Transport and the NDIS is an issue so widely discussed that if it wasn’t so damn important we would all be thoroughly sick of it by now. Whenever I am told that a transport case has again appeared before the Administrative Appeals Tribunal (AAT) I have to resist the instinctive urge to bang my head against the wall. Because, really, how many times can we discuss the same thing? Luckily, the latest case off the shelf, SE* v the NDIS, is actually completely different to anything we have seen in the transport space before. Fasten your seatbelts, because this is a big one.
The fundamental point of distinction is that SE was not asking for vehicle modification, taxi trips, transport training or anything else we usually associate with transport support. He uses a wheelchair to travel, but he is capable of driving a standard car independently and using public transport under certain conditions. What he requested from the NDIS is money for petrol for those times he cannot use public transport due to accessibility or safety issues.
The exciting conclusion was that in some cases it is reasonable and necessary for the NDIS to pay for petrol. This mostly occurred when:
It was reasonable to assume the Participant would use public transport if not for their disability;
It was not reasonable to expect anyone else to transport him;
Public transport was not a safe or accessible option; and,
These factors could not be mitigated.
Bear in mind that other than the reasonable and necessary criteria, there is no set list of circumstances under which a person can get funding for petrol. It is all incredibly complex and determined by individual circumstance. One Participant receiving petrol funding to attend an event does not mean that another necessarily will. What the Tribunal determined is that in SE’s unique circumstances it is reasonable and necessary for him to be funded for petrol money in order to:
Get to work on rainy days
Attend lawn bowls ‘away’ games on his train line
Attend his daughters’ sports events
Not everything he asked, but it sure is an incredible precedent. He was also offered funding for some equipment to make transport more convenient and safe.
Coughing up for petrol is significantly cheaper for the NDIS than funding taxis. But it opens up a whole new set of challenges. Primarily because it is not uncommon for people without disabilities to regularly drive due to preference or convenience. If we start paying for petrol for people with disability, what will people in the comments section on Channel Nine’s Facebook page say? It is enough to make Rob De Luca quiver in his boots. So what did the Tribunal make of this? In many ways, the case came down to a question of whose responsibility it really is to ensure people with disability can get where they need to go.
“Whose Job Is It Anyway?”
The Transport Authority
The Agency, supported by the Productivity Commission, has long since taken the position that it is not cleaning up anyone else’s mess. In practical terms, this translates loosely to a policy of “if it ain’t our fault that it isn’t accessible, don’t expect us to cop the bill.” So in this case, the NDIA argued that in circumstances when SE could not take public transport due to lack of wheelchair access, it was the responsibility of the transport authority to fix the problem. The Support Rule on this issue states:
The NDIS will not be responsible for:
a) ensuring that public transport options are accessible to a person with a disability, including through the funding of concessions to people with disability to use public transport; or
b) compliance of transport providers and operators with laws dealing with discrimination on the basis of disability, including the Disability Standards for Accessible Public Transport 2002; or
c) transport infrastructure, including road and footpath infrastructure, where this is part of a universal service obligation or reasonable adjustment (including managing disability parking and related initiatives).
But in an unexpected turn of events, the Tribunal interpreted the Rule to mean that the NDIS is not responsible for making public transport accessible, but that does not mean it isn’t their job to fund alternatives. Many people will reasonably argue that this approach removes the incentive for the public transport authorities to make their services accessible. However, in reality, this principle is really only an extension of what the NDIS is already doing. The Scheme currently provides alternative transport to people who cannot use public transport due to fatigue issues or cognitive challenges. That being said, wheelchair access really should be an easy fix. I would also urge any senior public transport bureaucrats reading this and thinking they have been given a “Get Out Of Accessibility Free” card, to remember that the NDIS only supports 10% of your customers with a disability.
SE requested petrol funding for days that he could not travel to work on public transport due to rain or because he had to carry heavy documents and his laptop. He operates a manual wheelchair, so when it is raining he cannot use it without getting thoroughly soaked. He also cannot safely control his wheelchair when carrying documents and his laptop, which he often does in order to work from home in the evenings. As these were issues that occur when traveling to and from work, it opened up a debate as to the employer’s responsibilities under inclusivity laws. In the end, the Tribunal concluded that it was not the employer’s responsibility to assist SE to get to work on rainy days (though wouldn’t that be nice for all of us?), but that it was reasonable to expect them to provide him with a home printer and computer so that he does not have to travel with heavy items.
SE raised the concern that he was reluctant to make these requests of his employer, as he did not want to be seen to require special considerations and did not know what his employer’s attitude would be. Many people with disability in the workforce would be able to empathies with this. While SE is within his rights, he is being put in the nerve-racking position of having to make requests of his employer that people without disability would not have to make. While most employers would probably happily meet their legal obligations, there are people out there who, for lack of a better word, are dicks. Such unsavory people might well consider such requests a mark against the employee.
As SE is married, there was considerable debate about how frequently his wife should be expected to drive him around before the responsibility would compromise his independence and her wellbeing. It raises the impossible question of what would reasonably be expected of her in a marriage where neither party has a disability. Impossible, because every couple is unique. However, the Tribunal did conclude that it was reasonable for her to pick him up from the station to visit her family home once a fortnight so that he can avoid a steep hill on route. It was ruled that she should be able to drive him to the train station once a year so that he can compete in a lawn bowls tournament in Bendigo. Both of these trips do seem kind of reasonable, but it must be pretty damn strange having a court tell you how to divide responsibilities in your marriage.
The reasonable and necessary criteria make us consider what support is reasonable to expect “families carers, informal networks and the community to provide.” Usually the conversation centres around the role of family and carers, it is actually quite rare for us to discuss the responsibility of the community. Yet always breaking ground, this case went there. The Tribunal declared it was reasonable to expect the Participant’s lawn bowls team mates to provide him some support in return for the lifts he sometimes gives them to games. The expected supports take the form of helping the family load supplies on to the roof of the car to drive on the family holiday, and picking him up from the station in Bendigo. So not too much support, but it is an interesting qid pro quo notion of court ordered mateship. Nevertheless, this approach does acknowledge that SE plays a valued role in the community. It demonstrates that people with disability don’t just receive support, they offer it as well.
Last but certainly not least, there was a lot of controversy over what expenses the Participant should just have to pay for out of his own money. The Agency argued that many of his travel expenses fell into the unfundable category of “day-to-day expenses” that do not occur “solely and directly” as a result of his disability. Therefore, it was the Tribunal’s unenviable job to determine when he was driving because is of his disability and when it was a matter of convenience. A lot of it came down to a question of ‘when is Melbourne’s public transport system so incredibly problematic that most people able to drive would choose to do so?’ In one case, it was the difference between a 12-minute drive and needing to travel back into the city and out again, a process most Melbournians are probably somewhat familiar with. The Tribunal also felt that most people doing grocery shopping for a family of four would use their car rather than public transport. Overall, however, the Tribunal was willing to assume that SE had a decent commitment to the state’s public transport system and reducing his own carbon footprint. Therefore, if the support met the other reasonable and necessary criteria, they were predominately funded.
We do not have nearly enough ink to cover all the discussions in this case, so we recommend checking it out for yourself. It is mostly pretty interesting, aside from a breathtakingly boring section at the end about the Tribunal’s jurisdiction which could probably cure most cases of insomnia. For the savvy consumer in you, there is even a whole discussion about the benefits of online shopping and a cost comparison between Coles and Woolworths. It didn’t really go anywhere in terms of the matter at hand, but I found it personally quite helpful.
This whole case sets some amazing precedents. Most importantly, the NDIS will sometimes have to pay for petrol now! You have to imagine the Agency is pretty pissed off about this because nobody really likes paying for petrol. This is definitely a case to chat to Participants about. It will be important to set expectations, because funding for petrol is always going to be complex to get and only available in unique circumstance. Nevertheless, thanks to SE, we now live in a world where it is possible.
*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.
Image: ‘Not titled’ by Rebecca Vanston, 2017, glazed earthenware, 16x17x38cm, image courtesy of Arts Project Australia.