National Disability Insurance Scheme

24 Aug 2018 - 12:49 | Version 4 | DorothyFauls

Based on the contribution of Rosemary Budavari for the ACT Law Handbook as amended by ShelleyLandmark and current to 1 September 2018

The National Disability Insurance Scheme (NDIS) was established in 2013 by the National Disability Insurance Scheme Act 2013 (NDIS Act). The purpose of the scheme is to support the independence and social and economic participation of people with disability by providing individual funding packages, which are called NDIS plans. The NDIS is available to anybody with a significant and life-long disability. It is not means tested.

The NDIS Act sets out the objects and principles that underpin the scheme[1], the rights of participants (and people who apply to access the scheme)[2], and the powers of the agency responsible for administering the scheme: the National Disability Insurance Agency.[3]

The NDIS Act is supplemented by various National Disability Insurance Scheme Rules and National Disability Insurance Scheme Operational Guidelines.

Becoming an NDIS Participant

You must apply to become a participant in the NDIS by completing an application form (known as an Access Request Form). You can request an Access Request Form in person at an NDIS office, by calling 1800 800 110 or emailing NAT@ndis.gov.au.

Access Request Forms are not available online or in electronic format.

Applications will be assessed by the National Disability Insurance Agency in accordance with criteria set out in section 21 of the NDIS Act. This is known as 'access criteria'. The access criteria is set out below:

Age requirements (s22)

A person must be aged under 65 at the time that the Access Request Form is received by the National Disability Insurance Agency. If a person applies before they are 65 and becomes a participant in the NDIS, they can remain in the scheme for the rest of their life.

Some states have additional age requirements during the initial roll-out of the NDIS.

Residence requirements (s23)

A person must reside in Australia and be an Australian citizen (or the holder of a permanent or special category visa) in order to apply for the NDIS.

During the roll-out of the NDIS, additional residence requirements may apply in each state or territory (e.g. that the person resides in a particular geographic area specified in the rules).

Disability requirements (s24)

A person must have a disability attributable to an intellectual, cognitive, neurological, sensory or physical impairment that is, or is likely to be permanent;

The impairment must result in substantially reduced capacity to undertake:

• Communication
• Social interaction
• Learning
• Mobility
• Self-care
• Self-management

The impairment must affect the person's capacity for social or economic participation, and the person must be assessed as being likely to require support under the NDIS for their lifetime.

Early intervention requirements (s25)

As an alternative to the disability requirements, a person may still be eligible for the NDIS if they satisfy the age and residence requirements and the 'early intervention requirements'. The early intervention requirements are as follows:

• A person must have an intellectual, cognitive, neurological, sensory or physical impairment or an impairment attributable to a psychiatric condition that is, or is likely to be permanent;
• The provision of support must be likely to benefit the person by reducing their future need for supports;
• The provision of support must be likely to mitigate or alleviate the impact of the impairment on the person's functional capacity, or prevent the deterioration of functional capacity, or improve their functional capacity, or strengthen the sustainability of informal supports available to the person.
• Additionally, the support must be most appropriately funded by the NDIS and not another system of service delivery.

Definition of ‘disability’

The NDIS Act does not define ‘disability’ or ‘impairment’. Guidance may be found in the Convention on the Rights of Persons with Disabilities (Art 1), which is referenced in the objects of the NDIS Act (s 3):

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Importantly, the NDIS Act does not distinguish between a disability and a medical condition. The term 'disability' is used in a wide context and the NDIS Act is not concerned with how a person came to have a disability: Mulligan v National Disability Insurance Agency [2015] FCA 544 at [16] (Mulligan).

As noted by Mortimer J in Mulligan:

No arbitrary limits are placed on access to the NDIS, and no qualitative judgments are called for. Rather, the legislative scheme is based on a functional, practical assessment of what a person can and cannot do.[4]

‘Substantially reduced functional capacity’

In order to determine whether a person has substantially reduced functional capacity, a decision maker must conduct a factual assessment about the effect of a person’s impairment on the performance of each, and any, of the six activities identified in section 24(1)(c) (Communication, social interaction, learning, mobility, self-care and self-management).

The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 contain deeming provisions which, if satisfied, require a decision maker to find that a person has substantially reduced functional capacity in certain circumstances (see rule 5.8).

If a person does not satisfy the criteria in the rules, the decision maker is still required to perform a factual assessment and turn their mind to whether the person meets the criteria in section 24(1)(c). This was expressed by the Federal Court as follows:

Reference to the rules is not necessarily the end of the exercise, and the statutory task is to consider whether a person’s functional capacity is reduced in any of the six specified areas.[5]

NDIS Plans

Once a person is assessed as eligible for the NDIS, they become an NDIS 'participant' and are automatically entitled to an NDIS plan (s32).

NDIS plans are comprised of two components:

1. A statement of goals and aspirations, which is prepared by a participant; and
2. A statement of participant supports, which is developed with a participant and approved by the National Disability Insurance Agency. The statement of reasonable and necessary supports contains a list of supports that will be funded under the NDIS.

A statement of goals and aspirations is a list developed by an NDIS participant which outlines what they hope to achieve by their participation in the NDIS. This can include short term goals such as learning to drive, or long terms goals such as improving mobility or communication. A participant can change their statement at any time.

A statement of participant supports includes a list of supports that will be funded under the NDIS. In order for a support to be funded or provided under the NDIS, it must meet the criteria in section 34 of the NDIS Act, which requires a finding that the support:

Case law about reasonable and necessary supports

Supports must be funded in full

If a support meets the reasonable and necessary criteria, it must be funded in full. The NDIS Act and rules do not permit partial funding or a contribution towards the cost of a support: McGarrigle v National Disability Insurance Agency [2007] FCA 308.

Allied health, alternative health and gym membership

Allied health services (physiotherapy, speech therapy, occupational therapy), alternative health services (chiropractic services, massage) and gym membership may be funded under the NDIS if these supports meet the reasonable and necessary criteria, and if it can be established that these supports are integrally linked to the care and support that the person needs to live in and participant in their community:King and National Disability Insurance Agency [2017] AATA 643.

The fact that a Medicare rebate is available for a treatment might suggest that it is more appropriately funded by the health system rather than the NDIS, but this does not automatically exclude the item from being funded under the NDIS. If a participant can provide evidence to show that a support helps them to improve their ability to access and function within their community, then it may be funded: see McCutcheon and National Disability Insurance Agency [2015] AATA 624

Medical treatment and equipment

In order to be funded, a support must be more appropriately funded by the NDIS rather than the public health system (or under private health insurance).

To establish that a support is most appropriately funded by the NDIS, it is necessary to consider the purpose of the support and how it is used by the person. If the support assists the person to function in the community and enable them to access education or employment, it may be funded under the NDIS.

If the support relates to care in hospital, the diagnosis of a health condition or palliative care, it generally cannot be funded under the scheme: Fear by his mother Vanda Fear and National Disability Insurance Agency [2015] AATA 706

Respite

Respite care may be funded under the NDIS where it is required as a direct result of a person's disability, and enables a person's carer to sustainably maintain their caring role: LNMT and National Disability Insurance Agency [2018] AATA 431

Appeal rights

The NDIS Act provides that certain decisions made by the National Disability Insurance Agency can be reviewed (i.e. appealed). A list of these decisions is contained in section 99 of the NDIS Act.

These include:

• a decision that a person does not meet the access criteria
• a decision to revoke a person’s status as a participant
• a decision to approve the statement of participant supports in a participant’s plan (i.e. a decision to fund or not fund particular supports)
• a decision not to review a participant’s plan
• a decision to appoint a plan nominee
• decisions about how the National Disability Insurance Agency treats compensation payouts

How to request a review

A participant (or a person affected by a decision) must request a review within 3 months of receiving notice of the decision.

A request may be made orally or in writing. While there are standard forms for requesting a review, there is no legal requirement to use this form.

Review process

There are 2 stages of the review process:

1. Internal review by the National Disability Insurance Agency
2. External review by the Administrative Appeals Tribunal (AAT) The first stage in the review process is internal review by the National Disability Insurance Agency. An internal review must be conducted by an officer with appropriate delegation from the CEO (usually a senior officer) who was not involved in making the original decision (s 100). These two qualities are essential for a valid internal review.

Once an application for internal review has been received by the National Disability Insurance Agency, the reviewer must, as soon as reasonably practicable, make a decision to:

• confirm the decision
• vary the decision
• set aside the decision and substitute it with a new decision

If a person is not satisfied with the outcome of an internal review, they can request external review by the Administrative Appeals Tribunal (s 103). Generally, a person has 28 days after they receive notice of the outcome of the internal review to apply for review by the Administrative Appeals Tribunal.

There are no costs involved in making an application to the Administrative Appeals Tribunal, and participants may be eligible to receive free legal assistance and representation from the Northern Territory Legal Aid Commission.

Contacts

Commonwealth Ombudsman

Investigates complaints from people who believe they have been treated unfairly by the National Disability Insurance Agency.

Contact number: 1300 362 072

Complaint form link: https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=oco-complaint-form

Website: http://www.ombudsman.gov.au/

Darwin Community Legal Service

Provides assistance and advocacy for people who wish to apply for the NDIS, who need help requesting a review of a decision or dealing with the National Disability Insurance Agency.

Contact number: 1800 812 953

Contact form link: https://www.dcls.org.au/contact-us/

Website: https://www.dcls.org.au/

National Disability Insurance Agency

Administers the National Disability Insurance Scheme, which includes accepting complaints from people who believe they have been treated unfairly or unreasonably.

Contact number: 1800 800 110

Complaint form link: https://www.ndis.gov.au/medias/documents/h0c/h73/8805125193758/NDIS-Complaint-Form.pdf

Website: http://www.ndis.gov.au/

Northern Territory Anti-Discrimination Commission

Investigates complaints from people who believe they have been discriminated against including complaints from people who have been treated unfairly because of their disability.

Contact number: 1800 813 846Phone: (08) 8999 1444
Freecall: 1800 813 846
Helpline for managers: 1800 813 846

General enquiries and to submit a complaint: antidiscrimination@nt.gov.au

Website: http://www.adc.nt.gov.au

Northern Territory Legal Aid Commission

Provides free legal advice in relation to the NDIS and representation for people seeking review by the Administrative Appeals Tribunal.

Contact number: 1800 019 343

Email queries and requests for representation: civil@legalaid.nt.gov.au

Website: http://www.legalaid.nt.gov.au

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