Transport Once Again Comes Before the AAT

The question of transport, particularly who pays for it and by how much, is proving to be an unrelenting concern for both the NDIA and the Scheme's participants. Last month, another transport case came before the Administrative Appeals Tribunal (AAT), for the first time since the highly publicised case of a participant from Geelong taking the Agency to the Federal Court in 2017. The Tribunal heard the appeal of PP*, a young man whose spastic quadriplegic cerebral palsy makes him reliant on taxis for transportation. PP made a request for full funding to go to TAFE and gym twice a week and the shopping centre once a week.

The Agency generally funds transport in three levels:

- Level 1

$1066 a year for participants who are not working, studying or attending day programs but wish to enhance their access to the community (and with roughly $20 a week, good luck to them!)

- Level 2

$2472 a year for participants who are working or studying part-time (up to 15 hours a week), or are participating in day programs or other leisure activities.

- Level 3

$3456 a year for participants who are working, looking for work or studying at least 15 hours a week.

This puts NDIS payments roughly in line with Mobility Allowance, the Centrelink payment many participants would have received before the NDIS, and that people ineligible for the Scheme still receive today. Prior to the AAT ruling, PP was on Level 2 of funding. Even with NSW taxi vouchers, this left his family out of pocket by approximately $250 a week. 

The criteria for determining what supports are reasonable and necessary for the NDIS to fund are outlined in Section 34 of the NDIS Act. Last year, a young participant made headlines when he won an AAT and subsequent Federal Court case challenging the Agency's decision to only fund 75% of his transport costs. The Federal Court ruled that if a support was deemed reasonable and necessary, then it was the Scheme’s responsibility to cover the entire expenditure. It noted that there is nothing in the legislation that requires participants to make a partial contribution to their supports.

In PP's case, the Tribunal concurred with the Federal Courts finding. It concluded that his twice-weekly transport to TAFE and the gym were reasonable and necessary. Therefore, the NDIS is required to cover these costs in full.

Slightly more controversially, the Tribunal ruled that transport for PP to visit the shopping centre on weekends was not compliant with the reasonable and necessary criteria. Under Section 34 (1) (e), funding must take into account what support it is reasonable to expect families, carers and the community to provide.  Currently, PP's father takes him swimming on Saturdays and to the shops two or three nights in the week. The Tribunal concluded that it was reasonable to expect his family to arrange further outings for him.  When coming to this decision, the Tribunal was mindful of the financial sustainability of the Scheme. While financial sustainability is not listed in the Section 34 criteria, it is named as one of the Objects of the Act and general principles guiding actions under the Act. Therefore, the AAT is required to take it into consideration.

The Operational Guidelines for Planning provide some guidance as to what supports it is reasonable to expect informal networks to provide. It states that the NDIA must consider whether the expectations placed on carers and family members undermine the participant’s level of independence. In its exploration of an ordinary life, the Independent Advisory Council notes people without disabilities generally begin to foster more independence and to shape more adult relationships with their family when they are young adults. By contrast, people with disabilities often continue to remain dependent on their families. Relying on your parents to take you to the shopping centre in no way fosters autonomy. In her testimony, PP's mother said that her son wanted the opportunity to go to the shopping centre to have lunch, watch a movie, or do some shopping. What is disappointing is that these all seem like activities that other young adults would have the opportunity to partake in without being reliant on their parent's support.

It remains to be seen how the NDIA will react to this ruling. With news of their $10 million legal bills hitting the press, they might be considerably less inclined to take transport cases to the AAT. With any luck, this might mean that the transport issue can finally be laid to rest. Nevertheless, it may still be incumbent on participants, with the support of service providers, to challenge the NDIA if they are not receiving full funding for transport.  This is why, as we have said before at DSC, it is absolutely essential that all service providers keep up to date with the AAT rulings. They are constantly encouraging us to reset our expectations.

You can read the full case here: www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2018/980.html?context=1;query=national%20disability%20insurance;mask_path=au/cases/cth/AATA

*DSC has made the decision to not publish the full names of adult AAT applicants. We believe that all NDIS participants should have the right to privacy and do not wish to contribute to undermining it.