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Introduction

The purpose of this blog is to provide short reviews and commentaries about cases concerning the National Disability Insurance Scheme (NDIS). This blog will try to clearly summarise them , so that they become a useful source of information to people that may need to interact with the NDIS.
The NDIS is one of the most essential forms of support to people with disability in Australia. There are almost 200,000 Australians [opens on new page] receiving support through the NDIS, and the continuing rollout will result in this number growing rapidly.

People with disability, their families and carers face a number of competing demands on their time and resources. On top of this the NDIS can be confusing and bureaucratic. The National Disability Insurance Agency (NDIA) has to give due consideration to the need to ensure the financial stability of the NDIS -National Disability Insurance Scheme Act 2013 (Cth) s 3(3)(b) [opens on new page]. That may mean that a person does not get all of the help t…

'Most appropriately funded or provided through the NDIS' - the difference between education provision and disability provision

Key PointsIt is sometimes hard to see the difference between an educational support which is most appropriately provided by an education system and a disability support that is most appropriately provided by the NDIS. The difference depends on the needs of the particular applicant for support, what they hope to achieve, and what their level of "educational attainment" is.Applicants seeking funding for supports like literacy or numeracy programs should emphasise the importance those programs have for general life skills, independence and community access (as well as for the classroom). That may assist the NDIA to understand that a support is not just for "educational attainment" and it may make them more willing to fund it.IntroductionThe previous entry in this blog (available here - opens in new window) discussed the difficulties with defining what supports are the NDIS's responsibility, and what is 'most appropriately funded or provided through the NDIS…

'Most appropriately funded or provided through the NDIS' - the difference between health provision and disability provision

Key pointsTo be a reasonable and necessary support, a support must be most appropriately provided via the NDIS. Whether a support is a health support that should be funded through the health system, or a disability support that should be funded through the NDIS, is a difficult distinction to make. It depends on the facts.The fact that a support is not available through the health system, or the support is limited, does not mean that it will be available through the NDIS.Participants seeking NDIS funding for supports that might look like health supports should emphasise how the support will enable the participant to take part in activities in the community.IntroductionSection 34(f) of the NDIS Act [opens in new window] states that in order for a support to be a 'reasonable and necessary support' for the purposes of the NDIS, the NDIA must be satisfied that the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided thr…

Some recent updates to the blog

I've made some changes to the layout and appearance of the blog. I've taken advice about how to make the blog more accessible, particularly for people with disability. I am very grateful to Ria Andriana, James Wilmot and others who have offered feedback.

It is important to me that this blog is as accessible as possible, because I want it to be helpful to people with disability and others that deal with the NDIS. If anyone has any other suggestions, then please let me know by commenting.

Taxis and Transport; whether necessary and reasonable supports need to be fully funded

Key pointsCurrent case law suggests that if a support is reasonable and necessary, then the NDIA must fully fund it.It is hard to see how the NDIA's transport policy could be consistent with this, given that it puts people into 3 different tiers of funding. Fully funding transport supports might cost more than the upper tier allows. But we will have to wait for a case that challenges the policy directly. FactsLiam McGarrigle is a young man with autism spectrum disorder who lives outside of Geelong. He is a participant in the NDIA. He attended a group program and a disability enterprise in Geelong. He needed a taxi to take him there. In 2014-2015 the NDIA fully funded the cost of transport, but it said that this was only a temporary measure.

In 2015-2016 the NDIA offered to provide only about 50% of the cost of transport (on internal review the NDIA increased this to 75%). Liam sought review of this decision in the AAT.
DecisionsThe AATIt was agreed that the transport costs was a sup…

Informal support networks; Review process overtaken by a new plan coming in to force - QZHH and NDIA [2018] AATA 1465

A recent decision of the AAT called QZHH and NDIA [2018] AATA 1465 [opens in new page] is helpful for understanding how the NDIA and Tribunal have regard to the role of informal support networks. The decision also explains what happens if the review process for an NDIS support plan is still ongoing when the next plan comes in.

Key pointsThe key points from this decision are:
     The NDIA(and the Tribunal) expect informal support networks, e.g. parents, guardians, or carers to provide support to NDIS participants. This must be given consideration when deciding what supports are necessary under the NDIS – see NDIS Act s 31 [opens in new page]. Even if the participant’s needs are complex, the NDIA will still consider what sort of support should be expected from the informal network. The NDIA will need to consider the ‘lived experience’ of carers. That will include any psychological or physical limitations on being able to care for the participant. Carers of NDIS participants should make su…