In March 2017 the Federal Court of Australia published its reasons for judgment in the matter of McGarrigle v National Disability Insurance Agency [2017] FCA 308. The claimant had successfully sought to have an AATA 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 Federal Court held that there was no doubt that consideration of the financial sustainability of the NDIS is given an express place in the operation of the legislative scheme. 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 [115]).

On appeal to the Full Court of the Federal Court as McGarrigle v National Disability Insurance Agency [2017] FCAFC 132, the appellant Agency sought to amend its notice of appeal to include an argument that was not put before the Administrative Appeals Tribunal or the Federal Court. As explained at [2]:

The parties’ competing contentions centred on paragraph [95] of the reasons for judgment of the primary judge: see McGarrigle v National Disability Insurance Agency [2017] FCA 308. In particular, the parties’ arguments raised the question whether in that paragraph her Honour should be taken to have said that in every case where a support was reasonable and necessary, it must be fully funded.

The Full Court said at [3] that it did not read the first instance judge as establishing a two stage process to determine whether objectively a support was reasonable and necessary and secondly and consequentially that it must be fully funded.  At [5]:

To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded. We express no view on this issue. Its resolution will turn on the Tribunal’s assessment of the evidence and materials before it.

However at [8] the Full Court went on to say:

Given the potential systemic importance of the issues sought to be raised before the Tribunal, the President of the Tribunal may wish to consider constituting a three-person Tribunal, including a Presidential Member. The appellant Agency may also consider it desirable to notify interested representative bodies that might seek leave to be involved in the proceeding.

Leave to amend the notice of appeal was refused and the appeal dismissed.

The issues of full funding and financial sustainability will no doubt return at some future point.

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