The National Disability Insurance Scheme (NDIS) and Social Security

admin SOCIAL SECURITY RIGHTS REVIEW

By Rosemary Budavari, Senior Solicitor at Canberra Community Law.

The National Disability Insurance Scheme (NDIS) aims to provide:

  • funded packages for people with permanent and significant disabilities which result in substantially reduced functional capacity in an area or areas of communication, social interaction, learning, mobility, self-care or self-management;
  • funded 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
  • referrals for ‘information, linkages and capacity building’ for people with disability who don’t meet the criteria for a funded package.

The NDIS aims not to duplicate mainstream services for people with disability such as health and social security services.  For example, it will fund aids, equipment and some therapies but it will not fund medical treatment and pharmaceuticals. It does not replace the Disability Support Pension (DSP) and has different eligibility criteria to the DSP.  It is not means tested.

The NDIS will only fund what the National Disability Insurance Agency (NDIA) determines to be ‘reasonable and necessary supports’.

The National Disability Insurance Scheme Act 2013 (Cth) (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).

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

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

The NDIS 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.  As the NDIS is still being rolled out in the Northern Territory, NSW, Queensland, South Australia and Western Australia, there are some additional State and Territory residence requirements in these places relating to residence in particular geographic parts of the State or Territory.

The NDIS disability requirement is for a permanent and significant disability which results in substantially reduced functional capacity in one or more areas of communication, social interaction, learning, mobility, self-care or self-management

The NDIS early intervention requirement is that early intervention would reduce the need for future supports for a person with a disability.

If a person meets the ‘access criteria’ they become a ‘participant’ and the NDIA must facilitate the preparation of a ‘plan’ which includes a statement of goals and aspirations as well as the approved funding for the ‘reasonable and necessary supports’.

The NDIS Act, Rules and Guidelines provide for review of certain NDIA decisions, including decisions that someone does not meet the access criteria or that something is not a ‘reasonable and necessary support’.  The affected person must usually make the request within 3 months of being notified of the decision.  The decision is reviewed by a delegate of the CEO who was not involved in making the decision.  The NDIA reviewer may confirm, vary or set aside the original decision.

An application may be made within 28 days to the Administrative Appeals Tribunal (AAT) to review a decision of a NDIA reviewer.

Appeals from AAT decisions involving errors of law may be made within 28 days to the Federal Court.

There is a growing body of case law from the AAT and the Federal Court about access criteria and about what is a ‘reasonable and necessary support’.  See 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.

An area in which the NDIS currently directly interacts with the social security system is in relation to Mobility Allowance, which is paid by Centrelink to people who need substantial assistance for transport because of their disability.  If a person who receives Mobility Allowance gets a NDIS package, Centrelink will cancel their Mobility Allowance.  The NDIS will fund ‘reasonable and necessary’ transport support although what is ‘reasonable and necessary’ continues to be the subject of litigation, see NDIA v McGarrigle {2017} FCAFC 132. The Full Federal Court upheld a decision remitting a matter to the AAT for rehearing relating to a NDIA assessment that funding 75% of a participant’s transport costs was sufficient for a ‘reasonable and necessary support’.  The outcome of the remitted hearing is not yet known.