National Disability Insurance Scheme

Contributed by Rosemary Budavari and Farzana Choudhury, Canberra Community Law and current to July 2021

NDIS overview

The main objective of the National Disability Insurance Scheme (NDIS) is to provide all Australians who acquire a permanent disability before the age of 65 which substantially impacts how they manage everyday activities, with the reasonable and necessary supports they need to live an ordinary life.

NDIS participants are given an individual plan of supports tailored to their individual needs. The NDIS aims to operate alongside and not duplicate mainstream services for people with disability such as health, education and social security services. It funds 'reasonable and necessary supports' as determined by the National Disability Insurance Agency (NDIA), which may include a range of supports such as various aids, equipment and some therapies.

The National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) establishes the NDIS and the National Disability Insurance Agency (‘NDIA’). The NDIA is the entity responsible for administrating the NDIS. It also established the National Disability Insurance Scheme Quality and Safeguards Commission (‘NDIS Commission’).

The NDIS is supplemented by various National Disability Insurance Scheme Rules (‘NDIS Rules’) and National Disability Insurance Scheme Operational Guidelines (‘NDIS Guidelines’).

Becoming an NDIS participant

The NDIS Act, NDIS Rules and NDIS Guidelines together set out how individuals can request support through the NDIS, and in doing so, become an “NDIS participant”.

To make a request, a prospective NDIS participant will need to make an “access request” to the NDIA. This can be done by lodging an Access Request Form to the NDIA, or making a verbal access request. The Access Request Form and further information about the application process is available on the NDIS website at https://www.ndis.gov.au/how-apply-ndis/what-access-request-form.

Eligibility & access criteria

To be eligible to qualify as a participant of the NDIS, the prospective participant will need to satisfy certain “access criteria” at the time of making an “access request”. These criteria are set out in the NDIS Act, and include:

• Age requirements – being under 65 years old when the access request was made (see NDIS Act, s 22);
• Residence requirements – being a person who resides in Australia, and is either a citizen, permanent resident, or a “special category visa holder who is a protected SCV holder” (see NDIS Act, s 23);
• Disability requirements – being a permanent, likely lifelong disability attributable to an impairment, that substantially reduces functional capacity to undertake a range of activities and capacity for social or economic participation (see NDIS Act s 24); and/or
• Early intervention requirements – being where a person, including a child, has an identified impairment that is likely to be, or become permanent, where the CEO is satisfied that early intervention will likely benefit the person and reduce their future needs for support, considering a range of factors (see NDIS Act, s 25).

The prospective participant will also need to satisfy any other requirement imposed by the NDIS Rules with respect to the above criteria, as applicable.

What happens when an "access decision" is made?

Assessment of access criteria

Once an access request has been made, the NDIA will decide whether they meet the “access criteria” required to become an NDIS Participant.

The CEO of the NDIA needs to make a decision about an Access Request within 21 days of receiving the access request (see NDIS, s 20). Where the CEO does not make the decision within this time frame, the prospective participant is deemed not to meet the access requirements.

Access criteria is satisfied – Person becomes an NDIS participant

A person becomes an NDIS participant on the day the NDIA decides that the person meets the access criteria set out in the NDIS Act (see s 28(1) of the NDIS Act). The NDIA will notify the person of this decision in writing (see section 28(2) of the NDIS Act).

Access criteria is not satisfied – Person does not become an NDIS participant

Where a prospective participant is assessed to not meet the “access criteria” set out in the NDIS Act, then this person will not become an NDIS participant, and will not be able to access supports directly through the Scheme. They may, however, still be able to access general supports as non-participants.

The NDIA must notify this person in writing of this decision (see NDIS Act s 100(1)). The prospective participant can reapply or request internal review of the decision that they have not met the access criteria (as this is a “reviewable decision” under the NDIS Act (section 99(a)).

NDIA Plans

If a person becomes an NDIS participant, the NDIA must facilitate the preparation of an individual support plan. This plan will include a statement of goals and aspirations, as well as the funding for the reasonable and necessary supports approved by the NDIA.

These and other details will be included via a “statement of participant supports” which identifies:

For a support to be reasonable and necessary, the NDIA must be satisfied that:

Where the participant is satisfied with their plan, the plan is implemented.

Where the participant is not satisfied with the plan, certain aspects can be reviewed, including around the ‘statement of supports’.

There have been several cases in the AAT and the Federal Court about what is a reasonable and necessary support.

• For example, in the case of Gordon Young v National Disability Insurance Agency [2014] AATA 401, the AAT found that a portable oxygen concentrator and insulin pump were not reasonable and necessary supports as they were more appropriately funded by the health system.
• In another case, ZNDV v NDIS [2014] AATA 921, the AAT also found that a form of therapy for a child with autism was not a reasonable and necessary support because it did not represent value for money, and it had not been established that it was likely to be effective and beneficial for the child having regard to current good practice.

See also the cases of: Mulligan v NDIA [2014] AATA 374; Mulligan v NDIA [2015] FCA 544; Mulligan v NDIA [2015] AATA 974; McGarrigle v NDIA [2016] AATA 498; McGarrigle v NDIA [2017] FCA 308; NDIA v McGarrigle [2017] FCAFC 132

Review of NDIA plans

The NDIS Act provides that a plan must include a review date of the plan (see s 33(2)(c)). Usually, support plans will be reviewed after a period of 12 months. A participant may also request a review of a plan at any time if there has been a change in their circumstances, and the NDIA will decide whether to review the plan or not.

Division 4 of the NDIS Act sets out the rules around reviewing and changing participants’ plans. Certain decisions relating to a review of a participants plan and the supports they are provided will qualify as “reviewable decisions”, capable of review under the NDIS Act.

Review of NDIA decisions

The NDIS Act and the NDIS Rules provide that a person can apply for review of certain NDIA decisions, including decisions that they do not meet the access criteria, or that something they want in their plan is not a “reasonable and necessary” support.

Section 99 of the NDIS Act sets out what kind of decisions will qualify as “reviewable decisions” under the NDIS Act and the relevant decision maker for each of these decisions. For instance, this includes:

• a decision that a person does not meet the access criteria;
• a decision to revoke a person’s status as an NDIS participant;
• a decision not to reassess a participant’s plan; and
• a decision to refuse to register a person as a registered NDIS provider.

Internal review of NDIA decisions

To apply for internal review of a “reviewable decision”, the affected person usually needs to make a request for review within 3 months of being notified of the decision (see s 100(2) of the NDIS Act). This is done by submitting either an oral or written request to the original decision-maker.

The person receiving this request must make a written request of the details and date that this request was made.

Once a review request is received, the decision maker must cause the reviewable decision to be reviewed internally by another NDIA officer who was not involved in the original decision (‘the Reviewer’).

The Reviewer must, soon as reasonably practicable, make a decision that confirms, varies or sets aside the reviewable decision. If the decision is set aside, the Reviewer will need to substitute it with a new decision. A statement of reasons for the decision made/action taken must be provided to the person who sought the review.

External review of NDIA decisions

If a person does not agree with the decision of a NDIA Reviewer, they can apply to the AAT for external review. An application for external review to the AAT usually needs be made within 28 days of receiving written notice of an internal review decision from the NDIA (see section 29(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth)).

Note:

• Where the matter has progressed to the AAT, typically there will first be a case conference where directions will be made about the future conduct of the matter, and dates for filing further material.
• The case will then usually proceed to a conciliation to try to resolve the dispute at this stage.
• If the matter does not resolve at conciliation, it will progress to a formal hearing before a member of the AAT, for a determination by the Tribunal.
• Following this, the Tribunal will issue their decision.

People applying for an external review by the AAT may also get assistance from a provider under the National Disability Advocacy Program (see National Disability Advocacy Program).

If a person does not agree with a decision of the AAT, in certain circumstances they may be able to appeal the matter to the Federal Court (e.g. where there has been an error of law). Time limits also apply to when an appeal from the AAT to the Federal Court needs to be lodged. People appealing to the Federal Court may be able to obtain assistance from Legal Aid ACT, depending on the circumstances.

Regulation of NDIS providers

The NDIS Act, NDIS Rules, and NDIS Guidelines also deal the role and responsibilities of individuals or organisations that deliver a support or service to NDIS participants (‘NDIS providers’).

The NDIS Quality and Safeguards Commission (‘NDIS Commission’) was established to support the NDIS Quality and Safeguarding Framework, the regulation of Providers, and to promote quality and safety in the sector. Among other things, the NDIS Commission is responsible for managing the registration and regulation of providers under the NDIS, as well as dealing with complaints from participants about the services of providers across Australia across Australia.

Complaints about the NDIA and NDIS providers

Internal complaints

Under the National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth), registered NDIS providers must have a system of managing or resolving complaints about their services and support people with disability to understand how to make a complaint to the provider and to the NDIS Quality and Safeguards Commissioner.

People who want to complain about the NDIA may also make an internal complaint to the NDIA itself.

NDIS Quality and Safeguards Commission

The NDIS Quality and Safeguards Commission (‘NDIS Commission’) can hear complaints about providers or their services, where appropriate. Specifically, the NDIS Commission can hear complaints about supports that were not provided safely or respectfully and/or were not delivered to an appropriate standard; and/or complaints about how a Provider managed a complaint that was about its services/supports.

Commonwealth Ombudsman

The Commonwealth Ombudsman can investigate complaints about Australian Government agencies, including complaints about the NDIA (including NDIS Partners in the Community that have been appointed by the NDIA to help deliver the NDIS) or the NDIS Commission.

ACT Disability and Community Services Commissioner

People who want to complain about NDIS service providers in the ACT can also contact the ACT Disability and Community Services Commissioner (‘ACT Commissioner’), who may consider and provide conciliation for complaints about:

• disability services in the ACT; and
• abuse, neglect or exploitation of vulnerable people over 60 or people with disability.

If the ACT Commissioner cannot resolve a disability services complaint through conciliation, they can provide a report to the person making the complaint and the person or organisation complained about. They may also provide a 'third party report' to a relevant Minister; an employer; or a service provider (see ACT Health Services, Discrimination, Disability and Community Services Commissioner).

See Contacts and Resources for further information and contact details on these complaints options.