submissions, in the context of an argument regarding value for money.[240] It includes:[241]
[240] Respondent’s Closing Submissions, [71].
[241] Respondent’s Closing Submissions, [71] – [73].
(a)Transport to his local GP once per fortnight at 9km per round trip (as requested by the Applicant). That equates to an average of 234km per year (ie, 9km x 26 fortnights).
(b)Transport once per quarter to his specialist, Dr Finch, about 63km away (round trip of 126km).48 That is a reasonable allowance, which equates to an average of 504km per year (ie, 126km x 4 quarters). Although the Applicant has suggested monthly attendances on Dr Finch, his evidence indicates that his attendances have been much less frequent (including when he had access to a vehicle) and are dependent on Dr Finch’s availability. It should also be noted that there is no medical evidence identifying a need for monthly attendances.
(c)Transport once per quarter to the Royal Brisbane and Women’s Hospital about 153km away (round trip of 303km). That is a reasonable allowance, which equates to an average of 1,212km per year (ie, 303km x 4 quarters). Although the Applicant has suggested monthly attendances at the Hospital, his evidence is that there was a period he was going there each month but that it is now only on referral from his GP for review. There is no medical evidence indicating a requirement for monthly attendances.
(d)Transport once per month to Queensland Diagnostic Imaging at Caloundra about 72km away (round trip of 144km). That is a reasonable allowance, which equates to an average of 1,728km per year (ie, 144km x 12 months). Although the Applicant has suggested fortnightly attendances, there is no medical evidence to support that frequency and he has not in fact been attending that often.
(e)Transport for recreational and other activities at 80km per fortnight, for a total of 2,080km per year (ie, 80km x 26 fortnights). That is a reasonable allowance to facilitate the Applicant’s social and community engagement. Whilst it is less than what the Applicant has proposed, it has proper regard to the reality of the Applicant’s situation (including the limitations on his ability to travel described in paras 5 and 14 above).
(f)Transport to either Brisbane or Tablelands once per month for visits to his daughters, at an approximate round trip of 300km. That is a reasonable allowance to facilitate the Applicant’s family visits and comes to a total of 3,600km per year (ie, 300km x 12 months). Again, whilst it is less than what the Applicant has proposed, it has proper regard to the reality of the Applicant’s situation (including that his preference is to stay 1 or 2 nights for each visit).
72. In total, the Taxi Proposal amounts to transport support of 9,358km per year. It is submitted that this represents a realistic level of travel having regard to the Applicant’s particular circumstances, including both his disability needs and his disability limitations (especially the likelihood of regular periods where the Applicant will be unable to travel as a result of flare-ups or exacerbation). It may also be noted, for context, that the Australian Bureau of Statistics publishes that in 2019/2020, Australian passenger vehicles travelled an average of about 11,100km per year.
73. The Taxi Proposal would have an approximate cost of $16,412.60 per year (being $15,908.60 based on 9,358km x $1.70 per km, plus $504 for booking fees based on an approximate 168 individual trips and $3 per trip).
[Footnotes omitted]
The Respondent considers that the supports contemplated in the Taxi Proposal should be approved on the basis that they will give Mr Syddall a high level of independence by travelling in a taxi while seated in his powered wheelchair.[242] The Respondent submitted that a taxi service would obviate the need for reliance on a support worker and while advance booking involves some level of inconvenience, it is not unreasonable and comparable to the inconvenience faced by many users of transport services.[243] In the Respondent’s view, taxis or the like are more convenient than public transport and afford greater independence than relying on Mr Syddall’s wife to lift the wheelchair into the Kia.[244]
[242] Respondent’s Closing Submissions, [74(a)].
[243] Respondent’s Closing Submissions, [69].
[244] Respondent’s Closing Submissions, [24(c)].
Mr Syddall rejects the Respondent’s approach on several bases. They include, first and most importantly, that using a taxi would compromise his independence, in that he wishes to be able to use a motor vehicle spontaneously and without needing to rely on others.[245] Secondly, Mr Syddall’s experience with taxis include that taxi drivers have refused to load his wheelchair, which means that he needs to be accompanied by a carer, and that his height exceeds the maximum height some taxi companies will accept for wheelchair users.[246] Thirdly, he says that taxis are a pointless and expensive solution,[247] as he is unable to access taxis without a carer to unload his wheelchair and would therefore require funding for both the transport and a carer.[248]
[245] Applicant’s Closing Submissions, [137].
[246] Transcript, P-39, lines 23 – 26.
[247] Transcript, P-12, lines 37 – 38.
[248] Transcript, P-39, lines 12 – 15.
Ms Duff identified concerns regarding the need for Mr Syddall to pay for taxis in advance of being reimbursed which could cause him financial difficulties, and the practicalities of using a taxi for longer journeys such as to visit his daughters.[249] Both Ms Duff and Ms McCartin agreed that the costs of taxis were ‘a concern’ and pointed out to the Tribunal that there is a booking lead time with taxis.[250]
[249] Transcript, P-59, lines 38 – 43.
[250] Transcript, P-59, lines 41- 42; Transcript, P-61, lines 6 – 8.
Ms McCartin was confident that it was possible for Mr Syddall to be transported in a taxi in his secured wheelchair,[251] and that Suncoast Cabs have 28 high roof vans of a fleet of 109 that could transport Mr Syddall in his Permobil wheelchair.[252] Ms McCartin noted that generally people who use Permobil wheelchairs are transported restrained in them.[253] Ms McCartin also noted that Mr Syddall told her about difficulties he had getting up and down the stairs, and in and out of some vehicles, depending upon their model and age, and with the further variability of his own capacity.[254]
[251] Transcript, P-60, lines 23 – 24.
[252] Transcript, P-61, lines 9 – 10.
[253] Transcript, P-63, lines 30 – 31.
[254] Transcript, P-63, lines 31 – 34.
However, both Ms Duff and Ms McCartin identified that it would not be suitable for Mr Syddall to be transported in that way for longer trips as ‘…jarring potholes and cumulative impact of vibration on his body over long distances is detrimental’.[255] They both considered that the provision of the Toyota Commuter provided longevity of use and the potential for further modifications should they be needed.[256] Specifically, Ms McCartin stated that it was ‘the most feasible long-term option, given his deteriorating condition…’[257] and foreshadowed further modifications which could be made should Mr Syddall become unable to transfer or use his feet.[258]
[255] Transcript, P-60, lines 35 – 37.
[256] Transcript, P-65, lines 24 – 29.
[257] Transcript, P-65, lines 21 – 22.
[258] Transcript, P-65, lines 22 – 29.

The Respondent dealt with the reservations expressed by Ms Duff and Ms McCartin as to the capacity of Mr Syddall to travel long distances restrained in his wheelchair by submitting that most of the travel undertaken by Mr Syddall is local and therefore will be able to be undertaken safely by travelling restrained in his wheelchair.[259] With respect to the long trips to Brisbane for medical appointments, the Respondent proposes that they may be managed by Mr Syddall’s wife accompanying him (which it considers she would anyway) or the use of support workers funded from Mr Syddall’s “core supports” budget, which it also submits Mr Syddall has done in the past.[260] The Respondent submitted that the same approach could be adopted for Mr Syddall’s trip to visit his daughters ‘which are relatively limited’ and during which he would ‘obviously be accompanied by his family'. [261]
[259] Respondent’s Closing Submissions, [70(a)].
[260] Respondent’s Closing Submissions, [70(b)].
[261] Respondent’s Closing Submissions, [70(c)].
Mr Syddall rejects the Respondent’s submissions in the context of rule 3.1 of the Rules, stating that the use of taxi-like services was not a ‘comparable support’ and that they would not achieve the same outcome.[262] Mr Syddall submitted that the word ‘same’ should be given its ordinary meaning, and ‘similar’ is not ‘the same’.[263] He submitted that the ‘support’ claimed is not ‘transport’ generally, rather a vehicle that he can access and operate generally. [264]
[262] Applicant’s Closing Submissions, [65].
[263] Applicant’s Closing Submissions, [65].
[264] Applicant’s Closing Submissions, [71].
Mr Syddall emphasised his goal of independence and submits that relying on a taxi service for shorter trips including needing to book it in advance, and his wife or family for longer trips, undermines such independence.[265] Mr Syddall presses that the Taxi Proposal, based on the Respondent’s assessment of what is a reasonable amount of travel, goes to the very heart of the matter, namely that it does not take account of Mr Syddall’s desire for independence in terms of autonomy and spontaneity.[266]
[265] Applicant’s Closing Submissions, [75].
[266] Applicant’s Closing Submissions, [137].
Mr Syddall has consistently raised with the Respondent his desire for independence and to engage in the community. He is adamant that independence means the ability to be able to come and go spontaneously, be autonomous and not need to rely on another, such as his wife or a support worker, or need to plan ahead by having to book a wheelchair accessible taxi or like vehicle.[267]
[267] Transcript, P-15, lines 17 – 27.
Mr Syddall submitted that as a result of his situation, he has ‘basically been housebound for nearly 20 years’ and that he is a ‘prisoner in his own house’,[268] however he acknowledged under cross examination that he had used a support worker to access the community for social interaction, including attending ‘social activities with the recumbent trike people’.[269] He travelled in the support worker’s vehicle, and when asked whether he took a wheelchair with him on that occasion, he responded: ‘I didn’t get out of the vehicle on that occasion, no’.[270] Mr Syddall said that he did not often use support workers to access social or community activities as he doesn’t ‘…have the ability to be able to take the wheelchair unless I’ve got movement out of the vehicle and around wherever I‘m going, there’s not much point sitting in the car, watching’.[271] He emphasised that undertaking outings with a support worker or in a taxi did not amount to independence as he was still reliant on someone else.[272] That included being accompanied by a support worker to load and unload his wheelchair, although Mr Syddall reluctantly acknowledged that it was preferable to being reliant on his wife.[273]
[268] Transcript, P-36, lines 9 – 10; Transcript, P-37, lines 33 – 34.
[269] Transcript, P-25, lines 5 – 6.
[270] Transcript, P-24, line 46; P-25, lines 13 – 14.
[271] Transcript, P-25, lines 15 – 19.
[272] Transcript, P-38, lines 25 – 27.
[273] Transcript, P-38, lines 29 – 30.
Mr Syddall submits that there are a number of practical barriers to the use of

taxi-like services that were raised in his evidence.[274] He says that booking in advance is more than an inconvenience,[275] as the NDIS system requires the participant to pay for the service in advance, lodge an invoice, and wait first for an approval process (which takes about two days), and then, after a further one to two days, the payment is received.[276] Mr Syddall would find this difficult as he is in receipt of the disability support pension, and his wife is in receipt of the carer’s pension.[277]
[274] Applicant’s Closing Submissions, [73].
[275] Applicant’s Closing Submissions, [75].
[276] Transcript, P-40, lines 19 – 47; P-41, lines 1 – 22.
[277] Transcript, P-12, lines 40 – 46.
Mr Syddall also indicated that he finds taxis uncomfortable – they jolt and throw him around, and often have insufficient head height to enable him to enter in his Permobil wheelchair, meaning that he can only use them when he is accompanied by a carer.[278] According to Mr Syddall, using services where the driver loaded and unloaded his powered wheelchair were unsuitable because they required him to work in with the schedules of those services.[279]
[278] Exhibit 1, A8, [24].
[279] Transcript, P-38, line 47.
I accept that the Taxi Proposal would increase Mr Syddall’s independence, remove his reliance on his wife or a support worker and enable him to access the community, however, Mr Syddall’s point is that the Taxi Proposal put forward by the Respondent is not the same – it is similar. ‘Same’ is defined as ‘being one or identical, though having different names, aspects, etc’.[280] The proposals are not the same – they do not provide the same levels of spontaneity and autonomy, and Mr Syddall will not be able to access the community alone as he will need to be accompanied on every journey by a driver as well as the need for planning by pre-booking. I note the Respondent’s submission that pre-booking is not unreasonable and comparable to the inconvenience faced by many users of transport services and should not discount the Taxi Proposal on that basis alone. [281]
[280] Macquarie Dictionary Online (8 November 2022)
[281] Respondent’s Closing Submissions, [69].
The Taxi Proposal is predicated on Mr Syddall sitting in his wheelchair in the taxi which the Respondent characterises as safe,[282] but according to Mr Syddall and as accepted by Ms Duff and Ms McCartin that is uncomfortable, particularly for longer trips.[283] For longer trips the Taxi Proposal fell back on reliance upon Mr Syddall’s wife.[284] Further, the Taxi Proposal generally did not take account of Ms McCartin’s evidence of the difficulty that Mr Syddall told her about regarding getting up and down the stairs of, and in and out of some vehicles, depending upon their model and age, and with the further variability of his own capacity. In all, I accept that the Taxi Proposal will not achieve the same outcome and, on the evidence, will not assist Mr Syddall to pursue his goals in the same way that the provision of the Toyota Commuter will.
[282] Respondent’s Closing Submissions, [70(a)].
[283] Exhibit 1, A8, [24]; Transcript P-60, lines 28 – 37.
[284] Respondent’s Closing Submissions, [70(b)].
I accept that Mr Syddall wishes to travel spontaneously and independently by driving himself. However, as set out above I cannot be satisfied on the evidence before me that to do so is possible without likely harm to him or risk to others. Because it is critical for Mr Syddall to achieve greater community participation and increased independence, I consider the Taxi Proposal to be reasonable and necessary. As such, supports with respect to taxis should be included in Mr Syddall’s plan at a level that allows for Mr Syddall to attend medical appointments with his General Practitioner and other treating professionals, as evidenced by the medical professions, and engage with community participation as set out in his schedule of activities specified at paragraph 23 above, for a period of six months, in order to establish an appropriate level of usage of such supports. During that period, Mr Syddall may choose to explore the evidence he requires to support the position he advanced in this matter, and to reventilate the issues with different evidence if he wishes. At the conclusion of the 6-month trial, the appropriate level of funding for the provision of taxi services may be revisited for a more accurate and final determination to be made that is consistent with Mr Syddall’s transport needs.
Accordingly, I am satisfied, as is the Respondent, that Mr Syddall requires additional support to access the community and engage in the community. However, I am not prepared to direct that Mr Syddall’s SOPS be substituted with an arbitrary amount of funding for taxis developed without reference to him when the scheme expressly requires that the SOPS be developed with the participant as is required by subsection 33(2) of the NDIS Act. This reluctance is amplified by the paucity and inconsistency of evidence regarding the trips Mr Syddall wants to, and in fact, takes, including for example to see Dr Finch.
Decision
Pursuant to subparagraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that Respondent approve a new statement of participant supports for the Applicant, containing the following:
(a)funding for the Applicant to undertake travel to his General Practitioner as necessary, to his other medical appointments (consistent with their written advice as to its necessity and frequency), to engage in recreational and other activities in accordance with paragraphs 52 – 54 of the Applicant’s Statement dated 14 May 2020 and with an additional allowance of funding to undertake various trips in accordance with paragraph 55 of the Applicant’s Statement dated 14 May 2020; and
(b)specify the review date by the Respondent must review the plan to be six (6) months after the day on which the new statement of participant supports is approved.
I observe that this approach allows for the viability of this level of travel to be tested and considered with Mr Syddall as is required by subsection 33(2) of the NDIS Act.

I certify that the preceding 124
(one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of the Hon Justice F Meagher.

……………[SGD]……………..
Associate
Dated: 8 November 2022

Date of Hearing
2 and 3 August 2021 and 19 May 2022

Counsel for the Applicant: Mr P Nolan

Representative for the Applicant: Legal Aid Queensland

Counsel for the Respondent: Mr M Black

EXHIBIT REGISTER

Exh. # Doc ID Description of Exhibit Date of Document

1 Tribunal Book filed on 29 July 2021

Applicant’s Material

A1 Recumbent Company – Quotation 18091900 26.06.2019

A2 Recumbent Company – Quotation 19102600 26.10.2019

A3 Recumbent Company – Quotation 19112600 26.10.2019

A4 Vehicle Modification Assessment Template Tamara Duff - Occupational Therapist 09.02.2020

A5 General Assistive Technology Assessment Template Tamara Duff – Occupational Therapist 13.02.2020

A6 General Assistive Technology Assessment Template Tamara Duff – Occupational Therapist 13.02.2020

A7 Vehicle Modification Assessment Template Tamara Duff – Occupational Therapist 14.04.2020

A8 Statement of Eric Syddall 14.05.2020

A9 Instructing Email to Ms Tamara Duff, Occupational Therapist 01.07.2020

A10 Instructing Letter to Dr Arron Whyatt 07.07.2020

A11 Report of Dr Arron Whyatt, General Practitioner 27.07.2020

A12 Report of Tamara Duff, Occupational Therapist 01.08.2020

A13 Instructing Email to Ms Tamara Duff, Occupational Therapist 07.09.2020

A14 Chair Share – Quotation Q-SUN449 24.09.2020

A15 NDIS Plan – Eric Syddall 28.09.2020

A16 Report of Tamara Duff, Occupational Therapist 30.09.2020

A17 Applicant’s Statement of Facts Issues and Contentions -

A18 Hearing Certificate Applicant -

A19 Amended Hearing Certificate Applicant -

A20 Instructing Email to Tamara Duff, Occupational Therapist 15.04.2021

A21 Instructing Material to Tamara Duff, Occupational Therapist 15.04.2021

A22 Report of Tamara Duff, Occupational Therapist 13.05.2021

A23 Resume - Tamara Duff, Occupational Therapist -

A24 Applicant’s Amended Statement of Facts Issues and Contentions -

Respondent’s Material

R1 Just Spas and Outdoors Invoice-1912 09.02.2021

R2 Report of Jacinta McCartin, Occupational Therapist 12.02.2021

R3 Respondent’s Statement of Issues Facts and Contentions 10.03.2021

R4 Queensland Government Fact Sheet
Carriage of Wheeled Mobility Devices in Accessible Taxis -

R5 Spa Riser and Step Guard Brochure -

R6 Just Spas and Outdoors Swim Spa Catalogue -

R7 Queensland Government Brochure
Wheelchairs and Mobility Scooters – A Guide to Safe Travel in Queensland -

R8 Aquatic Physiotherapy Guidelines
Responsibilities of the Physiotherapist -

R9 Report of Jacinta McCartin, Occupational Therapist 01.07.2021

R10 Queensland Government Fact Sheet
Home Improvements, Homes and Housing 15.07.2021

R11 Queensland Building and Construction Commission
Pools and Safety – Homeowner’s Guide -

R12 Bruno Independent Living Aids Brochure Chariot -

R13 Aquatic Physiotherapy Group
Guidelines for Aquatic Physiotherapists Working in and/or Managing Hydrotherapy Pools (Second Edition) -

R14 Respondent’s Amended Statement of Issues Facts and Contentions 22.07.2021

Other Relevant Material

O1 Mater Hospital Records -

O2 Noosa Clinic Records -

O3 Physio Noosa Records -

O4 NDIS Operational Guidelines Including Specific Types of
Supports in Plans Operational Guideline – Vehicle Modifications[285] -

O5 NDIS Operational Guidelines Including Specific Types of
Supports in Plans Operational Guide - Transport[286] -

Section 37 – Tribunal Documents

T1 Application for Review of Decision and Attachments 07.11.2019

T2 Access Request – Supporting Evidence Form completed by Dr Arron Whyatt 01.08.2018

T3 Quote – Recumbent Company 19.09.2018

T4 Various Quotes – Liberty Health Care 15.01.2019

T5 Various Quotes – Out and About Healthcare 15.01.2019

T6 Tax Invoice - Ms Duff 11.03.2019

T7 Quote – Integrity Car Sales and Rentals 17.05.2019

T8 NDIS Plan 26.06.2019

T9 Email from Applicant to Respondent with Attachments 27.08.2019

T10 Quote – Austech Medical 19.11.2019

T11 Letter – Respondent to Applicant acknowledging Receipt of
Request for an Internal Review 26.11.2019

T12 Request for Review of Reviewable Decision -

T13 Vehicle Information – Integrity Car Sales and Rentals -

T14 Extractions of Interaction Records Various

T15 NDIS Plan 13.06.2019

T16 NDIS Plan – Internal Review Decision 15.08.2019

T17 National Disability Insurance Scheme Act 2013, s33 - s35 -

T18 National Disability Insurance Scheme (Supports for
Participants) Rules 2013 -

T19 Extract from Operational Guidelines - Planning[287] -
[285] Current as of 3 October 2019.
[286] Current as of 9 March 2021.
[287] Current as of 18 July 2019.

Date of Hearing	2 and 3 August 2021 and 19 May 2022
Counsel for the Applicant:	Mr P Nolan
Representative for the Applicant:	Legal Aid Queensland
Counsel for the Respondent:	Mr M Black

Exh. #	Doc ID	Description of Exhibit	Date of Document
1	Tribunal Book filed on 29 July 2021
Applicant’s Material
A1	Recumbent Company – Quotation 18091900	26.06.2019
A2	Recumbent Company – Quotation 19102600	26.10.2019
A3	Recumbent Company – Quotation 19112600	26.10.2019
A4	Vehicle Modification Assessment Template Tamara Duff - Occupational Therapist	09.02.2020
A5	General Assistive Technology Assessment Template Tamara Duff – Occupational Therapist	13.02.2020
A6	General Assistive Technology Assessment Template Tamara Duff – Occupational Therapist	13.02.2020
A7	Vehicle Modification Assessment Template Tamara Duff – Occupational Therapist	14.04.2020
A8	Statement of Eric Syddall	14.05.2020
A9	Instructing Email to Ms Tamara Duff, Occupational Therapist	01.07.2020
A10	Instructing Letter to Dr Arron Whyatt	07.07.2020
A11	Report of Dr Arron Whyatt, General Practitioner	27.07.2020
A12	Report of Tamara Duff, Occupational Therapist	01.08.2020
A13	Instructing Email to Ms Tamara Duff, Occupational Therapist	07.09.2020
A14	Chair Share – Quotation Q-SUN449	24.09.2020
A15	NDIS Plan – Eric Syddall	28.09.2020
A16	Report of Tamara Duff, Occupational Therapist	30.09.2020
A17	Applicant’s Statement of Facts Issues and Contentions	-
A18	Hearing Certificate Applicant	-
A19	Amended Hearing Certificate Applicant	-
A20	Instructing Email to Tamara Duff, Occupational Therapist	15.04.2021
A21	Instructing Material to Tamara Duff, Occupational Therapist	15.04.2021
A22	Report of Tamara Duff, Occupational Therapist	13.05.2021
A23	Resume - Tamara Duff, Occupational Therapist	-
A24	Applicant’s Amended Statement of Facts Issues and Contentions	-
Respondent’s Material
R1	Just Spas and Outdoors Invoice-1912	09.02.2021
R2	Report of Jacinta McCartin, Occupational Therapist	12.02.2021
R3	Respondent’s Statement of Issues Facts and Contentions	10.03.2021
R4	Queensland Government Fact Sheet Carriage of Wheeled Mobility Devices in Accessible Taxis	-
R5	Spa Riser and Step Guard Brochure	-
R6	Just Spas and Outdoors Swim Spa Catalogue	-
R7	Queensland Government Brochure Wheelchairs and Mobility Scooters – A Guide to Safe Travel in Queensland	-
R8	Aquatic Physiotherapy Guidelines Responsibilities of the Physiotherapist	-
R9	Report of Jacinta McCartin, Occupational Therapist	01.07.2021
R10	Queensland Government Fact Sheet Home Improvements, Homes and Housing	15.07.2021
R11	Queensland Building and Construction Commission Pools and Safety – Homeowner’s Guide	-
R12	Bruno Independent Living Aids Brochure Chariot	-
R13	Aquatic Physiotherapy Group Guidelines for Aquatic Physiotherapists Working in and/or Managing Hydrotherapy Pools (Second Edition)	-
R14	Respondent’s Amended Statement of Issues Facts and Contentions	22.07.2021
Other Relevant Material
O1	Mater Hospital Records	-
O2	Noosa Clinic Records	-
O3	Physio Noosa Records	-
O4	NDIS Operational Guidelines Including Specific Types of Supports in Plans Operational Guideline – Vehicle Modifications[285]	-
O5	NDIS Operational Guidelines Including Specific Types of Supports in Plans Operational Guide - Transport[286]	-
Section 37 – Tribunal Documents
T1	Application for Review of Decision and Attachments	07.11.2019
T2	Access Request – Supporting Evidence Form completed by Dr Arron Whyatt	01.08.2018
T3	Quote – Recumbent Company	19.09.2018
T4	Various Quotes – Liberty Health Care	15.01.2019
T5	Various Quotes – Out and About Healthcare	15.01.2019
T6	Tax Invoice - Ms Duff	11.03.2019
T7	Quote – Integrity Car Sales and Rentals	17.05.2019
T8	NDIS Plan	26.06.2019
T9	Email from Applicant to Respondent with Attachments	27.08.2019
T10	Quote – Austech Medical	19.11.2019
T11	Letter – Respondent to Applicant acknowledging Receipt of Request for an Internal Review	26.11.2019
T12	Request for Review of Reviewable Decision	-
T13	Vehicle Information – Integrity Car Sales and Rentals	-
T14	Extractions of Interaction Records	Various
T15	NDIS Plan	13.06.2019
T16	NDIS Plan – Internal Review Decision	15.08.2019
T17	National Disability Insurance Scheme Act 2013, s33 - s35	-
T18	National Disability Insurance Scheme (Supports for Participants) Rules 2013	-
T19	Extract from Operational Guidelines - Planning[287]	-