Landmark decision comes as court rules transport to and from Victorian man’s disability support program is a ‘reasonable and necessary’ support
The national disability insurance scheme is required to fully fund any supports or services it has deemed “reasonable and necessary”, according to a landmark decision handed down in the federal court on Tuesday.
The decision will mean the National Disability Insurance Agency (NDIA), which manages the $22bn scheme, will no longer be able to offer partial funding of supports such as transport to the work or service placements set out in a person’s individual care plan, ending a practice that has left the family or carers of people living with a disability out of pocket.
The case was bought by the family of Liam McGarrigle, a 21-year-old man with an autism spectrum disorder and an intellectual disability.
McGarrigle lives in Moriac, a town of 600 about 25km west of Geelong, one of the trial sites for the national disability insurance scheme (NDIS). He has been a participant since 2013, attending a disability support program at Encompass Community Services in Geelong three days a week and undertaking supported employment at Karingal Kommercial, also in Geelong, on the other two weekdays.
His support plan includes funding for transport, which, as he is unable to drive or take public transport by himself, means catching a taxi. He often shares with other people travelling in from Moriac, reducing the fare.
In 2015, when McGarrigle began his third individual care plan under the scheme, the NDIA provided his mother and unpaid carer, Michelle McGarrigle, $8,000 to cover transport costs – just over half of the $15,850 annual cost of a daily taxi.
That was later increased to $11,850, or 75% of the annual cost.
McGarrigle’s family challenged the funding allocation in the administrative appeals tribunal. The tribunal found that transport to and from McGarrigle’s disability support program and employment placement was a “reasonable and necessary” support, as defined in the National Disability Insurance Scheme Act, but that covering only 75% of those costs “strikes an appropriate balance between what is reasonable and necessary for him and the overall financial sustainability of the NDIS”.
Victorian Legal Aid lawyer Shelley Landmark appealed the tribunal’s decision in the federal court, arguing that once the NDIA had decided a support or service was “reasonable and necessary” it could not, under the wording of the legislation, offer only partial funding.
The federal court judge Debra Mortimer, handing down her decision at in Melbourne on Tuesday, agreed, finding the tribunal had “erred in law” in allowing partial payment.
“Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements [in the act], the scheme requires and contemplates that support ‘will’ be funded,” she wrote in a published judgment. “In my opinion, that can only mean wholly or fully funded.”
Mortimer dismissed concerns raised by the NDIA that requiring all services to be fully funded would create an “all or nothing” approach where some people living with disabilities missed out.
“Rather, in my opinion, the [NDIA]’s construction – of a partial funding approval being open to the CEO (or the delegate or tribunal) is likely to be an approach which restricts choice for persons with disability, if this be a permissible consideration,” she said.
Internal policy documents at the NDIA, put before the tribunal, said transport was to be capped at $6,000, and said all decisions should be made with an eye to the financial sustainability of the fund.
The case has been referred back to the administrative appeals tribunal for reassessment.
Speaking outside court, Michelle McGarrigle said the decision provided reassurance to everyone reliant on the scheme.
“This fight hasn’t been just about Liam, it’s been for everyone that’s using the plan,” she said.
Michelle McGarrigle said Liam had flourished under the NDIS and she wanted to ensure he was able to maintain and build on the independence it had helped him attain.
“He waits outside every morning for that taxi to go to work, like his dad does, and we have shown him grow into a beautiful man because of the independence,” she said. “His sense of purpose has been made because of the NDIS, so the plan itself is fantastic … it’s in its early days so we just have to, as usual, let it grow and iron out some wrinkles and go forward.”
She said they were currently able to cover his transport costs, but “as anyone who cares for someone with disability knows the wheels could fall off tomorrow”.
Joel Townsend, acting director of civil justice at Victorian Legal Aid, said the decision “helps clarify how the scheme should operate”.
“There are a number of cases on our book where this provision is at stake and we imagine that there would be a number of other people in the community who are living with disabilities who are also likely to be affected,” he said.
Townsend also dismissed concerns the decision could affect the NDIA’s long-term financial stability.
Federal Court rules in favour of Victorian man over NDIS payment of transport costs
The Federal Court has upheld an appeal against the funding arrangements for transport under the National Disability Insurance Scheme.
Liam McGarrigle, 21, challenged an earlier ruling that the NDIS pay only 75 per cent of his necessary transport costs.
Justice Debbie Mortimer ruled that the decision by the Administrative Appeals Tribunal erred in law and be set aside.
She has ordered the tribunal to reconsider the matter.
Mr McGariggle, who has autism, lives at Moriac, 25 kilometres from Geelong.
He spends nearly $16,000 per year on taxis transporting him to and from his work and NDIS-supported activities.
Victorian Legal Aid's Joel Townsend said the McGarrigle family were pleased with the decision.
"The support Liam's receiving is not for transport in general, it's for transport for him to attend his supported employment and to attend at his social skills classes, and those are really enormously important parts of Liam's life," he said.
"For other people under the scheme it will mean that whatever their particular supports are that they need they will get those if they are reasonable and necessary."
The court decision could benefit hundreds and possibly thousands of NDIS participants who live in remote localities.
A decision to fund 100 per cent of transport costs could have significant implications for the ongoing viability of the $22 billion NDIS.
Transport allows Liam to be 'independent young man'
Michelle McGariggle, Liam's mother, said support from the NDIS had helped her son, but the decision would "iron out some wrinkles."
"We don't have high expectations — the scheme is not meant to give us a limousine service — we just wanted the basics for Liam to be able to be an independent young man in his own right," she said.
"Not have to rely on his mum and dad to have to drive him to work for the rest of his life, because what 21-year-old wants that?"
She said Liam got a sense of purpose from his work.
"He waits outside every morning for that taxi to go to work, like his dad does, and we've seen him grow into a beautiful young man because of the independence."
Justice Mortimer also ordered the Administrative Appeals Tribunal to pay the costs of the McGarrigle family.