National Disability Insurance Scheme

Based on the contribution of Rosemary Budavari for the ACT Law Handbookas amended by ShelleyLandmark (2018) and SolomonBerhane (2025) and current to March 2025

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, which means an individual’s income and assets should not affect their eligibility for supports.

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

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 download an Access Request Form on the NDIS website (https://www.ndis.gov.au/applying-access-ndis/how-apply). Alternatively, you may request a copy an Access Request Form in person at a NDIS office or calling 1800 800 110.

Applications will be assessed by the National Disability Insurance Agency ( the 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 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.

Residence requirements (s23)

A person may apply for the NDIS if they reside in Australia and are an Australian citizen (or the holder of a permanent or special category visa).

Disability requirements (s24)

A person must meet either the disability requirements or the early intervention requirements (see below). The three considerations to meet the disability requirements are outlined below.

First, a person must have a disability attributable to an intellectual, cognitive, neurological, sensory or physical impairment (or an impairment that is attributable to a psychosocial disability) that is, or is likely to be, permanent (the impairment). An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment; NDIS (Becoming a Participant) Rules 2016 (Cth) r 5.4.

Second, the impairment must result in substantially reduced capacity to undertake communication, social interaction, learning, mobility, self-care, and self-management. An impairment results in substantially reduced functional capacity of a person to undertake an aforementioned activity if its result is that:

• the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment or home modifications;
• the person usually requires assistance from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
• the person is unable to participate in the activity or perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

Third, 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)

Alternatively, a person may still be eligible for the NDIS if they satisfy the age requirements, the residence requirements, and the early intervention requirements (instead of the disability requirements).

First, a person must:

• have an intellectual, cognitive, neurological, sensory or physical impairment (or an impairment attributable to a psychosocial disability) that is, or is likely to be, permanent; or
• be a child under six (6) years of age with a delay in their development which:
  • is attributable to a mental and/or physical impairments;
  • results in substantial reduction in functional capacity in self-care, receptive and expressive language, cognitive development, or motor development; and
  • results in the need for care, treatment, or other services that are individually planned for the child over an extended period of time.

An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment; NDIS (Becoming a Participant) Rules 2016 (Cth) r 6.4.

Second, the provision of early intervention supports must be likely to benefit the person by reducing their future need for supports, specifically:

• The provision of support must be likely to mitigate or alleviate the impact of the impairment on the person's functional capacity, prevent the deterioration of functional capacity, improve their functional capacity, or strengthen the sustainability of informal supports available to the person; and
• 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):

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 at [56]:

NDIS Plans

Once a person is assessed as eligible for the NDIS, they become a NDIS participant, and the Agency must prepare a NDIS plan (s32).

NDIS plans are comprised of two components:

1. A statement of goals and aspirations prepared by a participant, which outlines the participant’s living situation and what they hope to achieve by their participation in the NDIS; and
2. A statement of participant supports approved by the Agency, which outlines the supports that will be funded or provided under the NDIS.

A statement of goals and aspirations may 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 of goals and aspirations at any time.

The Minister may make rules declaring that a support is, or is not, a NDIS support. Before making NDIS rules declaring a support is, or is not, a NDIS support, the Minister must be satisfied that the support is, or is not, appropriately funded or provided through the NDIS generally. A support is not a NDIS support if the support consists of the provision of sexual services, alcohol, or illicit drugs.

Generally, a support will not be provided or funded under the NDIS if the support:

• is likely to cause harm to the participant or pose a risk to others;
• is not related to the participant’s disability;
• duplicates other supports delivered under alternative funding through the NDIS; or
• relates to day-to-day living costs (for example, rent and groceries) that are not attributable to a participant’s disability support needs, unless the costs are additional living costs that are incurred by the participant solely and directly as a result of their disability support needs or costs that are ancillary to another support that is funded or provided under the participant’s plan which the participant would not otherwise incur.

A support which is contrary to the law or consists of income will not be provided or funded.

Reasonable and necessary supports

A support may only be funded under a statement of participant supports if it is reasonable and necessary, which means the support:

• addresses the participant’s needs arising from the impairment(s) which met the disability requirements or early intervention requirements;
• will assist the participant to pursue their goals and aspirations;
• will facilitate social and economic participation by assisting the participant to undertake activities;
• the costs of the support are reasonable, relative to the benefits it will achieve and the cost of alternative support;
• will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
• takes account of what is reasonable to expect families, carers, informal networks and the community to provide; and
• the support is an NDIS support.

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 [2017] FCA 308.

Reasonable and necessary supports, generally, fall into three categories:

• Core supports;
• Capital supports; or
• Capacity building supports.

Core supports include:

• Assistance with self-care activities, such as showering or getting dressed;
• Assistance with personal domestic activities, such as housework and essential yard activities;
• Assistance in Supported Independent Living; and
• Disability-related health supports.

Capital supports may include higher-cost assistive technology, home or vehicle modifications, and funding for one-off purchases you may need (including Specialist Disability Accommodation).

Capacity building supports help build a participant’s independence and skills to help them pursue their goals.

Review rights

The NDIS Act provides that certain decisions made by the Agency can be reviewed. 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 reassess a participant’s plan
• a decision to appoint a plan nominee
• decisions about how the Agency treats compensation payouts

Review process

There are 2 stages of the review process, which the participant must follow in order:

1. Internal review by the Agency; then
2. External review by the Administrative Review Tribunal (Tribunal).

Internal review by the National Disability Insurance Agency

A participant (or other person affected by a decision) must apply for an internal review no later than three (3) months after receiving the decision. A request for internal review 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.

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

External review by the Administrative Review Tribunal

If a person is not satisfied with the outcome of an internal review, they can request external review by the Administrative Review Tribunal. A participant (or other person affected by a decision) must apply for an external review no later than 28 days after receiving internal review decision from the National Disability Insurance Agency.

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

Contacts

Administrative Review Tribunal

Reviews decisions made by Australian Government agencies (including the National Disability Insurance Agency), departments, and ministers.

Contact number: 1800 228 333

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

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/

NDIS Quality and Safeguards Commission

Receives and responds to concerns, complaints and reportable incidents about NDIS providers, including abuse and neglect of NDIS participants.

Contact number: 1800 035 544

Complaint form link: https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=PRD00-OCF

Website: https://www.ndiscommission.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: (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 Review Tribunal.

Contact number: 1800 019 343

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

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