Supports Determined Reasonable and Necessary Supports Cannot be Partially Funded

by Andrew Lind on 14 February, 18

The Federal Court case of McGarrigle v National Disability Insurance Agency [2017] FCA 308 has answered questions of law with respect to the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), particularly in relation to section 34(1). The court has also refused to comment on other points of law which should be considered in an “appropriate case”.

In this case the Federal Court of Australia overturned a decision by the Administrative Appeals Tribunal regarding the provision of funding under the National Disability Insurance Scheme (“NDIS”) where the Applicant, Mr McGarrigle, sought funding for the full costs of transport to and from his workplaces.

Ultimately, the Federal Court held that the NDIS requires that where participants’ supports are held to be reasonable and necessary supports, this means wholly or fully funded, and not partially funded after consideration of irrelevant factors.

On what part financial sustainability plays in approving Participants’ plans, Mortimer J held that this “important issue” should await determination in an appropriate case.

Facts of the Case

Mr McGarrigle (the Applicant) became a participant in the National Disability Insurance Scheme (‘NDIS’) in 2013. Mr McGarrigle lived with his parents in Victoria and was described by the court as a 21-year-old man who had autism spectrum disorder and an intellectual disability.

As part of his participants support plan, Mr McGarrigle sought that the NDIA fund $15, 850 a year to pay for transport to and from his workplaces, Karingal Kommerical and Encompass Community Services. This, Mr McGarrigle contended, came within the definition of “reasonable and necessary supports” under the NDIS Act and would facilitate his independence.

The National Disability Insurance Agency (‘NDIA’) agreed to fund only 75% of the $15 850.

Mr McGarrigle appealed this decision and brought the matter before the Administrative Appeals Tribunal in Victoria. The AAT also upheld the NDIA’s decision.

Mr McGarrigle appealed to the Federal Court of Australia.

Issues Before the Federal Court

The Federal Court of Australia had to decide on eight questions of law which were condensed into four main propositions in Mr McGarrigle’s submissions and addressed by his honour Mortimer J in this way also.[1] These were:

  1. Whether the Tribunal misconstrued or misapplied s 34(1) of the Act by finding that it could fund a proportion of the cost of a support which had been found to be “reasonable and necessary”;
  2. Whether the Tribunal wrongly elevated the need to ensure financial sustainability of the NDIS over the criteria in 34(1);
  3. Whether the Tribunal took into account an irrelevant consideration by relying on policies that are inconsistent with s 34(1);
  4. Alternatively to the above three contentions, whether the Tribunal failed to respond to detailed claims from the applicant that his weekday transport met the criteria in s 34(1) and therefore should have been fully funded.

Decision of the Federal Court

The Federal Court overturned the Tribunal’s decision and held that the full amount of the travel costs should be funded.

Reasons

  1. The Tribunal misconstrued and misapplied s 34(1) of the Act by finding that it could fund a proportion of the cost of a support which had been found to be “reasonable and necessary”;

The Federal Court held that the Tribunal failed to follow the appropriate process under s 34(1) to decide whether Mr McGarrigle’s supports were reasonable and necessary. For a more detailed explanation of this decision, please follow this link.

  1. Whether the Tribunal wrongly elevated the need to ensure financial sustainability of the NDIS over the criteria in 34(1);

His Honour rejected the Applicant’s submission that the Tribunal had wrongly applied rule 2.5 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) based on the circumstances of the case, namely that the Tribunal had rejected full funding by virtue of misconstruing s 34(1). His Honour was therefore reluctant to comment on this point of law, and suggested that this “important issue” be decided in an appropriate case.

  1. Whether the Tribunal took into account an irrelevant consideration by relying on policies that are inconsistent with s 34(1);

His Honour refused to comment on this issue as he had already found that the Applicant had succeeded on Issue 1 of the case.

  1. Alternatively to the above three contentions, whether the Tribunal failed to respond to detailed claims from the applicant that his weekday transport met the criteria in s 34(1) and therefore should have been fully funded.

His Honour refused to comment on this issue as he had already found that the Applicant had succeeded on Issue 1 of the case.

[1] McGarrigle v National Disability Insurance Agency [2017] FCA 308 [57].

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