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Rejected NDIS costs claim to be redecided

A National Disability Insurance Scheme (NDIS) participant with Parkinson’s Disease, who was forced to move to a more accessible home, has won a third attempt to have the scheme cover his relocation costs.

In an appeal decision delivered on Wednesday in the Federal Court in Sydney, Justice Perram found an error of law had been made by the National Disability Insurance Agency (NDIA) in rejecting an application by Sydney man Carle John Warwick that his costs be covered by the NDIS.

The Administrative Appeals Tribunal (AAT) had affirmed a decision by the scheme administrator that Mr Warwick’s costs – made up of a real estate agent’s fees and commission, removalist costs, conveyancing fees and stamp duty – were not recoverable because they were not incurred “solely and directly as a result of (the participant’s) disability support needs”, required under the National Disability Insurance Scheme Act 2013 (Cth).

Justice Perram stated the parties had agreed that Mr Warwick’s choice of his new home was motivated by a desire to be near his daughter.

“At this point, it is useful to know that Mr Warwick’s new home is part of a gated community and that his daughter lives in the same community a very short distance away,” he said.

“The parties disagreed, however, as to whether this desire for proximity was based solely on the support of Mr Warwick’s daughter as a carer or also on her informal support as a family member.

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“The Tribunal ultimately accepted that the convenience of Mr Warwick’s daughter living nearby was not solely related to his disability support needs and that, as such, the sole purpose test … could not be satisfied.”

Mr Warwick then appealed the AAT’s decision on the grounds that the tribunal had considered the relocation costs to be “day-to-day living costs”, and he contended that such costs could not include relocation costs.

“Mr Warwick did not advance this argument before the Tribunal and it is apparent that Mr Warwick, the Agency and the Tribunal all simply assumed that relocation costs were ‘day-to-day living costs’,” Justice Perram said.

“I propose to allow Mr Warwick to raise this argument on appeal notwithstanding that it was not raised in the Tribunal. The reasons I do so are that (a) it is obvious that relocation costs are not ‘day-to-day living costs’ and there is a public interest in having it made clear for the purposes of the NDIS that this is so; and (b) allowing the submissions to be raised works no injustice to the Agency.

“The costs of engaging an agent to sell one’s home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living.

“To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as ‘day-to-day’ costs.”

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He said the AAT’s determination, therefore, involved an error of law.

“The determination should be set aside and the matter remitted to the Tribunal to determine according to law and in light of these reasons,” he said.

He ordered the parties to present a short minute of the order to give effect to the reasons within seven days.

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