Taxis and Transport; whether necessary and reasonable supports need to be fully funded

Key points

• Current case law suggests that if a support is reasonable and necessary, then the NDIA must fully fund it.
• It is hard to see how the NDIA's transport policy could be consistent with this, given that it puts people into 3 different tiers of funding. Fully funding transport supports might cost more than the upper tier allows. But we will have to wait for a case that challenges the policy directly. 

Facts

Liam McGarrigle is a young man with autism spectrum disorder who lives outside of Geelong. He is a participant in the NDIA. He attended a group program and a disability enterprise in Geelong. He needed a taxi to take him there. In 2014-2015 the NDIA fully funded the cost of transport, but it said that this was only a temporary measure.

In 2015-2016 the NDIA offered to provide only about 50% of the cost of transport (on internal review the NDIA increased this to 75%). Liam sought review of this decision in the AAT.

Decisions

The AAT

It was agreed that the transport costs was a support that met the requirements in s 34(1) of the NDIS Act [opens in new page]. The question for the Tribunal was whether a support that satisfied s 34(1) could be partly funded.

At [36] the Tribunal decided [opens in new page] that a support did not necessarily need to be fully funded. It referred to the obligation in the NDIS Act to consider the financial stability of the NDIS in approving each individual plan.

The Tribunal also considered NDIA policy on transport. Briefly, that policy provides for three tiers of funding. The lowest tier was for people who are not studying, working part time or attending day programs, but who wanted to increase their community access. The middle tier was for people who are working or studying part time or attending day programs. The highest tier was for people who were currently working, looking for work or studying more than 15 hours per week. The Tribunal affirmed the decision.

Liam appealed to the Federal Court of Australia. 

The Federal Court

Justice Mortimer of the FCA decided at [94] [opens in new page]:

Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.

At [95] Mortimer J made clear that once a support is through the gateway of 'reasonable and necessary', then the word 'will' is an imperative word that shows the intention of the NDIS to fully fund reasonable and necessary supports. 

 At [119] Mortimer J left open the question of whether the NDIA's transport policy is unlawful, because it limits the discretion of the Tribunal in deciding how much funding to provide a transport support.

Justice Mortimer allowed Liam's appeal and sent the matter back to the Tribunal. The NDIA appealed the decision to the Full Court of the Federal Court of Australia. 

The Full Court of the Federal Court of Australia

By this point, the NDIA and Liam agreed that the Tribunal's decision had to be set aside. The question for the Full Court was what to make of Mortimer J's decision at [95]. The Full Court stated at [3] [opens in new page]:

We do not read her Honour as establishing a two stage process to determine whether objectively a support was reasonable and necessary and secondly and consequentially that it must be fully funded. Rather, we consider that her Honour was addressing the particular way in which the argument was formulated before her.

At [5] the Full Court stated:

To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded. We express no view on this issue. Its resolution will turn on the Tribunal’s assessment of the evidence and materials before it.

Discussion

The issue has recently come up again in the case of David and NDIA [opens in new page]. Luke David has nemaline myopathy (a neuromuscular disorder). He sought NDIS funding for, among other things, taxi travel. At [91] the Tribunal cited the Full Court decision in McGarrigle and rejected the NDIA's argument that the amount of taxi fares should be reduced by reference to a mileage rate and cost to ordinary Australians. It said "Having found that the support meets the legislative requirements, there is no room for a finding that funding of such support may be partial or otherwise limited."

For being a short judgment, the Full Court's decision in McGarrigle is a little difficult to interpret. It's clear that the Full Court did not endorse the approach of first deciding whether the support is reasonable and necessary, and then fully funding all reasonable and necessary supports. It also stated that a Tribunal could conclude in a particular case that some, but not all, transport supports should be funded. I don't read the decision in McGarrigle the same way as the Tribunal in Luke David's case did - in fact I read it the opposite way. However, the decision in David suggests that any support that is reasonable and necessary must be fully funded. [Edit] In Perosh and NDIA [opens in new page] at [63] the Tribunal also concluded that reasonable and necessary supports should be fully funded.

If that is correct, then I can't see how an NDIA policy that puts participants into three tiers for determining transport supports can be lawful. Any reasonable and necessary transport support needs to be fully funded - regardless of what tier the NDIA thinks the participant falls into. At best, the policy could give guidance about whether a support is reasonable and necessary. This will continue to be an important issue, especially for participants in regional Australia who have to travel longer distances in the absence of accessible public transport.