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Is the Agency Ignoring Legal Rulings on Transport?

Australian courts and tribunals have set no shortage of legal precedents when it comes to transport. Sara explores whether NDIA policies align with these judgements, or whether they're getting transport all wrong.

By Sara Gingold

Updated 15 Apr 202429 Jul 2019

Studies have shown that transport in the NDIS is the number one cause of all NDIS related spiritual breakdowns.* Given the sheer number of Participants who depend upon transport funding, it would be completely reasonable to assume that the issue would be well and truly resolved by now. But then if you made such an assumption, you probably wouldn’t be too familiar with the NDIS.

The Agency’s policy on transport is outlined in the Operational Guidelines. Unfortunately, however, it is not the whole picture. In important ways, these policies appear to contradict a crucial ruling from the Federal Court, leaving the Agency on dicey ground by continuing to enact them.

What is the Agency's position about transport?

The NDIA’s Operational Guidelines state that they will fund transport under the following conditions:

  • The support is deemed reasonable and necessary in accordance to Section 34 of the NDIS Act.
  • The person requires funding for transport solely and directly because of their disability.

A Participant can sometimes also receive funding for transport costs incurred as the result of another NDIS funded support, for example, to access a therapy. But even in these cases, the above two conditions still need to be met.

This all looks fairly reasonable so far. But here is where things take a turn down Potentially-Breaking-The-Law Avenue.

The Operational Guidelines state transport will generally only be funded in three levels:

Level 1

the NDIS will provide up to $1,606 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access.

Level 2

the NDIS will provide up to $2,472 per year for participants who are currently working or studying part-time (up to 15 hours per week), participating in day programs and for other social, recreational, or leisure activities.

Level 3

the NDIS will provide up to $3,456 per year for participants who are currently working, looking for work, or studying, at least 15 hours per week, and are unable to use public transport because of their disability.

The Operational Guidelines continue on to say that in “exceptional circumstances” they will fund transport at a higher rate if the person “has either general or funded supports in their plan that enable their participation in employment.” In our experience, these “exceptional circumstances” tend only to be identified through after an internal or AAT review.

The courts have their say

Transport funding has been tried and tested in Australian courts and tribunals more than any other single issue in the NDIS.

As many of you will remember, in 2016, a young Victorian man called Liam McGarrigle** appealed the NDIA’s decision to only fund 75% of his transport costs. The Agency had conclude that transport for McGarrigle to access daily living activities 5 days a week was a reasonable and necessary support. However, they also believed it was reasonable for McGarrigle and his family to contribute 25% of the overall cost. The AAT upheld the Agency’s decision arguing that just because a support was deemed ‘reasonable and necessary’ did not mean that the NDIS was obliged to fund it in full.

McGarrigle and his family were not satisfied with this outcome. So they took the case to the Federal Court (a.k.a. the big kids). In a landmark verdict, the Federal Court concluded that any support found reasonable and necessary must be fully funded.

Crucially, the case would have turned out very differently if the NDIA and AAT had decided that only 75% of McGarrigle’s trips met the reasonable and necessary criteria. But to come to this conclusion, the Federal Court felt that the NDIA and AAT would have needed to undertake a “detailed assessment” of each trip.

Are the Agency's policies consistent with the law?

Some people might say that the Agency’s policy on transport is completely out of tune with the Federal Court ruling and thus the law. I wouldn’t say that, because I don’t want to be sued. But “some” people might.

Critically, the 3 levels of transport support outlined in the Operational Guidelines set annual caps on the amount of funding a person is entailed to. They do not require Planners to complete a “detailed assessment” of each of the person’s regular trips, as the Federal Court concluded was crucial to making a reasonable and necessary decision. More troubling still, in most cases the 3 levels of funding will end up only partly funding a person’s reasonable and necessary transport. And what did the Federal Court say about partial funding a support?

Image: man saying “sorry, but no.”

Of course, it is also technically possible that the caps could result in the Agency overfunding a Participant for transport. But let’s be real here, this is pretty unlikely. Even the highest level of funding only leaves a person with $9.47 a day. The minimum fare for an Uber ride is $8, so good luck making a round trip.

It is also concerning that the 3 levels of transport funding set out their own criteria for determining how much funding a person is entitled to. These criteria allocate funding based solely on the number of hours a person spends in employment, educational or recreational activities. They are completely separate from the reasonable and necessary criteria and do not appear to have any legislative basis. They’ve gone rogue.

To add insult to injury, the Operational Guidelines quote the original McGarrigle AAT case, twice! This is the case that was overturned by the Federal Court over 2 years ago. Did they think we wouldn’t notice?

Image: the Scooby Doo gang capturing a criminal who is saying “we would have gotten away with it if it weren’t for those meddling kids.”

Why does this matter?

We all know the reason why the Agency is so reluctant to pay for all reasonable and necessary transport for Participants. Doing so would be hella expensive. Despite their huge underspend, the NDIA is still concerned about financial sustainability. This is not an unreasonable concern, but there are many reasons why it cannot be used to dictate policy.

Firstly, this is the law. You can’t just ignore it because it is inconvenient or expensive. Otherwise nobody would ever pay parking fines.

Secondly, a central aim of the NDIS is to improve the social and economic participation of people with disability. That’s the reason we’re all here after all. But it is pretty hard to see how a person’s social and economic participation can improve if they cannot use public transport and do not have enough funding for taxis.

Individuals can appeal their own transport budgets to the AAT. Unlike the Agency, the Tribunal follows the Federal Court ruling and does not apply the 3 levels of funding. Instead they evaluate all the regular trips a person makes, in the same way that Planners do for any other support. But it is quite outrageous to expect a person to go through the significant hassle of an AAT hearing in order to receive the right level of support. The responsibility really lies with the Agency to make sure that their policies align with the Federal Court’s interpretation of the law. This is the government after all. We are entitled to expect them to take the law quite seriously. It’s time the Agency took their red pen to their own policies to ensure that all Participants are receiving exactly what they are entitled to, no more and certainly no less.

* This is a made up statistic. But if I was not a millennial who has been priced out of the real estate market, I would stake my house on the bet that it is pretty accurate.

** Usually, it is DSC’s policy not to name AAT applicants in order to respect their right to privacy. However, McGarrigle and his family have done numerous press interviews, and appear (rightly) to be proud of their accomplishments. As much as we do not wish to intrude on the privacy of people with disability, we also do not want to downplay their achievements.

The content in Disability Services Consulting's Resource Hub is intended to keep you informed about what is going on. It is not legal advice, and should not be regarded as such.


Sara Gingold

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