The National Disability Insurance Agency (NDIA) is required to decide whether particular disability services, known as ‘participant supports’, are required to be funded under the National Disability Insurance Scheme (NDIS). This guide empowers participants, carers and families by helping them to understand how the NDIA makes funding decisions and how those funding decisions can be challenged.
How are the NDIA funding decisions made?
The NDIA is required to approve participant supports before they are included in a participant’s plan. A participant support will be included in a participant’s plan if the decision-maker at the NDIA answers ‘yes’ to each of the questions set out below.
- Is the participant support a ‘reasonable and necessary support’?
- Is the participant support not prohibited by one of the ‘general criteria’ in the regulations?
If the decision-maker answers ‘yes’ to both of those questions, the participant support will be included in the participant’s plan and will be funded in full. If the decision-maker answers ‘no’ to either of those questions, the particular participant support will not be included in the participant’s plan and will not be funded at all.
When is a participant support a ‘reasonable and necessary support’?
A participant support will be a ‘reasonable and necessary support’ if the decision-maker at the NDIA answers ‘yes’ to each of the six questions set out below.
- Will the support assist the participant to pursue the goals, objectives and aspirations included in his or her statement of goals and aspirations?
- Will the support assist the participant to undertake activities which facilitate his or her participation in the economy and society?
- Does the support represent value for money, taking into account its costs, the benefits of the participant support, and the cost of any alternative supports?
- Is the participant support likely to be effective and beneficial for the participant, having regard to current good practices?
- Does the funding take into account what it is reasonable to expect families, carers, informal networks and societies to provide?
- Is the NDIS the most appropriate way of funding the participant support?
If the decision-maker answers ‘no’ to one of the questions set out above, the particular participant support will not be included in the participant’s plan and will not be funded at all.
When is funding prohibited by the ‘general criteria’ in the regulations?
The NDIA will not be able to fund a participant support if the decision-maker answers ‘yes’ to any of the four questions set out below:
- Is the participant support likely to cause harm to the participant or pose a risk to others?
- Is the participant support unrelated to the participant’s disability?
- Does the participant support duplicate other supports delivered under alternative funding through the NDIS?
- Does the support relate to day-to-day living costs which are not attributable to the participant’s disability support needs?
Can you challenge a funding decision?
A participant is entitled to seek a review of a decision by the decision-maker at the NDIA not to approve a participant support. There are three stages in the review process.
First, the participant can request that the NDIA undertake an internal review of the decision. This request must be lodged within three months of the date on which the decision not to approve the participant support was made. In undertaking an internal review, the NDIA will instruct a different decision-maker to make a new decision on the basis of all of the information that is available at the time of the internal review.
Secondly, the participant can request that the Administrative Appeals Tribunal (AAT) undertake an external review the new decision made by a different decision-maker during the internal review. This request must be lodged within 28 days of the date on which the participant was informed of that decision. In undertaking an external review, the AAT will make a new decision on the basis of all of the information that is available at the time of the external review.
Thirdly, the participant can appeal to the Federal Court of Australia if he or she is dissatisfied with the decision made by the AAT during the external review. Such an appeal can only be lodged on the basis that the AAT made a specific legal error when making its decision. It cannot be lodged on the basis that the participant disagrees with the conclusion reached by the AAT in making its decision. Such an appeal must be lodged within 28 days of the date on which the participant was informed of that decision.
Practical tips for challenging funding decisions
Carers and family members of a participant who wishes to challenge a decision by the NDIA should write a detailed letter to the NDIA outlining why they think that the participant support is a ‘reasonable and necessary support’ and which is not prohibited by one of the ‘general criteria’ in the regulations. The letter should address each of the questions outlined above and indicate how the decision-maker should have answered them. Ideally, there should be a subheading in the letter for each question.
Carers and family members should use the three month period between the date on which the decision was made and the final date on which it is possible to submit an internal review application to compile as much information as is possible to support the application for internal review. Copies of all relevant information should be included in the letter.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.
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