NDIA Loses Appeal in Test Case for Transport Funding

An attempt by the National Disability Insurance Agency to appeal a ruling that the agency must fully fund supports accepted as “reasonable and necessary” under the National Disability Insurance Scheme, has been dismissed by the Federal Court.

The test case, which involves 21-year-old Victorian man Liam McGarrigle who has autism spectrum disorder and an intellectual disability, centres on the agency’s policy to only make a partial contribution toward transport and other costs.

McGarrigle, who lives in the small town of Moriac where there is no public transport and spends nearly $16,000 a year on taxis transporting him to and from his work and a disability and social group, has been battling for the NDIS to cover his transport costs in full.

In March, the Federal Court ruled that laws governing the NDIS do not allow the agency to only partially fund reasonable and necessary supports, meaning people with a disability living in rural areas who are unable to drive or access public transport, provided other funding criteria are met, would be funded for the full cost of their transport needs.

However, the NDIA has argued the decision has the potential to affect up to 34,000 NDIS participants on the issue of transport alone and could have significant implications for the ongoing viability of the $22 billion scheme.

In a public statement the NDIA said in April, that it had appealed this decision because of its “implications for the long-term financial sustainability of the NDIS”.

But the Federal Court has now dismissed the application for appeal.

Following the decision on Monday, the case will be returned to the Administrative Appeals Tribunal (AAT) for re-consideration.

An NDIA spokesperson told Pro Bono News the agency welcomed the “opportunity for a full and detailed discussion of the matter” before the AAT, but said as the matter was continuing it was not appropriate to comment on the specifics of the case any further.

Dan Nicholson, executive director of civil justice at Victoria Legal Aid, which is representing McGarrigle, said people with disability, their families and carers should “not be forced to bear a financial burden because of the way the NDIA makes funding decisions”.

“Not fully funding NDIS supports shifts the burden onto families and undermines the intention of the scheme,” Nicholson said.