McGarrigle v National Disability Insurance Agency  FCA 308 appears to be only the second NDIS matter to find its way to the the Federal Court of Australia, as an appeal on a point of law from an earlier decision of the Administrative Appeals Tribunal (AATA). The appeal in effect dealt with whether the NDIS, in considering reasonable and necessary supports, should fund all of Mr Liam McGarrigle’s (LM) transport costs or only a portion of them.
In the opening of the reasons for judgment Mortimer J explained that LM is a participant in the National Disability Insurance Scheme (NDIS), and receives funding to cover his transport expenses for his travel to work and his travel to a group program. Under his NDIS plan, the Agency provides LM with $11,850 for transport, which represents approximately 75 per cent of the annual cost of $15,850 required to pay for taxis and transport.
LM sought to have the Tribunal’s decision overturned on the basis that on its proper construction, the Act requires “reasonable and necessary supports”, once identified, to be fully funded by the Agency.
The Court found that the AATA erred in law in the approach it took to s 34(1) of the Act, and therefore the decision should be set aside and the matter remitted to the Tribunal for determination according to law.
The reasons for judgment included reference to the following:
- The NDIS scheme is not means tested – whether as to the person concerned, their family or community. (at ).
- Once a decision is made that the support, as identified and described, is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. … that can only mean wholly or fully funded (at ).
- There is no doubt that consideration of the financial sustainability of the NDIS is given an express place in the operation of the legislative scheme. … The question raised by these grounds of appeal is how “the need to ensure the financial sustainability of the NDIS” is to be taken into account (at  – ). However the question did not arise as the AATA did not reason to the effect that in order to pursue the objective of ensuring the financial sustainability of the NDIS, it would only approve funding of 75% of LM’s transport costs (at ).