PLEASE NOTE: THIS CHAPTER IS CURRENTLY IN DEVELOPMENT FOR THIS JURISDICTION.

For information about NDIS, please contact the Legal Aid Helpline on 1800 019 343 or the Darwin Community Legal Service on (08) 8982 1111.

National Disability Insurance Scheme

The National Disability Agreement between the Commonwealth, State and Territory governments provides that the Commonwealth is responsible for income support and employment services for people with disability and the States and Territories are responsible for specialist disability services such as accommodation and support until the full rollout of the NDIS.

The National Disability Strategy 2010-2020 (NDS) sets out policy directions and actions for the Commonwealth, State and Territory Governments in the areas of: inclusive and accessible communities; rights protection, justice and legislation; economic security; personal and community support; learning and skills; and health and well-being. An example of a specific action in the NDS is to ensure supported decision-making safeguards are in place for people with disability.

The National Standards for Disability Services promote choice and control by people with disability and apply to disability employment service providers and advocacy services funded under the National Disability Advocacy Program.

NDIS Aims

The NDIS aims to:
  • Provide individual funding packages for people with permanent and significant disabilities which result in substantially reduced functional capacity in the areas of communication, social interaction, learning, mobility, self-care or self-management;
  • Provide individual funding packages for people with disabilities (particularly children) who do not currently have reduced functional capacity but for whom early intervention would reduce the need for future supports; and
  • Fund organisations to provide information, linkages and capacity building services for people with disability who don't meet the criteria for an individual funding package.
The NDIS aims to operate alongside and not duplicate mainstream services for people with disability such as health, education and social security services. For example, it will fund aids, equipment and some therapies but it will not fund medical treatment and medications. It will only fund what the NDIA determines to be 'reasonable and necessary supports'.

It also aims to be a financially sustainable insurance scheme, including by enabling people with disability to work. It is not means tested.

NDIS Legislation and the National Disability Insurance Agency

The NDIS Act commenced on 1 July 2013. It established the NDIA to administer the NDIS. It is supplemented by various National Disability Insurance Scheme Rules ('NDIS Rules') and National Disability Insurance Scheme Operational Guidelines ('NDIS Guidelines').

NDIS Arrangements in the ACT

In 2012 the Commonwealth and ACT Governments signed a bilateral agreement for a NDIS launch site in the ACT which provided for around 5000 people with disability to receive individual funding packages during the three-year launch period.

In 2013 the Commonwealth and ACT Governments signed heads of Agreement on the NDIS which specified the amount of funding that each government would contribute and that the full scheme would operate in the ACT from 1 July 2016.

Under the NDIS arrangements, the ACT Government gradually withdrew from itself providing most specialist disability and therapy services during the launch period. The aim of withdrawing government services was to enable people with funding packages to purchase these services from community based providers of their choice. By January 2017 all residents of government run group homes for people with disability had transitioned to community based providers.

Most ACT Government therapy services are also now being provided by community based organisations.

The ACT Office for Disability now provides strategic advice regarding services for people with disability and not direct services.

Becoming a NDIS Participant

The NDIS Act, Rules and Guidelines establish how a person makes an 'access request' to become a 'participant' and get a funding package. They also establish 'access criteria' which include age; residence; disability and early intervention requirements.

The age requirement is that a person must be under 65 when they make the access request.

The residence requirement is that a person resides in Australia and is an Australian citizen; the holder of a permanent visa; or a protected Special Category Visa holder.

The disability requirement is that a person must have a permanent and significant disability which results in substantially reduced functional capacity in one or more of the areas of communication, social interaction, learning, mobility, self-care or self-management.

The early intervention requirement relates to people with disabilities (particularly children) who do not currently have reduced functional capacity but for whom early intervention would reduce the need for future supports.

There have been several cases in the Administrative Appeals Tribunal (AAT) and the Federal Court about the access criteria to become a participant. For example, the AAT found in several cases that a person had a disability but did not meet the criteria relating to having a substantially reduced capacity for functioning in the areas of communication, social interaction, learning, mobility, self-care or self-management.

NDIS Plans

If a person becomes a participant, the NDIA must facilitate the preparation of a 'plan' which includes a statement of goals and aspirations as well as the funding for the reasonable and necessary supports approved by the NDIA.

For a support to be reasonable and necessary, the NDIA must be satisfied that:
  • The support will assist the participant to pursue their stated goals, objectives and aspirations;
  • The support will assist the participant to undertake activities to facilitate the participant's social and economic participation;
  • The support represents value for money;
  • The support will be effective and beneficial for the participant having regard to current good practice;
  • The funding of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide; and
  • The support is most appropriately funded by the NDIS and not through other systems such as the health or education system.
There have been several cases in the AAT and the Federal Court about what is a reasonable and necessary support. For example, 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. The AAT also found that a form of sound 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.

Review of NDIA Decisions

The NDIS Act and 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. The affected person must usually make the request within 3 months of being notified of the decision. Another NDIA officer who was not involved in making the original decision ('the NDIA reviewer') reviews it. They may confirm, vary or set aside the original decision.

A person applying for an internal review by the NDIA may get assistance from a provider under the National Disability Advocacy Program.

If a person does not agree with a decision of a NDIA reviewer, they can apply to the AAT to review it. They must usually apply within 28 days. People applying for an external review by the AAT may also get assistance from a provider under the National Disability Advocacy Program.

If a person does not agree with a decision of the AAT, they can appeal to the Federal Court if the decision involves an error of law. They must usually appeal within 28 days. There have been several decisions by the Federal Court about the NDIS access criteria to become a participant and about what is a reasonable and necessary support.

People appealing to the Federal Court may be able to get assistance from the ACT Legal Aid Commission.

Review of NDIS Plans

The NDIS Act provides that a plan must include a review date, usually after 12 months.

A participant can also request a review of a plan at any time if there has been a change in their circumstances. The NDIA will decide whether to review the plan or not.

If the NDIA decides not to review the plan, the participant can ask for internal or external review of that decision.

If the NDIA decides to review the plan but makes no changes to it, the participant cannot ask for internal or external review of the decision not to make any changes as that is not a reviewable decision under the NDIS Act.

If the NDIA decides to review the plan and makes changes to the reasonable and necessary supports which the participant does not agree with, the participant can apply for internal and external review of the decision to change the reasonable and necessary supports as this is a reviewable decision.

Regulation of NDIS Providers

In February 2017, the Commonwealth, State and Territory Governments released the NDIS Framework which provides safeguards and quality measures to replace those currently contained in different Commonwealth, State and Territory block funding agreements for disability services.

The NDIS Framework introduces uniform national safeguards for participants such as decision-making support. It also introduces quality standards which providers must meet, including standards for: the training and screening of workers; the reduction of restrictive practices; and compliance with a Code of Conduct. It also requires providers to have an internal complaints system. It also provides for the establishment a national independent regulatory body.

On 4 December 2017, legislation to establish a national independent regulatory body: the NDIS Quality and Safeguards Commission ('the NDIS Commission') was passed. The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures Act 2017 (Cth) ('the NDIS Commission Act') provides that the NDIS Commission will start operating on 1 July 2018.

The NDIS Commission will implement the NDIS Framework in each State and Territory progressively. It will first start operating in NSW and South Australia and is expected to be operating in all States and Territories by 1 July 2020. It is expected to operate in the ACT from 1 July 2019.

The NDIS Commission Act provides for its functions to include managing systems for:
  • The registration and regulation of NDIS providers;
  • Dealing with incidents affecting the wellbeing and safety of people with disability through requiring registered providers to have incident management systems and requiring them to manage and notify 'reportable incidents' which include those relating to the death, serious injury, abuse, neglect, or assault of a person with disability;
  • Dealing with complaints about providers to the NDIS Commission by investigating, and resolving them, as well as requiring registered NDIS providers to have internal complaints mechanisms;
  • 'Behaviour support' plans to reduce and eliminate 'restrictive practices' which include the use of seclusion; chemical, mechanical, physical, psychosocial and environmental restraints; and the withdrawal of activities or items for people with disability.
The NDIS Commission Act and the NDIS Framework provide for:
  • A NDIS Commissioner who will be responsible for the leadership and management of the NDIS Commission and its overall strategic direction;
  • A NDIS Registrar who will be responsible for managing the registration of providers including through Practice Standards and a Code of Conduct;
    • A NDIS Complaints Commissioner who will be responsible for managing complaints and notification of reportable incidents; and
    • A NDIS Senior Practitioner who will be responsible for managing behaviour support plans and initiatives.
The NDIS Commission Act provides for monitoring, investigation and enforcement powers under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) to be used in relation to registered providers and others. It also provides for banning orders to be made in relation to registered NDIS providers in certain circumstances.

Complaints about the NDIA and NDIS providers

Currently, people who want to complain about the NDIA may make an internal complaint to the NDIA itself or contact the Commonwealth Ombudsman who investigates complaints about Australian Government agencies. The Commonwealth Ombudsman's Disability Team has a special role in overseeing complaints about the NDIA.

People who want to complain about NDIS service providers in the ACT can currently contact the NDIA or the ACT Commissioner, who may consider and provide conciliation for complaints about disability services in the ACT. 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.

From 1 July 2018, the NDIS Commission Act will require NDIS providers to have an internal complaints system. The NDIS Commission will also commence operating and will be able to receive complaints about providers from people in NSW and South Australia initially. It anticipates being able to receive complaints about providers in the ACT from 1 July 2019.

Contacts

Australian Human Rights Commission

Investigates and provides conciliation for discrimination complaints, including disability discrimination complaints. Incorporates the office of the Commonwealth Disability Discrimination Commissioner.

Contact number: National Information Service: 1300 656 419 10:00 am to 4:00 pm Monday to Friday
Email: complaints@humanrights.gov.au

Website: https://www.humanrights.gov.au/

Commonwealth Ombudsman

Investigates complaints from people who believe they have been treated unfairly or unreasonably by an Australian Government agency.

Contact number: 1300 362 072 9:00am to 5:00pm Monday to Friday

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

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

National Disability Insurance Agency

The National Disability Insurance Agency provides support for Australians with disability, their families and carers.

Contact number: 1800 800 110 8am to 11pm, Monday to Friday

Online contact form: https://www.ndis.gov.au/form/contact-form.html

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

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