NDIA to Appeal Disability Transport Ruling as Test Case

The National Disability Insurance Agency (NDIA) is to appeal a Federal Court decision over funding arrangements for transport costs under the National Disability Insurance Scheme (NDIS), claiming it will be a test case for the future viability of the scheme.

The agency said in a statement on Tuesday it had carefully considered the Federal Court decision handed down on 28 March 2017 in relation to the case of 21-year-old Geelong man Liam McGarrigle who has autism spectrum disorder and an intellectual disability.

McGarrigle challenged an earlier ruling that the NDIS pay only 75 per cent of his necessary transport costs. The court heard that McGarrigle, who lived 25 kilometres from Geelong, spent nearly $15,850 per year on taxis transporting him to and from his work and NDIS-supported activities.

Justice Debbie Mortimer ruled that the decision by the Administrative Appeals Tribunal erred in law and should be set aside and ordered the tribunal to reconsider the matter.

The McGarrigle decision is set to benefit thousands of NDIS participants who live in remote localities if the NDIS is made to fund 100 per cent of transport costs.

However, the NDIA argues the decision could have significant implications for the ongoing viability of the $22 billion NDIS.

Chief executive of the NDIA, David Bowen said: “Because the court ruling is effectively a test case with implications for the long-term financial sustainability of the National Disability Insurance Scheme (NDIS), the NDIA has decided to appeal the Federal Court decision to the Full Court and has lodged an appeal.

“While the NDIS was set up to be able to contribute to some of a participant’s transport costs, the NDIS Act specifically requires the NDIA to fund reasonable and necessary supports that ‘take into account what is reasonable to expect families, carers, informal networks and the community to provide’.

“This issue goes to the long-term sustainability of the NDIS. The appeal is an important test case which arises from a set of circumstances in the trial phase of the NDIS. It could affect the future of the whole NDIS.

“We need a scheme that is sustainable in the long term for many thousands of participants and for the whole community – for all of us.

“We have, therefore, decided to ask the court for the fullest clarity, given the serious implications for the future sustainability of the scheme for many thousands of present and future participants.”

Bowen said that the NDIA was “mindful” that McGarrigle and his family were involved in a case which had implications beyond their individual situation.

“Given it is a test case, the NDIA will agree to pay the reasonable legal costs of the appeal regardless of the outcome,” Bowen said.

He said that to deliver the NDIS to the 460,000 Australians expected to enter the scheme by 2020, the NDIS must deliver funding in a way that supports people with disability to achieve their goals, while ensuring the scheme is financially sustainable and in place to benefit all those who are eligible.

“This is particularly important given that the cost is anticipated to be $22 billion per annum at full scheme. Maintaining the financial sustainability of the NDIS is, therefore, central to delivering the scheme to all of those who need it now and in the years to come.”

The president of disability advocacy group People With Disability Australia, Bonnie Millen told Pro Bono News she was surprised by the NDIA’s move to appeal the McGarrigle decision.

“I do suspect that this appeal is going a ruffle a few feathers in the disability community,” Millen said.

“The decision made by the Federal Court was a fantastic one because the whole purpose of the NDIS is to fully fund a participant’s requirements and accessibility needs.

“I am a bit surprised to hear about the appeal because for the NDIA to do so would be contradicting the entire message about what the NDIS is for. It is going to make it very difficult for people with disability, who might already be confused about the process and what they are going to be funded for, if the NDIA is fighting for partial funding.

“I would say that they are admitting that they got it wrong… and they are now trying to back peddle. It is not going to be sustainable if the NDIA is going to pick and chose who they are going to partially fund or fully fund.”