Access
The National Disability Insurance Scheme (NDIS) provides funding to eligible people with disability to purchase the supports they need. The NDIS is implemented by the National Disability Insurance Agency (NDIA).
At the time of writing, there have been significant changes to the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), but a great deal of the detail of the impacts of these changes relies on release of the underpinning rules, which have not yet been made available. All legislative references in this part refer to the NDIS Act unless otherwise stated.
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To gain access to the NDIS, a person must meet all of the following criteria:
Australian residents who hold Australian citizenship, a permanent visa or special category protected visa;
are under 65 years of age at the time of the application; and
meet the disability or early intervention requirements.
The first two criteria are clear, there is no room for discretion or interpretation.
The disability or early intervention requirements rely on relevant medical evidence as to the nature of the disability and extent of impairment.
The ‘disability requirements’ are outlined in section 24(1) of the NDIS Act as:
a. the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable;
b. the impairment/s are, or are likely to be, permanent; and
c. the impairment/s result in substantially reduced functional capacity to undertake one or more of the following activities:
i. communication;
ii. social interaction;
iii. learning;
iv. mobility;
v. self-care; or
vi. self-management; and
d. the impairment/s affect the person’s capacity for social or economic participation; and
e. the person is likely to require NDIS supports under the NDIS for their lifetime.
If a person does not meet the disability requirements, they can still meet NDIS access if they satisfy the early intervention criteria in section 25(1) of the NDIS Act:
a. the person:
i. has one or more intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
ii. has one or more impairments to which a psychosocial disability is attributable and are, or are likely to be, permanent; or
iii. is a child who has a developmental delay; and
b. early intervention supports are likely to benefit the person by reducing their future disability support needs; and
c. early intervention supports are likely to benefit the person by:
i. mitigating or alleviating the impact upon the functional capacity of the person to undertake any of the activities in section 24(1)(c); or
ii. preventing deterioration of functional capacity; or
iii. improving functional capacity; or
iv. strengthening the sustainability of informal supports available, including through capacity building of the person’s carer.
d. the supports that would likely provide the benefit to the person are NDIS supports.
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A person can make an access request in any of the following ways:
download the NDIS Access Request Form available on the NDIS website. Send the completed form by email or mail to the NDIA, along with supporting documentation;
call the NDIA on 1800 800 110 to make a verbal access request. Supporting documentation will still need to be provided;
speak with their local NDIS partner, called Local Area Coordinators (LAC).
LACs can assist people to complete the NDIS forms and explain what further documentation may be useful. LACs can also assist to link people with non-NDIS services in their community.
LACs cannot decide whether a person meets the access criteria or not. This can only be decided by a delegate from the NDIA. Speaking with an LAC is entirely optional and a person is entitled to make an access request to the NDIA any time they wish.
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The NDIA must respond to access requests within 21 days. The NDIA can make a decision if access is met or not met. Alternatively, the NDIA can request the person provide further information or undergo an assessment by a medical or allied health expert.
The person must provide the requested information within 90 days or otherwise obtain an approved extension from the NDIA. If the timeframe lapses, the person’s access request is taken to be withdrawn. Once the requested information has been provided, the NDIA has 14 days to make a decision.
If the NDIA does not provide a response to an access request within 21 days or within 14 days of receiving requested material, this is taken as an access ‘not met’ decision and proceeds to an internal review (s 21(3)).
If a person is nearing 65 years of age, it is essential that the access request is submitted before they turn 65. A person can meet NDIS access after turning 65 as long as the application was submitted before they turned 65. In these circumstances it is particularly important that the person does not let additional information or review timeframes lapse. Review timeframes are discussed further below.
The NDIA must commence facilitating preparation of an initial NDIS plan within 21 days of the person becoming a participant.
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Once an access met decision has been made, the NDIA must provide a written notice to the participant stating the date they became a participant and whether access has been met due to satisfying the early intervention requirements, the disability requirements or both thereof.
Effective 3 October 2024, the NDIA must, as soon as practicable after the person becomes a participant, provide a notice stating which category of impairment the NDIA have decided meets the disability and/or early intervention criteria. This has direct implications on which supports the participant will be able to utilise.
The NDIA have indicated that they will commence issuing these notices to new participants on 1 January 2025. No date has been set for existing participants to be advised with respect to the impairment which the NDIA has deemed them to have met access criteria.
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A person ceases to be an NDIS participant when:
a they enter a residential aged care service or start receiving aged care home services on a permanent basis after turning 65 years of age;
b the person notifies the NDIA in writing they no longer wish to be a participant; or
c the NDIA revoke participant status as they are satisfied the person no longer meets the residence, disability or early intervention criteria.
When considering whether to revoke participant status, the NDIA may make requests for additional information or for the participant to undergo a medical, psychiatric, psychological or other type of examination. The NDIA must only make a request for an assessment if they believe the assessment would provide information that cannot otherwise be reasonably obtained.
The requested information and/or report following assessment must be provided to the NDIA within 90 days or such longer period approved by the NDIA. If a participant does not comply within the timeframe, they need to satisfy the NDIA that it was reasonable in the circumstances that they could not comply, otherwise the NDIA may revoke their participant status.
The NDIA must give written notice of the date the revocation takes effect. If the participant continues to access the supports in their plan after access is revoked, they are responsible for payment for these supports.
Revocation of participant status is a reviewable decision.
Section 30A of the NDIS Act allows for rules to be created to direct when the NDIA must consider a participant’s status. The rules are not yet available.
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A person can be an NDIS participant even if they are receiving support from another insurance scheme or assistance program, such as Transport Accident Commission support or Workcover, or are in receipt of compensation payments or a lump sum settlement for a personal injury.
If a person meets the NDIS access criteria, noting the disability and early intervention criteria requiring the person to need NDIS supports, there is nothing to preclude NDIS access for a person on another scheme.
The NDIS will not duplicate or replace supports that are more appropriately funded by another scheme or by compensation received.
Access
Chapter: 8.2 Understanding the National Disability Insurance Scheme
Contributor: Naomi Anderson, Legal Practice Manager, Villamanta Disability Rights Legal Service, and Marcus Boere, Lawyer, Victoria Legal Aid; Elise Almond, Senior Lawyer, Villamanta Disability Rights Legal Service; John Morrissey, Professional Support Lawyer, Victoria Legal Aid
Current as of: 3 October 2024
Law Handbook Page: 709
Next Section: Planning
